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FIFTH
SECTION
CASE OF JOVANOSKI v. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA
(Application
no. 31731/03)
JUDGMENT
STRASBOURG
7
January 2010
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 Jovanoski 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 1 December 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 31731/03) 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 Krste Jovanoski (“the applicant”),
on 22 September 2003.
- The
applicant was represented by Mr M. Popeski, a lawyer practising in
Ohrid. The Macedonian Government (“the
Government”) were represented by their Agent, R. Lazareska
Gerovska.
- On
15 November 2006 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
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1932 and lives in Gorno Lakocerej.
- On
an unspecified date in 1991, the applicant, as a successful litigant,
instituted enforcement proceedings against the Croatian company
“Fruktus”, (“the debtor”), for payment of a
debt.
- On
6 June 1991 the then Ohrid Municipal Court (“the first-instance
court”) upheld the applicant’s request ordering the
debtor to transfer the amount due on his account (“the 1991
order”).
- On
20 June 1991 the Zagreb Payment Exchange Bureau (Служба
за општествено
книговодство
Загреб)
(“the Bureau”) transferred part of the debt on the
applicant’s account.
- On
4 February 1992 the applicant requested the court to enforce the
remainder. On 19 February 1992 the first-instance court granted this
request.
- On
9 November 1992 it rejected as out of time the debtor’s
objection on the 1991 order. On 19 March 1993 the Bitola District
Court dismissed an appeal of the debtor against this latter decision
rejecting its argument that normal
communication had been disrupted because of the war conflict in
Croatia at the material time.
- On
20 September 1993 the first-instance court unsuccessfully requested
the applicant to propose an alternative means of enforcement. On 8
November 1994 it stayed the proceedings finding that the enforcement
of the remainder, by the means proposed by the applicant, had become
impossible due to the dissolution of the then Federal Bureau of
Yugoslavia and the creation of the Bureau, as an autonomous
institution of the independent Croatia.
- On
11 July 1995 the Bitola District Court upheld the applicant’s
appeal and remitted the case for a fresh consideration. It held that
the dissolution of the then Federal Bureau of Yugoslavia could not be
regarded as a valid ground for suspending the enforcement. It ordered
the lower court to contact the Ministry of Justice so as to establish
whether an inter-state agreement existed between the respondent State
and Croatia concerning the payment exchange operations. No further
decision has been taken.
- On
31 August 2001 the case-file was destroyed. According to the
Government, all case-files involving a foreign debtor were destroyed
on the basis of an internal act of competent courts. There is no
evidence that that was brought to the applicant’s attention.
The queries which he made at an unspecified date in 2003 revealed
that the case had been archived.
II. RELEVANT DOMESTIC LAW
- The
Agreement between the former Yugoslav Republic of Macedonia
and Croatia on Mutual
Legal Assistance in Civil and Criminal Matters
(Договор помеѓу
Република
Македонија
и Република
Хрватска за
правна помош
во граѓанските
и кривичните
предмети) (“the
agreement”), was concluded on 2 September 1994 and became
applicable as of 26 May 1995.
- Section
20 of the agreement stipulates, inter
alia, that the contracting parties
are bound to recognise and enforce final decisions rendered by courts
of the other party.
- Under
section 22 of the agreement, an interested person can submit a
request for recognition and enforcement of a final judgment before
the courts of the contracting party, which are called upon to decide
the request for recognition and enforcement, or before the court,
which rendered the final judgment.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that he had been denied the right of access to a
court due to the non-enforcement of his claim. He complained under
Article 6 of the Convention, the relevant part
of which reads as follows:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a fair ... hearing ... by
[a] ... tribunal ...”
A. Admissibility
- The
Government objected that the applicant had not complied with the
six-month time-limit which had started to run as of 31 August 2001
when the case-file had been destroyed. They further argued that the
application was an abuse of the right of application and that the
applicant’s representative furnished a power of attorney only
in 2006. The Government also argued that the applicant had not
exhausted all available remedies given his failure to seek
enforcement before Croatian courts.
- The
applicant contested the Government’s objections.
- The Court reiterates that the six-month period will
run from the date on which a decision is actually served (see Worm
v. Austria (dec.), no. 22714/93, 7 November 1995). In this
connection, it observes that the Government did not provide any
evidence that the applicant had been served with a decision in
respect of the destruction of the case-file. The Government’s
arguments that the application was an abuse of the right of
application are also unsubstantiated.
- As
to the Government’s objection for non-exhaustion, the Court
considers that the applicant’s failure to seek enforcement of
the remainder before the Croatian courts could not absolve the
responsibility of the respondent State for the proceedings pending
before its courts. Furthermore, this objection was raised also in
respect of the applicant’s claim for pecuniary damage and it
should be examined accordingly (see paragraph 34 below). It follows
that the Government’s objections must be rejected.
