BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
[New search]
[Contents list]
[Printable RTF version]
[Help]
FIFTH
SECTION
CASE OF
BOČVARSKA v. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA
(Application
no. 27865/02)
JUDGMENT
STRASBOURG
17
September 2009
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of BOČVARSKA v. the former Yugoslav Republic of
Macedonia,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer
Lorenzen,
President,
Renate
Jaeger,
Karel
Jungwiert,
Rait
Maruste,
Mark
Villiger,
Mirjana
Lazarova Trajkovska,
Zdravka
Kalaydjieva,
judges,
and
Claudia Westerdiek, Section
Registrar,
Having
deliberated in private on 6 November 2007 and on 25 August 2009,
Delivers
the following judgment, which was adopted on the last mentioned
date:
PROCEDURE
- The
case originated in an application (no. 27865/02) against the former
Yugoslav Republic of Macedonia lodged with the Court under Article 34
of the Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by two Macedonian nationals,
Ms Nevenka Bočvarska and Mr Angel Kupev, on 29 April 2002.
- By
a decision of 6 November 2007, the Court declared the application
partly admissible only in respect of Ms Bočvarska (“the
applicant”).
- The
applicant was represented by Ms L. Vanevska, a lawyer practising in
Skopje. The Macedonian Government (“the Government”) were
represented by their Agent, Mrs R. Lazareska Gerovska.
- The
applicant alleged, in particular, that she had been deprived of the
peaceful enjoyment of her possession and that the proceedings in
question had been unreasonably lengthy.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The applicant was born in 1958 and lives in Skopje.
- According
to an official note of the Ministry of Finance of 1997, the applicant
and Mr Angel Kupev registered Naša Kniga STD (самостоен
трговски дукан,
“the undertaking”, as opposed to companies incorporated
under company law) through which they pursued business activities.
On 17 July 1992 they ceased trading through the
undertaking. On 8 February 1993 the undertaking was
re-registered in the name of the applicant. The undertaking operated
until 22 February 1995, when its activities were voluntarily
terminated.
A. Civil proceedings establishing the undertaking's claim
- On
23 June 1993 the Skopje District Commercial Court (Окружен
Стопански суд)
upheld the undertaking's claim and ordered AD Gazela (“the
debtor”) to pay a debt amounting to 1,393,377.70 old Macedonian
denars (MKD) plus interest. The court found that the debtor and the
undertaking had concluded a framework agreement under which the
latter would produce paper products for the debtor. As the debtor had
failed to pay for the products made, the court upheld the
undertaking's claim.
-
On 10 September 1993 the Macedonia-Skopje Commercial Court (Стопански
суд на Македонија),
sitting as an appellate court, dismissed an appeal by the
debtor and upheld the lower court's decision. On 22 March 1994
the Supreme Court dismissed an appeal on points of law (ревизија)
by the debtor and upheld the lower
courts' decisions.
B. Enforcement proceedings, as initially instituted by the
undertaking
- On
2 October 1993 the undertaking requested enforcement of the judgment
debt, proposing the following means of enforcement: transfer of the
money due from the debtor's account and an inventory, evaluation and
public auction of the debtor's movable and immovable property. On
8 October 1993 the Skopje District Commercial Court granted the
undertaking's request and ordered the debtor to pay the debt. On
3 November 1993 it dismissed an objection by the debtor.
- On
26 November 1993 the District Commercial Court dismissed a request by
the debtor for postponement of enforcement. On 25 December 1993
the Commercial Court dismissed an appeal by the debtor and upheld its
decision.
- On
9 June 1994 the District Commercial Court upheld an objection by the
debtor and discontinued the enforcement proceedings in so far as they
concerned interest.
- On
2 September 1994 the District Commercial Court ordered the Public
Payment Office to require the bank in which the debtor had had its
foreign currency account to transfer the balance due to the
undertaking's account. It also ordered the bank not to make any
payments from the debtor's account to other parties until the
undertaking's claim had been completely honoured. The court
established that the undertaking had received part of the judgment
debt. It further noted that, as there were no other funds available
in the debtor's account, on 25 July 1994 the undertaking had
requested the court to satisfy its claim from other accounts
belonging to the debtor.
- On
6 October 1994 the undertaking, represented by Mr A. Kupev, and the
debtor reached a court settlement (“the 1994 settlement”)
concerning the means of securing payment of the remaining balance,
which amounted to MKD 21,774,593.00 (844,631 German marks). The
undertaking agreed to receive the balance in twelve equal instalments
within a year.
- As
the debtor did not pay the debt as agreed, on 27 October 1994 the
District Commercial Court ordered an inventory and public auction of
the debtor's vehicles. On 30 November 1994 the Commercial Court
dismissed an appeal by the debtor and upheld the lower court's
decision.
- On
12 January 1995 the District Commercial Court partly allowed a
request by the debtor for postponement of the enforcement in respect
of some heavy goods vehicles and a bus. On 29 January 1996 the court
ordered the confiscated vehicles to be returned to the debtor as they
were necessary for its work. On 29 August 1996 the Skopje Court of
Appeal (Апелационен
суд) upheld
those decisions.
- On
14 April 1997 the Skopje Court of First Instance (Основен
суд) dismissed
a request by the debtor to postpone enforcement of the 1994
settlement.
- On
23 September 1997 the Court of First Instance upheld an objection by
the debtor, who had argued that the undertaking had no legal capacity
as a creditor in the proceedings as it had ceased to exist. It also
stayed the enforcement proceedings and ordered the Public Payment
Office to lift the charging orders on the debtor's accounts. It
dismissed the applicant's arguments that she was a successor to the
undertaking and that there had been a continuity of the undertaking's
claims. On 30 April 1998 the Court of Appeal dismissed an appeal by
the undertaking as inadmissible.
C. Enforcement proceedings regarding the 1994 settlement
- Pending
the proceedings described above, on 14 June 1996 the Skopje Municipal
Court granted the undertaking's request of 10 January 1996
and issued a charging order on one of the debtor's shops (“the
shop”). On 2 September 1996 the Skopje Court of First
Instance dismissed an objection by the debtor. On 31 October 1996
the Court of Appeal quashed the lower court's decision and ordered a
re-examination of the case. On 21 November 1996 the Skopje Court
of First Instance suspended the charging order, as the shop had been
exempted from enforcement since it was necessary for the debtor's
work. On 24 January 1997 the Court of Appeal quashed that
decision and ordered a re-examination of the case. On 7 July 1997 the
Court of First Instance dismissed an objection by the debtor.
- On
18 February 1997 the undertaking requested the court to enforce the
claim as established by the 1994 settlement. On 24 February 1997 the
Court of First Instance granted the undertaking's request for the
sale of the debtor's shop in respect of the principal debt, which had
amounted to DM 844,631, together with interest between 11 October
1994 until settlement, plus trial costs. On 19 March 1997 the Court
of First Instance partly upheld an objection by the debtor and
suspended the enforcement proceedings in so far as they concerned
interest.
- On
12 June 1997 the Court of Appeal allowed an appeal by the debtor and
quashed the decision of 19 March 1997. It found that the lower court
had failed to determine the debtor's objection as to whether other
enforcement proceedings had already been pending between the same
parties on the same subject.
- On
8 July 1997 the Court of First Instance partly upheld an objection by
the debtor and suspended the enforcement proceedings in so far as
they concerned interest. The order for the sale of the shop remained
unaffected.
- On
12 September 1997 the Court of Appeal dismissed an appeal by the
debtor and upheld the lower court's decision.
- On
26 November 1997 the public prosecutor lodged with the Supreme Court
a request for the protection of legality (барање
за заштита на
законитоста)
(“legality review request”) challenging the legality
of the lower courts' decisions of 8 July and 12 September 1997. It
argued that the 1994 settlement could not be regarded as an
enforcement order (извршна
исправа)
as it had been concluded while the enforcement proceedings
were already pending and it had merely concerned the means of
enforcing payment of the outstanding debt. The public prosecutor's
office further contested, inter alia, the legal capacity of
the undertaking in the enforcement proceedings as it had ceased to
exist before it had lodged its application for enforcement on 18
February 1997. On 1 December 1997 the undertaking made
submissions in reply.
- On
29 January 1998 the Supreme Court upheld the public prosecutor's
legality review request and quashed the impugned decisions. It found
that the lower courts had wrongly considered the 1994 settlement to
be an enforcement order that could validly be enforced. It instructed
them, inter alia, to reconsider the undertaking's legal
capacity as a creditor in the enforcement proceedings.
