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
JOSIFOV v. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA
(Application
no. 37812/04)
JUDGMENT
STRASBOURG
25 June
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 Josifov v.
the former Yugoslav Republic of Macedonia,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer Lorenzen, President,
Rait
Maruste,
Karel Jungwiert,
Renate Jaeger,
Mark
Villiger,
Mirjana Lazarova Trajkovska,
Zdravka
Kalaydjieva, judges,
and Claudia
Westerdiek, Section
Registrar,
Having
deliberated in private on 2 June 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 37812/04) 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 Dobre Josifov (“the applicant”), on 6 October
2004.
- The
applicant was represented by Mr J. Madzunarov, a lawyer practising in
Štip. The Macedonian Government (“the Government”)
were represented by their Agent, Mrs R. Lazareska Gerovska.
- On
12 September 2007 the President of the Fifth Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3).
THE FACTS
- The
applicant was born in 1944 and lives in the village of Ularci.
1. Civil proceedings concerning the applicant's
dismissal
- On
31 July 1996 the applicant was dismissed for failing to prevent water
flood of the employer's premises. On 14 August 1996 the dismissal
decision was upheld by the employer's executive board.
- On
5 September 1996 the applicant brought a civil action against the
employer requesting annulment of his dismissal and his reinstatement.
- The
first-instance court postponed hearings listed on 17 December 1997,
27 January, 18 February, 13 April and 20 April 1998 due to the
absence of the employer and witnesses.
- On
18 June 1998 the Štip Court of First Instance dismissed the
applicant's claim. It would appear that this decision was served on
the applicant in December 2000, given that his appeal of 26 December
2000 was accepted as being submitted within the statutory fifteen-day
time-limit. On 9 May 2001 the Štip Court of Appeal remitted
the case for a renewed examination.
- After
two on-site expert examinations and five adjournments, none of which
was ordered on the applicant's request, on 25 June 2003 the
first-instance court annulled the dismissal decision.
- On
24 March 2004 the Štip Court of Appeal quashed that decision
since liquidation proceedings were launched in respect to the
employer.
- On
1 November 2004 the first-instance court terminated the proceedings.
The applicant was advised to seek recognition of his claim in the
liquidation proceedings.
- No
further decisions were taken in these proceedings.
2. Liquidation proceedings against the employer
- On
20 July 2004 the applicant claimed (пријава
за побарување)
compensation for the pecuniary loss sustained as a result of the
alleged unlawful dismissal. In support, he referred to the first- and
second-instance courts' decisions of 25 June 2003 and 24 March 2004.
- On
7 September 2004 the first-instance court recognised the applicant's
claim as having been established by a court decision.
- On
23 November 2004 the Štip Court of Appeal upheld an appeal of
the employer's receiver and quashed the lower court's decision. It
held that the applicant's claim had not been established by any final
decision nor had his application been based on any such decision. It
further requested that fresh opinion be obtained from the receiver.
- On
11 February 2009 the first-instance court did not recognise the
applicant's claim and advised him to seek its determination in civil
proceedings.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 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 objected that the applicant had not exhausted domestic
remedies since he had failed to appeal the first-instance court's
decision of 1 November 2004.
- The
applicant disputed the Government's objection.
- The
Court has already found that an ordinary appeal cannot be regarded as
an effective remedy for an alleged violation of the right to have a
case heard within a “reasonable time” (see Graberska
v. the former Yugoslav Republic of Macedonia, no. 6924/03, §
44-48, 14 June 2007). The Court see no reasons to come to another
conclusion in the present case.
- It
follows that the Government's preliminary objection must be rejected.
- The Court further considers that the application is
not manifestly ill-founded within the meaning of Article 35 § 3
of the Convention. It also finds 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
stated that, notwithstanding the specific nature of the dispute,
there had been complex circumstances related to the case, including
changes of applicable legislation, the employer's liquidation and
lastly, non-recognition of the applicant's claim in the liquidation
proceedings, which have not ended yet.
- They
further stated that the applicant had significantly contributed to
the length of the proceedings by claiming compensation in the
liquidation proceedings even though the substantive proceedings had
not ended yet. In addition, they referred to the adjournments ordered
at first instance (see paragraphs 7 and 9 above).
- The
Government further maintained that the courts had proceeded the
applicant's case with due diligence and that the State could not be
held responsible for the delays caused by the parties to the
proceedings.
- The
applicant contested the Government's arguments concerning the
complexity of the case and his alleged contribution to the length of
the proceedings. He further stated that the subject-matter of the
dispute required special diligence on the part of the domestic
courts.
