(Application no. 26124/02)
30 November 2006
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 MZT Learnica A.D. v. the former Yugoslav Republic of Macedonia,
The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:
Mr P. Lorenzen, President,
Mrs S. Botoucharova,
Mr K. Jungwiert,
Mr V. Butkevych,
Mrs M. Tsatsa-Nikolovska,
Mr R. Maruste,
Mr M. Villiger, judges,
and Mrs C. Westerdiek, Section Registrar,
Having deliberated in private on 6 November 2006,
Delivers the following judgment, which was adopted on that date:
5. On 25 June 1992 the applicant instituted enforcement proceedings requesting the then Skopje District Commercial Court (Окружен Стопански Суд во Скопје) to order the bank to transfer the money due to its account.
6. On 30 June 1992 the then District Commercial Court granted the applicant's request. As the bank objected to the order, the subsequent proceedings continued as civil proceedings on the merits of the applicant's claim.
7. At the hearing held on 26 May 1993, the then Skopje District Commercial Court required an independent expert opinion. On 18 June 2003 the expert opinion was submitted to the court. On 16 July 1993 the applicant objected to the expert opinion.
12. The hearing of 7 March 1994 was adjourned and the bank was ordered to submit information concerning the applicant's claim as clarified. The court adjourned the hearing of 18 April 1994 due to the parties' absence.
13. At the hearing of 6 June 1994 the court ordered the State Forensic Institute (Републички Завод за судски вештачења) (“the Institute”) to draw up an expert report concerning two letters of credit. On 1 July 1994 the Institute asked the court to order the applicant to pay the expert's costs. The expertise scheduled for 1 November 1994 was adjourned as the bank had requested the court to disqualify the expert for bias. On 17 November 1994 the court dismissed the request. On 17 February 1995 the court received the expert opinion.
16. As the receiver (стечаен управник) in the bankruptcy proceedings had disputed the applicant's claim, on 5 and 6 June 1995 the District Commercial Court, as a bankruptcy court, instructed the latter to institute separate civil proceedings to ascertain its claim.
17. On 23 February 1996 the applicant requested the court to resume the civil proceedings against the bank. It also asked the court to hold a hearing and to summon the experts who had already provided their opinions.
22. On 2 March 1998 the applicant requested reinstatement of the proceedings (враќање во поранешна состојба). On 27 May 1998 the court granted the applicant's request and re-scheduled the hearing for 21 September 1998 ordering it to clarify its claim. On 2 June 1998 the applicant partly withdrew its claim concerning one of the letters of credit.
25. On 21 April 1999 the court required additional expert opinion to be obtained concerning the bank's challenge of 2 April 1999. On 22 December 1999 the court appointed the State Forensic Institute for Financial Matters to draw up a report. On 7 February and 29 March 2000 the Institute asked the court to order the bank to pay the expert's costs. As the expert's costs remained unpaid, on 17 May 2000 the Institute sent the case-file back to the court.
26. On 8 November 2000 the applicant requested the court to transmit the file back to the Institute paying the expert's costs. On 14 November 2000 the court asked the Institute again to draw up its report. On 11 April 2001 the court received the expert opinion.
28. On 29 November 2001 the Skopje Court of First Instance completed the bankruptcy proceedings against the bank. It noted, inter alia, that the creditors' claims had been cleared from the bank's assets (стечајна маса) and that the remaining part had been transferred to the State.
30. On 13 March 2002 the applicant appealed against this decision. It complained inter alia, that the proceedings should continue against the State, as a legal successor of the bank which assumed possession of the remaining assets after the latter had been declared insolvent. By a submission of 12 June 2002, the applicant requested the court to invite the State to join the proceedings as a legal successor of the bank.
31. On 30 October 2002 the Skopje Court of Appeal dismissed the applicant's appeal and upheld the lower court's decision. It found that the proceedings could not continue against the State, as the applicant had not officially requested continuation of the proceedings against the latter and the court could not ex officio continue them.
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”
38. The Court notes that the proceedings started on 25 June 1992 when the applicant requested the then Skopje District Commercial Court to order the bank to transfer the money due to its account. As the bank objected to the court's order, the subsequent proceedings continued as civil proceedings on the merits of the applicant's claim. They have been stayed as the bank meanwhile ceased to exist. The Court considers that the proceedings have not yet ended, as domestic courts have not yet decided on the applicant's request for their continuation against the State, as the bank's legal successor. The trial court held a hearing summoning the State as a party to the proceedings, but it did not make any decision in this respect.
