AS TO THE ADMISSIBILITY OF
by LESNINA VELETRGOVINA DOO
against the former Yugoslav Republic of Macedonia
The European Court of Human Rights (Fifth Section), sitting on 2 March 2010 as a Chamber composed of:
Mirjana Lazarova Trajkovska,
Zdravka Kalaydjieva, judges,
Claudia Westerdiek, Section Registrar,
Having regard to the above application lodged on 8 October 2004,
Having regard to the parties' submissions,
Having deliberated, decides as follows:
The applicant, Lesnina Veletrgovina DOO., is a company incorporated in Ljubljana, Slovenia (“the applicant company”). It is represented before the Court by Mr M. Popeski, a lawyer practising in Ohrid. The Macedonian Government (“the Government”) are represented by their Agent, Mrs R. Lazareska Gerovska. The Slovenian Government were invited to intervene in the proceedings (Article 36 § 1 of the Convention). However, by letter of 4 November 2009 they notified the Court that they did not wish to exercise their right to do so.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
On 23 April and 6 May 1992 respectively, the applicant company submitted three separate requests for enforcement of three final judgments given in its favour against private debtors. On 25 and 27 May 1992 respectively, the then Skopje District Commercial Court granted two of the enforcement requests ordering the debtors to pay the debt. The enforcement request of 23 April 1992 remained undecided.
The judgments remained unenforced to date.
B. Relevant facts concerning the friendly settlement proceedings
On 15 September 2009, “Nova Makedonija”, a daily newspaper, published an article under the following title “Macedonia lost in Strasbourg from a Slovenian company (Во Стразбур Македонија изгуби и од словенечка фирма)”. In this article, the journalist gave a brief factual summary of the domestic proceedings and stated that tax payers would pay because of the judiciary. He went on that “after having been dragged for 12 years, the applicant company decided to sue before the Strasbourg Court. Five years after the application had been lodged, the Slovenians have almost won the case since there would be no judgment, but a settlement.”
Mr M. Popeski, the applicant's legal representative made the following statement:
“Due to the convincing nature of our arguments and evidence, we have received a friendly settlement proposal, which is under consideration”
The Government Agent stated:
“The proceedings are still pending and we won't give any information until they finish. That is required from us by the Strasbourg judges”
The article also was available on-line.
The applicant company complained under Article 6 § 1 of the Convention about the non-enforcement of the final judgments given in its favour. Without invoking any Article of the Convention and making any complaints, he also annexed documents concerning other proceedings.
The applicant company complained about the lengthy non-enforcement invoking Article 6 § 1 of the Convention, which in so far as relevant, 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 ...”
A. The Government's request concerning the alleged abuse of the right of petition
On 10 June 2009, the Court communicated the application to the respondent Government under Rule 54 § 2 b of the Rules of Court and, at the same time, the Registry entered into contact with the parties with a view to securing a friendly settlement of the matter in accordance with Article 38 § 1 (b) of the Convention. An information note, in Macedonian, on the proceedings after communication of an application was forwarded to the applicant. The latter provided inter alia that any friendly settlement negotiations are strictly confidential.
On 14 September 2009 the Court received a friendly settlement declaration signed by the applicant on 7 September 2009 and on 15 September 2009 a corresponding declaration signed by the respondent Government on 10 September 2009.
By letter of 19 October 2009, the Government submitted a copy of the article published in “Nova Makedonija” on 15 September 2009 (see “The facts” above). They noted that Mr Popeski had violated the rules of confidentiality in respect of the friendly settlement proceedings. They further invited the Court to consider the matter.
The applicant submitted that he had only stated that a friendly settlement proposal had been received and that he had not disclosed any details concerning the friendly settlement proceedings. In this connection, he referred to an article published in the newspaper “Dnevnik” on 18 March 2006 concerning another case against the respondent State, which had been struck out on the basis of a friendly settlement, despite the Government Agent, as opposed to the present case, had disclosed details related to the friendly settlement proceedings, while being underway.
In the Court's view, the Government's submission is to be considered, in substance, as an objection for abuse of the right of petition. In this connection the Court recalls that, according to Article 38 § 2 of the Convention, friendly settlement negotiations are confidential. Rule 62 § 1 of the Rules of Court reiterates this principle and Rule 62 § 2 thereof stipulates that no written or oral communication and no offer or concession made within the friendly settlement framework may be referred to or relied on in contentious proceedings. Moreover, it cannot be excluded that a breach of the confidentiality principle could, in certain circumstances, justify the conclusion that an application is inadmissible on the ground of an abuse of the right of petition (see, inter alia, Hadrabová v. the Czech Republic (dec.), no. 42165/02, 25 September 2007; Popov v. Moldova, (no. 1), no. 74153/01, § 48, 18 January 2005).
Turning to the present case, the Court notes that the above mentioned article described the domestic proceedings complained of and stated that the applicant company has almost won the case since there would be no judgment, but a settlement. In this article, the applicant's lawyer disclosed that friendly settlement proceedings were underway and that in this respect, a proposal has been made.
Noting the importance of the principle that friendly settlement negotiations are confidential (see Miroļubovs and Others v. Latvia, no. 798/05, § 68, 15 September 2009), the Court considers that the lawyer's behaviour constitutes a breach of the rule of confidentiality. It is so since this rule is absolute and does not allow for individual assessment of how much details were disclosed. However, since he did not reveal any details of the friendly settlement negotiations, such as the amount involved or the initiatives undertaken, and bearing in mind that the respective declarations had already been signed before the date of the publication of the impugned article, the Court considers that a decision to declare the application inadmissible as an abuse of the right of petition would be disproportionate (see, a contrario, Benjocki and others v. Serbia (dec.), no. 5958/07; 6561/07; 8093/07 and 9162/07, 15 December 2009). It follows that the Government's objection must be dismissed.
As to the documents annexed in respect of other proceedings, the Court reiterates that the mere submission of documents without raising any complaints in that respect is not sufficient to constitute an introduction of a complaint in respect of those proceedings (see Bozinovski v. the former Yugoslav Republic of Macedonia, (dec.) no. 68368/01, 1 February 2005).
The Court considers that in the light of the criteria established in its case-law on the question of lengthy non-enforcement and having regard to all the information in its possession, that an examination of the merits of the application is required. It concludes therefore 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 is therefore appropriate to discontinue the application of Article 29 § 3 of the Convention and declare the application admissible.
For these reasons, the Court unanimously
Decides to discontinue the application of Article 29 § 3 of the Convention;
Declares the application admissible, without prejudging the merits of the case.
Westerdiek Peer Lorenzen