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FIFTH
SECTION
CASE OF JOVANOVSKI v. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA
(Application
no. 40233/03)
JUDGMENT
STRASBOURG
25
March
2010
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 Jovanovski v. the former Yugoslav Republic of
Macedonia,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer Lorenzen, President,
Renate
Jaeger,
Karel Jungwiert,
Rait Maruste,
Mark
Villiger,
Mirjana Lazarova Trajkovska,
Zdravka
Kalaydjieva, judges,
and Claudia
Westerdiek, Section
Registrar,
Having
deliberated in private on 2 March 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 40233/03) 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 Tomislav Jovanovski (“the
applicant”), on 13 December 2003.
- The
applicant was represented by Mrs D. Cakarovska Grozdanovska, a lawyer
practising in Skopje. The Macedonian Government (“the
Government”) were represented by their Agent, Mrs
R. Lazareska Gerovska.
- On 27 November 2007
the Court decided to communicate the length
complaint concerning the first set of proceedings (see below).
Applying Article 29 § 3 of the Convention, it decided to rule on
the admissibility and merits of the application at the same time.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1951 and lives in Bitola.
A. Proceedings concerning the applicant's compensation claim for
being unable to use his house (“the first set of proceedings”)
- On
9 November 1987 the applicant entered into an agreement with Mr
V.G. (“the defendant”) under which the latter had agreed
to produce and install some furniture in the applicant's house. The
applicant made an advance payment.
- On
12 April 1993 the applicant claimed annulment of the agreement since
the defendant had not complied with it.
- On
1 February 1994 the applicant specified his claim and sought
compensation.
- On
16 June 1995 the applicant lodged another compensation claim on a
different ground. On the same date, the then Bitola Municipal Court
(“the first-instance court”) ruled partly in favour of
the applicant ordering a cross-cancellation of debts (пребивање).
It made no decision in respect of the applicant's compensation claim
since it had not been specified. On 26 March 1996 the Bitola
Court of Appeal confirmed the decision on the merits and quashed it
in respect of the trial costs.
- After
the defendant died, the first-instance court invited defendant's
heirs (“the heirs”) to submit a court decision
recognising them as his successors.
- On
10 March 1997 the applicant successfully requested removal of the
judge.
- On
8 December 1998 the applicant further specified his claim.
- After
one hearing being adjourned due to the applicant's absence, the
first-instance court dismissed the applicant's compensation claim on
19 January 2000. This decision was confirmed on the merits by
the Bitola Court of Appeal's decision of 26 October 2000. On 10 April
2003 the Supreme Court dismissed the applicant's appeal on points of
law of 31 March 2001. This latter decision was served on the
applicant on 25 August 2003.
B. Proceedings concerning the applicant's dismissal (“the
second set of proceedings”)
- The
applicant's dismissal was annulled by a decision of the Bitola Court
of Appeal of 16 October 1997. He was reinstated on 7 November 1997.
C. Proceedings concerning the applicant's compensation claim
related to his unlawful dismissal (“the third set of
proceedings”)
- On
an unspecified date in 1998, the applicant brought an action against
his employer claiming compensation for the unlawful dismissal.
- On
8 December 2000 the first-instance court ruled partly in his favour.
This decision was upheld by the Bitola Court of
Appeal and the Supreme Court with decisions of 22 May 2001 and
13 March 2003, respectively. This latter
decision was served on the applicant on 13 June 2003.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that the length of all sets of 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 first set of proceedings
- 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.
2. The second set of proceedings
- The
Court notes that this set of proceedings ended with the Bitola Court
of Appeal's decision of 16 October 1997, while the application was
lodged with the Court on 13 December 2003.
- It
follows that the applicant's complaints under this
head have been introduced outside the six-month time-limit laid down
in Article 35 § 1 and must be rejected in accordance
with Article 35 § 4 of the Convention.
3. The third set of proceedings
- The
Court observes that this set of proceedings started in 1998 and ended
on 13 June 2003 when the Supreme Court's decision was served on the
applicant. They therefore lasted at least four years and seven months
for three court levels. The Court observes that the proceedings
before the Supreme Court were somewhat long (see, a contrario,
Kertakov v. the former Yugoslav Republic of Macedonia (dec.),
no. 13302/02, 6 November 2006). However, a delay at some
stage may be tolerated if the overall duration of the proceedings
cannot be deemed excessive (see Nuutinen v. Finland,
no. 32842/96, § 110, ECHR 2000 VIII). Having
regard to the overall length of the proceedings and the number of
instances involved, the Court considers that there was no violation
of the “reasonable time” requirement in respect of these
proceedings.
