European Court of Human Rights

 

 

 

FIRST SECTION

 

 

 

 

 

 

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

 

(Application no. 27307/04)

 

 

 

 

 

 

 

JUDGMENT

 

 

 

 

STRASBOURG

 

16 October 2014

 

 

 

 

This judgment is final but it may be subject to editorial revision.




In the case of Goreski 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. 27307/04) 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 Mr Risto Goreski (“the first applicant”), Ms Gordana Adži-Spirkoska (“the second applicant”), Mr Strašo Gorgieski (“the third applicant”) and Ms Ilinka Ivanoska (“the fourth applicant”). The application was lodged on 12 July 2004. All applicants are Macedonian nationals. The first and fourth applicants died on 23 August 2010 and 22 April 2006 respectively. Ms Pandora Trenkovska and Ms Verka Petkovska, the daughters of the first applicant, and Ms Vera Ivanoska, the daughter of the fourth applicant, have applied to continue the application in the name of their late predecessors and designated the same counsel to represent them.

2.  The second applicant, a qualified lawyer from Prilep, was granted leave to represent the first, third and fourth applicants. The Macedonian Government (“the Government”) were represented by their former Agent, Mrs R. Lazareska Gerovska, succeeded subsequently by their present Agent, Mr K. Bogdanov.

3.  On 10 November 2010 the application was communicated to the respondent Government. It was also decided to rule on the admissibility and merits of the applications at the same time (Article 29 § 1).

4.  On 1 February 2011 the Court changed the composition of its Sections (Rule 25 § 1) and this case was assigned to the newly composed First Section (Rule 52 § 1). In accordance with Protocol No. 14, the application was allocated to a Committee of three Judges.

THE FACTS

5.  The applicants were born in 1929, 1952, 1956 and 1949 respectively. The second and third applicants live in Prilep.

6.  On 12 September 2000 the applicants initiated restitution proceedings. On 20 July 2001 they lodged a “silence of administration” appeal. After one remittal, on 5 October 2005 the Restitution Commission dismissed their claim to have the property restored into their possession and awarded them compensation instead. The type of compensation (видот на надоместокот) was to be decided with a separate decision (дополнително решение). On 12 December 2008 the Administrative Court finally upheld the restitution order. On 23 February 2008 the applicants were requested to specify the type of compensation, which on 3 March 2009 they refused to do until, according to them, the Court would decide their case.

THE LAW

I.  ALLEGED VIOLATION OF THE “REASONABLE TIME REQUIREMENT” UNDER ARTICLE 6 § 1 OF THE CONVENTION

7.  The applicants complained that the length of the restitution proceedings had been incompatible with the “reasonable time” requirement, laid down in Article 6 § 1 of the Convention, which 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.  Admissibility

8.  The Government confirmed that the restitution order had become final on 12 December 2008, but argued that the impugned proceedings were to be regarded as pending given the applicants’ refusal to specify the type of compensation. That refusal amounted to an abuse of the right to petition. They further maintained that the applicants had failed to exhaust domestic remedies since they had not used the length remedy before the Supreme Court.

9.  The applicants contested the Government’s arguments.

10.  The Court notes that the applicants complained about the length of the restitution proceedings which ended with a final decision regarding the merits of their claim. No complaint was submitted regarding the decision on the type of compensation. The parties agreed that the restitution proceedings on the merits ended with a final decision taken on 12 December 2008. Accordingly, the Court cannot but to dismiss the Government’s argument that the impugned proceedings are still pending.

11.  The Court further reiterates that the notion of abuse of the right of application in general is any conduct on the part of an applicant that is manifestly contrary to the purpose of the right of individual application as provided for in the Convention and which impedes the proper functioning of the Court or the proper conduct of the proceedings before it (see, for example, Miroļubovs and Others v. Latvia, no. 798/05, § 65, 15 September 2009). The applicants’ refusal to specify the means of compensation did not concern the proceedings before the Court. Accordingly, it cannot be regarded as an abuse of the right of application.

12.  As regards the non-exhaustion plea, the Court recalls that the exhaustion requirement in respect of the length remedy before the Supreme Court concerns applications that post-date the Adži-Spirkoska and Others case (see Adži-Spirkoska and Others v. the former Yugoslav Republic of Macedonia (dec.), nos. 38914/05 and 17879/05, 3 November 2011). There is no such requirement in respect of cases already pending before it unless the impugned proceedings have not ended yet and the applicants can use the length remedy before the Supreme Court. It is so since only after the improvements noted in the Adži-Spirkoska and Others case were made, was the Court able to regard the length remedy as effective (see Ogražden Ad and Others v. the former Yugoslav Republic of Macedonia, nos. 35630/04, 53442/07 and 42580/09, §§ 17 and 29, 29 May 2012).

13.  The present application had been pending before the Court when it decided the Adži-Spirkoska and Others case. The impugned domestic proceedings ended in 2008 (see paragraph 11 above), namely prior to that decision. The applicants therefore were not required to exhaust the length remedy, which was, at the time, regarded as ineffective. The Government’s non-exhaustion plea must accordingly be rejected.

14.  The Court further notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It also notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B.  Merits

1.  The parties’ submissions

15.  The applicants reaffirmed that the impugned proceedings had been unduly prolonged.

16.  The Government accepted that the impugned proceedings had lasted unreasonably long. However, the applicants were to be regarded responsible for the delay after 3 March 2009.

2.  The Court’s assessment

17.  The Court notes that the relevant period lasted between 2001 and 2008, namely seven years on two levels of jurisdiction.

18.  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 applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII).

19.  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; Docevski v. the former Yugoslav Republic of Macedonia, no. 66907/01, § 28, 1 March 2007; and Ogražden Ad and Others v. the former Yugoslav Republic of Macedonia, § 223, cited above).

20.  There has accordingly been a violation of this Article.

II.  OTHER ALLEGED VIOLATIONS OF THE CONVENTION

21.  The applicants raised further complaints under Article 6 of the Convention and under Article 1 of Protocol No. 1.

22.  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.

23.  It follows that these complaints are 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

24.  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

25.  The applicants claimed 244,000 euros (EUR) in respect of pecuniary damage. They made no claim as regards non-pecuniary damage.

26.  The Government contested this claim as unsubstantiated and excessive. They also argued that there had been no causal link between the pecuniary damage claimed and the alleged violation.

27.  The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. In the absence of any claim for non-pecuniary damage, the Court makes no award under this head.

B.  Costs and expenses

28.  The applicants claimed EUR 340 jointly for the costs and expenses incurred in the domestic proceedings and in the proceedings before the Court. In support they submitted copies of payment slips for mailing and translation costs. They further requested that the award under this head be transferred to the account of their representative.

29.  The Government argued that the applicants’ claim under this head was unsubstantiated, excessive and unrelated to the alleged violation.

30.  The Court reiterates that only such costs and expenses as were actually and necessarily incurred in connection with the violation found, and reasonable as to quantum, are recoverable under Article 41 (see Association of Citizens Radko and Paunkovski v. the former Yugoslav Republic of Macedonia, no. 74651/01, § 88, ECHR 2009 (extracts)). The Court rejects the claim for the costs and expenses in the domestic proceedings since they were not incurred in order to seek through the domestic legal order prevention and redress of the alleged violation complained of before the Court (see Milošević v. the former Yugoslav Republic of Macedonia, no. 15056/02, § 34, 20 April 2006). On the other hand, the Court awards the applicants the total sum of EUR 200, plus any tax that may be chargeable to the applicants, for the costs incurred in the proceedings before the Court. This amount is to be paid into the bank account of the applicants’ representative.

C.  Default interest

31.  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 length complaint admissible and the remainder of the application inadmissible;

 

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

 

3.  Holds

(a)  that the respondent State is to pay the applicants jointly, within three months, EUR 200 (two hundred euros), plus any tax that may be chargeable to them, in respect of costs and expenses, to be paid into the bank account of the applicants’ representative and 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;

 

4.  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