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
TRPESKI v. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA
(Application
no. 19290/04)
JUDGMENT
STRASBOURG
22 October
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 Trpeski 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,
Isabelle Berro-Lefèvre,
Mirjana
Lazarova Trajkovska,
Zdravka Kalaydjieva, judges,
and
Claudia Westerdiek,
Section Registrar,
Having
deliberated in private on 29 September 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 19290/04) 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 a
Macedonian national,
Mr Dimitrija Trpeski (“the
applicant”), on 13 May 2004.
- The
applicant was represented by Mr B. Noveski, a lawyer practising in
Skopje. The Macedonian Government (“the
Government”) were represented by their Agent, Mrs
R. Lazareska Gerovska.
- On
29 May 2007 the
President of the Fifth Section decided to
communicate the complaint concerning the length of the proceedings.
It was also decided to rule on the admissibility and merits of
the application at the same time (Article 29 § 3).
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1944 and lives in Skopje.
- He
worked in a company for production of chemical products (“the
employer”).
- On
8 February 1993 a second-instance commission of the Pension and
Social Insurance Fund (“the Fund”) declared the applicant
completely and permanently incapacitated due to a work-related
eye-disease. On 30 April 1993 the applicant's employment
terminated ipso jure. On 4 June 1993 the Fund
determined the amount of his disability pension.
- In
other proceedings that ended with the Supreme Court's decision of 6
July 1995, it was established that the applicant had contracted a
work-related eye-disease.
- On
4 April 1994 the applicant brought a civil action against his
employer requesting the then Skopje Municipal Court to award him
compensation for the pecuniary and non-pecuniary loss sustained as a
result of his disease.
- On
four hearings listed between 22 April 1997 and 11 November 1998
the applicant specified his claim, submitted new evidence or
requested additional expert examination.
- On
6 April 1999 the Skopje Court of First Instance
(“the
first-instance court”) dismissed the applicant's claim finding
that the damage to his eye was to be regarded as a disease and that
the employer could not be held responsible for the applicant's
disease. It based its decision on a range of evidence: the expert
report of the Forensic Institute of 6 April 1995; its supplement of
25 December 1995; the oral evidence of the Institute's experts
produced on a hearing of 19 February 1998; the statements of two
co-workers and a physician working with the employer. On 5 April
2000 the Skopje Court of Appeal quashed
this decision instructing
the lower court to obtain an alternative expert opinion from a
hospital since the Institute's experts were not eye-disease
specialists.
- On
8 February 2002 the first-instance court dismissed the applicant's
claim again. The alternative expert examination confirmed that the
damage to the applicant's eye could not be regarded as work-related.
On 5 June 2002 the Skopje Court of Appeal dismissed the
applicant's appeal.
- On
28 October 2002 the applicant lodged with the Supreme Court an appeal
on points of law (ревизија)
which was dismissed by a decision of 22 October 2003.
This decision was served on the applicant on 5 December 2003.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that the length of the proceedings had been
incompatible with the “reasonable time” requirement, laid
down in Article 6 § 1 of the Convention, which 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...”
A. Admissibility
- The
Government did not raise any objection as to the admissibility of
this complaint.
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. The parties' submissions
- The Government submitted that
the period which elapsed before the entry into force of the
Convention in respect of the former Yugoslav Republic of Macedonia
should not be taken into consideration. They further stated
that there had been particularly complex circumstances related to the
case, such as the determination of the reasons of the applicant's
disease and his behaviour. As to the latter, they submitted that he
had contributed to the length of the
proceedings, namely that he had submitted evidence gradually during
the proceedings; that he had requested several expert reports and
that he had specified his claim on several occasions (see paragraph 9
above).
- The
applicant contested the Government's arguments.
