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FIFTH
SECTION
CASE OF VELOVA v. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA
(Application
no. 29029/03)
JUDGMENT
STRASBOURG
6
November 2008
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 Velova v. the former Yugoslav Republic of
Macedonia,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Rait Maruste, President,
Karel
Jungwiert,
Volodymyr Butkevych,
Renate
Jaeger,
Mark Villiger,
Isabelle
Berro-Lefèvre,
Mirjana Lazarova Trajkovska,
judges,
and Claudia
Westerdiek, Section
Registrar,
Having
deliberated in private on 7 October 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 29029/03) 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, Ms Nikolina Velova (“the applicant”),
on 1 September 2003.
- The
Macedonian Government (“the Government”) were represented
by their Agent, Mrs R. Lazareska Gerovska.
- On
3 July 2006 the
President of the Fifth Section decided to communicate the complaint
concerning the length of the proceedings 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
applicant was born in 1951 and lives in Kočani.
- On
13 July 1987 the applicant’s parents brought a civil action
before the Kočani
Municipal Court (Општински
Суд Кочани)
claiming revocation of a care agreement (“the agreement”)
(договор
за доживотна
издршка) concluded
on 25 December 1981 between them and their son, Mr T.K. Under the
agreement, Mr T.K. was recognised as holder of the title to a
property specified by the agreement in return for caring for his
parents. They claimed that after their son’s death in 1982, the
defendants, Mr T.K.’s wife and her children no longer lived
with them and thus had ceased to fulfil the duties arising from the
agreement.
- On
30 September 1987 the Kočani
Municipal Court accepted the claim and revoked the agreement.
After hearing the parties to the proceedings and several witnesses,
the court found that the personal relationships between the parties
had deteriorated over time and that the defendants had consequently
failed to care for the applicant’s parents.
- On
12 February 1988 the then Štip District Court (Окружен
Суд во Штип)
accepted the defendants’ appeal of 29 October
1987. It held that the agreement had not stated that they should live
under the same roof and that the separation of the living
arrangements could not be considered a sufficient ground for its
revocation.
- On
an unspecified date, the applicant took over the case after her
parents died. On 27 June 1991
the Kočani Municipal Court dismissed the applicant’s
claim. The court heard the parties, examined eighteen witnesses and
admitted a considerable amount of evidence.
- On
11 November 1992 the Štip District Court accepted the
applicant’s appeal and remitted the case for fresh
consideration.
- On
9 February 1993 the Kočani Municipal Court dismissed the
applicant’s claim as ill-founded. This decision was set
aside by the Štip District Court on 27 April 1994.
- On
11 April 1996 the Kočani Municipal Court, sitting in a
different composition, dismissed the applicant’s claim again.
On 29 October 1996 the Štip Court of Appeal upheld an appeal
by the applicant of 23 May 1996 and quashed the lower court’s
decision. It found, inter alia, that the case had been decided
by a single judge instead of by a chamber of three judges as required
by law.
- At
the only hearing held on 9 July 1997,
the Kočani Court of First Instance granted the
applicant’s request and revoked the agreement. This decision
was partly confirmed by the Štip Court of Appeal on 24
December 1997. This latter court remitted the decision on the trial
costs for fresh consideration.
- On
23 April 1998 the Kočani Court of First Instance rejected
an appeal by the defendants on points of law (ревизија)
as out of time. On 12 September 1998 the Štip
Court of Appeal remitted the case for re-examination. On 3 November
1999 the Supreme Court upheld the defendants’ appeal on points
of law and quashed the lower courts’ decisions described in the
preceding paragraph. It found that the first-instance court, sitting
in different composition, had erred in law since it had relied on
already established evidence without having the parties’
consent to do so.
- After
two hearings, on 13 July 2000
the Kočani Court of First Instance upheld the applicant’s
claim and revoked the agreement on the same grounds as in its
decision of 9 July 1997. On 13 November 2000 the Štip Court of
Appeal ruled in the defendants’ favour and set aside this
decision for the reasons described in the preceding paragraph.
- On
15 October 2001 the Kočani Court of First Instance granted
the applicant’s request and revoked the agreement. It examined
the parties and eleven witnesses and admitted other evidence. None of
the three hearings scheduled was adjourned at the applicant’s
request.
- On
11 March 2003 the Štip Court of Appeal dismissed an appeal by
the defendants dated 30 November 2001 and confirmed the lower court’s
decision on the merits. It overturned (преиначува)
it in respect of the trial costs. On 24 April 2003 the
defendants lodged an appeal on points of law with the Supreme Court,
which was dismissed as inadmissible on 12 May 2004.
- Meanwhile,
on 12 May 2003 the Kočani
Court of First Instance had granted the applicant’s
request for enforcement of the above decisions in respect of the
trial costs. On 23 May 2003 the court suspended the enforcement
pending the outcome of the proceedings before the Supreme Court. On
30 November 2004 the enforcement proceedings ended.
-
On 6 December 2005 the Kočani
Court of First Instance, in separate proceedings, declared the
applicant a successor in title (законски
наследник)
to her late father and granted her title to part of his
property.
- During
the proceedings on the merits, the composition of the first-instance
court sitting in the applicant’s case changed four times.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 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 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.
B. Merits
1. The parties’ submissions
47. 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 there had been complex circumstances
related to the case, including the death of the applicant’s
parents, the necessity of hearing evidence from witnesses and on-site
examinations in order to establish the truth.
- They
further stated that the parties had contributed to the length of the
proceedings by having challenged the first-instance court’s
decisions.
- As
to the conduct of the domestic courts, the Government argued that
they had decided the applicant’s case with due diligence and
that the scheduled hearings had been held without any interruptions
or delays.
- The
applicant contested the Government’s arguments. She argued that
the State had borne full responsibility for the excessive length of
the proceedings. The remittal orders were unnecessary, since the
final first-instance court’s decision of 2001 had been the same
as the decision given in 1987.
2. The Court’s consideration
- The
Court notes that the proceedings commenced on 13 July 1987 when the
applicant’s parents requested the court to revoke the
agreement. Following her parents’ death, the applicant decided
to continue these proceedings as heir and could in principle complain
about the entire length of the proceedings (see Cocchiarella v.
Italy [GC], no. 64886/01, § 113, ECHR 2006).
- However, as noted by the Government, the period which
falls within the Court’s jurisdiction began on 10 April 1997,
after 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). Nevertheless, 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 nearly nine years and nine months
for two court levels.
- The
Court observes that the proceedings on the merits were concluded
on 11 March 2003 when the Court of Appeal finally dismissed the
defendants’ appeal. The last decision given in this case was
the Supreme Court’s decision of 12 May 2004. The Court
considers that the time elapsed for the proceedings before the
Supreme Court, even thought they did not result in a decision on the
merits, should be taken into consideration since those proceedings
were instituted on the defendant’s request and they affected
the applicant’s application for enforcement of the trial costs
(see paragraph 17 above). The proceedings therefore lasted nearly
seventeen years, of which over seven years and one month fall within
the Court’s temporal jurisdiction for three levels of
jurisdiction.
- 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 Markoski v. the former Yugoslav Republic of
Macedonia, no. 22928/03, § 32, 2 November 2006).
- The
Court considers that the case was not of a particularly complex
nature. The examination of a considerable number of witnesses added
to its complexity, but it cannot, in itself, explain the length of
the proceedings.
47. It further observes that there were no delays attributable
to the applicant. The fact that she made use of the remedies
available under domestic law cannot be considered as contributing to
the length of the proceedings (see Arsov v. the former Yugoslav
Republic of Macedonia, no. 44208/02, § 42, 19
October 2006).
- The
Court considers that the protracted length of the proceedings was due
to the repeated re-examination of the case. The case was reconsidered
on eight occasions, of which three times during the period which
falls under the Court’s temporal jurisdiction. Eighteen
decisions were given during the proceedings, of which fifteen were on
the merits. The domestic courts thus cannot be said to have been
inactive. However, although the Court is not in a position to analyse
the quality of the case-law of the domestic courts, it considers
that, since the remittal of cases for re-examination is usually
ordered as a result of errors committed by lower courts, the
repetition of such orders within one set of proceedings discloses a
serious deficiency in the judicial system (see Pavlyulynets v.
Ukraine, no. 70767/01, § 51, 6 September 2005, and
Wierciszewska v. Poland, no. 41431/98, § 46, 25
November 2003).
- In
this context, the Court reiterates that it is for the Contracting
States to organise their legal systems in such a way that their
courts can guarantee everyone’s right to obtain a final
decision on disputes relating to civil rights and obligations within
a reasonable time (see Kostovska, § 41, cited
above).
- 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.
- There
has accordingly been a breach of that provision.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant complained that the District Court’s decisions of 27
April 1994 and 29 October 1996 (see paragraphs above) had been given
in private despite her request for a public hearing. She further
alleged that the judges sitting in her case were biased, as Mr T.P.,
the former District Court’s judge sitting in her case in
November 1992, had subsequently represented the defendants. In
addition, family members of Mr. T.P. were employed in the Štip
courts, a fact that had affected the latter’s impartiality. The
applicant also complained that the courts had reached different
decisions during the proceedings and that the enforcement of the
Court of Appeal’s decision of 11 March 2003 had been unlawfully
suspended.
- The
Court has examined these applicant’s 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.
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
- In
respect of the pecuniary damage, the applicant claimed the following
amounts: 72,278 euros (EUR) for loss of income for having been
prevented from using the agricultural land; EUR 84,442 for interest
payable until 6 December 2005 (see paragraph 18 above); EUR 8,518 for
loss of the agricultural pension she would have been entitled to as
an individual farmer had she been able to use the land. The applicant
also claimed EUR 170,000 in respect of non-pecuniary damage for the
emotional stress and frustration suffered. She further claimed EUR
220,000 for the anguish suffered by her husband and sons.
- The
Government contested these claims as unsubstantiated. They argued
that there was no causal link between the alleged violation and the
pecuniary damage claimed. By making that claim, the applicant was in
fact asking the Court to decide her case as brought before the
national courts.
- The
Court considers that the applicant did not provide any evidence and
that accordingly, it is speculative to determine the existence of a
causal link between the violation of the Convention and the pecuniary
damage alleged. It therefore rejects the applicant’s claim
under this head. On the other hand, the Court considers that the
applicant must have sustained non-pecuniary damage. Ruling on an
equitable basis, it awards her EUR 1,200 under that head. Finally,
the Court rejects the applicant’s claim for non-pecuniary
damage allegedly suffered by her husband and sons since they were not
a party either of the domestic proceedings or those before it.
B. Costs and expenses
- The
applicant also claimed EUR 1,062 for the legal fees of a lawyer who
was allegedly involved in the preparation of her application and
other submissions. In addition, she claimed EUR 1,430 for the
translation of the documents submitted to the Court. She produced a
fee note for the legal fees and a list of expenditure for the
translation costs.
- The
Government contested these claims as excessive and unsubstantiated.
- 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). The Court observes
that the applicant did not appoint a lawyer to represent her in the
proceedings before it. There is, accordingly, no evidence in support
of her allegations that a lawyer was actually involved in her case.
The Court therefore rejects her claim in respect of the legal fees
claimed. As to the translation costs claimed, the Court notes that
there is no documentary evidence that those costs were actually
incurred. She also failed to submit a proof of payment. The Court
therefore makes no award under this head.
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 applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 1,200 (one
thousand and two 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 applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 6 November 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Rait Maruste
Registrar President
