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Cite as: [2010] ECHR 1381
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FIFTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no.
36665/03
by Slavica ŠURBANOSKA and Others
against the
former Yugoslav Republic of Macedonia
The European Court of Human Rights (Fifth Section), sitting on 31 August 2010 as a Chamber composed of:
Peer Lorenzen, President,
Renate
Jaeger,
Karel Jungwiert,
Mark Villiger,
Mirjana Lazarova
Trajkovska,
Zdravka Kalaydjieva,
Ganna Yudkivska, judges,
and Claudia Westerdiek, Section Registrar,
Having regard to the above application lodged on 11 November 2003 and 14 September 2009 respectively,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having deliberated, decides as follows:
THE FACTS
1. The applicants, Mrs Slavica Šurbanoska (“the first applicant”), Mr Aleksandar Šurbanoski (“the second applicant”) and Mr Mitko Šurbanoski (“the third applicant”), are Macedonian nationals who were born in 1952, 1973 and 1976 respectively and live in Vevčani. They were represented before the Court by Mr M. Popeski, a lawyer practising in Ohrid. The Macedonian Government (“the Government”) were represented by their Agent, Mrs R. Lazareska Gerovska.
A. The circumstances of the case
2. The facts of the case, as submitted by the parties, may be summarised as follows.
1. Civil proceedings concerning the applicants' compensation claim (“the compensation proceedings”)
3. On 16 June 1991 Mr S.D., the first applicant's husband and father of the second and third applicants, died in a train accident: he fell off the train while attempting to close the door of a wagon.
4. On 27 August 1991 the applicants brought a civil action against two companies (“the defendant companies”) claiming compensation for the pecuniary and non-pecuniary loss due to Mr S.D.'s death.
5. Until 19 September 1999, the applicants' case was remitted for re-examination on four occasions. During this time, the Struga Court of First Instance (“the first-instance court”) partly granted the applicants' claim by decisions of 18 December 1992, 11 August 1994, 23 June 1997 and 28 January 1999 respectively. The Bitola Court of Appeal gave decisions dated 9 September 1993, 11 May 1995, 5 November 1997 and 19 September 1999 respectively. The Supreme Court's decision ordering retrial was dated 18December 1996.
6. On 9 June 2000 the first-instance court ruled partly in favour of the applicants, ordering full reparation of the pecuniary loss, partial compensation for the non-pecuniary damage and payment of a monthly pension for each applicant separately. On 29 November 2002 the Bitola Court of Appeal ordered a retrial in respect of the monthly pension and upheld the remainder. On 29 January 2004 the Supreme Court rejected as inadmissible an appeal by the applicants on points of law.
7. On 6 December 2004 the proceedings resumed in respect of the monthly pension. On 27 April 2005, 22 June 2005 and 28 December 2007 respectively, the President of the first-instance court dismissed the applicants' requests for exclusion of the judge sitting in the case. The applicants' further unsuccessfully requested the Supreme Court to appoint another court to decide their case.
8. On 11 April 2008 the first-instance court partly upheld the applicants' claim for a monthly pension. The parties appealed.
9. On 5 February 2009, upon the Supreme Court's order setting a three-month time-limit for decision (see paragraph 12 below), the Bitola Court of Appeal dismissed the parties' appeals upholding the lower court's decision.
10. According to the applicants, in April 2009 they challenged this decision before the Supreme Court. It would appear that this latter court has not decided yet.
2. Proceedings before the Supreme Court concerning the applicants' request for protection of the right to a hearing within a reasonable time
11. On 12 September 2007 the applicants lodged an application, under section 36 of the Courts Act of 2006 (see paragraph 19 below), with the Bitola Court of Appeal for protection of the right to a hearing within a reasonable time (“the length remedy”). After the Courts Act of 2008 entered into force, the applicants' application was forwarded to the Supreme Court for examination. On 28 May 2008 the latter requested the applicants to give further particulars, which they did on 17 June 2008. In the submission, they indicated that it had taken five years and five months for the first-instance court to decide their case after the Court of Appeal's decision of 23 December 2002. They also claimed just satisfaction in the amount of 1,100,000 euros (EUR). On 27 June 2008 the Supreme Court requested the first-instance court to forward to it a copy of the case file. On the same date, it invited the Solicitor-General to provide any comments.