2. The Court's consideration
- The Court notes that the proceedings started on 4
April 1994 when the applicant brought his claim. However, as noted by
the Government, the period which falls within the Court's
jurisdiction began on 10 April 1997, after the Convention entered
into force in respect of the former Yugoslav Republic of Macedonia
(see Lickov v. the former Yugoslav
Republic of Macedonia, no. 38202/02, § 21,
28 September 2006).
- In assessing the reasonableness of the time that
elapsed after that date, account must be taken of the state of
proceedings on 10 April 1997 (see Ziberi v. the
former Yugoslav Republic of
Macedonia, no. 27866/02, § 41, 5 July
2007). In this connection, the Court notes that at that point the
proceedings had lasted over three years at one level of jurisdiction.
- The
proceedings ended on 5 December 2003 when the Supreme Court's
decision was served on the applicant. They therefore lasted over nine
years and eight months, of which six years, seven months and
twenty-seven days fall within the Court's temporal jurisdiction at
three court levels.
- 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
Markoski v. the former Yugoslav Republic of Macedonia,
no. 22928/03, § 32, 2 November 2006).
- The Court finds that the
case was of some
complexity, but that that cannot
in itself explain the length of the proceedings.
- As to the applicant's conduct, the Court finds that
his submissions specifying his claim and requests for alternative
expert examination could not be regarded to his detriment
(see Dimitrieva v. the former
Yugoslav Republic of Macedonia, no.
16328/03, § 35, 6 November 2008). Furthermore, he
attended all hearings as scheduled.
- On
the other hand, the Court finds significant delays attributable to
the first-instance court. In this connection, it observes that it
took five years for that court to render its first decision, of which
two years fall within the Court's jurisdiction (see paragraph 10
above). It took another two years for that same court to decide the
case after it had been referred back for re-examination (see
paragraph 11 above). Lastly, the Court does not consider that the
overall length of the proceedings satisfied the “reasonable
time” requirement of Article 6 § 1 of the Convention given
the special diligence which is required in disputes concerning the
determination of compensation in personal injuries cases (see Sali
v. the former Yugoslav Republic of Macedonia, no. 14349/03,
§ 47, 5 July 2007).
- There
has accordingly been a breach of that provision.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant further complained that he had not been given a fair trial
since the courts had dismissed his claim. He also made allegations of
bias on part of the experts and of corruption of all involved in his
case. In addition, the applicant complained that the courts decided
contrary to the UN Convention on Rights of Persons with Disabilities.
- The
Court has examined the remainder of the applicant's complaints and
finds that, in the light of all the materials in its possession, and
in so far as the matters complained of are within its competence,
they do not disclose any appearance of a violation of the rights and
freedoms set out in the Convention or its Protocols.
- It
follows that this part of the application is manifestly ill-founded
and must be rejected in accordance with Article 35 §§ 3 and
4 of the Convention.
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 25,000 euros (EUR) in respect of pecuniary damage.
This figure corresponded to the difference between salary that he
would have received if still employed and the disability pension. He
also claimed EUR 330,000 for non-pecuniary damage as compensation for
his disease and for being dependant on other family members.
-
The Government contested these claims.
- The
Court does not discern any causal link between the violation found
and the damage claimed. It therefore rejects
these claims.
B. Costs and expenses
- The
applicant also claimed EUR 3,600 for the costs and expenses incurred
before the domestic courts. These included legal fees and trial
costs. He did not seek reimbursement of the costs and expenses
incurred in the proceedings before this Court.
-
The Government contested this claim.
- 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 were reasonable as to quantum (see Kostovska v. the
former
Yugoslav
Republic
of Macedonia,
no. 44353/02, § 62, 15 June 2006). The Court notes
that the costs claimed had not been incurred in order to seek,
through the domestic legal order, prevention and redress of the
alleged violation complained of before the Court. Accordingly, it
does not award any sum under this head (see Milošević
v. the former Yugoslav
Republic
of Macedonia,
no. 15056/02, § 34, 20 April 2006).
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint concerning the length of
the proceedings admissible and the remainder of the application
inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention in respect of the
length of the proceedings;
- Dismisses
the applicant's claim for just satisfaction.
Done in English, and notified in writing on 22 October 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