- On
2 April 1998 the Skopje Court of First Instance upheld the debtor's
objection concerning the undertaking's capacity to take part in the
proceedings as a creditor. It dismissed the undertaking's application
for enforcement and ordered the proceedings to be resumed in the name
of the applicant as a creditor. It held that the applicant had been
the last person who had pursued business activities through the
undertaking before it had ceased to exist. As the undertaking did not
have the capacity of a legal entity, all its rights and obligations,
including its claim against the debtor, had to be considered to have
been transferred to the applicant, as the physical person who had run
it.
- On
11 June 1998 the Skopje Court of Appeal upheld the lower court's
decision, finding no grounds to depart from the reasons given.
- On
22 September 1998 the public prosecutor submitted a fresh legality
review request to the Supreme Court, challenging the legality of
those decisions and claiming that the applicant lacked the legal
capacity to replace the undertaking and take over the enforcement
proceedings as a creditor. It further disputed that the 1994
settlement could not be regarded as an enforcement order, as the
enforcement proceedings had already been pending at the time when it
had been concluded. On or about 29 September 1998, the
applicant, who was legally represented, made submissions in reply to
the public prosecutor's legality review request.
- On
11 November 1998 the Supreme Court upheld the public prosecutor's
request and quashed the lower courts' decisions. It found that they
had failed to establish whether the enforcement proceedings had been
pending before the 1994 settlement was concluded. It further held it
to be irrelevant that the undertaking had ceased to operate, as the
undertaking's founders bore its rights and obligations and it had
been their responsibility to establish their status before the
courts.
- On
17 March 1999 the Court of First Instance ordered the enforcement of
the 1994 settlement by sale of the shop in favour of the applicant.
It held that the enforcement proceedings, which had been instituted
before the 1994 settlement, had ended with the first-instance court's
decision of September 1997. It further recognised the applicant's
capacity to take over the undertaking's claim and to be given the
status of a creditor.
- On
13 May 1999 the Court of Appeal upheld the lower court's decision and
dismissed an appeal by the debtor, which had submitted, inter
alia, that the applicant had failed to establish that she had
taken over the undertaking's claim.
- On
9 June 1999 the public prosecutor lodged a third legality review
request with the Supreme Court. The public prosecutor's office
reiterated its earlier allegations that the 1994 settlement could not
be regarded as an enforcement order and that the applicant could not
automatically be considered to have taken over the undertaking's
claim.
- On
17 February 2000 the Supreme Court quashed the lower courts'
decisions. It found that they had erroneously established that the
applicant had taken over the undertaking's claims ipso jure as
she had been the last proprietor of the undertaking. It further
instructed them to verify whether there had been a valid certificate
by which the undertaking's claim had been transferred to the
applicant.
- On
23 June 2000 the Court of First Instance requested the applicant to
provide, in accordance with section 22 of the Enforcement Act (see
paragraph 51 below), written evidence that the undertaking's claim
had been transferred to her. On 29 June 2000 the applicant submitted
documents to the court, including a balance sheet (биланс
на приходи и
расходи),
bank account details, a receipt (признаница)
and a certificate issued by a bank.
- On
6 October 2000 the Court of First Instance dismissed the applicant's
application for enforcement of the claim as established by the 1994
settlement. Following the Supreme Court's instructions, it held that
there had been no valid certificate by which the undertaking's claim
had been transferred to the applicant. It therefore concluded that
the latter could not claim to have the status of a creditor.
- On
1 March 2001 the Court of Appeal quashed the decision as the lower
court had failed to establish whether the applicant had owned and run
the undertaking as a sole proprietor.
- On
15 June 2001 the Court of First Instance dismissed the applicant's
request as ill-founded. It found that the documents submitted to the
court on 29 June 2000 could not be regarded as a valid certificate by
which the undertaking's claim had been transferred to the applicant.
It concluded that the applicant could not ipso jure have taken
over the undertaking's claim.
- On
6 September 2001 the Court of Appeal overturned the decision and
partly allowed the applicant's application for enforcement of the
principal debt indicated in the 1994 settlement. It dismissed the
applicant's request for payment of the interest. It found, inter
alia:
“...it is irrefutable that the creditor, Ms
Bočvarska, owned the undertaking ..., which had no legal
capacity... The fact that Ms Bočvarska carried out transactions
on the market through the undertaking at the time when the latter
still operated implied that she was responsible for all the rights
and obligations arising from it... the lack of legal capacity of the
undertaking ..., whose proprietor was the creditor [the applicant],
means that it was not a separate legal entity, but that its capacity,
regarded as a pool of rights and obligations, is vested solely in the
creditor, Ms Bočvarska ... there is no transfer of the
undertaking's claims to Ms Bočvarska, as the former does not
have legal capacity, but the creditor [the applicant] was ... liable
for the undertaking's obligations...”