21.
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
22.
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 his claim had
been partly enforced (see paragraph 7 above). They further maintained
that there had been complex factors such as the dissolution of former
Yugoslavia and the war in Croatia. The Government pointed out that
the applicant had not demonstrated any interest in the enforcement
proceedings and had failed to seek their expedition.
23. The
applicant contested the Government’s arguments.
2. The Court’s consideration
-
The Court reiterates that the execution of a judgment given by any
court must be regarded as an integral part of the “trial”
for the purposes of Article 6 of the Convention (see Jankulovski
v. the former Yugoslav Republic of Macedonia, no. 6906/03, §
33, 3 July 2008). Moreover, it considers that the State has a
positive obligation to organise a system for enforcement of judgments
that is effective both in law and in practice and ensures their
enforcement without undue delay (see Pecevi v. the former Yugoslav
Republic of Macedonia, no. 21839/03, § 29, 6 November 2008).
However, the Court notes that State responsibility for enforcement of
a judgment against a private party extends no further than the
involvement of State bodies in the enforcement procedures. Once the
enforcement procedures were closed by a court in accordance with the
national legislation, the responsibility of the State ended (see
Martinovska v. the former Yugoslav Republic of Macedonia,
(dec.), no. 22731/02, 25 September 2006).
25. The
Court notes that the enforcement proceedings started in 1991 when the
applicant had sought enforcement of his claim. His claim was partly
enforced on 20 June 1991. On 4 February 1992 the applicant
requested that the court enforce the remainder. The Court will
therefore examine the applicant’s complaint in respect of the
proceedings as of this latter date. It further observes that they
formally ended on 31 August 2001 when the
case-file had been destroyed. No further action has been taken by
both the courts and the applicant.
- The
impugned situation lasted therefore nearly eleven years, of which
approximately six years fall within the Court’s jurisdiction
ratione temporis (since the ratification of the Convention by
the respondent State on 10 April 1997).
- The
Court recalls that, in order to determine the reasonableness of the
delay in question, regard must also be had to the state of the case
on the date of ratification (see Jankulovski, cited above, §
36) and notes that on 10 April 1997 the enforcement
proceedings had already been pending for around five years.
- The
applicant requested enforcement of a final decision given in his
favour (see paragraph 5 above). After his claim was partly enforced
on 20 June 1991 (see paragraph 7 above), the enforcement
proceedings laid dormant since 11 July 1995 when the Bitola District
Court remitted the case for a fresh consideration (see paragraph 11
above). The first-instance court remained inactive although it was
called upon to render a decision. The next and last activity was
taken on 31 August 2001 when the
case-file was destroyed. There is no evidence that the latter was
ordered on the applicant’s request.
- The
Court observes that the applicant’s last activity in respect of
the proceedings was before July 1995 (see paragraph 11 above). He
thereafter showed interest about the outcome of the proceedings only
in 2003 (see paragraph 12 above).
- Notwithstanding,
having regard to all circumstances the Court considers that by
refraining from taking adequate and effective measures to enforce the
applicant’s claims the domestic courts deprived the provisions
of Article 6 § 1 of the Convention of all useful effect.
- There
has therefore been a violation of Article 6 § 1 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
applicant claimed 1,076,284 euros (EUR)
in respect of pecuniary damage. That figure corresponded to the
amount awarded in the substantive proceedings together with interest.
He also claimed EUR 20,000 in respect of
non-pecuniary damage for emotional suffering.
- The
Government contested these claims arguing that the applicant
could have sought enforcement of the remainder before the Croatian
courts.
-
As to the pecuniary damage, the Court finds persuasive the
Government’s argument that the applicant had failed, although
entitled to under the agreement, to seek enforcement of the remainder
before the Croatian courts. It therefore rejects his claim under this
head.
- On
the other hand, the Court accepts that the applicant suffered
emotionally due to the failure of the first-instance court to decide
his request for enforcement in respect of the remainder. Ruling on an
equitable basis, it awards him EUR 500 in respect of the
non-pecuniary damage, plus any tax that may be chargeable.
B. Costs and expenses
- The
applicant also claimed EUR 3,700 for the costs and expenses incurred
before the domestic courts and the Court.
He did not submit any supporting documents.
- The
Government contested this claim as excessive and unsubstantiated.
- 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, § 72, 7 February 2008).
40. The
Court notes that the applicant did not provide any supporting
documents. It therefore makes no award in this respect.
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 application admissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
3. 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, EUR 500 (five
hundred euros) in respect of non-pecuniary damage, plus any tax that
may be chargeable, 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 applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 7 January 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer
Lorenzen
Registrar President
