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Cite as: [2009] ECHR 2080

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FIFTH SECTION

CASE OF KALANOSKI v. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA

(Application no. 31391/03)

JUDGMENT

STRASBOURG

17 December 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 Kalanoski 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,
Isabelle Berro-Lefèvre,
Mirjana Lazarova Trajkovska, judges,
and Claudia Westerdiek, Section Registrar,

Having deliberated in private on 24 November 2009,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

The case originated in an application (no. 31391/03) 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 Ilija Kalanoski (“the applicant”), on 17 September 2003.

The applicant was represented by Mr M. Popeski, a lawyer practising in Ohrid. The Macedonian Government (“the Government”) were represented by their Agent, Mrs R. Lazareska Gerovska.

On 17 November 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

THE CIRCUMSTANCES OF THE CASE

The applicant was born in 1932 and lives in Skopje.

On 5 May 1991 the then Municipal Court of Struga (“the first-instance court”) ruled partly in the applicant’s favour ordering the defendant, Mr J.T., to pay him compensation. On 29 December 1992 the then District Court of Bitola overturned the decision and increased the amount of the award.

On 1 February 1993 the applicant sought enforcement before the first-instance court by an inventory and public sale of the defendant’s (“the debtor”) movable property.

According to the applicant, his request for enforcement was granted on 3 February 1993, but no formal decision has been ever served on him.

Between 17 April 1993 and 18 April 1994 respectively, the applicant complained to the President of the first-instance court and to the State Judicial Council about the court’s inactivity. No answer was provided.

On 23 June 1994 an expert determined the amount of the applicant’s claim with interest.

According to the Government, in May 1999 the enforcement proceedings were terminated as being resolved “in other way” (“на друг начин”) corresponding to the common practice of the courts and extract of the court’s registry. No record was made about the termination of the proceedings. In or about March 2000, the case-file was destroyed.

According to the applicant, on 13 December 2006 the first-instance court intended to restore the case by requesting him to resubmit relevant documents. The Government did not dispute that assertion.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

The applicant complained that he had been denied the right of access to a court due to the non-enforcement of his claim. He complained under Article 6 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 fair ... hearing ... by [a] ... tribunal ...”

A. Admissibility

The Government objected that the applicant had not complied with the six-month time-limit, which had started to run since March 2000, when the case-file had been destroyed. They further argued that the application was an abuse of the right of application.

The applicant contested the Government’s objections.

15. The Court reiterates that the six-month period will run from the date on which a decision is actually served (see Worm v. Austria (dec.), no. 22714/93, 7 November 1995). In this connection, it observes that the Government did not provide any evidence that the applicant had been served with a decision in respect of the termination of the enforcement proceedings or the destruction of the case-file.

The Government’s arguments that the application was an abuse of the right of application are also unsubstantiated.

It follows that the Government’s objections must be rejected.

The Court further considers that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It also finds that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. The parties’ submissions

19. 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 the applicant had not demonstrated any interest in the enforcement proceedings and had failed to request their expedition in a proper manner (see paragraph 8 above).

20. The applicant contested the Government’s arguments.

2. The Court’s consideration

The Court reiterates that the execution of a judgment given by any court must be regarded as an integral part of the “trial” for the purposes of Article 6 of the Convention (see Jankulovski v. the former Yugoslav Republic of Macedonia, no. 6906/03, § 33, 3 July 2008). Moreover, it considers that the State has a positive obligation to organise a system for enforcement of judgments that is effective both in law and in practice and ensures their enforcement without undue delay (see Pecevi v. the former Yugoslav Republic of Macedonia, no. 21839/03, § 29, 6 November 2008). However, the Court notes that State responsibility for enforcement of a judgment against a private party extends no further than the involvement of State bodies in the enforcement procedures. Once the enforcement procedures were closed by a court in accordance with the national legislation, the responsibility of the State ended (see Martinovska v. the former Yugoslav Republic of Macedonia, (dec.), no. 22731/02, 25 September 2006).

The Court notes that the enforcement proceedings started on 1 February 1993 when the applicant sought enforcement of his claim. They formally ended in March 2000 when the case-file was destroyed. It appears that on 13 December 2006 the applicant was only informed about the earlier termination.

23. The impugned situation has thus lasted nearly seven years and one month plus six years until the applicant was informed, of which approximately nine years fall within the Court’s jurisdiction ratione temporis (since the ratification of the Convention by the respondent State on 10 April 1997).

The Court further observes that, in order to determine the reasonableness of the delay in question, regard must also be had to the state of the case on the date of ratification (see Jankulovski v. the former Yugoslav Republic of Macedonia, cited above) and notes that on 10 April 1997 the enforcement proceedings had already been pending for four years, two months and nine days.

The Court notes that there was no direct examination of the applicant’s initial request for enforcement or that any action was taken between 1997 and 2006 (“the relevant period”), the latter being the year when he became aware about the earlier termination of the enforcement proceedings. Moreover, the Government did not provide any explanation in respect of the court’s failure to properly inform the applicant about the termination of the proceedings, which consequently had deprived him of the possibility to challenge it.

As to the applicant’s behaviour, the Court observes that his requests for expedition of the enforcement proceedings although unanswered, are a factor in his favour. However, his last activity in respect of the proceedings was in June 1994 (see paragraph 9 above), and there is no evidence that later he showed any interest about their outcome.

Against this background, the Court considers that by refraining for taking adequate and effective measures to enforce the applicant’s claim within the relevant period the domestic court deprived the provisions of Article 6 § 1 of the Convention of all useful effect.

There has therefore been a violation of Article 6 § 1 of the Convention.

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 applicant claimed 691,000 euros (EUR) in respect of pecuniary damage. That figure corresponded to the amount awarded in the substantive proceedings together with interest. He also claimed EUR 20,000 for non-pecuniary damage for emotional suffering.

The Government contested these claims as unsubstantiated and excessive arguing that there was no causal link between the alleged violation and the pecuniary damage claimed.

The Court notes that the applicant did not submit any evidence that at the relevant time, namely when the case-file was destroyed, the debtor, being a private individual, had sufficient funds to honour his claim. In these circumstances, the Court finds no causal link between the pecuniary damage claimed and the violation found; it therefore rejects this claim.

On the other hand, the Court accepts that the applicant suffered emotionally due to the first-instance court’s failure to enforce the final decision of 29 December 1992. Ruling on an equitable basis, it awards him EUR 600 in respect of the non-pecuniary damage, plus any tax that may be chargeable.

B. Costs and expenses

The applicant also claimed EUR 700 for the costs and expenses incurred before the domestic courts and the Court. He did not submit any supporting documents.

The Government contested this claim as excessive and unsubstantiated.

36. 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” (see Parizov v. the former Yugoslav Republic of Macedonia, no. 14258/03, § 72, 7 February 2008).

37. The Court notes that the applicant did not provide any supporting documents. It therefore rejects his claims under this head.

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

1. Declares the application admissible;

2. Holds that there has been a violation of Article 6 § 1 of the Convention;

3. Holds

(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 600 (six hundred euros) in respect of non-pecuniary damage, plus any tax that may be chargeable, 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 applicant’s claim for just satisfaction.

Done in English, and notified in writing on 17 December 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Claudia Westerdiek Peer Lorenzen
Registrar President