- On
or about 15 January 2002 the public prosecutor lodged a fourth
legality review request with the Supreme Court in respect of the
Court of Appeal's decision.
- At
the public prosecutor's request, on 28 January 2002 the Court of
First Instance postponed the enforcement of the order until the
Supreme Court had determined the legality review request.
- On
the same date, the applicant made submissions to the Court of First
Instance in reply to the public prosecutor's request.
- On
30 May 2002 the Supreme Court upheld the public prosecutor's request,
overturned the Court of Appeal's decision and upheld the
first-instance court's decision of 15 June 2001. It found, inter
alia, that the lower courts had established the following facts:
“...the enforcement proceedings were pending
before the District Commercial Court between the [undertaking] and
[the debtor]. On 6 October 1994 they concluded a court settlement on
the basis of which the enforcement proceedings were instituted... on
23 September 1997 the Skopje Court of First Instance stayed the
proceedings... on 30 April 1998 the Court of Appeal rejected the
[undertaking's] appeal as inadmissible [these decisions concern the
enforcement proceedings instituted before the 1994 settlement was
concluded]... on 8 February 1993 the [undertaking] was registered in
the name of Ms Bočvarska.... On 22 February 1995 [the
undertaking]... ceased to exist. Ms Bočvarska was the last sole
proprietor of the [undertaking], which had been set up by her funds
and her labour force.”
- The
court went on to conclude that the Court of Appeal had wrongly
applied the substantive law for the following reasons:
“In the present case, the requirements of the
provision cited above [referring to section 22 of the Enforcement
Proceedings Act], for the granting of enforcement at the request of a
person not indicated as a creditor in the enforcement order, were not
satisfied. There is no written certificate attesting that the claim
was transferred from [the undertaking] to Ms Bočvarska, as a
creditor. The termination of the undertaking's operations does not
ipso jure entail the transfer of its claims to the last
proprietor who ran it. Indeed, the Entrepreneurship Act did not
contain a provision providing for ipso jure transfer of the
undertaking's claims to the last proprietor who ran it ... Moreover,
the court settlement of 6 October 1994 cannot be regarded as an
enforcement order as it resulted from the enforcement proceedings
already pending between the same creditor [meaning the undertaking]
and the debtor... the subject of this settlement was the means of
enforcing the outstanding debt...”
- The
decision was served on the applicant on 25 July 2002.
II. RELEVANT DOMESTIC LAW
1. The Constitution
- Article
101 of the Constitution provides that the Supreme Court is the
highest court and that it ensures the uniform application of the laws
by the courts.
2. Entrepreneurship
Act (Закон
за самостојно
вршење дејност
со личен труд)
of 1989
- Section
3 (1 and 3) of the Entrepreneurship Act provided that an entrepreneur
could set up an undertaking (дуќан),
in order to pursue business activities. The undertaking
could have a legal personality.
- Section
10 provided that an entrepreneur could set up an undertaking by
submitting an application to the relevant municipal administrative
body.
- In
accordance with section 16 § 1 (1) of that Act, an undertaking
would cease to exist if the above application had been withdrawn.
3. Enforcement Proceedings Act (Закон
за извршната
постапка)
of 1997
- Section
7 (6) of the Enforcement Proceedings Act (“the Act”), as
applicable at that time, provided that a decision given on an appeal
was regarded as final.
- Under
section 8 of the Act, an appeal on points of law and a request for
reopening of the proceedings could not be lodged in respect of a
final decision given in the enforcement proceedings.
- Section
13 of the Act provided that the provisions of the 1998 Act applied,
mutatis mutandis, to enforcement and security proceedings,
unless otherwise provided for by law.
- Under
section 15 (2), an enforceable court decision and a court settlement
were regarded as an enforcement order.
- Section
22 (1) of the Act provided that enforcement might be granted at the
request of a person not indicated as a creditor in an enforcement
order only if that person proved, by a public or otherwise legally
certified order, that the claim had been transferred to him or her.
Should that be impossible, the transfer of the claim was to be proved
by a final decision given in civil proceedings.
4. Civil
Proceedings Act
(Закон за
парничната
постапка)
of 1998
- Section
319 of the Civil Proceedings Act (“the 1998 Act”), which
was in force at the material time, provided that a decision became
final when an appeal could no longer be lodged against it.
- In
accordance with section 380 (1) of the 1998 Act, in case of
substantial procedural flaws, the Supreme Court quashed the first-
and the second-instance decision or the second-instance decision only
and referred the case back for reconsideration.
- Section
381 of the 1998 Act provided that where the substantive law had been
applied incorrectly, the Supreme Court upheld the appeal on points of
law and overturned the impugned decision. In cases where the facts
were erroneously established because of the incorrect application of
the substantive law and where there were no grounds for overturning
the impugned decision, the Supreme Court upheld the appeal on points
of law and referred the case back for fresh consideration.
- In
accordance with section 387 of the 1998 Act, the public prosecutor
could submit, within three months, a request for the protection of
legality in respect of a final decision. When the request was lodged
in respect of a second-instance decision, this term started to
run from the date on which the last party was served with the
decision. Where the parties concerned had lodged an appeal on points
of law against the second-instance decision, the public prosecutor
could submit a request for the protection of legality in respect of
that decision within thirty days of the date of service of the appeal
on points of law.
- In
accordance with section 390, a legality review request could be
lodged either in respect of a substantial procedural flaw or an
incorrect application of the substantive law. It could not be lodged
where the impugned decision went beyond the scope of the claim or
where the facts had been erroneously or incompletely established.
- Section
394(2) of the Act provided, inter alia, that sections 370,
373 to 381 and 383 to 385 applied, mutatis mutandis, to
proceedings concerning a legality review request.
5. Civil Proceedings Act of 2005
- The
Act, which repealed the 1998 Act, does not contain any provisions
concerning the legality review proceedings.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
- The
applicant complained that the length of the enforcement proceedings
had been incompatible with the “reasonable time”
requirement laid down in Article 6 § 1 of the Convention, which,
in so far as relevant, reads as follows:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal...”
1. The parties' submissions
- The
applicant submitted that the enforcement proceedings were to be
regarded as a single set and that the excessive use of the
extraordinary legality review request had affected their length. She
further stated that the case had not been of a complex nature and
that she could not be held responsible for the repeated use of
available remedies by the debtor and public prosecutor.
- The
Government submitted that the case had in fact been of a complex
nature as it had required determination of difficult legal issues:
the applicant's capacity to act; whether other enforcement
proceedings had already been pending between the same parties at the
time when the undertaking had requested enforcement of the 1994
settlement; and whether the latter should be regarded as an
enforcement order.
- They
further argued that the applicant had contributed to the length of
the proceedings by failing to submit any written evidence in support
of her allegations that the undertaking's claim had been transferred
to her until June 2000. They referred also to the extensive use of
all available remedies by the debtor and its poor economic situation.
- As
regards the conduct of the authorities, the Government maintained
that the courts had taken all reasonable steps to avoid unnecessary
delays.
2. The Court's assessment
- The
Court notes that the enforcement proceedings were instituted on 2
October 1993, when the undertaking sought enforcement of the Skopje
District Commercial Court's decision dated 23 June 1993. As
established by the national courts, these proceedings ended on 30
April 1998 (see paragraph 17 above). On 18 February 1997 another
set of enforcement proceedings was instituted in respect of the 1994
settlement. These two sets of proceedings concerned the same parties
and means of enforcement. The applicant was party to both sets,
either as the undertaking's proprietor and representative or in
person. She can accordingly be regarded as being entitled to complain
about the proceedings from their inception (see Cocchiarella v.
Italy [GC], no. 64886/01, § 113, ECHR 2006).
- The
enforcement proceedings ended on 25 July 2002, when the Supreme Court
decision was served on the applicant. They thus lasted for nearly
eight years and ten months, of which five years, three months and
fifteen days fall within the Court's jurisdiction ratione temporis
(since the ratification of the Convention by the respondent State on
10 April 1997) at three court levels. The Court further observes
that, in order to determine the reasonableness of the period in
question, regard must also be had to the state of the case on the
date of ratification (see Atanasovic and Others v. the former
Yugoslav Republic of Macedonia, no. 13886/02, § 26, 22
December 2005) and notes that on 10 April 1997 the enforcement
proceedings complained of had already been pending for over three
years and two months.
67. The Court reiterates that the “right to a court”
would be illusory if a Contracting State's domestic legal system
allowed a final, binding judicial decision to remain inoperative to
the detriment of one party. Execution of a judgment given by any
court must therefore be regarded as an integral part of the “trial”
for the purposes of Article 6. The State has an obligation under
Article 6 to organise a system for the enforcement of judgments that
is effective both in law and in practice and ensures their
enforcement without undue delay (see Jankulovski v. the former
Yugoslav Republic of Macedonia, no. 6906/03,
§§ 33 and 37, 3 July 2008).
- The
Court reiterates that the reasonableness of the length of proceedings
must be assessed in the light of the circumstances of the case and
with reference to the following criteria: the complexity of the case,
the conduct of the applicant and the relevant authorities and what
was at stake for the applicant in the dispute (see Atanasovic and
Others, cited above, § 33,
which also concerned enforcement proceedings).
- In
the present case, the Court observes that although the case was of
some legal complexity, that factor alone cannot justify the length of
the proceedings.
- It
also considers that there were no delays attributable to the
applicant. The latter cannot be held responsible for the procedural
conduct of the debtor and public prosecutor (see Graberska v. the
former Yugoslav Republic of Macedonia, no. 6924/03, § 61,
14 June 2007, and Stojanov v. the former Yugoslav
Republic of Macedonia, no. 34215/02, § 57,
31 May 2007).
- As
regards the conduct of the authorities, the Court notes that, during
the period under consideration, the applicant's case was reconsidered
on five occasions. The domestic courts cannot therefore be said to
have been inactive. However, the Court notes that repetition of
remittal orders within one set of proceedings discloses a serious
deficiency in the judicial system (see Pavlyulynets v. Ukraine,
no. 70767/01, § 51, 6 September 2005, and Wierciszewska
v. Poland, no. 41431/98, § 46, 25 November 2003).
The main reason for the numerous remittals was the different legal
opinion of the domestic courts regarding legal matters indicated by
the Government (see paragraph 60 above). It was those issues that
affected the length of the enforcement proceedings.
- Having
examined all the material submitted to it, the Court considers that
in the instant case the length of the enforcement proceedings was
excessive and failed to meet the “reasonable time”
requirement of Article 6 § 1 of the Convention.
- There
has accordingly been a breach of that provision.
II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 OF
THE CONVENTION
- The
applicant complained under Article 1 of Protocol No. 1 that she had
been prevented from obtaining payment of the undertaking's debt,
although she had been its last sole proprietor. Article 1 of Protocol
No. 1 reads as follows:
“Every natural or legal person is entitled to the
peaceful enjoyment of his possessions. No one shall be deprived of
his possessions except in the public interest and subject to the
conditions provided for by law and by the general principles of
international law.
The preceding provisions shall not, however, in any way
impair the right of a State to enforce such laws as it deems
necessary to control the use of property in accordance with the
general interest or to secure the payment of taxes or other
contributions or penalties.”
1. The parties' submissions
- The
applicant maintained that she had a possession within the meaning of
the provision relied on. She stated that the undertaking should not
be regarded as a legal entity, but as a physical person whose
business activities had been registered with the authorised Ministry.
Indeed, its proprietors were personally liable for the undertaking's
debts and obligations vis-à-vis third parties. She
further submitted that the public prosecutor's interference in the
proceedings had not been in the public interest for the following
reasons: he had been biased; he had represented the private interests
of only one of the parties concerned; and the substantive law had
been incorrectly applied.
- The
Government submitted that contrary to the undertaking's claim, which
could have fallen within the ambit of Article 1 of Protocol No. 1,
the applicant could not be considered to have had a “possession”
within the meaning of this Article, since she had failed to establish
that the undertaking's claim had been transferred to her. They
averred that the applicant had not been granted the status of a
creditor by an irreversible decision. Although she had been
established as a creditor by three final decisions of the Court of
Appeal, the latter had been reviewed by the Supreme Court, which, in
accordance with the principle of legality, had upheld the
prosecutor's legality review requests.
- They
further stated that the applicant, even assuming that she might have
been regarded as having had a “possession” under this
provision, had been deprived of it in the public interest and in
accordance with the conditions provided for by law. The alleged
deprivation was based on the public prosecutor's legality review
request, an extraordinary remedy aimed at ensuring the uniformity of
the legal system and the principle of legality. Furthermore, the
State had, through that remedy, exercised its power of review in
cases where a law or an international agreement had been infringed by
a final court decision.
