(Application no. 34151/03)
8 October 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 Kamilova v. the former Yugoslav Republic of Macedonia,
The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:
Peer Lorenzen, President,
Mirjana Lazarova Trajkovska, judges,
and Claudia Westerdiek, Section Registrar,
Having deliberated in private on 15 September 2009,
Delivers the following judgment, which was adopted on that date:
THE CIRCUMSTANCES OF THE CASE
7. On 19 January 1999 the Gevgelija Court of First Instance (“the first- instance court”) granted the applicant's request of 11 January 1999 ordering enforcement of the court settlement, less DM 300 which the debtor had meanwhile paid. The applicant proposed an inventory, valuation and public sale of movable and immovable property of the debtor. On 17 May 2000 she further specified her request as concerning a house and plot of land (“the property”). In this connection, she submitted an extract from the land registry (“the registry”) dated 21 October 1999 attesting the debtor's title to the property. She also requested the first-instance court to record a charging order over the property (да стави прибелешка врз имотот на должникот) so as to secure her claim.
RELEVANT DOMESTIC LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
1. The parties' submissions
18. They also stated that the domestic courts could not be held responsible for the delays caused by the parties concerned. The first-instance court's inactivity between 2001 and 2006 had been due to the applicant's failure to propose other means of enforcement. Lastly, it was open to the applicant to request, under the Act, enforcement of her claim before bailiffs (see paragraphs 12 and 13 above).
2. The Court's assessment
(a) General principles
20. The Court recalls that the right to a court would be illusory if a Contracting State's domestic legal system allowed a final, binding judicial decision to remain inoperative to the detriment of one party (see Jankulovski v. the former Yugoslav Republic of Macedonia, no. 6906/03, § 33, 3 July 2008). Further, a delay in the execution of a judgment may be justified in particular circumstances. It may not, however, be such as to impair the essence of the right protected under Article 6 § 1 (see, mutatis mutandis, Pecevi v. the former Yugoslav Republic of Macedonia, no. 21839/03, § 29, 6 November 2008). The State's responsibility for enforcement of a private judgment extends no further than the involvement of State bodies, including the domestic courts, in the enforcement proceedings. However, the States are under an obligation to ensure that the procedures enshrined in the legislation for the enforcement of final judgments are complied with (see Fuklev v. Ukraine, no.71186/01, §§ 67 and 91, 7 June 2005).
(b) Application of these principles to the present case
21. The Court notes that the enforcement proceedings started on 11 January 1999 when the applicant requested the first-instance court to enforce the court settlement. Although there was no formal decision terminating the enforcement proceedings before the courts, it may be regarded that they ended on 31 December 2007 when, under section 238 of the Act, the enforcement could have continued before the bailiffs (see paragraph 13 above).
22. The Court notes that in the enforcement proceedings, the applicant proposed an inventory, valuation and public sale of the property and submitted a certificate attesting the debtor's title. The transfer of the property to the applicant's father post-dated the enforcement order. The Court observes that it took over nine months for the first-instance court to determine the value of the property and another five years, eight months and six days to serve its decision on the debtor (see paragraph 8 above). Lastly, the Government did not specify what remedy could the applicant use to speed up the enforcement proceedings (see Atanasovic and Others v. “the former Yugoslav Republic of Macedonia”, no. 13886/02, § 39, 22 December 2005).
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.”
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Declares the application admissible;
Done in English, and notified in writing on 8 October 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen