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FIFTH
SECTION
CASE OF STOLESKI AND SILJANOSKA v. THE FORMER YUGOSLAV REPUBLIC OF
MACEDONIA
(Application
no. 17547/04)
JUDGMENT
STRASBOURG
5
November 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 Stoleski and Siljanoska 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 13 October 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 17547/04) 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 two Macedonian nationals,
Mr Zivko Stoleski and Mrs Cveta Siljanoska (“the applicants”),
on 27 April 2004.
- The
applicants were represented by Ms T. Siljanoska,
a lawyer practising in Kičevo. The Macedonian
Government (“the Government”) were represented by their
Agent, Mrs R. Lazareska Gerovska.
- On
17 January 2008 the
President of the Fifth Section decided to give notice of the
application to the Government. It was also decided to rule on the
admissibility and merits of the application at the same time (Article
29 § 3).
THE FACTS
- The
applicants were born in 1962 and 1934 respectively and live in
Makedonski Brod.
- On
12 March 1996 the applicants brought a
civil action against the Ministry of Finance (“the Ministry”)
claiming an annual leave allowance (регрес
за годишен
одмор)
for 1995.
- On
18 April 1996 the then Kičevo Municipal Court (“the
first-instance court”) ruled in favour of the applicants,
ordering the Ministry to pay them the amount claimed. The decision
was given in the Ministry's absence, although summoned properly. It
became final on 27 May 1996.
- On
27 June 1997 the applicants requested enforcement of this decision.
This request was granted on 29 September 1997. On 5 December 1997
the Attorney-General (Јавен
Правобранител)
objected to the enforcement order, arguing, inter alia, that
it had not been given an opportunity to participate in the
substantive proceedings as the Ministry's legal representative. Its
objection was dismissed by decisions of 11 March 1999 and 8
March 2000 respectively. In or about May 2000 the amount due was
transferred on the applicants' accounts.
- On
3 September 2000 the Attorney-General requested that the
first-instance court remove the clause attesting that its decision of
18 April 1996 had become final (“the clause”, се
брише клаузулата
на правосилност)
since it had not been summoned, as the Ministry's legal
representative, to participate in those proceedings.
- On
25 September 2000 the first-instance court dismissed this request.
The Attorney-General appealed. On 12 June 2001 the Bitola Court of
Appeal accepted its appeal and remitted the case for a fresh
consideration. On 6 July 2001 the first-instance court accepted the
request and removed the clause. The parties were advised to appeal
against this decision. The applicants refused to be served with this
decision. They did not appeal.
- On
28 November 2001 the Attorney-General appealed against the
first-instance court's decision of 18 April 1996. The applicants
refused to have a copy of this appeal communicated to them.
- On
15 January 2002 the Bitola Court of Appeal allowed the
Attorney-General's appeal and quashed the decision of 18 April 1996.
- On
27 January 2003 the proceedings were stayed. On the applicants'
appeal, on 3 April 2003 the Bitola Court of Appeal quashed this
decision and remitted the case for re-examination.
- On
5 September 2003 the first-instance court dismissed the applicants'
claim since no such allowance had been paid in 1995 and no funds had
been allocated for that purpose in the State's budget.
- On
19 November 2003 the Bitola Court of Appeal dismissed an appeal by
the applicants of 15 October 2003. This decision was served on them
on 10 December 2003. On 6 February 2004 the public prosecutor
informed the applicants that there were no grounds for lodging a
request for the protection of legality with the Supreme Court.
- In
separate proceedings, the State requested that the applicants pay
back the amount awarded by the first-instance court's decision of
18 April 1996. This request was accepted by court decisions
of 7 May and 6 December 2004 respectively.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicants complained under Article 6 § 1 of the Convention that
the proceedings had been incompatible with the “reasonable
time” requirement, that the removal of the clause had violated
the principle of legal certainty and that judges had been biased.
Article 6 § 1 of the Convention, in so far as relevant, reads as
follows:
“In the determination of his civil rights and
obligations ... everyone is entitled to a fair ... hearing within a
reasonable time by an independent and impartial tribunal ...”
