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Cite as: [2011] ECHR 1970

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FIRST SECTION

DECISION

Applications nos. 38914/05 and 17879/05
Gordana ADZI-SPIRKOSKA and Others against the former Yugoslav Republic of Macedonia
and Ilčo TOPUZOVSKI against the former Yugoslav Republic of Macedonia

The European Court of Human Rights (First Section), sitting on 3 November 2011 as a Chamber composed of:

Nina Vajić, President,
Anatoly Kovler,
Khanlar Hajiyev,
Mirjana Lazarova Trajkovska,
Julia Laffranque,
Linos-Alexandre Sicilianos,
Erik Møse, judges,
and André Wampach, Deputy Section Registrar,

Having regard to the above applications lodged on 20 October 2005 and 26 April 2005 respectively,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having decided to join the applications,

Having regard to the fact that, on 1 February 2011, the Court changed the composition of its Sections (Rule 25 § 1) and the cases were assigned to the newly composed First Section (Rule 52 § 1),

Having deliberated, decides as follows:

THE FACTS

The applicants, Ms Gordana AdZi-Spirkoska (“the first applicant”), Mr Straso Gorgieski (“the second applicant”), Ms Ilinka Ivanoska (“the third applicant”), Mr Risto Goreski (“the fourth applicant”) and Mr Ilčo Topuzovski (“the fifth applicant”), are Macedonian nationals who were born in 1952, 1956, 1949, 1929 and 1964 respectively and live in Prilep and Skopje. The third and fourth applicants died on 22 April 2006 and 23 August 2010 respectively. Ms Vera Ivanoska, the daughter of the third applicant, and Ms Pandora Trenkovska and Ms Verka Petkovska, the daughters of the fourth applicant, have applied to continue the application in the name of their predecessors and designated the same counsel to represent them. For the sake of convenience, they will be referred to as “the successors of the third and fourth applicants”. The first applicant, a qualified lawyer from Prilep, was granted leave to represent the second, third and fourth applicants. The fifth applicant was represented by Mr Z. Gavriloski, a practising lawyer from Skopje. The Macedonian Government (“the Government”) were represented by their Agent, Mrs R. Lazareska Gerovska.

A.  The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

1. Application no. 38914/05

In 1956 the confiscation commission of the city of Bitola, the body with authority at the time, confiscated two plots of undeveloped building land from the applicants’ late predecessors in order to construct residential buildings.

On 12 September 2000 the first, second, third and fourth applicants instituted restitution proceedings in which they sought restoration of title to the land that remained undeveloped and compensation in return for the remainder. Ten decisions have been given so far, including two decisions by the Supreme and Administrative Courts on appeals on points of law (тужба за управен спор) by the applicants. The most recent decision was given on 31 August 2011, when the restitution commission accepted the applicants’ claim and awarded compensation in return for the confiscated land. The applicants challenged this decision before the Administrative Court. The proceedings are still pending.

2. Application no. 17879/05

In July 2001 the fifth applicant brought a civil action against his former employer, seeking compensation for injuries sustained while at work. In 2008 the Supreme Court, deciding upon appeals on points of law, ruled partly in favour of the applicant and awarded him compensation for the non-pecuniary loss sustained. The proceedings are still pending before the Skopje Court of First Instance in respect of the applicant’s claim for pecuniary damage (“the compensation proceedings”).

On 17 December 2010 the fifth applicant requested the Supreme Court to find a violation of the “reasonable time” requirement in respect of the compensation proceedings and to award just satisfaction. On 15 February 2011 the Supreme Court found that the compensation proceedings had lasted too long and that they had not yet ended. It set a six-month time-limit for the Skopje Court of First Instance to decide on the applicant’s claim on the merits. It also awarded him compensation in the amount of 120,000 Macedonian denars (MKD – equivalent to about 2,000 euros (EUR)) as just satisfaction for the violation found. It further reimbursed the costs and expenses incurred in the course of these proceedings. The fifth applicant did not appeal against the decision. It became final on 9 March 2011. The amount awarded was paid to the fifth applicant.¹

B.  Relevant domestic law and practice

1. Courts Act of 2006 (“the 2006 Act”)

Under section 35(1)(1) of the 2006 Act, the Supreme Court is competent to decide on appeals against decisions of its panels when so specified by law. Under section 35(6), the Supreme Court is competent to decide on length complaints in proceedings specified by law.