2. The Court's consideration
27. The
Court notes that the civil court proceedings concerning the
applicant's dismissal started on 5 September 1996 and ended
1 November 2004 when the applicant was advised to apply in
the liquidation proceedings. In this latter set of proceedings, the
applicant claimed loss of income as a result of his dismissal. The
Court considers that these two sets of proceedings are to be regarded
as a single procedure since their outcome was interdependent.
28. The
period which falls within the Court's jurisdiction, as argued by the
Government, began on 10 April 1997, when 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). However,
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 less than seven months for one level
of jurisdiction.
29. The
proceedings lasted nearly twelve years and seven months of which
almost twelve years fall within the Court's temporal competence for
two levels of jurisdiction in the civil court proceedings and the
liquidation proceedings each. The relevant period has
ended on 11 February 2009 by the first-instance court's decision in
the liquidation proceedings.
30. 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 Dimitrievski
v. the former Yugoslav Republic of Macedonia, no.
26602/02, § 29 18 December 2008).
31. The
Court considers that the case was not of a complex
nature.
32. It
further finds no delays attributable to the applicant.
In particular, he cannot be held responsible for applying in the
liquidation proceedings since he was advised to do so by the
first-instance court.
33. On
the other hand, the Court considers that there are considerable
delays attributable to the national courts. In this connection, it
observes that it took two years and five months for the
first-instance court to serve its decision on the
applicant (see paragraph 8 above). It
further took four years and three months for that same court, now, in
the liquidation proceedings, to advise the applicant to pursue his
claim, again, in civil proceedings (see paragraphs 15 and 16 above).
Furthermore, the domestic law and the Court's
jurisprudence (see Ziberi v. the former Yugoslav
Republic of Macedonia, cited above § 47) required
employment-related disputes to be conducted with a special diligence.
34. Having
examined all the material submitted to it, the Court considers that
in the instant case the length of the proceedings was excessive and
failed to meet the reasonable time requirement of Article 6 § 1
of the Convention.
35. There
has accordingly been a breach of that provision.
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
applicant claimed 58,100 euros (EUR) in respect of pecuniary damage.
He also claimed EUR 20,000 for non-pecuniary damage for the emotional
suffering due to “lack of subsistence funds”.
- The
Government contested these claims as unsubstantiated arguing that
there was no causal link between the alleged violation and the
pecuniary damage claimed.
39. The Court observes that the applicant did not specify
the ground on which he claimed pecuniary damage. Since there is no
causal link between the violation found and the damage alleged, the
Court rejects these claims. On the other hand, the applicant's claim
for non-pecuniary damage as a result of emotional suffering due to
“lack of subsistence funds” is sufficiently linked to the
lengthy duration of the proceedings at issue. Therefore, the Court
awards him EUR 3,200 in respect of non-pecuniary damage.
B. Costs and expenses
- The
applicant also claimed EUR 5,902 for the costs and expenses incurred
before the domestic courts and the proceedings before the Court. In
this latter context, he claimed approximately EUR 635 (39,000
Macedonian denars (MKD) in respect of legal fees calculated according
to the rate scale of the Macedonian Bar and approximately EUR 274
(16,800 MKD) for mailing and translation costs. No document was
presented in support of these latter claims.
- The
Government contested this claims.
- 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 Stoimenov v. the former Yugoslav
Republic of Macedonia, no. 17995/02, § 56, 5 April
2007). As to the costs and expenses claimed in respect of the
domestic proceedings, the Court notes that such costs were not
incurred in order to seek through the domestic legal order prevention
and redress of the alleged violation complained of before the Court
(see Milošević v. the former Yugoslav Republic of
Macedonia, no. 15056/02, § 34, 20 April 2006). It
therefore rejects the applicant's claim under this head.
- As
to the proceedings before it, the Court notes that the applicant did
not present any evidence concerning the mailing and translation
costs. On the other hand, regard being had to the information in its
possession and the above criteria, the Court considers it reasonable
to award the applicant the sum of EUR 600 for the legal
representation, plus any tax that may be chargeable to him.
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
1. Declares the application admissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention in respect of the length of the
proceedings;
- 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 3,200 (three thousand and two hundred euros) in respect of
non-pecuniary damage;
(ii)
EUR 600 (six hundred euros) in respect of costs and expenses;
(iii) plus any tax that may be chargeable to the applicant;
(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 applicant's claim
for just satisfaction.
Done in English, and notified in writing on 25 June 2009, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
