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FIRST
SECTION
CASE OF
OGRAZDEN AD AND OTHERS v. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA
(Applications
nos. 35630/04, 53442/07 and 42580/09)
JUDGMENT
STRASBOURG
29
May 2012
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 OgraZden Ad and Others v. the former Yugoslav
Republic of Macedonia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Nina Vajić, President,
Peer
Lorenzen,
Khanlar Hajiyev,
Mirjana Lazarova
Trajkovska,
Julia Laffranque,
Linos-Alexandre
Sicilianos,
Erik Møse, judges,
and André
Wampach, Deputy
Section Registrar,
Having
deliberated in private on 10 May 2012,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
1. The
case originated in three applications
(nos. 35630/04, 53442/07 and 42580/09)
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 OgraZden A.D. (“the
first applicant”), Ms Cvetanka Milčevska (“the
second applicant”) and Ms Elena Davidovska (“the third
applicant”) on 16 September 2004, 23 November 2007 and 18
July 2009 respectively. The first applicant is a company in the
respondent State and the second and third applicants are both
Macedonian nationals. The second and third applicants were born in
1940 and 1968 and live in Veles and Skopje respectively.
- The second applicant
was represented by the “Helsinki Committee for
Human Rights of the Republic of Macedonia” and the third
applicant by Ms M. Jovanovska, a
lawyer practising in Skopje. The Macedonian Government
(“the Government”) were represented by their former
Agent, Mrs R. Lazareska Gerovska, succeeded subsequently by their
present Agent, Mr K. Bogdanov.
- On
10 June 2009, in respect of the first
applicant, and 10 November 2010, in respect of the second
and third applicants, the applications were
communicated to the Government. It was also decided to rule on the
admissibility and merits of the applications at the same time
(Article 29 § 1).
3. On 1 February 2011, the Court changed the composition of its
Sections (Rule 25 § 1) and this case was assigned to the newly
composed First Section (Rule 52 § 1).
THE FACTS
A. As to the first applicant
1. The enforcement proceedings
- On
16 July 1999 the Strumica Court of First Instance ordered a certain
Mr I.A. to pay a debt established in the first applicant’s
favour. On 22 March 2010 the first-instance court stayed the
enforcement proceedings since the debtor had died. The applicant did
not appeal against this decision.
2. Length proceedings before the Supreme Court
- In the meantime, on 30 April 2009, the first applicant
lodged a length complaint with the Supreme Court. On 3 July 2009 the
court established that the enforcement proceedings, at that moment,
had been pending for ten years before the first-instance court and
had not yet ended. The court found that there was a violation of the
first applicant’s right to a hearing within a reasonable time.
It set a six-month time-limit for the first-instance court to bring
the enforcement proceedings to a conclusion and awarded the first
applicant the equivalent of 325 euros (EUR) by way of just
satisfaction. In the absence of an appeal, this decision became final
on 22 October 2009.
B. As to the second applicant
1. Administrative proceedings for a disability pension
- On
30 September 1998 the second applicant sought that the Pension and
Disability Insurance Fund (“the Fund”) recognise her
right to a disability pension. After several remittals ordered by the
Government Appeal Commission and the Supreme and Administrative
Courts, on 25 November 2009 the Fund accepted the second
applicant’s request and acknowledged her right to a disability
pension.
2. Length proceedings before the Supreme Court
- In
the meantime, on 27 January 2009, the second applicant complained to
the Supreme Court that the administrative proceedings had lasted too
long and requested compensation. On 23 March 2010 the Supreme Court
established that the impugned proceedings, at that time, had lasted
for over ten years and awarded her the equivalent of EUR 410 by way
of just satisfaction. On 31 May 2010 the second-instance panel of the
Supreme Court allowed the second applicant’s appeal and awarded
her a higher compensation, the equivalent of which was EUR 980. This
sum was paid on 15 September 2010.
C. As to the third applicant
1. Labour proceedings concerning the third applicant’s
dismissal
- On
12 April 2001 the third applicant requested annulment of her
dismissal. On 18 September 2007 the Skopje Court of Appeal overturned
the lower court’s decision and dismissed her claim. On 22
January 2009 the Supreme Court dismissed on the merits the third
applicant’s appeal on points of law (ревизија).
2. Length proceedings before the Supreme Court
- In
the meantime, on 8 July 2009, the third applicant complained to the
Supreme Court about the length of the labour proceedings. On
29 September 2009 the Supreme Court rejected (отфрла)
her claim as having been submitted outside the statutory
six-month time-limit, which, in her case, started to run on 18
September 2007. The second-instance panel of the Supreme Court
confirmed this decision.
THE LAW
I. JOINDER OF THE APPLICATIONS
- The
Court notes that all applicants complained about the inordinate
length of the impugned proceedings. Having regard to the similarity
of their main grievance, the Court considers that, pursuant to Rule
42 § 1 of the Rules of Court, the applications should be joined.
II. ALLEGED VIOLATION OF “THE REASONABLE-TIME”
REQUIREMENT UNDER ARTICLE 6 § 1 OF THE CONVENTION
- The
applicants 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
1. The parties’ submissions
- As
regards the first and second applicants, the Government submitted
that the Supreme Court’s decisions adopted in the length
proceedings (see paragraphs 6 and 8 above) had removed the
applicants’ victim status under Article 34 of the Convention.
Furthermore, the first applicant’s failure to appeal suggested
that it had agreed with the decision taken at first instance. As
regards the third applicant, they stated that she had failed to
exhaust the domestic remedies since she had not used the length
remedy in compliance with the formal requirements laid down in
domestic law.
- The
applicants contested the Government’s arguments. The first and
second applicants further argued that the amount of compensation
awarded to them had been insufficient to remedy the situation
complained of before the Court.
2. The Court’s assessment
- The Court observes that in the present case the
applicants’ victim status within the meaning of the Convention
depends on whether the redress afforded to them at the domestic level
was adequate and sufficient having regard to Article 41 of the
Convention. This issue falls to be determined in the light of the
principles established under the Court’s case-law (see
Cocchiarella v. Italy [GC], no. 64886/01, §§ 69-98
and Arvanitaki-Roboti and Others v. Greece [GC], no. 27278/03,
§ 29, 15 February 2008).
- The
Court notes that the Supreme Court, after having acknowledged that
there had been a violation of the “reasonable time”
requirement in respect of the enforcement and administrative
proceedings complained of (see paragraphs 5 and 7 above), awarded the
first applicant the equivalent of EUR 325 and the second applicant
the equivalent of EUR 980, by way of just satisfaction. These amounts
are manifestly unreasonable having regard to what the Court would
have been likely to award her under Article 41 of the Convention. It
therefore cannot be regarded as adequate in the circumstances of the
case (see the principles established under the Court’s case-law
in Cocchiarella v. Italy [GC], no. 64886/01, §§ 65-107,
ECHR 2006-V; see also Parlov-Tkalčić v. Croatia, no.
24810/06, § 62, 22 December 2009) and leads to the
conclusion that the redress provided to them at domestic level was
insufficient (see Kaić and Others v. Croatia, no. 22014/04, §
20, 17 July 2008).
- The
Government further appeared to link the issue of victim status of the
first applicant to the question of exhaustion of domestic remedies.
Furthermore, they explicitly claimed non-exhaustion in respect of the
third applicant. In this connection the Court recalls that the
exhaustion requirement in respect of the length remedy provided for
in the Courts Act of 2008 concerns applications that post-date the
Adzi-Spirkoska and Others case. There is no such requirement in
respect of cases already pending before it unless the impugned
proceedings have not ended yet and the applicants can use the length
remedy before the Supreme Court. The Court reaffirms that as regards
length cases pending before it where applicants have used the length
remedy, such as the first and third applicants, any redress provided
by the Supreme Court shall be assessed through the prism of whether
the applicants can still be considered to be victims within the
meaning of Article 34 of the Convention (see AdZi-Spirkoska and
others v. the former Yugoslav Republic of Macedonia (dec.), nos.
38914/05 and 17879/05, 3 November 2011). Consequently, that the first
applicant did not challenge the decision of the first-instance panel
of the Supreme Court and that the third applicant’s length
remedy was rejected on procedural grounds do not have any bearing on
their victim status in respect of the alleged violation complained of
before the Court. The applicants can accordingly still claim to be
“victims” of a breach of their right to a hearing within
a reasonable time. Consequently, the Government’s objections
must be dismissed.
- The
Court further notes that this complaint is not manifestly ill-founded
within the meaning of Article 35 § 3 (a) of the Convention. It
also notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. The parties’ submissions
- The
applicants reaffirmed that the impugned proceedings had been unduly
prolonged.
- The
Government did not comment as regards the merits of the application
of the first applicant. As regards the second and third applicants,
they accepted that the impugned proceedings had lasted unreasonably
long.
2. The Court’s assessment
- 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 and what
was at stake for the applicants in the dispute (see Frydlender v.
France [GC], no. 30979/96, § 43, ECHR 2000-VII).
- The
Court takes note of the Supreme Court’s findings and the
Government’s acknowledgment that the impugned proceedings were
excessive and failed to meet the “reasonable time “
requirement and sees no reason to hold otherwise as it has frequently
found violations of Article 6 § 1 of the Convention in cases
raising similar issues as the present one (see Pakom Slobodan
Dooel v. the former Yugoslav Republic of Macedonia, no. 33262/03,
§ 23, 21 January 2010; Docevski v. the former Yugoslav
Republic of Macedonia, no. 66907/01, § 28, 1 March 2007 and
Markoski v. the former Yugoslav Republic of Macedonia, no.
22928/03, § 31, 2 November 2006). As regards the first
applicant, the proceedings necessarily retained that character
throughout the subsequent period that was not susceptible to the
Supreme Court’s scrutiny.
- In
the light of the foregoing, the Court considers that there has been a
breach of Article 6 § 1 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
- The second applicant further complained that there had
been no effective remedy for the excessive length of proceedings. She
relied on Article 13 of the Convention, which reads as follows:
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
A. Admissibility
- The
Government did not raise any objection as regards the admissibility
of this complaint.
- The
Court considers that this complaint is not manifestly ill-founded
within the meaning of Article 35 § 3 (a) of the Convention. No
other ground for declaring it inadmissible has been established. It
must therefore be declared admissible.
B. Merits
- The
Government submitted that the length remedy before the Supreme Court
was to be regarded effective for the reasons detailed in the
AdZi-Spirkoska and Others case (see AdZi-Spirkoska and
Others (dec.), cited above).
- The
second applicant did no comment.
- The
Court recalls that before the improvements, noted in the
AdZi-Spirkoska and Others case, had been made it did not
accept the length remedy as effective. Consequently, it sees no
reason to depart from its earlier case-law in which it found a
violation of Article 13, taken in conjunction with Article 6, due to
lack of an effective remedy concerning length cases that pre-dated
the AdZi-Spirkoska and Others case (see Krsto Nikolov v.
the former Yugoslav Republic of Macedonia, no. 13904/02,
§§ 29-33, 23 October 2008).
- In
view of the above considerations, the Court concludes that there has
been a breach of Article 13, taken in conjunction with Article 6 of
the Convention.
III. OTHER ALLEGED VIOLATION OF THE CONVENTION
- Lastly,
the third applicant complained under Article 6 of the Convention that
the domestic courts had erred as to the facts and law.
- The
Court has examined this complaint. However, in the light of all the
material in its possession, and in so far as the matter complained of
is within its competence, the Court finds that it does not disclose
any appearance of a violation of the rights and freedoms set out in
the Convention or its Protocols.
- It
follows that this complaint is manifestly ill-founded and must be
rejected in accordance with Article 35 §§ 3 (a) and 4 of
the Convention.