Section 36 of the 2006 Act provided that an interested party could apply to the immediately higher court (непосредно повисокиот суд) if he or she considered that there had been a breach by a competent court of the right to a hearing within a reasonable time. The immediately 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 the right in question. 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.

The 2006 Act became applicable on 1 January 2007 (section 128).

2. Law of 2008 amending the 2006 Act (“the 2008 Act”, published in Official Gazette no. 35 of 14 March 2008)

Section 3 of the 2008 Act supplements section 35(6) of the 2006 Act, and provides that the Supreme Court is to decide in accordance with the rules and principles specified in the European Convention and the Court’s case-law.

Section 4 of the 2008 Act amends section 36 of the 2006 Act, providing for the exclusive competence of the Supreme Court to determine 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,

- an 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 subsections (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 so doing, 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 may set a time-limit for the court before which the impugned proceedings are pending to determine 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.”

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, shall decide on the length remedy. In exceptional cases, the Supreme Court may hear representations from the claimant and from the representative of the court concerned.

Within 8 days after receipt, the party concerned may appeal against the panel’s decision before the Supreme Court, which shall decide in accordance with section 35(1)(1).”

The 2008 Act entered into force eight days after being published in the Official Gazette (section 9).

3. Law of 2010 amending the 2006 Act (“the 2010 Act”, published in Official Gazette no. 150 of 26 November 2010)

Section 10 of this Act adds a new section 36-b, by which the Supreme Court must forward a copy of its decision, eight days after its adoption, to the Judicial Budget Council. The latter must request the claimant, within fifteen days at the latest, to submit personal bank account details with a view to receiving payment of the just satisfaction awarded by the Supreme Court. If the claimant does not submit the required information within five days, the amount awarded is to be deposited in a special account of the Judicial Budget Council. It is to be transferred to the claimant’s bank account once the latter has submitted the required information. If the claimant does not submit the relevant account details within a year after the amount was deposited with the Judicial Budget Council, the money is to be returned to the State’s budget.

4. The Courts’ Budget Act (Закон за Судскиот Буџет, Official Gazette no. 60/2003; 37/2006 and 103/2008)

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).

5. Conclusions of the “length-of-proceedings” department of the Supreme Court of 18 October 2010

In view of the Court’s decision in Šurbanoska and Others v. the former Yugoslav Republic of Macedonia ((dec.), no. 36665/03, 31 August 2010), the “length-of-proceedings” department of the Supreme Court adopted the following recommendations:

a) expedite proceedings before the Supreme Court in length-of-proceedings cases and keep their length under six months, as specified in the 2006 Act;

b) award just satisfaction in an amount corresponding to the violation found, so that the claimant loses victim status;

c) organise the Supreme Court in such a way that it fully applies the Court’s case-law;

d) comply fully with the Court’s case-law as regards the amounts awarded by way of just satisfaction in length cases; in this connection the Supreme Court established that the award should not be lower than 66% of the sum awarded by the Court in similar cases; and

e) comply fully with the orders issued by the Supreme Court in cases in which it finds a violation of the “reasonable time” requirement, namely payment of just satisfaction and observance of the time-limit that it sets for the courts in question to determine the case on the merits.

6. Information submitted by the Government on the Supreme Court’s case-law in “length-of-proceedings” cases

According to statistics produced by the Supreme Court in April 2011, 828 length-of-proceedings cases have been brought before that court since the 2006 Act entered into force. The court has examined 657 cases, including 10 in 2008, 166 in 2009, 350 in 2010 and 131 until mid-March 2011.

A violation of the “reasonable time” requirement has been found in 218 cases, including 33 cases in 2009, 137 cases in 2010 and 48 in 2011. Since September 2010, 119 cases have been decided to the claimants’ significant advantage. These cases have concerned the length of civil, criminal, minor-offence, administrative, insolvency and enforcement proceedings. Decisions on the merits dismissing length complaints have been rendered in 170 cases. The Supreme Court has further rejected 266 length cases as failing to comply with the admissibility requirements.

Appeal proceedings have been instituted in 188 cases. The second-instance panel of the Supreme Court has given a decision in nearly all those cases. It has allowed the appeals and awarded compensation in a higher amount than that awarded at first instance in 23 cases; it has dismissed appeals in 78 cases and rejected them in 64 cases.

In 480 cases the length of proceedings before the Supreme Court relating to the length remedy has been less than six months; in 130 cases, the proceedings have lasted a year; in 33 cases, they have lasted eighteen months, in 12 cases two years and in only 2 cases more than two years. In 113 of the 131 cases decided so far in 2011, the proceedings before the Supreme Court have lasted less than six months and in 18 cases they have lasted not more than a year.

The Supreme Court has awarded just satisfaction in 202 cases. The total amount awarded in these cases is equivalent to EUR 159,100. Since September 2010, the court has awarded compensation in 115 cases, the total amount of which is approximately EUR 99,000. Of the total amount awarded, EUR 105,500 has so far been paid to the claimants. In 152 cases the compensation was paid within three months from the date on which the Supreme Court’s decision awarding compensation had become final; in 36 cases the award was paid with a delay of up to thirty days (in 32 cases the delay was attributable to the State); in 6 cases the payment was made with a delay of between thirty and sixty days; in 8 cases there was a three-month delay; in 9 cases the payment was made with a seven-month delay and lastly, in 7 cases the award was paid with a delay of over a year. In 15 cases the delay was attributable to the claimants.

Finally, in 87 cases, 20 of which were decided in 2011, the Supreme Court has also set a deadline of between one and six months for the courts in question to determine the parties’ claims in the substantive proceedings. In 36 cases the courts concerned have complied with the Supreme Court’s order.

COMPLAINTS

All the applicants complained under Article 6 § 1 of the Convention that the domestic proceedings had lasted an unreasonably long time. The fifth applicant further complained under this head that the trial judge had violated his right to a public hearing since she had excluded third parties from hearings in April 2006 and December 2008. The first, second, third and fourth applicants also alleged a violation of Article 1 of Protocol No. 1 to the Convention.

THE LAW

Relying on Article 6 of the Convention, all the applicants alleged that the impugned proceedings had lasted too long. The fifth applicant also alleged that the public was excluded from two hearings in April 2006 and December 2008. Lastly, the first, second, third and fourth applicants also complained under Article 1 of Protocol No. 1. These Articles, in so far as relevant, read as follows:

Article 6 § 1

“In the determination of his civil rights and obligations ... everyone is entitled to a fair and public hearing within a reasonable time by [a] ... tribunal ...”

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.”

A.  Victim status of the successors of the third and fourth applicants

For the reasons detailed in Stojković v. the former Yugoslav Republic of Macedonia (no. 14818/02, §§ 25 and 26, 8 November 2007), which likewise apply to the present case, the Court considers that the successors of the third and fourth applicants have the requisite locus standi under Article 34 of the Convention.

B.  Length-of-proceedings complaint

1. The parties’ submissions

The Government submitted that the first, second, third and fourth applicants had not attempted the length remedy introduced by the 2006 Act and amended by the 2008 Act, which, having regard to the statistics submitted by the Supreme Court in length-of-proceedings cases, was effective within the meaning of Article 35 of the Convention. They argued that the Supreme Court’s practice had developed and that these applicants were required to avail themselves of the length remedy before bringing their length complaints before the Court. In this respect, the Šurbanoska and Others case (cited above, § 34) was of great importance, as a result of which the Supreme Court had adopted conclusions (see “Relevant domestic law and practice” above), with the aim of aligning its practice with that of the Court in length-of-proceedings cases. Since 2009, the influx of length cases before the Supreme Court had been increasing continuously, as had the number of successful applications in which that court had awarded compensation for the violation found. In 2011 the court had awarded higher amounts of compensation than previously. In most cases, the compensation had been paid within the three-month time-limit specified in the 2008 Act. Delays in payment had firstly been insignificant, given the fact that in most cases there had been only a thirty-day delay, and secondly, they had predominantly occurred during the early stages of the implementation of the 2008 Act. Difficulties in payment had been eliminated with the introduction of the 2010 Act (see “Relevant domestic law and practice” above).

The Government further referred to the difficulties that the Supreme Court faced in setting an amount of compensation that would be regarded as “sufficient and appropriate”. While admitting that comparison with the amounts awarded by the Court in “similar cases” was an important tool in that exercise, the Government argued that there were not many length cases against the respondent State in which the Court had awarded just satisfaction. That, in part, was due to the recent trend of striking length cases out of the list of cases either as a result of a friendly settlement reached by the parties or by way of a unilateral declaration. Furthermore, the Court’s case-law did not give any indication as to how the standard of living in a particular State, the number of remittals within one set of proceedings and the applicant’s contribution to the length of the proceedings affected the amount of just satisfaction awarded.

As regards the fifth applicant, the Government submitted that he could no longer claim to have “victim” status since the Supreme Court’s decision in connection with the length remedy had provided him with sufficient and appropriate redress.

The first, second, third and fourth applicants submitted that they had not availed themselves of the length remedy before the Supreme Court because it had been introduced after they had brought their application before the Court. Furthermore, the Supreme Court had no jurisdiction to decide on the additional complaint under Article 1 of Protocol No. 1 which they had submitted to the Court.

The fifth applicant, while accepting that the length remedy was effective, contested the Government’s argument since the amount awarded to him by the Supreme Court had been too low to remove his “victim” status in respect of the length complaint.

2. The Court’s assessment

(a)  General observations

The Court notes at the outset that this is not the first case in which the respondent Government have raised the issue of the effectiveness of the length remedy introduced by the 2006 Act and amended by the 2008 Act. The Court touched upon this issue first in the Parizov case, in which it criticised the relevant provisions of the 2006 Act as they stood at that time, in that they contained terms that were open to various interpretations and it was not clear which court was competent to decide upon the length remedy (see Parizov v. the former Yugoslav Republic of Macedonia, no. 14258/03, §§ 44 and 46, 7 February 2008).

After the Parizov judgment, the respondent State passed the 2008 Act, which entered into force on 22 March 2008. Its wording is clear and indicates that the new remedy is specifically designed to address the issue of the excessive length of proceedings before the domestic authorities. Under the 2008 Act, the Supreme Court has exclusive competence to decide upon the length remedy. A special department was created within the court to deal with length-of-proceedings cases. An interested party can seek protection of his or her right to a hearing within a reasonable time while proceedings are pending, but not later than six months after the decision becomes final. The Supreme Court decides, at two levels of jurisdiction, within six months after the complaint is lodged. In doing so, the court applies the rules and principles of the European Convention and the criteria established in the Court’s case-law, namely the complexity of the case, the applicant’s conduct and the conduct of the competent authorities. If it finds a violation, the Supreme Court awards compensation and, where appropriate, sets a time-limit for the court in question to determine the case on the merits. Decisions at first level may be appealed against before the Supreme Court’s second-instance panel. The compensation is paid to the successful claimant within three months after the Supreme Court’s decision becomes final. The payment procedure is further specified in the 2010 Act (see “Relevant domestic law and practice” above).

In the Šurbanoska and Others case (cited above) the Government argued that the length remedy, as amended by the 2008 Act, was effective. The Court declared the application inadmissible, finding that the applicants, who, in the meantime, had successfully availed themselves of the length remedy before the Supreme Court, had lost their victim status. While the Court did not deal with the more general question of the effectiveness of the length remedy, it did note some deficiencies in the implementation of the 2008 Act (see Šurbanoska and Others, cited above, §§ 37, 38 and 42).

The Court observes that there are currently about 300 cases against the former Yugoslav Republic of Macedonia pending before it which concern mainly the length of proceedings. A certain number of cases have already been communicated to the respondent Government, whereas the vast majority of cases are awaiting their initial examination by the Court. Many of them concern proceedings that are still pending before the domestic courts.

(b) General principles established under the Court’s case-law

The Court reiterates that by virtue of Article 1 (which provides: “The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention”), the primary responsibility for implementing and enforcing the guaranteed rights and freedoms is laid on the national authorities. The machinery of complaint to the Court is thus subsidiary to national systems safeguarding human rights. This subsidiary character is reflected in Article 13 and Article 35 § 1 of the Convention (see Grzinčič v. Slovenia, no. 26867/02, § 82, 3 May 2007).

The purpose of Article 35 § 1, which sets out the rule on exhaustion of domestic remedies, is to afford Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Court (see Selmouni v. France [GC], no. 25803/94, § 74, ECHR 1999 V; Kudła v. Poland [GC], no. 30210/96, § 81, ECHR 2000 XI; and Lukenda v. Slovenia, no. 23032/02, § 42, ECHR 2005 X). The rule in Article 35 § 1 is based on the assumption, reflected in Article 13 of the Convention – with which it has close affinity – that there is an effective remedy available in respect of the alleged breach in the domestic system (ibid.).

In addition, according to the “generally recognised principles of international law”, there may be special circumstances which absolve the applicant from the obligation to exhaust the domestic remedies at his disposal (see Selmouni, cited above, § 75). However, the Court points out that the existence of mere doubts as to the prospects of success of a particular remedy which is not obviously futile is not a valid reason for failing to exhaust domestic remedies (see Akdivar and Others v. Turkey, 16 September 1996, § 71, Reports of Judgments and Decisions 1996 IV; Van Oosterwijck v. Belgium, 6 November 1980, § 37, Series A no. 40; and Lazarevska v. the former Yugoslav Republic of Macedonia (dec.), no.33867/04, 10 March 2009).

The Court reiterates that it has already given certain indications as to the characteristics a length remedy should have in order to be regarded as effective (see Cocchiarella v. Italy [GC], no. 64886/01, §§ 65-107, ECHR 2006 V; Scordino v. Italy (no. 1) [GC], no. 36813/97, §§ 182-188, ECHR 2006 V; Apicella v. Italy [GC], no. 64890/01, §§ 72-77, 29 March 2006; and Šurbanoska and Others, cited above, § 34).

Furthermore, where the legislature or the domestic courts have agreed to play their proper 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. This is especially true where the domestic law refers explicitly to the provisions of the Convention (see Apicella, cited above, §§ 78 and 80).

(c) Application of the foregoing principles

On the basis of the statistics submitted by the Supreme Court, the Court notes that 828 length cases have been brought before that court, of which it has so far examined 657 cases. This figure includes 118 cases in which appeal proceedings before the second-instance panel of the Supreme Court have been instituted. The Supreme Court has found a violation of the “reasonable time” requirement in 218 cases, of which 119 cases have been decided since September 2010. These cases concerned the length of civil, criminal, minor-offence, administrative, insolvency and enforcement proceedings. These figures are a clear indicator that the length remedy, as specified in the 2008 Act, is fully operational.

In the Court’s view, the purpose of the 2008 Act is twofold. In the first place, the Supreme Court’s order setting a time-limit for a decision is designed to ensure the acceleration of pending proceedings. In this connection the Court reiterates that 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], cited above, § 74). Although the 2008 Act does not specify any time-limit, the period established in the Supreme Court’s case-law for the courts in question to decide, namely from one to six months, may be regarded as reasonable. The Supreme Court has so far issued such orders in eighty-seven cases, including twenty cases decided in 2011. The courts concerned have normally complied with the order. However, as the Supreme Court rightly observed, additional efforts have to be made in this respect (see recommendation 5 of the “length-of-proceedings” department of the Supreme Court of 18 October 2010, “Relevant domestic law and practice” above).

Secondly, the 2008 Act also provides for a compensatory remedy through which a party may be awarded just satisfaction for any damage sustained as a result of the inordinate length of the impugned proceedings. This remedy is an appropriate means of redressing a violation that has already occurred (see Mifsud v. France (dec.) [GC], no. 57220/00, § 17, ECHR 2002 VIII, and Kudła, cited above, § 158). The Supreme Court has awarded just satisfaction in 202 cases. It appears that the practice of awarding just satisfaction has become more frequent since September 2010. In this connection the Court cannot but note the higher amount of compensation awarded in cases decided after this date compared to the awards made earlier. It appears from the Government’s submissions (see above) that this positive trend is a result of the Šurbanoska and Others case (cited above, § 38), in which the Court criticised the low level of compensation that the Supreme Court awarded at the time. Despite this development, the Court notes that further improvements are required in this respect, as the Supreme Court itself indicated in its conclusions of 18 October 2010 (see recommendation (d), “Relevant domestic law and practice” above). In this connection, and in so far as the respondent Government appear to be seeking guidelines as regards the fixing of the amount of just satisfaction at a comparable level to the amount awarded by the Court in similar cases, the Court would underline that apart from nearly thirty judgments against the respondent State in which it has found a violation of the “reasonable time” requirement under Article 6 § 1 of the Convention, it has adopted decisions in over 130 length cases that have been struck out of the list of cases on the basis of a friendly settlement reached by the parties or a unilateral declaration by the Government. These decisions were given after the Court was satisfied that, inter alia, the amount of compensation given to the applicants was “compatible with awards in similar cases”. Consequently, these decisions could also be of relevance to the Supreme Court when setting the amount of just satisfaction to be awarded to successful claimants.

Statistical information submitted by the Supreme Court suggests that in most cases the compensation has been paid within the statutory three-month time-limit specified in section 4 of the 2008 Act. Obviously, considerable progress has been made recently, given the fact that delays in payment were predominant during the early stages of the implementation of the 2008 Act (ibid., § 42). As the Government argued, the 2010 Act aimed to eliminate some payment-related difficulties.

Lastly, the Court notes that in the vast majority of cases, proceedings before the Supreme Court involving the length remedy, at two levels of jurisdiction, have not exceeded the statutory six-month time-limit. This positive trend of expediting length proceedings before the Supreme Court concerns cases decided in 2011 in particular.

In such circumstances, and on the basis of the practice established by the Supreme Court, the Court considers that the length remedy provided for by the 2008 Act is to be regarded, in principle, as effective within the meaning of Article 35 § 1 of the Convention. Consequently, applicants should be required to avail themselves of it before submitting their length complaints to the Court. In view of the drawbacks noted above, in particular the level of just satisfaction awarded, the Court’s position may be subject to review in the future and the burden of proof as to the effectiveness of the remedy in practice remains on the respondent Government (see, mutatis mutandis, Grzinčič, cited above, § 108). The Court further underlines that this requirement does not concern cases already pending before it where the impugned proceedings have ended and the applicants can no longer use this remedy. The reason for this is that only now, after the improvements noted above have been made, is the Court able to regard the length remedy as effective (contrast Parizov, cited above, and Šurbanoska and Others, cited above). As regards cases pending before the Court where applicants have used the length remedy, the Court will have to make an individual assessment of the circumstances of each case in order to establish whether the applicants can still claim to be victims within the meaning of Article 34 of the Convention.

