European Court of Human Rights

 

 

 

FIRST SECTION

 

 

 

 

 

CASE OF ŠTERJOV AND OTHERS v. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA

 

(Application no. 40160/04)

 

 

 

 

 

 

 

 

 

JUDGMENT

 

 

STRASBOURG

 

 

16 October 2014

 

 

 

This judgment is final. It may be subject to editorial revision.




In the case of Šterjov and Others v. the former Yugoslav Republic of Macedonia,

The European Court of Human Rights (First Section), sitting as a Committee composed of:

          Linos-Alexandre Sicilianos, President,
          Mirjana Lazarova Trajkovska,
          Ksenija Turković, judges,

and Søren C. Prebensen, Acting Deputy Section Registrar,

Having deliberated in private on 23 September 2014,

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

PROCEDURE

1.  The case originated in an application (no. 40160/04) 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 twenty two Macedonian nationals (“the applicants”), on 29 September 2004.

2.  The applicants were represented by Mr T. Torov, a lawyer practising in Štip. The Macedonian Government (“the Government”) were initially represented by their former Agent, Mrs R. Lazareska Gerovska, and subsequently by their present Agent, Mr K. Bogdanov.

3.  On 17 May 2011 the application was communicated to the respondent Government.

THE FACTS

4.  The applicants’ personal details are listed in the appendix below.

5.  On 16 March 1982 five people (“the predecessors”), the ninth and the twenty-second applicants initiated civil proceedings for determination of title to plots of land.

6.  Between 1984 and 2001 the predecessors died. The first, second, third and fourth applicants stepped in the proceedings on behalf of their late predecessor. The fifth to eighth and the tenth to twenty-first applicants did not step in the proceedings on behalf of their late predecessors.

7.  On 12 May 2004 the ninth applicant died.

8.  On 23 April 2005 the twenty-second applicant died and his heirs, Mr Stojan Kostov and Mr Mite Kostov, applied to continue the application in his name.

9.  On 17 April 2009 the fourth applicant died and her heirs, the second and third applicants, applied to continue the application also in her name.

10.  The impugned proceedings, which were reconsidered on one occasion, ended on 31 August 2007 when the final decision of the Štip Court of Appeal was served on the applicants. This decision listed the following as plaintiffs: the first, second, third, fourth, ninth and twenty-second applicants as well as the predecessors of the remaining applicants.

THE LAW

I.  ALLEGED VIOLATION OF ARTICLES 6 AND 13 OF THE CONVENTION

11.  The applicants complained that the length of the proceedings had been incompatible with the “reasonable time” requirement and that they had no effective remedy in this respect. They relied on Articles 6 and 13 of the Convention, which, 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 ... hearing within a reasonable time by a ... tribunal ...

Article 13

Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority ...”

12.  On 19 July 2011 the Government informed that they do not intend to submit observations.

A.  Admissibility

The victim status

13.  The Court has to examine whether the applicants have the status of victim within the meaning of Article 34 of the Convention. In this connection it notes that unlike the first, second, third and fourth applicants who stepped in the proceedings on behalf of their late predecessors, the fifth to eighth applicants and the tenth to twenty-first applicants did not participate in the proceedings in any capacity. The argument that these applicants were ex lege represented in the proceedings by their late predecessors’ representative is of no relevance. The Court therefore finds that the fifth to eighth applicants and the tenth to twenty-first applicants do not have the requisite standing under Article 34 of the Convention (see Dimitrovska v. the former Yugoslav Republic of Macedonia (dec.), no. 21466/03, 30 September 2008).

14.  As regards the ninth applicant, the Court notes that he died on 12 May 2004, namely four months before the introduction of the application. In this connection it recalls that an application cannot be brought in the name of a deceased person, since a deceased person is unable, even through a representative, to lodge an application with the Court (see Yaşa v. Turkey, no. 22495/93, Commission’s report of 8 April 1997, § 88, Reports of Judgments and Decisions 1998-VI). The Court does not need to examine if there was any abuse of the right to petition regarding the letters of authority submitted on behalf of the ninth applicant, since in view of the above, it finds that he or his heirs do not have the requisite standing under Article 34 of the Convention.

15.  As regards the twenty-second applicant who died on 23 April 2005, as evident from the file, his heirs Mr Stojan Kostov and Mr Mite Kostov, applied to continue the application in his name. The application was introduced by the twenty-second applicant himself and only continued by his heirs after his death. The same concerns the fourth applicant who was succeeded after her death by the second and third applicants. In these circumstances the Court considers that the heirs of the fourth and of the twenty-second applicant have the requisite locus standi under Article 34 of the Convention (see Stojkovic v. the former Yugoslav Republic of Macedonia, no. 14818/02, § 25, 8 November 2007).

16.  It follows that the application, in respect of the fifth to the twenty-first applicants is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4 of the Convention.

17.  As to the remaining applicants (the first, second, third, fourth and twenty-second), the Court finds that the complaints about the length of proceedings and lack of effective remedy are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that these complaints are not inadmissible on any other grounds. They must therefore be declared admissible.

B.  Merits

18.  The Court notes that the proceedings began in 1982 and ended in 2007. The relevant period therefore lasted around twenty-five years on two levels of jurisdiction of which ten years and nearly five months fall within the Court’s temporal jurisdiction (after 10 April 1997, the date when the respondent State ratified the Convention).

19.  The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicants and the relevant authorities and what was at stake for the applicants in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII).