12. On 20 October 2008 the Supreme Court found that the compensation proceedings had lasted too long, namely over seventeen years, of which over eleven years after the ratification of the Convention by the former Yugoslav Republic of Macedonia, and had not ended yet. It set a three-month time-limit for the Bitola Court of Appeal to decide the parties' appeals. It also awarded the applicants compensation in the amount of 245,200 Macedonian denars (MKD) (equivalent to EUR 4,000) by way of just satisfaction for the violation found. The compensation was to be paid three months after the decision became final.
13. The court established that despite the complexity of the case, the proceedings had been unduly protracted, in particular owing to the repeated re-examination of the case. Furthermore, it found that they had been delayed before the first-instance court between 29 November 2002 and 11 April 2008. The fact that the parties had availed themselves of the available remedies could not have been held to their detriment. In finding the violation, the court referred to Article 6 § 1 of the Convention and the Court's case-law, in particular the Parizov judgment (see Parizov v. the former Yugoslav Republic of Macedonia, no. 14258/03, 7 February 2008). The amount of the award was specified on the basis of the overall length of the proceedings, the complexity of the case, the parties' behaviour and the standard of living in the respondent State. On 23 January 2009 this decision was served on Mr M. Popeski, the applicants' representative. It became final on 2 March 2009.
14. On 25 and 29 September 2009 respectively, the Judicial Budget Council (Судски Буџетски Совет) requested the applicants' representative to provide information about the applicants' personal bank accounts. On 1 October 2009 it asked the applicants to submit the requested information within 5 days from the date of receipt. They were further informed that there had been an appropriate budgetary provision for the compensation liability. The amount was to be transferred immediately after receiving the requested information. The applicants received these requests on 3 October 2009. A copy of postal receipts attested to that fact. The award has not been paid yet.
B. Relevant domestic law and practice
1. Courts Act of 2006 (“the 2006 Act”)
15. Under section 35 § 1 (1) of the 2006 Act, the Supreme Court is competent to decide at second instance against decisions of its panels when so specified by law. Under sub-section 6, the Supreme Court is competent to decide on length complaints in proceedings specified by law.
16. Section 36 of the 2006 Act provided that an interested party could apply to the immediate higher court (непосредно повисокиот суд) if he or she considered that there had been a breach by a court of competent jurisdiction of the right to a hearing within a reasonable time. The immediate higher court was to deal with the length complaint (постапува по барањето) within six months after the application had been lodged and to decide whether the court below had breached that right. The higher court would award just satisfaction to the claimant if it found a violation of the right to a hearing within a reasonable time. The just satisfaction was payable from the court's budget.
17. The 2006 Act became applicable on 1 January 2007 (section 128).
2. Law of 2008 amending the 2006 Act (“the 2008 Act”, published in the Official Gazette no. 35 of 14 March 2008)
18. Section 3 of the 2008 Act supplements section 35(6) of the 2006 Act, providing that the Supreme Court decides in accordance with the rules and principles specified in the European Convention and the Court's case-law.
19. Section 4 of the 2008 Act amends section 36 of the 2006 Act providing for exclusive competence of the Supreme Court to decide in length-of-proceedings cases. The relevant part of this section reads as follows:
“An interested party can use the length remedy while proceedings are pending, but not later than six months after the decision becomes final.
The length complaint shall contain:
- information about the claimant and his or her representative,
- information about the case and proceedings complained of,
- indication of the reasons for the alleged violation of the right to a hearing within a reasonable time,
- any claim for just satisfaction and
- the signature of the claimant.