(d) Exhaustion requirement in respect of the first, second, third and fourth applicants

The Court notes that the first, second, third and fourth applicants lodged their application with it on 20 October 2005, whereas legislation providing for an effective remedy in respect of their “length” complaint was introduced on 15 March 2008.

The question therefore arises whether under Article 35 § 1 of the Convention those applicants should be required to have availed themselves of this remedy before the Court examines their complaint.

The Court reiterates that the issue whether domestic remedies have been exhausted will normally be determined by reference to the date when the application was lodged with the Court. This rule is, however, subject to exceptions which might be justified by the specific circumstances of each case (see Baumann v. France, no. 33592/96, § 47, 22 May 2001). The Court has found in respect of a large number of applications against Italy and Croatia raising similar issues that there were special circumstances justifying a departure from the general rule (see Brusco v. Italy (dec.), no. 69789/01, ECHR 2001-IX, and Nogolica v. Croatia (dec.), no. 77784/01, ECHR 2002-VIII).

Since the instant case has many similarities to the Italian and Croatian cases, the Court considers, for the reasons advanced in the Nogolica case (ibid.), which likewise apply to the present case, that the first, second, third and fourth applicants should first bring a length-of-proceedings complaint before the Supreme Court in accordance with the 2008 Act. This is because the restitution proceedings are still pending before the domestic authorities, and the length remedy thus remains open to these applicants, who can not only claim compensation but can also ask the Supreme Court to set a time-limit for deciding their case on the merits.

In the light of these circumstances, and emphasising the subsidiary character of the Convention machinery, the Court considers that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

(e) “Victim” status of the fifth applicant

The Court notes that the fifth applicant lodged his application with it on 26 April 2005. While the compensation proceedings were still pending, on 17 December 2010 he used the length remedy before the Supreme Court. In its decision of 15 February 2011, which became final on 9 March 2011, the Supreme Court acknowledged that the length of the impugned proceedings – more than nine years, at three levels of jurisdiction – had been excessive and that they had not yet ended. It awarded the applicant compensation in the amount of about EUR 2,000. This amount bears a reasonable relationship to what the Court would have been likely to award under Article 41 of the Convention in respect of the same period. The compensation awarded is therefore to be considered as adequate in the circumstances of the case (see Cocchiarella v. Italy [GC], cited above, §§ 65-107). The fifth applicant has already received the amount awarded. In addition to awarding just satisfaction, the court set a six-month time-limit for the court concerned to determine the claim in the substantive proceedings. In such circumstances, the Court is satisfied that the Supreme Court’s decision of 15 February 2010 provided the fifth applicant with sufficient and appropriate redress capable of removing his victim status within the meaning of Article 34 of the Convention.

In these circumstances, the Court considers that the fifth applicant can no longer claim to be the victim 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 (a) and 4 of the Convention.

B.  Remaining complaints

The first, second, third and fourth applicants complained that their rights under Article 1 of Protocol No. 1 had been violated. The fifth applicant alleged a violation of the right to a public hearing under Article 6 of the Convention.

The Court notes that the restitution proceedings are still pending. Consequently, the complaint under Article 1 of Protocol No. 1 is premature (see Taneva and Others v. the former Yugoslav Republic of Macedonia (dec.), no. 11363/03, 10 November 2009).

The Court further observes that the fifth applicant did not raise his complaint under this head in his appeal before the Court of Appeal. Furthermore, the compensation proceedings are still pending.

It follows that these complaints must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

For these reasons, the Court unanimously

Decides to join the applications, and

Declares the applications inadmissible.

André Wampach Nina Vajić
Deputy Registrar President