39. The Government submitted that the period which had lapsed before the entry into force of the Convention in respect of the former Yugoslav Republic of Macedonia should not be taken into consideration.
40. The Court finds that the period which falls within its jurisdiction did not begin on 25 June 1992, but on 10 April 1997, after the Convention entered into force in respect of the former Yugoslav Republic of Macedonia (see Atanasovic and Others v. “the former Yugoslav Republic of Macedonia”, no. 13886/02, § 26, 22 December 2005; Horvat v. Croatia, no. 51585/99, § 50, ECHR 2001 VIII).
45. The applicant argued that the case had been of a commercial nature for which national legislation had provided abbreviated time-limits. It stated that duration of eight years after the ratification of the Convention had been sufficient to find a violation of the reasonable-time requirement. It maintained that by 10 April 1997, the case had been ready for adjudication, as two expert opinions had been already obtained in its favour. It claimed that the courts had unnecessarily upheld the bank's request for a third expertise and that, although the expert's costs were the responsibility of the bank, it had paid them to avoid any further delays. It contested the Government's argument that the case had been complex and that it had contributed to the length of the proceedings. Its failure to attend some hearings did not cause much delay. It submitted that it had not lost interest in pursuing the case against the State, but that there had been no reasonable alternative as the latter had declined to take over the proceedings as a defendant. In conclusion, the applicant maintained that the unreasonable length of the proceedings had been wholly attributable to the State which should be found responsible and ordered to pay the amount owed by the bank.
48. Concerning the applicant's conduct, the Court finds that no significant periods of delay are imputable to the company. It notes that the applicant's failure to attend the hearings of 10 December 1997 and 23 February 1998 caused a suspension of the proceedings for only three months (see paragraphs 22 and 23). The Court further observes that the applicant endeavoured to speed up the proceedings by paying the expert's costs, although this had been the bank's responsibility (see paragraph 27) and by requesting the court to hold a hearing at its earliest convenience (see paragraph 34). It could not be held responsible for any failure to request the court more often to speed up the proceedings as such submissions could not be considered as an effective remedy concerning the length of proceedings (see Atanasovic, cited above, § 31).
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
53. The Court reiterates that the concept of “possessions” in the first part of Article 1 of Protocol No. 1 has an autonomous meaning which is not limited to ownership of physical goods and is independent from the formal classification in domestic law (see, mutatis mutandis, Zwierzyński v. Poland, no. 34049/96, § 63, ECHR 2001-VI). The concept of “possessions” is not limited to “existing possessions” but may also cover assets, including claims, in respect of which the applicant can argue that he has at least a reasonable and “legitimate expectation” of obtaining effective enjoyment of a property right (see Öneryıldız v. Turkey [GC], no. 48939/99, § 124, ECHR 2004; Prince Hans-Adam II of Liechtenstein v. Germany [GC], no. 42527/98, § 83, ECHR 2001-VIII). However, it has been the Court's constant case-law that a “claim” can only constitute a “possession” within the meaning of Article 1 of Protocol No. 1 if it is sufficiently established to be enforceable (see Nosov v. Russia (dec.), no. 30877/02, 20 October 2005; Grishchenko v. Russia (dec.), no. 75907/01, 8 July 2004; Burdov v. Russia, no. 59498/00, § 40, ECHR 2002 III).
54. Turning to the present case, the Court notes that the national courts reached no decision on the merits. It appears that some of the bank's assets remained available, as they were transferred to the State. Therefore, the applicant may still recover its claim. In this respect, the application is premature and therefore the domestic remedies have not yet been exhausted.
56. Finally, the Court finds that the applicant's complaint under Article14 of the Convention is unsubstantiated as no evidence has been provided in support of its allegations. Moreover, the applicant failed to raise the issue of discrimination before the Constitutional Court which is vested with the jurisdiction to decide such issues (see Sijakova and others v. “the former Yugoslav Republic of Macedonia”, (dec) 6 March 2003, no. 67914/01).
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“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.”
B. Costs and expenses
C. Default interest
FOR THESE REASONS, THE COURT UNANIMOUSLY
(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 4,000 in respect of non-pecuniary damage, plus any tax that may be chargeable;
(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;
4. Dismisses the remainder of the applicant's claim for just satisfaction.
Done in English, and notified in writing on 30 November 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen