[New search]
[Contents list]
[Printable RTF version]
[Help]
FIFTH
SECTION
CASE OF PAKOM SLOBODAN DOOEL v. THE FORMER YUGOSLAV REPUBLIC OF
MACEDONIA
(Application
no. 33262/03)
JUDGMENT
STRASBOURG
21
January 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 Pakom Slobodan Dooel 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 15 December 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 33262/03) 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 the company “Pakom
Slobodan Dooel” (“the applicant”) on 15 October
2003.
- The
applicant was represented by Mr D. Georgiev, a lawyer practising in
Skopje. The Macedonian Government (“the
Government”) were represented by their Agent, Mrs R. Lazareska
Gerovska.
- On
13 September 2006 the
President of the Fifth Section decided to give notice of the
application 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
I. THE CIRCUMSTANCES OF THE CASE
- In
December 1993, the applicant concluded a lease contract (“the
contract”) with the company “M.” (“the
debtor”) under which it rented a warehouse (“the
property”) for a period of five years.
- On
an unspecified date in 1996, the applicant claimed repossession
(враќање
во владение)
of the property since on 12 November 1996 the debtor had broken in,
removed its belongings and rented the property to a third person. The
applicant’s claim was upheld in two court levels, the last
being the Skopje Court of Appeal’s decision of 21 October 1998
ordering the debtor to restore the property in the applicant’s
actual possession.
- On
3 February 1999 the Skopje Court of First Instance (“the
first-instance court”) granted the applicant’s
enforcement request of 16 December 1998 by ordering the debtor
to vacate the property and to restore it in its actual possession
(“the enforcement order”). It also made a charging order
over the debtor’s bank account concerning the payment of trial
costs.
- On
16 February 1999 the debtor objected, inter alia, that the
validity of the contract had expired and that the enforcement was
accordingly, inadmissible. This objection was finally rejected by the
Skopje Court of Appeal’s decision of 17 November 1999.
- On
11 February 2000 the first-instance court dismissed the debtor’s
request for postponement of the enforcement. On 7 February and
16 March 2000 respectively, it also dismissed same
objections submitted by third parties, which had meanwhile joined the
proceedings.
- On
16 May 2000 the public prosecutor lodged a legality review request
(барање за заштита
на законитоста)
with the Supreme Court against the decision of 16 March 2000 arguing
that inter alia the enforcement order could not be executed
since the validity of the contract had meanwhile expired. On 29
September 2000 the first-instance court postponed, on the public
prosecutor’s request, the enforcement proceedings pending the
outcome of the legality review proceedings. On 9 October 2002 the
Supreme Court dismissed the public prosecutor’s legality review
request.
- Between
19 January 2000 and 29 May 2003, the first-instance court fixed five
hearings to be held on-site. On two occasion, the debtor
unsuccessfully requested exclusion of the sitting judge. On 20 July
2000 and 10 July 2003 the President of the first-instance court
ordered removal of the sitting judge. On 4 March and 13 June
2003 respectively, it issued an eviction order against the debtor. On
29 May 2003 it refused the debtor’s request that the
enforcement proceedings be suspended pending the outcome of other
civil proceedings, instituted in the meantime, in which the latter
had claimed revocation of the enforcement order (see paragraph 12
below).
- On
22 November 2005 the first-instance court adjourned the enforcement
advising the debtor to challenge the admissibility of the enforcement
(недопуштеност
на извршувањето)
in separate civil proceedings.
- On
9 February 2006 the Skopje Court of Appeal rejected the debtor’s
claim for revocation of the enforcement order, under section 53 of
the 1997 Act, as having not been advised by the first-instance court
to do so (see paragraph 15 below).
- On
15 December 2005, in separate civil proceedings, the debtor
challenged the admissibility of the enforcement. On 30 December 2008
the Skopje Court of Appeal finally upheld its claim declaring the
execution of the enforcement order inadmissible since the validity of
the contract had expired on 31 March 1999.
- There
was no formal decision terminating the enforcement proceedings.
II. RELEVANT DOMESTIC LAW
-
Section 53 of the then valid 1997 Enforcement Proceedings Act (“the
1997 Act”) (Закон
за извршна
постапка)
provided, inter alia, that the court would advise a
debtor to challenge the admissibility of the enforcement in separate
proceedings if that issue was relevant for the enforcement.
-
Section 3 of the 2005 Enforcement Act (“the 2005 Act”)
(Закон за
извршување)
provides that bailiffs (извршители)
carry out the enforcement.
-
Section 238 of the 2005 Act provides that enforcement
proceedings instituted before it entered into force are to continue
in accordance with the 1997 Act until 31 December 2007. Thereafter,
the 2005 Act applies.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- Without
invoking any provision of the Convention, the applicant
complained about the length of the enforcement
proceedings. The Court considers that
the applicant’s complaint falls to be examined under Article 6
§ 1 of the Convention, the
relevant part of 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...”
Admissibility
-
The Government did not raise any objection as to the admissibility of
the application.
- The
Court notes that the application 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.
Merits
1. The parties’ submissions
- The
Government submitted that there had been
complexities related to the case, including the on-site
hearings, various remedies used by the third parties and the debtor,
as well as the separate proceedings instituted
by the latter, which affected the length of the enforcement
proceedings.
- The
applicant contested the Government’s arguments.
2. The Court’s assessment
-
The Court notes that the enforcement proceedings started on
16 December 1998 when the applicant requested the enforcement of
the court decision of 21 October 1998. It may be regarded
that they ended before the courts on 31 December 2007, when
they could have continued, as specified in section 238 of the
2005 Act, before the bailiffs (see paragraph 17 above). They
therefore lasted nine years and seventeen days for three court
levels.
24. 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).
-
Having regard to the actions taken, the Court considers that the case
was of some complexity, but that this cannot, in itself, justify the
length of the proceedings.
-
It further finds that no delays were attributable to the applicant.
In this connection, it cannot be held responsible for the procedural
conduct of the debtor and third parties (see Stojanov v. the
former Yugoslav Republic of Macedonia, no. 34215/02, § 57,
31 May 2007).
-
As to the conduct of the national courts, the Court considers that it
cannot be said that they have been inactive during the proceedings.
The main issue that affected the length of the proceedings was
whether the enforcement had been admissible in view of the validity
of the contract. In this connection, the Court observes that the
first-instance court advised the debtor to challenge the
admissibility of the enforcement only on 22 November 2005. It
sees no reason why did it take that long for the first-instance court
to do so given that that issue had been first raised in the debtor’s
objection of 16 February 1999 (see paragraph 15 above). Moreover, the
proceedings lay dormant for two years and five months pending the
outcome of the legality review proceedings (see paragraph 9 above).
28.
Having examined all the material submitted to it, the Court considers
that in the instant case the length of the enforcement proceedings
was excessive and failed to meet the reasonable-time requirement of
Article 6 § 1 of the Convention.
29.
There has accordingly been a breach of this provision.
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.”
- The
Court notes that in the application form, the applicant submitted a
provisional claim for just satisfaction under Article 41 of the
Convention. In a letter of 17 January 2007, the
Registry invited the applicant to submit any claim for just
satisfaction as required under Rule 60 of the Rules
of Court. However, he
failed to do so.
- The
Government contested the applicant’s claim submitted in the
application form.
- The Court, having regard to Rule 60 § 3 of the
Rules of Court, makes no award under Article 41 of the Convention
(see Nikolov v. the former Yugoslav Republic of Macedonia, no.
41195/02, § 31-33, 20 December 2007.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the application admissible;
- Holds
that there has been a violation of Article 6 § 1 of the
Convention;
Done in English, and notified in writing on 21 January 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