The Supreme Court shall consider a length complaint meeting the criteria specified in sub-sections (2) and (3) within six months after it has been lodged and shall decide whether the court below breached the right to a hearing within a reasonable time. In this respect, it shall take into consideration the rules and principles set forth in the European Convention, in particular the complexity of the case, the parties' behaviour and the conduct of the court in question.
If the Supreme Court finds a violation of the right to a hearing within a reasonable time, it can set a time-limit for the court before which the impugned proceedings are pending to decide the right, obligation or criminal responsibility of the claimant and award just satisfaction for the violation found.
Just satisfaction is to be paid within three months after the Supreme Court's decision becomes final.”
20. Section 5 of the 2008 Act adds a new section 36-a, which reads as follows:
“After receiving the length complaint, the Supreme Court shall immediately or within 15 days at the latest, request the first-instance court to forward the case file to it, and if need be, request the higher court to indicate the reasons for the length of the proceedings pending before it.
A three-judge panel of the Supreme Court, sitting in private, decides on the length remedy. In exceptional cases, the Supreme Court can hear representations from the claimant and from the representative of the court concerned.
Within 8 days after receipt, the party concerned can appeal against the panel's decision before the Supreme Court, which decides in accordance with section 35 § 1 (1).”
21. The 2008 Act entered into force eight days after being published in the “Official Gazette” (section 9).
3. The Courts' Budget Act (Закон за Судскиот Буџет, “Official Gazette” no. 60/2003; 37/2006 and 103/2008)
22. The courts' budget is an annual assessment of the assets and liabilities of the judiciary and the Academy for training of judges and public prosecutors (“the Academy”, section 2). The courts' budget is managed by the Judicial Budget Council (section 6). The latter is chaired by the President of the Judicial Council. It is further composed of the Minister of Justice, the Presidents of the Supreme Court, Appeal Courts and two Courts of First Instance and the Director of the Academy (section 7).
4. Information on the Supreme Court's jurisprudence in “length-of-proceedings” cases submitted by the Government on 25 March, 11 June and 30 October 2009 and 1 March 2010 respectively
23. According to the Government, 456 “length-of-proceedings” cases have been brought before the Supreme Court since the 2008 Act had entered into force. The court examined 389 cases, of which 86 in 2008 and 303 in 2009 until February 2010. A violation of the “reasonable time” requirement was found in 80 cases. The latter concerned the length of civil, criminal, misdemeanour, administrative, insolvency and enforcement proceedings. Decisions on the merits dismissing length complaints were rendered in 147 cases. The Supreme Court further rejected 155 length cases as having been submitted out of time; due to lack of capacity to sue or as having been incomplete. Appeal proceedings were instituted in 153 cases. The second-instance panel gave decision in all cases allowing appeals in 18 cases; dismissing them in 130 cases and rejecting them in 5 cases. In 6 of these cases, the second-instance panel awarded compensation in higher amount than that awarded at first instance.
24. In cases where a violation of the “reasonable time” requirement was found, the Supreme Court awarded just satisfaction, the amount of which was in the range of EUR 80 (ПСРР.бр.86/08) and EUR 4,000 (the applicants' case). In three cases the Supreme Court established that finding of a violation of the “reasonable time” requirement constituted sufficient just satisfaction. In 19 of these cases the Supreme Court also set a deadline of between 1 and 6 months for the courts to decide parties' claims. The total amount of award in 46 cases for which copies were provided was approximately EUR 40,610.
25. Under section 3 of the 2008 Act, practices concerning the execution of the Court's judgments would apply to the payment of compensation. After the Supreme Court's decision awarding compensation became final, it was to be forwarded to the courts' budget for execution. The Judicial Budget Council would ask for the personal bank accounts of the claimants.
26. Of 37 cases for which the Government provided information, in 13 cases the compensation was paid within 3 months from the date on which the Supreme Court's decision awarding compensation had become final (the latter concerned decisions delivered since July 2009); in 12 cases the award was paid within 4 to 8 months (this concerned decisions given until July 2009), in 1 case the payment was made after 9 months (a decision of February 2009) and in 11 cases the award has not been paid yet for one of the following reasons: the claimants' representatives requested that the award be transferred into their personal bank accounts, instead of the claimants' bank accounts; the claimants failed to provide the Judicial Budget Council with the requested bank details or the payment procedure was underway.
