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FIRST
SECTION
CASE OF DREYER v. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA
(Application
no. 2040/04)
JUDGMENT
STRASBOURG
19 July
2011
This
judgment is final but it
may be subject to editorial revision.
In the case of Dreyer v. the former Yugoslav Republic of
Macedonia,
The
European Court of Human Rights (First Section), sitting as a
Committee composed of:
Anatoly Kovler, President,
Mirjana Lazarova
Trajkovska,
Linos-Alexandre
Sicilianos, judges,
and André Wampach,
Deputy Section Registrar,
Having
deliberated in private on 28 June 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 2040/04) 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
German national, Mr Hartwig Dreyer (“the applicant”), on
9 January 2004.
- The
Macedonian Government (“the Government”) were represented
by their Agent, Mrs R. Lazareska Gerovska.
- On
14 January 2009 the
President of the Fifth Section decided to give notice of the
application to the Government.
4.
On 22 January 2009 the German Government was informed of their
right to intervene in the proceedings (Article 36 § 1 of the
Convention and Rule 44 of the Rules of Court).
5. On 1 February 2011 the Court changed the
composition of its Sections (Rule 25 § 1). The case was assigned
to the newly composed First Section (Rule 52 § 1). In accordance
with Protocol no. 14, the application was allocated to a Committee of
three Judges.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicant, Mr Hartwig Dreyer, is a German national who was born in
1926 and lives in Neumunster, Germany.
- On
8 September 1983 the Paris International Court of Arbitration ordered
the company М. (“the
debtor”) to pay the company Ingenieurbüro, H.D., which was
solely owned and managed by the applicant, 110,000 German marks
(DM), plus interest.
- By
a final decision of 28 March 1991, the Federal Court in Belgrade
recognised this decision.
- On
13 September 1993 the applicant sought enforcement of that decision
before the Skopje Municipal Court against the debtor’s legal
successors, which had resulted from its division in 1982.
- On
16 September 1993 the Skopje Municipal Court granted this request. On
2 March 1994 the applicant further specified the debtors, namely
companies which succeeded the debtor’s legal successors after
their transformation in 1990 (“the companies”). On 24
March 1994 the Skopje Municipal Court dismissed the companies’
objections that they had lacked the requisite capacity to stand in
the proceedings.
- On
6 January 1995 the applicant specified that in 1989 the debtor had
seized to exist and its rights and obligations had transferred to a
newly created company M.c.o.. The applicant therefore sought
the Skopje Municipal Court to amend the decision of 24 March 1994.
This request remained undecided.
- On
12 February 1998 the Skopje Court of Appeal upheld the companies’
appeals and remitted the case for re-examination.
- On
28 April 2000 the Skopje Court of First Instance requested the
applicant to specify the respective debtor or debtors, having in mind
his submission of 6 January 1995 (see paragraph 11 above). On 26 May
2000 the applicant reiterated his submission of 2 March 1994 (see
paragraph 10 above).
- On
1 March 2004 the Skopje Court of First Instance upheld the companies’
objections and set aside (“се
става вон сила”)
the enforcement order of 16 September 1993. The court found that the
companies had not had capacity to stand in the proceedings since
company M., referring presumably to M.c.o., had still existed and it
was to be considered as the debtor’s legal successor liable to
pay the debt.
- On
27 September 2004 the applicant was served with the decision of 1
March 2004 through the Embassy of the respondent State in Germany.
The parties did not dispute that the applicant’s appeal of 30
April 2005, which remained undecided, was lodged out of time.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 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
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
Court considers that the applicant can claim to be a victim of the
alleged violation since he was the sole owner and manager of the
company Ingenieurbüro, H.D., which was the party of the
proceedings in question (see, mutatis mutandis, Graberska
v. the former Yugoslav Republic of Macedonia, no. 6924/03, §
41, 14 June 2007).
- The
Government objected that the applicant had not exhausted domestic
remedies since he had failed to appeal, in good time, against the
first-instance court’s decision of 1 March 2004 (see paragraph
15 above).
- The
applicant disputed the Government’s objection. However he did
not contest the fact that he had lodged his appeal out of time.
- The
Court considers that an ordinary appeal, which provides a remedy for
errors of facts and law, allegedly made by a first-instance court,
cannot be regarded as an effective remedy concerning the applicant’s
complaint in respect of the length of the proceedings (see,
Josifov v. the former Yugoslav Republic of Macedonia,
no. 37812/04, § 20, 25 June 2009).
- 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 (a) of the
Convention. It also finds that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
B. Merits
- The
Government contended that there had been no violation of Article 6
§ 1 of the Convention. In this connection they argued that the
applicant had inaccurately specified debtors on several occasions.
