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FIFTH
SECTION
CASE OF PETKOSKI AND OTHERS v. THE FORMER YUGOSLAV REPUBLIC OF
MACEDONIA
(Application
no. 27736/03)
JUDGMENT
STRASBOURG
8
January 2009
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 Petkoski and Others 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,
Renate
Jaeger,
Isabelle Berro-Lefèvre,
Mirjana
Lazarova Trajkovska,
Zdravka Kalaydjieva, judges,
and
Claudia Westerdiek,
Section Registrar,
Having
deliberated in private on 2 December 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 27736/03) 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 six Macedonian nationals,
Mr Cvetko Risteski (“the first applicant”), Mr Stojan
Avramoski (“the second applicant”), Mrs Dosta Simonoska
(“the third applicant”), and by Mr Petkoski Krste,
Mr Blagoja Klimoski and Mr Risto Koleski (“the remaining
applicants”), respectively. By a letter of 25 August 2006, the
Court was informed that the first applicant had died on 25 December
2005 as had the second applicant on 9 April 2006.
- The
applicants were represented by Mr M. Popeski, a lawyer practising in
Ohrid. The Macedonian Government (“the Government”) were
represented by their Agent, Mrs R. Lazareska Gerovska.
- The
applicants alleged, in particular, that they had been denied the
right of access to a court and that the proceedings had been
unreasonably lengthy.
- On
6 September 2006 the Court decided to give notice of the application
to the Government. It also decided to examine the merits of the
application at the same time as its admissibility (Article 29 §
3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- On
11 September 1989 the applicants, excluding the third applicant,
lodged a civil action with the then Bitola Employment Court of First
Instance (Основен
суд на здружен
труд Битола)
applying for the annulment of the decision (“the
1989 decision”) of the agricultural cooperative Rasanec
земјоделска
задруга (“the
cooperative”), dated 26 August 1989, to restructure
itself as a socially owned enterprise општествено
претпријатие
(“the enterprise”). They claimed that the 1989 decision
had been adopted without the requisite number of votes of the
cooperative's members and workers being attained. They also
maintained that the interests of the cooperative's members had not
been taken into consideration when adopting the 1989 decision which
had affected the cooperative property directly. The applicants
claimed to be members and founders of the cooperative. The action
appears to have been an attempt by the applicants to restore their
standing as members of a cooperative to which they had contributed.
- On
5 February 1991 the Bitola Employment Court of First Instance
rejected the applicants' claim as the cooperative had ceased to exist
after the 1989 decision had been recorded on the court's register.
- On
30 January 1992 the then Trade Court of Macedonia (Стопански
суд на Македонија)
upheld the applicants' appeal and quashed the lower court's decision.
- On
4 March 1993 the then Bitola District Trade Court (Окружен
Стопански суд
Битола) upheld the
applicants' claim and annulled the 1989 decision. It established
that, after the 1989 decision, on 21 September 1989 the enterprise
had merged with the joint stock company Biljana (“the
company”). The court found that the enterprise had been the
legal successor of the cooperative and had accordingly undertaken the
latter's rights and obligations. As the company had twice intervened
in the proceedings, the court concluded that it had assumed the
position of a party being sued as the legal successor of the
enterprise. It finally decided that the 1989 decision had been
adopted without the necessary number of votes.
- On
7 July 1993 the Trade Court of Macedonia accepted both parties'
appeals and quashed the above decision. It held that the lower court
had erred in establishing the facts concerning the status of the
cooperative. It concluded that the proceedings should have been
stayed had the cooperative ceased to exist, until its legal successor
was eventually able to take over the dispute.
-
On 23 February 1994 the Bitola District Trade Court declared itself
incompetent to decide the case. It held that, because of the nature
of the dispute it was the Ohrid Municipal Court (Општински
суд Охрид) which
had jurisdiction to decide the case.
-
On 20 May 1994 the Trade Court of Macedonia quashed the lower court's
decision and referred the case back for re-examination. It held that
the Bitola District Trade Court had been competent ratione
materiae to decide the case. According to the higher court, the
matter in dispute in the case was the change of the cooperative's
status (статусен
спор).
-
On 24 June 1994 the Bitola District Trade Court stayed the
proceedings as a result of the fact that the cooperative had ceased
to exist on 29 January 1992. It was decided that the proceedings
would be stayed until the legal successor of the cooperative could
take over the dispute.
-
On 29 August 1994 the Trade Court of Macedonia dismissed the
applicants' appeal and upheld the lower court's decision.
-
On 29 June 1995 the applicants requested the court to resume the
proceedings against the company, as the legal successor of the
cooperative. The proceedings continued against the company.
-
On 15 September 1997 the Ohrid Court of First Instance (“the
first-instance court”) accepted the applicants' claim and
annulled the 1989 decision since it had not been adopted in
compliance with the legislation applicable at that time (Association
of Farmers Act, Закон
за здружување
на земјоделците).
The court dismissed the company's argument that the applicants lacked
the capacity to act since, under the court's register, they had been
members and founders of the cooperative. The court established that
the disputed decision had been adopted without any of the cooperative
members having been heard. It annulled the 1989 decision stating that
it had served as the legal basis for the transfer and transformation
of the cooperative's property into socially-owned property.
-
On 11 September 1998 the Bitola Court of Appeal quashed the lower
court's decision and remitted the case back for renewed
consideration. It found that the lower court had incorrectly
established the facts concerning, inter alia, the following
issues: the applicants' status as members/founders of the
cooperative; the cooperative's business activity and the body
competent to adopt the decision complained of. It also instructed the
lower court to hear evidence from the parties.
-
Three hearings were fixed before the first-instance court. On
5 February 1999 the first-instance court accepted the
applicants' claim once more and annulled the 1989 decision. It
established that the company was the legal successor of the
cooperative and had accordingly had the legal capacity to act in the
proceedings; that the cooperative had operated in the field of
agriculture and that the applicants' contributions to the
cooperative's property had been pecuniary or in kind.
-
On 7 December 1999 the Bitola Court of Appeal quashed the lower
court's decision and rejected the applicants' claim. It declared
itself incompetent ratione materae (апсолутно
ненадлежен)
to decide the case. Relying on sections 30 and 32 of the
Courts Act 1995, it stated
that “the courts have jurisdiction to decide the legality of
individual decisions in administrative and accounting disputes”.
It concluded that they had “no jurisdiction to decide disputes
as in the present case”.
-
On 14 February 2000 the applicants lodged an appeal on points of law
(ревизија)
with the Supreme Court. They complained that the court below had not
provided reasons for declaring itself incompetent to make a ruling on
the matter ten years after the proceedings had started. Further, the
court had not indicated which body would be competent to decide the
case.
-
On 20 November 2002 the Supreme Court dismissed the applicants'
appeal stating, inter alia, that:
“...when the court does not find itself competent
to decide a case, but instead nominates another body, it must declare
itself incompetent, revoke all actions taken during the proceedings
and reject the claim. The present case concerns a claim for the
annulment of a decision of an agricultural cooperative's council to
restructure itself as a socially-owned enterprise. There are
therefore, no statutory grounds for the judicial review requested...”
-
On 19 February 2003 the decision was served on the applicants.
II. RELEVANT DOMESTIC LAW
- According
to section 32 (b) of the Courts Act 1995 (Закон
за судовите),
courts of first instance were competent, inter alia, to decide
property and other civil law disputes in which parties to the
proceedings were enterprises and other legal entities; disputes
concerning status changes (division, merger, acquisition and
organisation); and the legality of individual decisions in
administrative and accounting disputes.
-
Section 111 § 1 of the Act provided, inter alia, that the
Trade Court of Macedonia and the District Trade Courts would cease to
exist on 30 July 1996.
-
In accordance with section 116 § 2 of the Act, the courts of
first instance and the appellate courts competent ratione materiae
and ratione loci, took over cases that were pending, inter
alia, in the District Trade Courts on 30 July 1996.
-
The Cooperatives Act of 1990 included provisions concerning the
foundation, management and cessation of cooperatives, as well as
issues related to their property.
- In
July 2002 a new Cooperatives Act was adopted setting aside the
Cooperatives Act of 1990.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
- The
applicants complained under Article 6 of the Convention that they had
been denied access to a court since their claim had remained
undecided on the merits due to the alleged lack of jurisdiction of
the national courts to decide the case. They also complained about
the excessive length of the proceedings. Article 6 of the Convention,
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
1. As regards the first and second applicants
- The
Court notes at the outset that the first applicant died on
25 December 2005 and that the second applicant died on 9 April
2006. It further notes that no request has been submitted by those
applicants' next-of-kin to pursue the case. In these circumstances,
the Court concludes that it is no longer justified to continue the
examination of the application in so far as it was brought by the
first and second applicants within the meaning of Article 37
§ 1 (c) of the Convention. Furthermore, the Court
finds no reasons of a general nature, as defined in Article 37 §
1 in fine, which would require the examination of this part of
the application by virtue of that Article. It therefore decides to
strike the application out of its list of cases in so far as it was
brought by the first and second applicants (see Erol Direkçi
and Ergül Direkçi v. Turkey (dec.), no.
47826/99, 31 March 2005).
2. As regards the third applicant
29. The Government submitted that the third applicant could not claim
to be a victim of the violations complained of as there had been no
evidence that she had been in any way affected by the decisions in
question.
30. The applicants did not express an opinion on the matter.
31. The Court observes that under Article 34 of the Convention it may
receive applications from individuals and others “claiming to
be the victim of a violation by one of the High Contracting Parties
of the rights set forth in the Convention or the Protocols thereto”.
In order to claim to be a victim of a violation, a person must be
directly affected by the impugned measure (see Amuur v. France,
judgment of 25 June 1996, Reports of Judgments and Decisions
1996-III, p. 846, § 36, and Buckley v. the United
Kingdom, judgment of 25 September 1996, Reports 1996-IV,
p. 128, p. 846, §§ 56-59).
-
In the present case, the Court considers that the third applicant
cannot be regarded as having locus standi to complain about
the proceedings in question as there is no evidence that she was a
party to those proceedings (see Bocvarska and Kupev v. the former
Yugoslav Republic of Macedonia (dec.), no. 27865/02, 6 November
2007).
-
It follows that the third applicant's complaints are incompatible
ratione personae with the provisions of the Convention within
the meaning of Article 35 § 3 and must be rejected in
accordance with Article 35 § 4.
3. As regards the remaining applicants
-
The Government did not raise any objections concerning the
admissibility of the remaining applicants' complaints.
-
The Court considers that the complaints are not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It further finds that they are not inadmissible on any
other grounds. They must therefore be declared admissible.
B. Merits
1. The parties' submissions
-
The Government submitted that the applicants' claim, having been
brought before the national courts, had not concerned the status of
the body in question, but that it related to cooperative property
(задружна
сопственост),
as a concept, which no longer existed at the time when the Supreme
Court decided the case. The Government conceded that the Act had
denied the applicants their right of access to a court since it had
excluded the right of judicial protection of the cooperative
property. They maintained, however, that the restriction had been
justified since it had aimed to facilitate the transition and
transformation of the socio-economic system of the State at that time
and that it had been proportionate.
- The
applicants emphasised that the Government had confirmed that the Act
had denied them access to a court in the proceedings although they
had been pending for six years when the Act had entered into force.
They argued that the Supreme Court had given vague reasons for
dismissing their claim, failing to specify the nature of the dispute.
Since it concerned the status of the entity in question, the courts,
on the basis of section 32 of the Act, had jurisdiction to decide
their claim.
-
They further contested the Government's argument that cooperative
property no longer existed. The Government's assertion that the Act
excluded the right of judicial protection of the cooperative property
lacked any force since the new Cooperatives Act of 2002 included
provisions relating to that property.
2. The Court's consideration
-
The Court recalls that “the procedural guarantees laid down in
Article 6 secure to everyone the right to have any claim relating to
his civil rights and obligations brought before a court or tribunal;
in this way it embodies the “right to a court”, of which
the right of access, that is the right to institute proceedings
before courts in civil matters, constitutes one aspect” (see
Golder v. the United Kingdom, judgment of 21 February 1975,
Series A no. 18, pp. 13-18, §§ 28-36). The Court notes that
the Government did not contend that Article 6 of the Convention did
not apply to the proceedings, and, noting that there is no suggestion
that the applicants were not members of the cooperative which was
transformed into a socially-owned enterprise, finds that Article 6
applies.
-
However, being able to put a case to a court does not in itself
satisfy all the requirements of Article 6 § 1. It must also be
established that the degree of access afforded under the national
legislation was sufficient to secure the individual's “right to
a court”, having regard to the rule of law in a democratic
society (see Ashingdane v. the United Kingdom, judgment of 28
May 1985, Series A no. 93, pp. 24-25, § 57). Moreover,
Article 6 guarantees the right of access to a court which does not
only include the right to institute proceedings, but also the right
to obtain a “determination” of the dispute by a court. As
stated in the Court's case-law, “it would be illusory if a
Contracting State's domestic legal system allowed an individual to
bring a civil action before a court without securing that the case
would be determined by a final decision in the judicial proceedings.
It would be inconceivable that Article 6 § 1 should describe in
detail procedural guarantees afforded to litigants - proceedings that
are fair, public and expeditious - without guaranteeing the parties
to have their civil disputes finally determined” (see Multiplex
v. Croatia, no. 58112/00, § § 44 and
45, 10 July 2003).
- At
the same time, 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, 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 (see the
Edificaciones March Gallego S.A., judgment cited above, p.
290, § 34). In addition, the principle of the rule of law and
the notion of fair trial enshrined in Article 6 preclude any
interference by the legislature with the administration of justice
designed to influence the judicial determination of the dispute (see
Stran Greek Refineries and Stratis Andreadis v. Greece,
judgment of 9 December 1994, Series A no. 301 B, § 49).
- In
the instant case, the Court notes that the applicants had the
possibility of bringing legal proceedings and they availed themselves
of it by requesting the courts to annul the 1989 decision to
restructure the cooperative as a socially-owned enterprise. During
the proceedings, the domestic courts gave different decisions,
including two first-instance decisions on the merits – of 15
September 1997 and 5 February 1999, which post-dated both the entry
into force of the Courts Act 1995 and the entry into force of the
Convention in respect of the former Yugoslav Republic of Macedonia -
in which they accepted the applicants' claim. The applicants thus not
only enjoyed the right to institute proceedings, but, in a number of
instances, domestic courts accepted jurisdiction to examine their
claim on the merits. The Supreme Court, giving the final decision in
the case, accepted the lower courts' finding that the 1989 decision
of the co-operative could not be challenged in the courts.
-
The Court notes the Government's contention that the decisions of the
domestic courts rejecting the applicants' claims were based on the
Courts Act 1995, which had removed judicial protection for property
belonging to cooperatives. They accepted that the Courts Act had
denied the applicants access to a court since they had claimed rights
in respect of that type of property.
- It
thus appears that, on the Government's account, from the enactment of
the Courts Act in 1995, the applicants' action was bound to be
unsuccessful because of the removal from judicial protection of the
type of property at issue.
- The
question is therefore whether this denial of access to court by way
of legislative amendment was compatible with Article 6 of the
Convention. The Government stated that the statutory exclusion of the
courts' jurisdiction to handle the applicants' case had served the
transition to a market economy. However, the Court observes that they
did not give any reason as to why it had been necessary to remove all
protection for the particular type of property related to the
applicants' claim. The domestic courts involved in the applicants'
case only referred to administrative and accounting disputes stating
that these fell within their jurisdiction. Furthermore, neither the
courts nor the Government gave any suggestion that the applicants
could have vindicated the rights they were trying to protect in any
other way, for example by identifying which body would be competent
to decide the case. Finally, it is to be noted that the applicants'
claim was rejected seven years after the Act had entered into force.
In this later context, the Court finds no explanation as to why it
took so long for the courts to reach such a decision.
- The
Court concludes that, on the assumption that the courts' refusal to
deal with the applicants' case was based on sections 32 of the Courts
Act 1995, as claimed by the Government, no reasons have been produced
to the Court which justify the interference by that provision with
the remaining applicants' right of access to a court.
- For
these reasons, there has been a violation of the applicants' right of
access to a court within the meaning of Article 6 § 1 of the
Convention.
- As to the complaint concerning the length of the
proceedings, which is not devoid of substance, the Court considers
that it must be regarded as having been absorbed by the preceding
complaint (see mutatis mutandis Multiplex v. Croatia,
no. 58112/00, § 58, 10 July 2003).
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
applicants claimed 1,500,000 euros (EUR) in respect of pecuniary
damage. They explained that that sum, according to the director who
had run the cooperative until 1988, would cover the movable and
immovable assets of the cooperative. They further claimed EUR 50,000
for non-pecuniary damage.
- The
Government contested these claims as unsubstantiated. They stated
that there was no causal link between the alleged violation and the
pecuniary damage claimed. By making that claim, the applicants were
in fact asking the Court to decide their case as brought before the
national courts.
- The
Court notes that the applicants' claim is made under Article 6 and
not Article 1 of Protocol No. 1, and does not discern any causal link
between the violation found and the pecuniary damage alleged; it
therefore rejects this claim. On the other hand, it awards the
remaining applicants jointly EUR 10,000 in respect of non-pecuniary
damage.
B. Costs and expenses
- The
applicants also claimed EUR 10,000 for the costs and expenses
incurred before the domestic courts and before the Court. They did
not produce any supporting documentation.
- The
Government contested this claim as excessive and unsubstantiated.
- According
to the Court's case-law, an applicant is entitled to reimbursement of
his 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 Kostovska v. the former Yugoslav Republic of
Macedonia, no. 44353/02, § 62, 15 June 2006). 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”.
- The
Court notes that the remaining applicants did not provide any
supporting documents concerning their legal fees. It therefore makes
no award in this respect (see Parizov v. the former
Yugoslav Republic of Macedonia, no. 14258/03, § 72,
7 February 2008).
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 third applicant's complaints
inadmissible;
- Decides to strike the application out of its
list of cases in respect of the first and second applicants;
- Declares the remaining applicants' complaints
admissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention in respect of the remaining applicants'
rights of access to a court;
- Holds that the complaint under Article 6 §
1 regarding the length of the proceedings is absorbed by the
preceding complaint;
- Holds
(a) that the respondent State is to pay the remaining
applicants jointly, within three months from the date on which the
judgment becomes final in accordance with Article 44 § 2
of the Convention, EUR 10,000 (ten thousand 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 applicants' claim
for just satisfaction.
Done in English, and notified in writing on 8 January 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