27. According to a submission of the Supreme Court attached to the Government's observations of 11 June 2009, it took from 1 to 23 months for the first-instance panel to decide length cases for 2008. Most of the cases in 2009 were decided at the first level within a month after introduction. The same can be said for proceedings before the second-instance panel of the Supreme Court.
COMPLAINTS
28. The applicants complained that the length of the compensation proceedings had been incompatible with the “reasonable time” requirement laid down in Article 6 § 1 of the Convention. In their submission of 14 September 2009, they alleged a violation of Articles 6 and 14 and Article 1 of Protocol No. 1, since the monthly pension awarded to them by the Court of Appeal's decision of 5 February 2009 had been set too low and the defendant companies had formerly been State-owned.
THE LAW
“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”
1. The parties' submissions
29. The Government submitted that the length remedy, introduced by the 2006 Act and amended by the 2008 Act, was to be considered effective for Convention purposes. They further maintained that the applicants' complaint under this head should be rejected since they had successfully used the length remedy and had received a decision in which the Supreme Court had awarded them compensation and set a time-limit for decision with which the Bitola Court of Appeal had complied.
30. The applicants disagreed that the length remedy was effective within the meaning of Article 35 of the Convention, in particular since the amounts awarded by the Supreme Court had been manifestly unreasonable in comparison with the just satisfaction that the Court would award in similar cases. They further stated that they had not yet received the compensation awarded by the Supreme Court's decision of 20 October 2008.
2. The Court's assessment
a) General principles in the Court's case-law
31. The Court notes that under Article 34 of the Convention it “may receive applications from any person ... claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto ...”.
32. As to the question whether the applicant may claim to be a victim of a violation of Article 6 § 1 of the Convention as regards the length of the proceedings, the Court reiterates that “a decision or measure favourable to the applicant is not in principle sufficient to deprive him of his status as a 'victim' unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention” (see Sali v. the former Yugoslav Republic of Macedonia, no. 14349/03, § 33, 5 July 2007, and Nankov v. the former Yugoslav Republic of Macedonia, no. 26541/02, § 32, 29 November 2007).
33. The issue as to whether a person may still claim to be the victim of an alleged violation of the Convention essentially entails on the part of the Court an ex post facto examination of his or her situation. As it has already held in other length-of-proceedings cases, the question whether he or she has received reparation for the damage caused – comparable to just satisfaction as provided for under Article 41 of the Convention – is an important issue. It is the Court's settled case-law that where the national authorities have found a violation and their decision constitutes appropriate and sufficient redress, the party concerned can no longer claim to be a victim within the meaning of Article 34 of the Convention (see Apicella v. Italy [GC], no. 64890/01, § 70, 29 March 2006).
34. In so far as the Government appear to link the issue of victim status to the more general question of the effectiveness of the remedy, the Court recalls that it has already addressed this question in a wider context by giving certain indications as to the characteristics which such a domestic remedy should have, having regard to the fact that, in this type of case, the applicants' ability to claim to be victims will depend on the redress which the domestic remedy will have given them (see Apicella, cited above, § 71, and Scordino v. Italy (no. 1) [GC], no. 36813/97, § 182, ECHR 2006 V). In the Apicella judgment (see Apicella, cited above, §§ 72-80), it had summarised these specific considerations as follows:
“The best solution in absolute terms is indisputably, as in many spheres, prevention. As the Court has stated on many occasions, Article 6 § 1 imposes on the Contracting States the duty to organise their judicial systems in such a way that their courts can meet each of its requirements, including the obligation to hear cases within a reasonable time (see Süßmann v. Germany,16 September 1996, § 55, Reports 1996-IV). Where the judicial system is deficient in this respect, a remedy designed to expedite the proceedings in order to prevent them from becoming excessively lengthy is the most effective solution (see Cocchiarella v. Italy [GC], no. 64886/01, § 74, ECHR 2006 V).
It is also clear that for countries where length-of-proceedings violations already exist, a remedy designed only to expedite the proceedings – although desirable for the future – may not be adequate to redress a situation in which it is obvious that the proceedings have already been excessively long.
Some States, such as Austria, Croatia, Spain, Poland and the Slovak Republic, have understood the situation perfectly by choosing to combine two types of remedy, one designed to expedite the proceedings and the other to afford compensation (see, for example, Holzinger (no. 1), cited above, § 22; Slavicek v. Croatia (dec.), no. 20862/02, ECHR 2002-VII; Fernandez-Molina Gonzalez and Others v. Spain (dec.), no. 64359/01, ECHR 2002-IX; Michalak v. Poland (dec.), no. 24549/03, 1 March 2005; and Andrášik and Others v. Slovakia (dec.), nos. 57984/00, 60226/00, 60237/00, 60242/00, 60679/00, 60680/00 and 68563/01, ECHR 2002-IX).
Accordingly, where the legislature or the domestic courts have agreed to play their true role by introducing a domestic remedy, the Court will clearly have to draw certain conclusions from this. Given its limited jurisdiction as to the interpretation and application of domestic law, the Court is required to verify whether the way in which the domestic law is interpreted and applied produces consequences that are consistent with the principles of the Convention as interpreted in the light of the Court's case-law. Accordingly, a clear error of assessment on the part of the domestic courts may also arise as a result of the misapplication or misinterpretation of the Court's case-law”.
b) Application of the foregoing principles
35. It follows from the foregoing principles that the Court is required to verify that there has been an acknowledgement, at least in substance, by the authorities of a violation of a right protected by the Convention and whether the redress can be considered appropriate and sufficient (see, inter alia, Normann v. Denmark (dec.), no. 44704/98, 14 June 2001; Jensen v. Denmark (dec.), no. 48470/99, 20 March 2003; and Nardone v. Italy, no. 34368/98, 25 November 2004).
36. The Court considers that the first condition, the express acknowledgment of a violation by the national authorities, has been met in the applicants' case since the Supreme Court, in its decision of 20 October 2008, explicitly found a violation of the “reasonable time” requirement.
37. With regard to the second condition, namely, appropriate and sufficient redress, the Court notes that where the “reasonable time” requirement has been breached one of the characteristics of sufficient redress which may remove a litigant's victim status relates to the amount awarded at domestic level concerning the facts about which he or she complains before the Court. Other criteria require that the relevant decisions, which must be consonant with the legal tradition and the standard of living in the country concerned, are speedy, reasoned and executed very quickly (see Apicella, cited above, §§ 85-96).
38. As to the amount of compensation awarded at the domestic level, the Court notes at the outset that it follows from the Government's general submissions that so far the awards made by the Supreme Court in “length-of-proceedings” cases has varied between EUR 80 and EUR 4,000. The total amount of compensation awarded in 46 cases was EUR 40,610 (see paragraph 24 above), which is 15-20 % of the overall amount that the Court would have awarded in comparable cases (see, a contrario, Vokurka v. the Czech Republic (dec.), no. 40552/02, 16 October 2007, in which the amount of compensation awarded at national level was 66.7% of the compensation that the Court would award in similar cases against the Czech Republic). It would appear that only in a very limited number of cases was the level of just satisfaction awarded by the Supreme Court acceptable, while in the vast majority of cases the awards were below or even far below the Court's standards. However, the Court is not called to assess in the abstract whether the Supreme Court's approach in making the awards under the 2008 Act is such as to prevent successful litigants who receive unreasonably low amounts of compensation at domestic level from bringing length complaints before the Court claiming that the Supreme Court's decision, although in their favour, had not removed their victim status under Article 34 of the Convention (see Kaić and Others v. Croatia, no. 22014/04, § 20, 17 July 2008).
39. In the present case, the Supreme Court awarded the applicants EUR 4,000 jointly for a delay of over seventeen years, of which over eleven years elapsed after the ratification of the Convention by the respondent State. In addition to awarding just satisfaction, the Supreme Court set the three-month time-limit for the Court of Appeal to decide the applicants' claim in the substantive proceedings, and the latter court complied. In such circumstances, the Court is satisfied that the amount awarded to the applicants is not manifestly unreasonable having regard to what the Court generally awards in similar cases against the respondent State (see, a contrario, Cocchiarella, cited above, §§ 106 and 107, and Apicella, cited above, §§ 104 and 105).
40. As to the other criteria established in its case-law, the Court notes that the “length proceedings” started on 12 September 2007 when the applicants used the length remedy before the Bitola Court of Appeal. It would appear that no procedural activity had been taken for six months, namely until the 2008 Act entered into force, the date when it became clear that the Supreme Court was the only competent court in respect of the length remedy. After some procedural measures had been taken, on 20 October 2008 the Supreme Court upheld the applicants' length complaint. It took therefore about seven months for the Supreme Court to decide at first instance. Since no appeal had been lodged, this decision became final on 2 March 2009. In the Court's view, the time to decide the case was somewhat long. However, it considers that, having regard to the particular circumstances of the case, namely the fact that it was among the first “length” cases which the Supreme Court has decided and that improvements have been made in this respect (see paragraph 27 above), the time that elapsed for the adjudication of the applicants' “length” complaint cannot be regarded as unreasonable for the present purposes.
41. The Court notes that the applicants have not yet received the compensation awarded by the Supreme Court. In this connection it observes that the Judicial Budget Council requested the applicants' representative on two occasions, namely on 25 and 29 September 2009, to submit the applicants' personal bank account details in order to transfer the award. After he refused, on 1 October 2009 the Judicial Budget Council contacted the applicants directly with the same request. The requested information was to be submitted within 5 days. The applicants were informed that the transfer would be made immediately since there had been an adequate provision in the court's budget. The applicants did not provide the requested information.
42. It transpires therefore that the Judicial Budget Council initiated the payment procedure nearly seven months after the Supreme Court's decision became final. This was contrary to section 4 of the 2008 Act according to which the Supreme Court's decision awarding compensation should be enforced within three months after it becomes final. The delay cannot be attributed to the applicants. However, the Court notes that this delay occurred during the early stage of the operation of the 2008 Act when delays in paying the amounts awarded were predominant (see paragraph 26 above). In this respect, the Court is aware that the introduction of the length remedy required much effort on the part of the national authorities. It is therefore not unreasonable for them to need some time to put in place the new system and develop practice in a manner consistent with the national legal tradition and consonant with the Court's case-law.
43. After 25 September 2009 it was for the applicants, given the fact that their representative's conduct is imputable to them, to comply with the request of the Judicial Budget Council to produce information regarding their bank accounts. This request cannot be regarded as unreasonable (see Burdov v. Russia (no. 2), no. 33509/04, § 69, ECHR 2009). The lack of payment of the compensation after that date can be attributed solely to their own omission. The Court considers therefore that the fact that the applicants have still not received the compensation awarded to them does not mean that they still have victim status (see, a contrario, Musci v. Italy [GC], no. 64699/01, § 101, ECHR 2006 V (extracts), and Ernestina Zullo v. Italy [GC], no. 64897/01, § 102, 29 March 2006).
44. Against this background, the Court is satisfied that the Supreme Court's decision of 20 October 2008 provided the applicants with sufficient and appropriate redress capable of removing their victim status within the meaning of Article 34 of the Convention.
45. In these circumstances, the Court considers that the applicants can no longer claim to be victims of a violation of the “reasonable time” requirement under Article 6 § 1 of the Convention in respect of the compensation proceedings. Accordingly, this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
Article 14
“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.
Article 1 of Protocol No. 1
Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
46. The Court has examined these complaints. However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.
47. 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.
For these reasons, the Court unanimously
Declares the application inadmissible.
Claudia Westerdiek Peer Lorenzen
Registrar President