- 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.
B. Merits
1. 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 stated
that there had been complex circumstances related to the case, such
as the need for expert examination and the fact that the
first-instance court had to await the outcome of inheritance
proceedings so that the heirs could be accepted as a party to the
proceedings.
- They
also argued that four adjournments were attributable to the applicant
(see paragraph 12 above); that he had specified his claim on several
occasions (see paragraphs 7, 8 and 11 above) and that he had
requested exemption of the judge (see paragraph 10 above).
- The
applicant contested the Government's arguments.
2. The Court's assessment
- The Court notes that the proceedings started on 12
April 1993 when the applicant brought his claim. 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).
- 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 four years at two levels of
jurisdiction.
-
The proceedings ended on 25 August 2003 when the Supreme Court's
decision was served on the applicant. They therefore lasted over ten
years and four months, of which six years, four months and sixteen
days fall within the Court's temporal jurisdiction at three court
levels.
- With reference to its settled case-law on this matter,
the Court will assess the reasonableness of the length of the
proceedings in the light of the particular circumstances of the case
having regard to its complexity, to the conduct of the applicant and
to that of the authorities dealing with the case (see Markoski v.
the former
Yugoslav
Republic
of Macedonia, no.
22928/03, § 32, 2 November 2006).
- The
Court considers that the case was of some complexity, but that it
cannot in itself explain the length of the proceedings. No
justification was advanced as to how the inheritance proceedings
increased the complexity of the case.
- As
regards the applicant's behaviour, the Court considers that he was
responsible for one adjournment, as opposed to the Government's
arguments in this respect (see paragraphs 12 and 24 above). His
submissions specifying his claim cannot be considered to his
detriment. Lastly, he cannot be held responsible for having availed
himself of the available remedies to request successfully exclusion
of the trial judge.
- Conversely, the Court finds significant delays
attributable to the domestic courts. In this connection, it observes
that during the time under consideration, it took nearly three years
and ten months for the first-instance court to decide the applicant's
case after it was remitted (see paragraphs 8 and 12 above). It
further took nearly two years for the
Supreme Court to decide the applicant's appeal on points of law (see
paragraph 12 above). The time which elapsed before that court,
which reviewed the case only on points of law, cannot be regarded as
reasonable (see Mihajloski v. the former
Yugoslav
Republic
of Macedonia, no.
44221/02, § 38, 31 May 2007). Lastly, four months
and fifteen days elapsed for the
Supreme Court's decision to be served on the applicant.
- Against
the foregoing, the Court considers that in the instant case the
length of the proceedings was excessive and failed to meet the
“reasonable time” requirement.
- There
has accordingly been a breach of Article 6 § 1.
II. OTHER ALLEGED
VIOLATIONS OF THE CONVENTION
- Lastly,
the applicant alleged that the courts had incorrectly assessed the
evidence; that they had incorrectly applied domestic law and that
they have reached the wrong decision
-
3The 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.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article
41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed 6,125,463 euros (EUR) in respect of pecuniary
damage because he was unable to use the house.
-
The Government contested these claims.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged. It therefore rejects this claim.
The applicant did not submit a claim for
non-pecuniary damage in accordance with Rule 60 of the Rules of
Court. In these circumstances, the Court makes no award under this
head (see, mutatis mutandis,
Nikolov
v. the former Yugoslav Republic of Macedonia,
no. 41195/02, § 33, 20 December 2007).
B. Costs and expenses
- The
applicant also claimed EUR 4,636 for the costs and expenses incurred
before the domestic courts. He did not make any claim for the
proceedings before this Court
-
The Government contested these claims.
- The
Court reiterates that only such costs and expenses as were actually
and necessarily incurred in connection with the violation found, and
reasonable as to quantum, are recoverable under Article 41 (see
Kyrtatos v. Greece, no. 41666/98, § 62,
ECHR 2003 VI (extracts)). Concerning the
applicant's request for reimbursement of the costs incurred in the
proceedings before the domestic courts, the Court notes that such
costs had not been incurred in order to seek through the domestic
legal order prevention and redress of the alleged violation
complained of before the Court. Accordingly, it does not award
any sum under this head (see Milošević v. the former
Yugoslav Republic of Macedonia, no. 15056/02, § 34,
20 April 2006). The applicant did not
seek reimbursement of legal costs and expenses
incurred before it.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint concerning the 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 in respect of the length of the
proceedings;
- Dismisses the applicant's claim for just
satisfaction.
Done in English, and notified in writing on 25 March 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia
Westerdiek Peer Lorenzen
Registrar President