2. The Court's assessment
(a) Whether there was a possession
- The
Court of Appeal, by its decision of 6 September 2001, conferred on
the applicant an enforceable claim by establishing that the
undertaking's capacity was vested solely in her. This decision became
final as no ordinary appeal lay against it (see paragraphs 48 and 49
above). That claim may be regarded as a “possession” for
the purposes of Article 1 of Protocol No. 1 (see Stran Greek
Refineries and Stratis Andreadis v. Greece, judgment of
9 December 1994, Series A no. 301-B, p. 84, § 59;
Burdov v. Russia, no. 59498/00, § 40, ECHR
2002 III; Roşca v. Moldova, no. 6267/02,
§ 31, 22 March 2005; and Ryabykh v. Russia,
no. 52854/99, § 61, ECHR 2003 IX).
(b) Whether there was interference
- It
is the established jurisprudence of this Court that the quashing of a
final and binding judgment that conferred a “possession”
on the applicant constitutes an interference with the applicant's
right to that property (see Tregubenko v. Ukraine, no.
61333/00, § 51, 2 November 2004, and Brumărescu v.
Romania [GC], no. 28342/95, § 74, ECHR 1999 VII).
The Court sees no reason to depart from this approach in the present
case.
(c) Whether the interference was justified
- The Court recalls that the Preamble to the Convention
declares, among other things, the rule of law to be part of the
common heritage of the Contracting States (see Brumărescu,
cited above, § 61).
- As
to Article 1 of Protocol No. 1, the Court has established that a
deprivation of property can only be justified if it is shown, inter
alia, to be “in the public interest” and “subject
to the conditions provided for by law”. Moreover, any
interference with property must also satisfy the requirement of
proportionality. The requisite balance will not be struck where the
person concerned bears an “individual and excessive burden”
(see Tregubenko, cited above, § 53).
- In
the present case, the Court notes that the State's interference with
the applicant's property rights was made by the Supreme Court's
decision of 30 May 2002. This decision was given upon the public
prosecutor's legality review request under the then applicable rules
of civil proceedings (see paragraphs 52-58 above). The interference
was made pursuant to a remedy requested by a State organ, which was
not a party to the proceedings (see Roseltrans v. Russia, no.
60974/00, §§ 13 and 27, 21 July 2005). In addition, the
public prosecutor had full discretion in deciding whether to lodge
the legality review request with the Supreme Court (see Lepojić
v. Serbia, no. 13909/05, § 54, 6 November
2007, and Dimitrovska v. the former Yugoslav Republic of Macedonia
(dec.), no. 21466/03, 30 September 2008). For these
reasons, the Court considers that legal effects of the legality
review proceedings under the 1998 Act – the quashing by the
Supreme Court of the decision of 6 September 2001 - were comparable
to those of the supervisory review system existing in some
Contracting States, since the Supreme Court set at naught an entire
judicial process which had ended in a judicial decision that was
“irreversible” and thus res judicata (see
Brumărescu, cited above, § 62; Roşca v.
Moldova, no. 6267/02, § 27, 22 March 2005; Svetlana
Naumenko v. Ukraine, no. 41984/98, § 92, 9
November 2004 and Ryabykh v. Russia, no. 52854/99,
§ 53, ECHR 2003 IX).
-
The Court finds that the quashing of the decision of 6 September 2001
was not compatible with the rule of law, which is inherent in all
Articles of the Convention (see, a contrario, Protsenko
v. Russia, no. 13151/04, § 33, 31 July 2008, in
which the Court found that the failure to take into account the
interests of third persons whose rights were considerably affected by
the final decision was a legitimate ground for reopening the
proceedings upon a supervisory review request)..
- Having
regard to the above considerations, the Court considers that the
“fair balance” was upset by the situation brought about
by the Supreme Court's decision and that the applicant bore an
individual and excessive burden. There has accordingly been a
violation of Article 1 of Protocol No. 1.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed MKD 21,774,593 with statutory interest from 11
October 1994 until the settlement in respect of pecuniary damage
sustained under Article 1 of Protocol No. 1. This figure refers to
the amount specified in the 1994 settlement (see paragraph 13 above).
The applicant also claimed 1,000,000 euros (EUR) for living costs due
to “destroyed business and lost jobs”. She alleged that
the debtor had been declared insolvent and that she could not recover
her claim. Lastly, she claimed EUR 30,000 in respect of
non-pecuniary damage for anxiety and emotional suffering sustained as
a consequence of the excessive length of proceedings.