A. Length of the proceedings
1. 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.
2. Merits
a. The parties' submissions
- The
Government stated that there had been complex circumstances related
to the case, including the absence of the Attorney-General and
problems with the delivery of court summons and decisions to the
parties concerned. They further argued that the proceedings, within
the Court's ratione temporis competence, had lasted six years
and seven months at two levels of jurisdiction and that they had not
accordingly been excessive. No significant delays could be attributed
to the domestic courts.
- The
applicants did not provide any comment.
b. The Court's consideration
21. The Court notes that the proceedings started on 12 March
1996 when the applicants brought their claim before the
first-instance court. The substantive proceedings were concluded on
27 May 1996 when the first-instance court's decision of 18 April 1996
became final. However, this period pre-dates 10 April 1997, the date
when the Convention entered into force in respect of the former
Yugoslav Republic of Macedonia, and does not fall accordingly within
the Court's jurisdiction (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 lasted less than four months at one level of
jurisdiction.
- The
enforcement stage of the proceedings, which is an integral part of
the “trial” (see Jankulovski
v. the former Yugoslav Republic of Macedonia, no. 6906/03,
§ 33, 3 July 2008) started on 27 June 1997 and ended on 8 March
2000 when the objection of the Attorney-General was finally rejected.
Afterwards, the proceedings were not pending until 3 September
2000 when the Attorney-General requested, in the substantive
proceedings, removal of the enforcement clause. The resumed
substantive proceedings ended on 10 December 2003, when the Court of
Appeal's decision of 19 November 2003 was served on the applicants.
The time lapsed for the subsequent proceedings before the public
prosecutor cannot be taken into consideration since the applicants
were not required to exhaust this remedy for the reasons detailed in
the Dimitrovska case (see Dimitrovska v. the former
Yugoslav Republic of Macedonia (dec.), no. 21466/03, 30
September 2008). The relevant period therefore lasted six years and
two months, of which five years, ten months and eighteen days fall
within the Court's temporal jurisdiction at two 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 applicants and the relevant authorities (see
Frydlender v. France [GC], no. 30979/96, § 43, ECHR
2000-VII).
- The
Court considers that the case was of some complexity, but that it
cannot in itself justify the length of the proceedings.
- It
also observes that there were no delays attributable to the
applicants.
- As
regards the conduct of the authorities, the Court notes that the main
issue that affected the length of the proceedings was the courts'
consideration of the Attorney-General's objection as to whether it
had been given the opportunity, as the Ministry's legal
representative, to participate in the substantive proceedings. That
issue was discussed in the enforcement proceedings for two years and
three months (see paragraph 7 above). It took another ten months for
the courts to decide that issue in the substantive proceedings (see
paragraphs 8 and 9 above). In the Court's view, this time was
excessive.
- Against
this background, the Court considers on the whole that the
proceedings in the present case in the relevant period were not
conducted within a reasonable time.
- There
has accordingly been a breach of Article 6 § 1.
B. Alleged violation of the principle of legal
certainty
1. The parties' submissions
- The
Government submitted that the applicants had not exhausted all
effective domestic remedies. In particular, they had failed to appeal
against the first-instance court's decision of 6 July 2001.
- The
applicants did not comment on this matter.
2. The Court's consideration
- The
Court reiterates that according to its established case-law the rule
of exhaustion of domestic remedies referred to in Article 35 § 1
of the Convention obliges applicants to use first the remedies that
are normally available and sufficient in the domestic legal system to
enable them to obtain redress for the breaches alleged. Article 35 §
1 also requires that complaints intended to be brought subsequently
before the Court should have been made to the appropriate domestic
body, at least in substance and in compliance with the formal
requirements laid down in domestic law, but not that recourse should
be had to remedies which are inadequate or ineffective (see, mutatis
mutandis, Merger and Cros v. France (dec.), no. 68864/01,
11 March 2004; Aksoy v. Turkey, judgment of 18 December 1996,
ECHR 1996-VI, §§ 51-52; and Akdivar and Others v.
Turkey, judgment of 16 September 1996, ECHR 1996-IV, §§ 65-67).