20.  Having examined all the material submitted to it and having regard to its case-law on the subject, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement (see Frydlender, cited above; Cocchiarella v. Italy [GC], no. 64886/01, §§ 69-98, ECHR 2006-V; Majewski v. Poland, no. 52690/99, §§ 38-41, 11 October 2005; Wende and Kukówka v. Poland, no. 56026/00, §§ 63-65, 10 May 2007; Petkovski v. the former Yugoslav Republic of Macedonia (dec.) no. 27314/04, 13 November 2008; Ajvazi v. the former Yugoslav Republic of Macedonia (dec.) no. 30956/05, 13 November 2008).

21.  The Court further notes that at the time when the proceedings ended in 2007 the applicants did not have at their disposal an effective remedy about their length-of-proceedings complaint (see Adži Spirkoska and others v. the former Yugoslav Republic of Macedonia (dec.), no. 38914/05, 3 November 2011). The Court therefore concludes that there has been a breach of Article 13, taken in conjunction with Article 6 of the Convention (see Ogražden AD and Others v. the former Yugoslav Republic of Macedonia, nos. 35630/04, 53442/07 and 42580/09, §§ 29-30, 29 May 2012).

22.  There has accordingly been a breach of Articles 6 and 13 of the Convention.

II.  OTHER ALLEGED VIOLATIONS OF THE CONVENTION

23.  The applicants complained under Article 6 about access to court and their right to be represented by a lawyer on their own choosing. They also complained under Article 1 of Protocol No. 1.

24.  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.

25.  It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

III.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

26.  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

27.  The applicants claimed 10,000 euros (EUR) each in respect of non-pecuniary damage.

28.  The Government contested this claim as excessive and unsubstantiated.

29.  The Court considers that the first, second, third, fourth and twenty-second applicants must have sustained non-pecuniary damage. Ruling on an equitable basis, it awards the first, second, third, and twenty-second applicants EUR 2,200 each. No separate award is made for the fourth applicant and the award in respect of the twenty-second applicant is to be paid jointly to his two heirs (see paragraph 15).

B.  Costs and expenses

30. The applicants, relying on a rate scale of the Macedonian Bar, claimed EUR 17,570 for the costs and expenses incurred before the domestic courts and EUR 21,824 for those incurred before the Court.

31.  The Government contested these claims as excessive. They also submitted that there had been no causal link between the costs claimed and the alleged violation.

32.  Regard being had to the documents in its possession and to its case-law, the Court rejects the claim for the costs and expenses in the domestic proceedings (see Milošević v. the former Yugoslav Republic of Macedonia, no. 15056/02, § 34, 20 April 2006). On the other hand, the Court considers it reasonable to award the applicants the total sum of EUR 850 for the proceedings before the Court.

C.  Default interest

33.  The Court considers it appropriate that the default interest rate 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 incompatible ratione personae in respect of the fifth to twenty-first applicants;

 

2. Declares, in respect of the remaining applicants, the complaints concerning the excessive length of the proceedings under Articles 6 § 1 and 13 admissible and the remainder of the application inadmissible;

 

3. Holds that there has been a violation of Articles 6 and 13 of the Convention;

 

4.  Holds

(a)  that the respondent State is to pay, within three months, the following amounts, to be converted into the national currency of the respondent State at the rate applicable at the date of settlement:

(i)  EUR 2,200 (two thousand and two hundred euros), plus any tax that may be chargeable, to each of the first, second and third applicants and jointly to the heirs of the twenty-second applicant, in respect of non-pecuniary damage;

(ii)  jointly EUR 850 (eight hundred and fifty euros), plus any tax that may be chargeable, to the first, second and third applicants and to the heirs of the twenty-second applicant, in respect of costs and expenses;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

 

5.  Dismisses the remainder of the applicants’ claim for just satisfaction.

Done in English, and notified in writing on 16 October 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

    Søren C. Prebensen                                           Linos-Alexandre Sicilianos
Acting Deputy Registrar                                                    President

 

 

 

 

 




 

 

 

APPENDIX

 

No.	Applicant’s name and family name	Year of birth-death, place of residence
1.	Vasil Šterjov (“the first applicant”)	1948, Skopje
2.	Trajče Šterjov (“the second applicant”)	1955, v. Sofilari
3.	Zuica Atanasova (“the third applicant”)	1950 v. Sofilari
4.	Velika Šterjova (“the fourth applicant”)	1922-2009, v. Sofilari
5.	Lenka M. Sotirovska (“the fifth applicant”)	1955, Skopje
6.	Očka M. Mihajlova (“the sixth applicant”)	1960, Skopje
7.	Atanas M. Šterjov (“the seventh applicant”)	1952, Skopje
8.	Marika M. Petruševa (“the eighth applicant”)	1952, Ohrid
9.	Risto Šterjov (“the ninth applicant”)	1930-2004, Skopje
10.	Vangel Kostov (“the tenth applicant”)	1957, v. Sofilari
11.	Lena Kostova (“the eleventh applicant”)	1959, Štip
12.	Monika Arsova (“the twelfth applicant”)	1992, Štip
13.	Kiraca Kostova (“the thirteenth applicant”)	1933, v. Sofilari
14.	Kostanda Nikolova (“the fourtheenth applicant”)	1947, Štip
15.	Očka Nikolova (“the fifteenth applicant”)	1953, Štip
16.	Dimčo Šterjov (“the sixteenth applicant”)	1950, Štip
17.	Marika Šterjova (“the seventeenth applicant”)	1956, v. Sofilari
18.	Šterjo Šterjov (“the eighteenth applicant”)	1950, Štip
19.	Strijana Šterjeva (“the nineteenth applicant”)	1957, Štip
20.	Sando Šterjov (“the twentieth applicant”)	1961, Štip
21.	Saltir Šterjov (“the twenty-first applicant”)	1954, Štip
22.	Gorgi Kostov (“the twenty- second applicant”)	1926-2005, Štip