European Court of Human Rights

 

 

 

FIRST SECTION

 

 

 

 

 

 

CASE OF MIHAJLOV RISTOV AND OTHERS v. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA

 

(Application no. 40127/04)

 

 

 

 

 

 

JUDGMENT

 

 

 

 

STRASBOURG

 

16 October 2014

 

 

 

 

 

 

 

 

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




In the case of Mihajlov Ristov 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. 40127/04) 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 fifteen Macedonian nationals, 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.

THE FACTS

THE CIRCUMSTANCES OF THE CASE

3.  The applicants’ personal details are provided in the appendix below.

4.  On 15 March 1982 the first, ninth, tenth, eleventh and twelfth applicants initiated civil proceedings for determination of title to plots of land, together with Mr Mite Ristov, Mr Dinko Ristov. Upon the death of Mr Mite Ristov, the domestic proceedings on his behalf were pursued by his heirs, from the second to fifth applicants. Upon the death of Mr Dinko Ristov the domestic proceedings were pursued on his behalf by his heirs, from the sixth to eighth applicants.

5.  On 21 July 2004, namely before the application was introduced, the ninth applicant had died. With a letter of 3 September 2007 the applicants’ representative informed the Court about the ninth applicant’s death and that the application would be pursued on his behalf by his heir Mr Taško Šterjov (the name of this heir is the same with the name of the third applicant).

6.  On 21 December 2004 the first applicant died and the application was pursued on his behalf by his heirs Mr Taško Mihajlov, Mr Saltir Mihajlovski and Mr Stojan Mihajlov.

7.  The proceedings ended on 7 March 2008 when the legal representative was served with a judgment of the Štip Court of Appeal of 28 January 2008 which listed the following plaintiffs: the heirs of the first applicant (see paragraph 6 above), the second to eighth applicants, the heir of the ninth applicant (see paragraph 5 above) and the tenth to twelfth applicants. The appeal on the points of law lodged against this judgment was rejected by the Supreme Court (отфрла) as ratione valoris.

THE LAW

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

8.  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 ...”

9.  On 22 March 2012 these complaints were communicated to the Government, together with a friendly-settlement proposal. After unsuccessful friendly-settlement negotiations, on 22 July 2012 the Government submitted a unilateral declaration in which they acknowledged the violation of the length complaint under Article 6 and offered to pay 1,610 euros (EUR) to some applicants. The applicants stated that they were not satisfied with the terms of the unilateral declaration.

10.  The Court observes that even if the unilateral declaration of the Government follows the terms of the friendly settlement proposal by the Registry, it cannot be relied on due to some errors in the latter. It must therefore be rejected.

A.  Admissibility

11.  The Court has first to consider whether some applicants have victim status within the meaning of Article 34 of the Convention.

12.  The Court notes that the ninth applicant died two months before the application was introduced. Since an application cannot be brought in the name of a deceased person (see Yaşa v. Turkey, no. 22495/93, Commission’s report of 8 April 1997, § 88, Reports of Judgments and Decisions 1998-VI) it finds that the ninth applicant and his heir (see paragraph 5 above) do not have the requisite standing under Article 34 of the Convention.

13.  The Court further notes that the thirteenth, fourteenth and fifteenth applicants did not participate in the proceedings in any capacity. Accordingly, they do not have the requisite standing under Article 34 of the Convention (see, mutatis mutandis, Dimitrovska v. the former Yugoslav Republic of Macedonia (dec.), no. 21466/03, 30 September 2008).

14.  It follows that the application 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 in respect of the ninth, thirteenth, fourteenth and fifteenth applicants.

15.  As regards the remaining applicants (from the first to eighth and from the tenth to twelfth) the Court notes that the complaints under this head 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

16.  The Court notes that the proceedings lasted between1982 and 2008, when the last decision on the merits was adopted (see Kostovska v. the former Yugoslav Republic of Macedonia, no. 44353/02, § 36, 15 June 2006). The relevant period therefore lasted twenty-six years for two levels of jurisdiction of which almost eleven years fall within the Court’s temporal jurisdiction (after 10 April 1997, the date when the respondent State ratified the Convention).

17.  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).

18.  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).

19.  The Court further notes that at the time when the proceedings ended in 2008 the applicants did not have at their disposal an effective remedy about their length-of-proceedings complaint (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).

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

II.  OTHER ALLEGED VIOLATIONS OF THE CONVENTION

21.  Lastly, the applicants complained under Article 6 about the fairness of the proceedings and access to court in view of the Supreme Court’s rejection of their appeal on points of law. They also complained 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 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

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 EUR 1,352,651 in respect of pecuniary damage. They also claimed EUR 20,000 each for non-pecuniary damage.

26.  The Government contested these claims.

27.  The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, the Court considers that the applicants must have sustained non-pecuniary damage. Ruling on an equitable basis, it awards the first to eighth and the tenth to twelfth applicant EUR 2,400 each, plus any tax that may be chargeable.

B.  Costs and expenses

28.  The applicants claimed EUR 20,439 for the costs and expenses incurred before the domestic courts. Relying on a rate scale of the Macedonian Bar, they claimed EUR 25,536 for those incurred before the Court.

29.  The Government contested these claims.

30.  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 850, plus any tax that may be chargeable to the applicants, for the costs incurred in the proceedings before the Court.

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 application inadmissible as incompatible ratione personae in respect of the ninth, thirteenth, fourteenth and fifteenth applicants;

 

2.  Declares, with respect to the remaining applicants, the length complaint under Article 6 and the lack of an effective remedy in this respect, under Article 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 the first to eighth and the tenth to twelfth applicants, 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 2,400 (two thousand four hundred euros) each, plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii)  EUR 850 (eight hundred and fifty euros), plus any tax that may be chargeable to the applicants, in respect of costs and expenses incurred in the proceedings before the Court;

(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.	First name LAST NAME	Date of birth	Place of residence
1.	Šterjo MIHAJLOV RISTOV[1]	15/03/1905	Štip
2.	Saltir ŠTERJOV	10/10/1940	Skopje
3.	Taško ŠTERJOV	12/07/1946	Skopje
4.	Šterjo ŠTERJOV	12/03/1952	Skopje
5.	Vlatko ŠTERJOV (MITEVSKI)	22/02/1969	Skopje
6.	Mihail ŠTERJOV	25/06/1947	Skopje
7.	Santo ŠTERJOV	02/02/1957	Skopje
8.	Nikola ŠTERJOV	04/10/1952	Skopje
9.	Atanas ŠTERJOV	11/06/1933	Štip
10.	Aleksandar ŠTERJOV	05/08/1939	Skopje
11.	Gorgi ŠTERJOV	05/05/1946	Skopje
12.	Miho ŠTERJOV	10/09/1953	Skopje
13.	Marija Gorgieva ŠTERJOVA	03/05/1949	Skopje
14.	Ica NANE	12/08/1955	Skopje
15.	Jana ŠTERJOVA	11/05/1916	Skopje

 




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[1] After the applicant’s death, the application was pursued on his behalf by his heirs: Taško MIHAJLOV born on 01/08/1939, living in Štip, Saltir MIHAJLOVSKI born on 03/02/1942, living in Štip and Stojan MIHAJLOV born on 10/11/1940, living in Štip. The just satisfaction amount is therefore jointly awarded to the three heirs.