- The
Government contested these claims as unsubstantiated. As regards the
pecuniary damage they stated that: a) there was no ground for
awarding the amount established in the 1994 settlement, given the
last decision of the Supreme Court dismissing the applicant's claim
and b) there was no causal link between the alleged violations and
the “living costs” claimed.
- Concerning
the pecuniary damage sought under Article 1 of Protocol No. 1, the
Court observes that the applicant did not present any evidence that
the debtor, at the time when the Supreme Court rendered its decision,
had been State-controlled, which would entail direct State liability
for the judgment debt created by the Court of Appeal's decision of 6
September 2001. Furthermore, from the case-file, as it stands, the
Court cannot establish as to whether, at the same point in time, the
debtor had sufficient assets to comply with the 1994 settlement. In
this connection, the Court notes that no evidence has been presented
as to whether or when the debtor was declared insolvent or how any
such insolvency affected the applicant's ability to recover the debt.
In these circumstances, the Court finds no causal link between the
pecuniary damage claimed and the violation found. It therefore
rejects the applicant's claim for the amount specified in the 1994
settlement. For the same reasons, it also rejects the applicant's
claim that interest be paid on this amount.
- The
Court further notes that the applicant did not provide any evidence
that would enable it to determine whether and to what extent the
violations found had any negative impact on the applicant's standard
of living, as alleged: it therefore rejects this claim.
- Lastly,
the Court accepts that the applicant has suffered some non-pecuniary
damage which would not be sufficiently compensated by the finding of
the violations alone (see, mutatis mutandis, Teltronic-CATV
v. Poland, no. 48140/99, § 70, 10 January 2006).
Making its assessment on an equitable basis and having regard to the
circumstances of the case, the Court awards the applicant EUR 1,600
under this head.
B. Costs and expenses
- The
applicant claimed MKD 2,334,100 (approximately EUR 38,100) plus
interest from 30 May 2002 until settlement for the costs and expenses
incurred before the domestic courts. These included the courts' and
legal fees. The applicant provided an itemised list of costs. No
evidence was provided as regards court fees. Lastly, she claimed EUR
5,000 for the costs and expenses incurred in the proceedings before
the Court. No document was submitted in support of this latter claim.
- The
Government contested these claims as unsubstantiated.
- According
to the Court's case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and are
reasonable as to quantum (see Editions Plon v. France, no.
58148/00, § 64, ECHR 2004-IV). The Court points out that
under Rule 60 of the Rules of Court “the applicant must submit
itemised particulars of all claims, together with any relevant
supporting documents failing which the Chamber may reject the claim
in whole or in part” (see Parizov v. the former Yugoslav
Republic of Macedonia, no. 14258/03, § 71, 7 February
2008).
- Having
regard to the fee note submitted by the applicant, the Court finds
that only EUR 1,000 related to lawyer's fees which post-dated the
ratification of the Convention by the respondent State and were
expended with a view to seek prevention before the national courts of
the violations found by the Court (see, mutatis mutandis,
Stoimenov v. the former Yugoslav Republic of Macedonia, no.
17995/02, § 56, 5 April 2007).
- In
these circumstances, the Court is unable to award the totality of the
sums claimed in respect of the costs and expenses incurred in the
domestic proceedings. It considers that the applicant is entitled to
be reimbursed under this head the sum of EUR 1,000, plus any tax that
may be chargeable to her.
- Lastly,
the Court notes that the applicant did not submit any supporting
documents or particulars in respect of her claim for the costs and
expenses incurred in the proceedings before it. Accordingly, it does
not award any sum under this head (see Parizov, cited above,
§ 72).
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Holds that there has been a violation of
Articles 6 § 1 of the Convention as regards the length of the
proceedings in question;
- Holds that there has been a violation of
Article 1 of Protocol No. 1;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following
amounts, to be converted into the national currency of the respondent
State, at the rate applicable at the date of settlement:
(i) EUR
1,600 (one thousand six hundred euros), plus any tax that may be
chargeable, in respect of non-pecuniary damage;
(ii) EUR
1,000 (one thousand euros), plus any tax that may be chargeable to
the applicant, in respect of costs and expenses incurred
domestically;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
4. Dismisses unanimously the remainder of the applicant's
claim for just satisfaction.
Done in English, and notified in writing on 17 September 2009,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