- The
applicant disagreed.
- The
Court observes 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 v. the former
Yugoslav Republic of Macedonia, no. 6906/03, § 36, 3 July
2008). The Court further notes that the enforcement proceedings
started on 13 September 1993 when the applicant requested enforcement
of his claim. Thus, on 10 April 1997, the enforcement proceedings had
already been pending for over three years and seven months.
- Although
there has been no formal decision rendered by the appeal court, in
practice the enforcement proceedings ended with the first-instance
court’s decision of 1 March 2004, served on the applicant on 27
September 2004, since the applicant’s appeal lacked any
prospect of success (see paragraphs 15 and 19 above, see also,
mutatis mutandis, Miltenovic v. the former
Yugoslav Republic of Macedonia (dec.), no. 26615/02, 19 June
2006).
- The
proceedings, thus, lasted nearly eleven years and one month of
which seven years, five months and twenty days fall within the
Court’s temporal competence (since the
ratification of the Convention by the respondent State on 10 April
1997) for two levels of jurisdiction.
- Under the Court’s case law, 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 (see
Markoski v. the former Yugoslav Republic of Macedonia,
no. 22928/03, § 32, 2 November 2006).
- The
Court considers that the case was of some complexity, but that this
cannot, in itself, justify the length of the proceedings.
30. As
to the applicant’s behaviour, the Court is not convinced, as
the Government argued, that his failure properly to establish
the relevant debtor or debtors in accordance with their
transformation, added much to the length of the
enforcement proceedings. Moreover, the applicant’s submissions
specifying his request cannot be considered to his detriment (see
Ivanovski and Others v. the former Yugoslav Republic of Macedonia,
no. 34188/03, § 28, 26 November 2009).
31. On
the other hand, the Court considers that the domestic courts
did not display the requisite vigilance when conducting the
enforcement proceedings. In this connection, it observes that the
proceedings, which lasted over seven years and five months within the
Court’s temporal competence, were pending approximately six
years before the Skopje Court of First Instance (see paragraphs 12
and 14 above).
- In
the light of the criteria laid down in its case-law and having regard
to all the circumstances of the case, the Court considers that the
length of the enforcement proceedings failed to satisfy the
reasonable-time requirement.
- There
has, accordingly, been a violation of Article 6 § 1 of
the Convention.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant further complained under Article 14 of the Convention that
he had been discriminated against by virtue of the Enforcement
Proceedings Act, valid at the material time. He
also alleged a violation of Article 1 of
Protocol No. 1 for having not been able to honour his claim.
35. The
Court has examined these 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 EUR 2,892,859 in respect of pecuniary damage and
EUR 1,053,400 in respect of non-pecuniary damage.
- The
Government contested these claims.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged: it therefore rejects this claim.
However, it considers that the applicant must have sustained
non-pecuniary damage for the protracted length of the proceedings.
Ruling on an equitable basis, it awards him EUR 2,400 under that
head.
B. Costs and expenses
- The
applicant also claimed a global sum of EUR 1,700,974 for the costs
and expenses incurred before the domestic courts and for those
incurred before the Court. The latter figure included, inter alia,
the costs for mailing, translation and photocopy of documents, for
which the applicant submitted a copy of receipts.
- The
Government contested these claims.
- The
Court reiterates that only such costs and expenses as were actually
and necessarily incurred in connection with the violation found, and
reasonable as to quantum, are recoverable under Article 41 (see
Jovanovski v. the former Yugoslav Republic of Macedonia,
no. 40233/03, § 44, 25 March 2010).
Concerning the applicant’s request for reimbursement of the
costs incurred in the proceedings before the domestic courts, the
Court notes that such costs 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). In respect of the costs and
expenses incurred before it, regard being had to the supporting
documents submitted by the applicant, the Court awards the sum of EUR
1,464, plus any tax that may be chargeable to the applicant.
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 enforcement 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 applicant within three months, the
following amounts, to be converted into the national currency of the
respondent State at the rate applicable on the date of settlement:
i) EUR
2,400 (two thousand and four hundred euros) in respect of
non-pecuniary damage, plus any tax that may be chargeable;
ii) EUR
1,464 (one thousand and four hundred sixty-four euros) in respect of
costs and expenses, plus any tax that may be chargeable to the
applicants;
(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;
- Dismisses the remainder of the applicants’
claim for just satisfaction.
Done in English, and notified in writing on 28 June 2011, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
André Wampach Anatoly Kovler
Deputy Registrar President