- The
Court notes that the application of this rule must make due allowance
for the context. Accordingly, it has recognised that Article 35
§ 1 must be applied with some degree of flexibility and without
excessive formalism. It has further recognised that the rule of
exhaustion is neither absolute nor capable of being applied
automatically; for the purposes of reviewing whether it has been
observed, it is essential to have regard to the circumstances of the
individual case. This means, in particular, that the Court must take
realistic account not only of the existence of formal remedies in the
legal system of the Contracting State concerned, but also of the
general context in which they operate, as well as the personal
circumstances of the applicant. It must then examine whether in all
the circumstances of the case the applicant did everything that could
reasonably be expected of him or her to exhaust domestic remedies
(see Akdivar and Others, cited above, § 69, and Aksoy,
cited above, §§ 53 and 54).
- Turning
to the present case, the Court notes that the first-instance court's
decision of 18 April 1996 became final on 27 May 1996. The clause was
added to this decision as a stamp, with a view to attesting to that
fact. On 6 July 2001 the same court accepted the request of the
Attorney-General and removed the clause. The applicants did not
appeal against this decision nor did they provide, in the proceedings
before the Court, any explanation for not doing so. The Court
observes that the Court of Appeal had full jurisdiction to decide on
such an appeal. In support is the Attorney-General's appeal, which
led to the quashing of the first-instance court's decision of 25
September 2000. The Court therefore considers that the applicants
were required to exhaust the appeal procedure, as an effective
remedy.
- In
these circumstances, the Court considers that they failed to exhaust
domestic remedies with regard to their complaint under this head.
- It
follows that this complaint must be rejected under Article 35
§§ 1 and 4 of the Convention for non-exhaustion
of domestic remedies.
C. Remaining complaint
- The
applicants also complained that the judges were biased, since their
claim had been lodged against the Ministry, a State body.
- The
Court considers that this complaint is unsubstantiated since the
applicants did not present any evidence that the Ministry being the
opposing party in the proceedings played any role in the courts'
adjudication.
- 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.
II. 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
applicants claimed 4,000 euros (EUR) in respect of pecuniary damage.
This figure corresponded to the claim requested in the substantive
proceedings with interest. They also claimed EUR 6,000 in respect of
non-pecuniary damage for the length of the proceedings.
- The
Government contested these claims as unsubstantiated arguing that
there was no causal link between the alleged violation and the
pecuniary damage claimed.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim.
On the other hand, ruling on an equitable basis, it awards the
applicants EUR 1,600 under this head, plus any tax that may be
chargeable.
B. Costs and expenses
- The
applicants also claimed EUR 2,000 for the costs and expenses incurred
before the domestic courts and EUR 3,000 for those incurred before
the Court. No supporting evidence was submitted.
- The
Government contested these claims as unsubstantiated.
- According to the Court's case-law, an award can be
made in respect of costs and expenses only in so far as they have
been actually and necessarily incurred by the applicant and are
reasonable as to quantum (see Kostovska v. the former Yugoslav
Republic of Macedonia, no. 44353/02, § 62, 15 June
2006). 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”.
- The Court notes that the applicants did not submit any
supporting documents or particulars to substantiate their claims.
Accordingly, the Court does not award any sum under this head (see
Parizov v. the former Yugoslav Republic of Macedonia, no.
14258/03, § 72, 7 February 2008).
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
- Declares the complaint concerning the
excessive 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;
- Holds
(a) that the respondent State is to pay the applicants, within
three months from the date on which the judgment becomes final in
accordance with Article 44 § 2 of the Convention,
EUR 1,600 (one thousand and six hundred euros), plus any tax that may
be chargeable, in respect of non-pecuniary damage, to be converted
into the national currency of the respondent State at the rate
applicable at the date of settlement;
(b) that from the expiry of the above-mentioned three
months until settlement simple interest shall be payable on the above
amount at a rate equal to the marginal lending rate of the European
Central Bank during the default period plus three percentage points;
- Dismisses the remainder of the applicants' claim
for just satisfaction.
Done in English, and notified in writing on 5 November 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