IV. 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
first applicant claimed EUR 3,520 in respect of pecuniary damage.
This sum concerned the judgment debt together with interest that was
subject of enforcement in the impugned proceedings. It did not claim
non-pecuniary damage.
- The second applicant claimed EUR 2,500 in respect of
pecuniary damage for medical expenses related to her poor health. She
further claimed EUR 4,000 in respect of non-pecuniary damage for the
emotional suffering due to “lack of subsistence funds”.
- The
third applicant claimed EUR 2,000 for non-pecuniary damage sustained
due to the inordinate length of the proceedings.
- The
Government contested these claims as unsubstantiated. They also
stated that there had been no causal link between the pecuniary
damage claimed and the alleged violation.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage claimed by the first and second applicants;
it therefore rejects this claim. On the other hand, it awards the
second applicant EUR 3,700 and the third applicant, EUR 1,700 in
respect of non-pecuniary damage, plus any tax that may be chargeable.
In the absence of any such claim, the Court makes no award under this
head in respect of the first applicant.
B. Costs and expenses
- As
regards the costs and expenses incurred in the proceedings before the
Court, the first applicant claimed EUR 80 for the mailing and
translation expenses. In support it submitted a copy of payment
slips. The second applicant claimed, under this head, EUR 2,620,
which included the lawyer’s fees for 106 hours of legal work
and expenses for mailing and copying. A fee note based on the scale
rates of the Macedonian Bar was produced. No payment slip or other
supporting document was provided for the mailing and copying
expenses. The third applicant claimed EUR 300 under this head. She
did not produce any supporting documents. Lastly, she claimed EUR
1,500 for the costs and expenses incurred in the labour proceedings
(see paragraph 9 above).
- The
Government argued that the costs and expenses claimed by the
applicants had been either unnecessarily incurred or had been
excessive.
- 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 are
reasonable as to quantum (see Gjozev v. the former Yugoslav
Republic of Macedonia, no. 14260/03, § 63, 19 June
2008). In the present case, regard being had to the documents in its
possession and the above criteria, the Court considers that the sum
claimed by the first applicant in respect of costs and expenses
incurred in the proceedings before it should be awarded in full, plus
any tax that may be chargeable to it. It further finds the amount
claimed by the second applicant under this head to be excessive and
partly unsubstantiated, and awards instead the sum of EUR 1,000,
plus any tax that may be chargeable to her (see Spasovski v. the
former Yugoslav Republic of Macedonia, no. 45150/05, § 45,
10 June 2010). Lastly, it rejects the third applicant’s claim
under this head since she did not submit any supporting documents or
particulars. It also makes no award in respect of her claim for the
costs and expenses incurred in the domestic proceedings since they
were not incurred in seeking the prevention and redress through the
domestic legal order 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).
C. Default interest
- The
Court considers it appropriate that the default interest rate 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
- Decides to join the applications;
- Declares the length complaint in respect of all
applications and the Article 13 complaint in respect of the second
applicant admissible and the remainder of the applications
inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention in respect of the length of the
proceedings;
- Holds that there has been a violation of Article
13 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, the following
amounts, to be converted into the national currency of the respondent
State at the rate applicable at the date of settlement:
(i) in
respect of non-pecuniary damage:
(α) EUR
3,700 (three thousand and seven hundred euros), plus any tax that may
be chargeable, in respect of the second applicant and
(β) EUR
1,700 (one thousand and seven hundred euros), plus any tax that may
be chargeable, in respect of the third applicant;
(ii) in
respect of costs and expenses:
(α) EUR
80 (eighty euros), plus any tax that may be chargeable to it, in
respect of the first applicant;
(β) EUR
1,000 (one thousand euros), plus any tax that may be chargeable to
her, in respect of the second applicant to be paid into the bank
account of the second applicant’s representative;
(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 29 May 2012, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
André Wampach Nina Vajić
Deputy Registrar President
