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FIFTH
SECTION
CASE OF
FETAOVSKI v. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA
(Application
no. 10649/03)
JUDGMENT
STRASBOURG
19
June 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 Fetaovski 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,
Volodymyr
Butkevych,
Renate
Jaeger,
Mirjana
Lazarova Trajkovska,
Zdravka
Kalaydjieva,
judges,
and
Claudia Westerdiek, Section
Registrar,
Having
deliberated in private on 27 May 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 10649/03) 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
Rami Fetaovski (“the applicant”), on 29 January 2003.
- The
applicant was represented by Mr R. Cesmadziski, a lawyer practising
in Kumanovo. The Macedonian Government (“the Government”)
were represented by their Agent, Mrs R. Lazareska Gerovska.
- The
applicant alleged, in particular, that his rights of access to a
court and to have his case heard within a reasonable time had been
violated in breach of the Convention.
- On
16 June 2006 the Court decided to give notice of the application
to the Government. Under the provisions of Article 29 § 3 of the
Convention, it decided to examine the merits of the application at
the same time as its admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
5. The applicant was born in 1946 and lives in Kumanovo.
- On
28 July 1992 the applicant, through his representative (who continues
to represent him in the proceedings before the Court) brought a civil
action against the State and the Kumanovo Veterinary Inspectorate
(“the Inspectorate”) for damages in relation to the
slaughter of sheep infected by a contagious disease (brucellosis).
-
Between 23 September 1992 and 2 November 1993 the first-instance
court scheduled thirteen hearings. None of them was adjourned on
account of the applicant.
- On
2 November 1993 the then Kumanovo Municipal Court (“the
first-instance court”) dismissed the applicant’s claim
after it had heard statements from him and a veterinary inspector who
had examined the sheep. On 1 April 1994 the then Skopje District
Court upheld that decision. By a decision of 25 October 1994, given
upon an appeal on points of law (ревизија)
by the applicant dated 31 May 1994, the Supreme Court quashed the
lower courts’ decisions and remitted the case for a fresh
consideration. It instructed them to assess the value of the sheep
slaughtered.
-
Four hearings listed for between 16 November 1995 and 17 January 1996
were adjourned due to the Inspectorate’s failure to provide
information about the value of the sheep. The applicant attended all
the hearings.
-
On an unspecified date, the first-instance court ruled partially in
the applicant’s favour. On 9 January 1997 the Skopje Court of
Appeal accepted an appeal by the defendants and ordered a retrial
concerning the accepted part of the applicant’s claim.
-
On 11 April 1997 the applicant further specified his claim,
requesting compensation for loss of income (“the new claim”).
The new claim was dismissed by the first-instance court on 18 April
1997.
-
On 21 May 1997 the first-instance court accepted the applicant’s
claim. On 18 February 1998 the Skopje Court of Appeal dismissed an
appeal by the defendants and confirmed the lower court’s
decision. On 21 April 1998 the State lodged an appeal on points
of law. By a decision of 21 October 1999 the Supreme Court quashed
the lower courts’ decisions and remitted the case for a renewed
examination.
- None
of seven hearings listed between 15 March and 28 November 2000
was rescheduled at the applicant’s request. During that time,
the first-instance court requested the Inspectorate to provide
information about the marked value of the sheep three times. It
further requested a copy of the applicant’s request for
compensation that had allegedly been submitted before the relevant
administrative authorities. In reply, the court was informed that
there was no such request in the case file and that it should order
the applicant to provide it.
-
On 28 November 2000 the first-instance court dismissed the
applicant’s claim, having established that he had failed to
lodge a request for compensation with the relevant administrative
authorities in good time. It established the following facts: on 20
June 1991, the Inspectorate ordered the slaughter of twenty-one
sheep. On 5 July 1991 only ten sheep were slaughtered (the others
were allegedly slaughtered by the applicant). The report drawn up
after the slaughter indicated that the applicant would not be
compensated as he had not complied with the order. On a later date,
other sheep belonging to the applicant were slaughtered. On 26
November 1991 the applicant was compensated for the sheep slaughtered
on the later date, but not for those put down on 5 July 1991. The
court further established that on 15 May 1992 the State Veterinary
Office had dismissed a claim by the applicant for compensation for
the sheep slaughtered on 5 July 1991. The decision was served on the
applicant on 2 March 2001.
-
The applicant’s representative appealed, arguing that the lower
court, inter alia, had erred in the facts, namely that it
wrongly concluded that he had claimed compensation from the relevant
authorities out of time even though no such claim had ever been
lodged. The applicant has submitted a copy of the appeal which has
been date-stamped as having been received by the first-instance court
on 15 March 2001. The Government have provided a different copy of
the appeal, with a receipt-stamp dated 23 March 2001. The applicant’s
version is on plain paper and has been date-stamped on the front
page, while the Government’s version is written on the
applicant’s representative’s office paper, and bears some
handwritten marks. The receipt stamp for the Government’s
version is not on one of the typed pages of the document.
-
On 20 June 2001 the Skopje Court of Appeal returned the case file to
the first-instance court, in order for it to examine the court’s
register of incoming applications (“the register”) to
determine when the applicant’s appeal had been received by that
court. It decided to do so because the appeal had been drawn up on 14
March and, according to the court’s stamp, submitted on 23
March 2001. It stated that the first-instance court should establish
the date of submission of the appeal.
-
On 11 July 2001 the first-instance court rejected the applicant’s
appeal as out of time. It found that that court’s decision had
been served on the applicant on 2 March 2001 and, relying on the
court’s stamp acknowledging receipt and the register, that the
appeal had been lodged on 23 March 2001.
-
On 11 September 2001 the applicant appealed. He produced his copy of
the appeal with the court’s stamp indicating that it had been
lodged on 15 March 2001. He also argued that an error in
entering the introduction date of the appeal in the register should
be attributed to the court and should not prejudice his case.
-
On 20 December 2001 the Skopje Court of Appeal returned the case file
to the first-instance court. It did so because the appeal bearing the
court’s stamp of 15 March 2001 had been submitted as a copy
only, and its validity needed to be verified. In that connection, it
referred to the copy of the appeal of 23 March 2001. It therefore
instructed the first-instance court to order the applicant to submit
the original version of his appeal for verification.
-
On 28 February 2002 the applicant, in response to the first-instance
court’s order, submitted the original of his appeal of 15 March
2001. The court noted that that appeal’s contents and nature
were the same as that bearing the court’s stamp of 23 March
2001. It also stated that it could not establish the reasons for the
discrepancy between the register (indicating 23 March 2001 as
the date of receipt) and the original of the applicant’s appeal
which bore the court’s stamp attesting that it had been
received on 15 March 2001.
-
On 20 March 2002 the Skopje Court of Appeal returned the case file to
the first-instance court for the third time. It ordered that court to
hear a statement from the court’s administrative officer as to
when the applicant’s appeal had been recorded in the register
and what the reasons for having recorded different dates of receipt
had been.
-
In its reply of 23 April 2002, the first-instance court informed the
Court of Appeal that, according to that officer’s statement,
submissions filed with the court in person had to be recorded in the
register on the date of receipt or the next day, and the date noted
constituted the official date of submission. No copy of that letter
or the court officer’s statement was produced.
-
On 15 May 2002 the Skopje Court of Appeal dismissed the applicant’s
appeal. It found that the lower court had correctly rejected his
appeal as out of time, relying on the court’s stamp
acknowledging receipt of the appeal and the register indicating 23
March 2001 as the introduction date. The decision was served on the
applicant on 6 September 2002.
-
On 22 October 2002 the applicant requested the public prosecutor to
lodge a request for the protection of legality with the Supreme
Court. That request was refused on 6 December 2002.
-
On 23 January 2002 the applicant brought criminal charges for abuse
of office against the court’s administrative officer who had
allegedly put different receipt dates on the copies of the appeal and
entered the wrong date in the register.
-
On 25 February 2003 the public prosecutor rejected the applicant’s
criminal complaint as the offence complained of was not prosecutable
ex officio.
-
On 11 April 2003 the first-instance court refused a request by the
applicant to open an investigation in respect of that officer. That
decision was upheld on 11 June 2003 by the Skopje Court of Appeal.
II. RELEVANT DOMESTIC LAW
- Section
102 § 1 of the then Civil Proceedings Act
(“the then Act”) provided that
a submission would be considered as submitted in good time if it was
handed over to the competent court within the prescribed time-limit.
-
Section 334 of the then Act provided that,
inter alia, parties concerned could appeal against the
first-instance court’s decision within fifteen days from the
date of service of that latter decision, if not otherwise regulated
by law.
-
Under section 343, an appeal was to be filed with the first-instance
court with a sufficient number of copies for the court and the
parties concerned.
- According
to section 344 §§ 1 and 2, an appeal that was incomplete,
inadmissible or submitted out of time would be rejected by the
presiding judge of the first-instance court’s panel without a
hearing. An appeal would be considered as submitted out of time if it
was not filed within the statutory time-limit.
THE LAW
I.
ALLEGED VIOLATIONS OF ARTICLE 6 § 1 OF THE CONVENTION
-
The applicant complained that his appeal had not been examined on the
merits, given that the Court of Appeal had wrongly considered it as
submitted out of time. He also complained that his case had not been
heard within a reasonable time. The Court considers that these
complaints fall to be examined under Article 6 of the Convention
which, in so far as relevant, reads as follows:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a fair ... hearing within a
reasonable time by [a] ... tribunal ...”.
A. Admissibility
- The
Government have not raised any objections as to the admissibility of
these complaints.
- The
Court notes that the complaints under this head are not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It further notes that they are not inadmissible on any
other grounds. They must therefore be declared admissible.
B. Merits
1. The “right of access to a court” complaint
(a) The parties’ submissions
-
The Government maintained that the applicant’s representative
had submitted his appeal in person to the first instance court, and
that the date stamp on the appeal showed that the appeal had been
submitted on 23 March 2001. The courts had therefore rejected
the appeal as having not been submitted within the time-limit, as
provided under the then Act. They further stated that the Court of
Appeal had made efforts to establish the truth as to the date of
receipt of the appeal. Acting upon its instructions, the
first-instance court had established that 23 March 2001 had been
recorded in the register as date of introduction. That date had been
indicated on the copy of the appeal which had been communicated to
the defendants for consideration. In addition, the applicant had had
the right to challenge that decision before the Court of Appeal. They
therefore concluded that the State could not be held responsible for
errors made by the applicant’s lawyer, namely having failed to
submit the appeal in good time. Finally, they stated that the
applicant had been afforded the guarantees embodied in Article 6 of
the Convention.
-
The applicant avowed that he had submitted his appeal on
15 March 2001. The first-instance court had acknowledged
receipt on that date by affixing its stamp on his appeal. The
applicant stated that he could not speculate as to what had happened
with the remaining two copies of his appeal which had been stamped on
23 March 2001, as that had been in the court’s area of
competence and, accordingly, beyond his control. The courts should
have established, but not to his detriment, the reasons for having
stamped them on 23 March 2001 and having recorded that date in the
register. The Court of Appeal had dismissed his arguments although he
had produced a copy of his appeal with the court’s stamp
indicating that it had been lodged by him on 15 March 2001 (see
paragraph 18 above). He maintained that the domestic courts’
decisions had been unlawful and subjective given that they had been
based on the information obtained from their registers. Relying on
section 102 § 1 of the then Act, he maintained that he had
submitted his appeal within the fifteen-day time-limit and that when
the court had recorded other copies in its register was irrelevant.
He concluded that the courts, ignoring the evidence that his appeal
had been submitted in good time, had infringed his right of access to
a court as provided under this head.
(b) The Court’s assessment
-
The Court reiterates at the outset that it is not its task to take
the place of the domestic courts. It is primarily for the national
authorities, notably the courts, to resolve problems of
interpretation of domestic legislation (see, mutatis mutandis,
the Brualla Gómez de la Torre v. Spain, judgment of
19 December 1997, Reports of Judgments and Decisions
1997-VIII, p. 2955, § 31, and the Edificaciones March
Gallego S.A. v. Spain, judgment of 19 February 1998, Reports
1998-I, p. 290, § 33), and the question of whether a litigant
has complied with the time-limits set out in domestic law is a prime
example of such a case. Further, the “right to a court”,
of which the right of access is one aspect, is not absolute; it is
subject to limitations permitted by implication, in particular where
the conditions of admissibility of an appeal are concerned, since by
its very nature it calls for regulation by the State, which enjoys a
certain margin of appreciation in this regard. However, these
limitations must not restrict or reduce a person’s access in
such a way or to such an extent that the very essence of the right is
impaired; lastly, such limitations will not be compatible with
Article 6 § 1 if they do not pursue a legitimate aim or if there
is not a reasonable relationship of proportionality between the means
employed and the aim pursued (see, among other authorities, the
Edificaciones March Gallego S.A., judgment cited above, p. 290, §
34).
- In
the instant case, the applicant’s appeal was declared
inadmissible because the applicant had failed to submit his appeal
against the judgment of 28 November 2000 (served on 2 March 2001)
within the time-limit which expired on 17 March 2001.
- The
Court considers the aim pursued by the 15-day time-limit prescribed
in Section 334 of the Civil Proceedings Act as it was then in force
was legitimate in the interests of the good administration of justice
(see Bacev v. the former Yugoslav Republic of Macedonia (dec.),
no. 13299/02, 14 February 2006). However, the rules setting
time-limits for bringing appeals must not be applied in a way which
prevents litigants from using an available remedy. The issue is one
of legal certainty. The problem is not simply one of interpretation
of substantive rules, but that a procedural rule has been interpreted
in such a way as to prevent the applicant’s appeal being
examined on the merits, with the attendant risk that his right to the
effective protection of the courts would be infringed (see Zvolský
and Zvolská v. the Czech Republic, no. 46129/99,
§ 51, ECHR 2002 IX).
- The
domestic courts in the present case ultimately dealt with the
applicant’s appeal solely on the basis of the entry in the
registry of the first-instance court. Although a number of attempts
were made to determine the actual date of lodging, no answer was
given to the question (posed at least implicitly by the Skopje Court
of Appeal in its judgment of 20 March 2002) of why the copy of the
appeal stamped 15 March 2001 – of which the courts knew - had
not been accepted as the date of lodging the appeal.
- In
the circumstances of the case, the Court considers that the failure
by the domestic courts to accept the appeal of 15 March 2001 or, in
the alternative, to provide a tenable reason for not accepting it,
amounted to a construction of the procedural rule at issue which
deprived the applicant of his right of access to a court (see,
mutatis mutandis, Miragall Escolano and Others v. Spain,
nos. 38366/97, 38688/97, 40777/98, 40843/98, 41015/98, 41400/98,
41446/98, 41484/98, 41787/98 and 41509/98, §§ 37, 38 ECHR
2000-I, and Zvolský and Zvolská, cited above,
§ 51 - 55).
- For
these reasons, there has been a violation of the applicant’s
right of access to a court within the meaning of Article 6 § 1
of the Convention.
2. Alleged violation of the “reasonable time”
requirement
(a) 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 further maintained that the case had been of a complex factual
nature that had required examination of the parties concerned and
witnesses.
-
The Government further argued that the use of ordinary and
extraordinary remedies by the parties concerned had added to the
length of the proceedings. They also stated that seven adjournments
had been ordered because of the defendants’ absence and that
three hearings had been rescheduled because of the failure to
properly deliver a summons to a witness proposed by them. They
referred to the conduct of the Inspectorate, with whom the first
instance court had had poor communication.
- As
regards the applicant’s conduct, they referred to his new claim
(see paragraph 11 above) which required adjournment of a hearing.
However, they did not deny that the applicant had attended all
scheduled hearings and demonstrated willingness to have the
proceedings ended in due course.
-
Concerning the conduct of the domestic courts, the Government argued
that they had decided the applicant’s case with due diligence
and the scheduled hearings had been held without any interruptions or
delays.
-
The applicant submitted that account must be taken of the state of
proceedings on the date of ratification. He contested the
Government’s arguments that the case had been of a complex
nature, since all the evidence had been adduced before that date. In
addition, he stated that the number of parties involved, the lack of
an international element in his case, the fact that the settlement of
his case had not depended on another issue and that there had been no
intervention of other persons in the proceedings undermined the
credibility of the Government’s assertion about the complexity
of the case. He further argued that the only evidence taken by the
first-instance court between 11 April 1997 and 28 November 2000 had
been information obtained from the Inspectorate. He further
maintained that the parties could not be held responsible for having
availed themselves of the available remedies. The failure properly to
summon the parties concerned, which the Government referred to, could
be attributed only to the court. His new claim had not added to the
length of the proceedings as had been decided in a speedy manner.
Finally, he stated that it had taken eighteen months for the Supreme
Court to decide on the appeal on points of law of 21 April 1998 (see
paragraph 12 above) although it had decided the previous appeal (see
paragraph 8 above) within five months. He also submitted that it had
taken seven months for the Inspectorate to provide the first-instance
court with the requested information (see paragraph 13 above).
(b) The Court’s assessment
49. The Court notes that the proceedings started on 28 July 1992 when
the applicant filed his compensation claim with the first-instance
court. However, the period which falls within its jurisdiction did
not begin on that date, but 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).
50. 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 Styranowski v. Poland, no. 28616/95,
§ 46, ECHR 1998-VIII, and Foti and Others v. Italy,
judgment of 10 December 1982, Series A no. 56, p. 18, § 53).
In this connection, the Court notes that at the time of the entry
into force of the Convention in respect of the former Yugoslav
Republic of Macedonia, the proceedings had lasted over four years and
eight months for three court levels. The Skopje Court of Appeal’s
decision of 9 January 1997 was the last decision given within this
time.
-
The proceedings ended on 6 September 2002 when the Court of
Appeal’s decision of 15 May 2002 was served on the applicant.
The proceedings therefore lasted ten years, one month and nine days
of which five years, four months and twenty-eight days fall to be
examined by the Court for three levels of jurisdiction.
52. 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, and the references cited therein).
-
The Court accepts the applicant’s arguments (see paragraph 49
above) that the case was not of a complex nature.
-
It further considers that no periods of delay are imputable to the
applicant. In addition, the mere fact that the parties to the
proceedings made full use of the remedies available under domestic
law cannot be considered as contributing to the length of the
proceedings (see Lickov v. the former Yugoslav Republic of
Macedonia, no. 38202/02, § 28, 28 September
2006 and Arsov v. the former Yugoslav Republic of Macedonia,
no. 44208/02, § 42, 19 October 2006).
55. 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 v. the former Yugoslav
Republic of Macedonia, no. 44353/02, § 41,
15 June 2006).
-
In this connection, the Court notes that the case was reconsidered on
three occasions. One remittal order was made during the time which
falls within its competence ratione temporis. It further notes
that it took one year and six months for the Supreme Court to review
the defendants’ appeal on points of law (see paragraph 12
above). That period alone may not appear excessive (see mutatis
mutandis, Sergi v. Italy (dec.), no. 46998/99,
26 September 2000). However, there is no element in the case
file that would justify it, having regard, in particular, to the fact
that it had only taken five months to examine the previous appeal in
the case (see paragraph 8 above). Furthermore, the Court observes
that the only evidence required to be adduced after the Supreme
Court’s decision of 21 October 1999 was information about the
market value of sheep. The first-instance court did not manage to
obtain that information from the Inspectorate, despite three requests
to that effect (see paragraph 13 above). The Inspectorate’s
failure to provide that information had already caused a procedural
delay (see paragraph 9 above). That and delays caused by the
defendants’ failure to attend seven hearings and the failure to
summon witnesses properly (see paragraph 46 above) can only be
attributed to the State.
-
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 proceedings complained of failed to satisfy the
reasonable time requirement.
-
There has accordingly been a breach of Article 6 § 1 of the
Convention.
II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 OF THE
CONVENTION
-
Relying on Article 1 of Protocol No.1, the applicant complained that
he had not been awarded any compensation for the slaughter of his
sheep.
-
The Court considers that the applicant’s complaint under
Article 1 of Protocol No. 1 is directly connected with that examined
under Article 6 § 1 of the Convention (see
paragraphs 35-43 above) and that it cannot speculate on the outcome
of the proceedings should not have been for the violation found.
Having regard to its conclusion that there was an infringement of the
applicant’s right of access to a court, the Court does not
consider it necessary to rule on the applicant’s complaint
based on Article 1 of Protocol No. 1 (see, mutatis
mutandis, Mitrevski v. the former Yugoslav Republic of
Macedonia, no. 33046/02, § 41, 21 June 2007,
and the references cited therein).
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.”
- The
Court points out that under Rule 60 of the Rules of Court any claim
for just satisfaction must be itemised and submitted in writing
together with the relevant supporting documents or vouchers, “failing
which the Chamber may reject the claim in whole or in part”.
- In
a letter of 30 October 2006, after the application had been
communicated to the respondent Government, the Court invited the
applicant to submit his claims for just satisfaction by 11 December
2006. He did not submit any such claim.
- In
these circumstances, the Court makes no award under Article 41 of the
Convention (see Nikolov v. the former Yugoslav Republic of
Macedonia, no. 41195/02, § 33, 20 December
2007).
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the applicant’s complaints under
Article 6 § 1 of the Convention admissible;
- Holds that there has been a violation of Article
6 of the Convention in respect of the applicant’s rights of
access to a court and to have his case heard within a reasonable
time.
- Holds that there is no need to examine the
complaint under Article 1 of Protocol No. 1 to the Convention;
Done in English, and notified in writing on 19 June 2008, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
