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FIFTH
SECTION
CASE OF ILIEVSKI v. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA
(Application
no. 35164/03)
JUDGMENT
STRASBOURG
22
April 2010
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Ilievski v. the former Yugoslav Republic of
Macedonia,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer Lorenzen, President,
Renate
Jaeger,
Karel Jungwiert,
Rait Maruste,
Mark
Villiger,
Isabelle Berro-Lefèvre,
Mirjana
Lazarova Trajkovska, judges,
and Claudia
Westerdiek, Section
Registrar,
Having
deliberated in private on 23 March 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 35164/03) 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 a
Macedonian national, Mr Mirko Ilievski (“the applicant”),
on 29 October 2003.
- The
Macedonian Government (“the Government”) were represented
by their Agent, Mrs R. Lazareska Gerovska.
- On
28 June 2007 the
President of the Fifth Section decided to communicate the complaint
concerning the length of the proceedings. It was also decided to rule
on the admissibility and merits of the application at the same time
(Article 29 § 3).
THE FACTS
A. Proceedings concerning the applicant's dismissal
- On
10 May 1995 the applicant was dismissed by his employer for
work-related irregularities.
- On
16 June 1995 the applicant claimed annulment of his dismissal and his
reinstatement.
- On
15 February 1996 the Delčevo Municipal Court (“the
first-instance court”) annulled the dismissal decision and
ordered the employer to reinstate the applicant to a post
commensurate to his qualifications. On 19 September 1996 the
Štip Court of Appeal quashed this decision and remitted the
case for a fresh consideration.
- On
11 November 1996 the first-instance court terminated the proceedings
because insolvency proceedings had been launched against the employer
on 24 April 1996.
- On
19 November 1996 the applicant requested the court to resume the
proceedings for a number of reasons, including the fact that the
employer's receiver (стечаен
управник)
appointed in the insolvency
proceedings had not requested termination of his proceedings.
- On
13 January 1997 the first-instance court declared itself incompetent
to decide the applicant's case and transferred it to the Kočani
Court of First Instance.
- On
7 November 1997 the Kočani Court of First Instance dismissed the
applicant's claim relying on the latter's criminal conviction of
19 July 1995 for work-related offences. On 10 February 1998
the Štip Court of Appeal dismissed the applicant's appeal and
upheld the lower court's decision.
- On
29 December 1998 the Kočani Court of First Instance stayed the
insolvency proceedings in respect of the employer and noted that they
had no bearing on dismissal decisions.
- On
2 December 1999 the Supreme Court upheld the applicant's appeal on
points of law (ревизија)
and quashed the lower courts' decisions of 7 November 1997
and 10 February 1998.
- On
22 March 2000 the Kočani Court of First Instance declared itself
incompetent ratione loci to decide the applicant's case.
- On
22 December 2000 the Supreme Court dismissed the employer's request
that the first-instance court be declared incompetent to deal with
the applicant's case.
- On
17 April 2001 the first-instance court annulled the dismissal
decision and dismissed the applicant's claim for his reinstatement
finding that the employer's insolvency had entailed ipso jure
termination of all employment agreements, including the applicant's.
This decision was upheld by the Štip
Court of Appeal's and the Supreme Court's decisions of 27
December 2001 and 7 May 2003,
respectively. This latter decision was served on the applicant on
9 July 2003.
B. Proceedings concerning the applicant's compensation claim for
unpaid salary and other work-related allowances
- On
28 July 2003 the applicant brought a civil action against the
employer claiming employment emoluments (надомест
на штета од
работен однос).
His claim referred to compensation for unpaid salary and an allowance
for provisional unemployment that he should have received from the
State Employment Bureau (Биро
за вработување)
pending the employer's insolvency proceedings.
- On
1 March 2004 the first-instance court ruled partly in favour of the
applicant. This decision became final on 5 April 2004.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
-
The applicant complained that the length of the dismissal 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
- The
Government did not raise any objection as to the admissibility of
this complaint.
- The
Court notes this complaint 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 must therefore
be declared admissible.
B. Merits
1. The parties' submissions
- The Government submitted that the period which elapsed
before the entry into force of the Convention in respect of the
former Yugoslav Republic of Macedonia should not be taken into
consideration. They further stated that that there had been complex
circumstances related to the case, including that other related
proceedings had been pending simultaneously (see paragraphs 7 and
10).
- The
Government confirmed that the applicant did not contribute to the
length of the proceedings.
- As
to the conduct of the national courts, they submitted that no delays
were attributable to them, except in the proceedings before the
Supreme Court, which had not added much to their length.
- The
applicant did not comment.
2. The Court's assessment
- The Court notes that the proceedings started on 16
June 1995 when the applicant brought his claim before the
first-instance court. However, as noted by the Government, the period
which falls within the Court's jurisdiction began on 10 April 1997,
after the Convention entered into force in respect of the former
Yugoslav Republic of Macedonia (see Lickov v. the former
Yugoslav Republic of Macedonia,
no. 38202/02, § 21, 28 September 2006).
- In assessing the reasonableness of the time that
elapsed after that date, account must be taken of the state of
proceedings on 10 April 1997 (see Ziberi v. the
former Yugoslav Republic of
Macedonia, no. 27866/02, § 41, 5 July
2007). In this connection, the Court notes that at that point the
proceedings had lasted almost one year and ten months at two levels
of jurisdiction.
- The
proceedings ended on 9 July 2003 when the Supreme Court's decision
was served on the applicant. They therefore lasted over eight years,
of which six years, two months and thirty days fall within the
Court's temporal jurisdiction at three court levels.
28. 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
Markoski v. the former Yugoslav Republic of Macedonia,
no. 22928/03, § 32, 2 November 2006).
29. The Court considers that
the case was not of a particularly
complex nature.
In this latter context, the Court notes that it cannot be
conclusively determined that the impugned proceedings had been
affected by the other proceedings pending parallel.
- It
further finds that no periods of delay are imputable to the
applicant.
- As
to the conduct of the national courts, the
Court observes that the applicant's case was unnecessarily
transferred to be decided by the Kočani Court of First Instance,
which affected the length of the proceedings.
- Furthermore, the Court is of the
view that what was at stake for the applicant, who lost his means of
subsistence after being dismissed from work, called for special
expediency (see Dumanovski v. the
former Yugoslav Republic of Macedonia,
no. 13898/02, § 48, 8 December 2005).
- Having
examined all the material submitted to it, the Court considers that
the Government have not put forward any fact or argument showing that
the applicant's claim was decided with due expediency. Having regard
to the circumstances of the instant case and to what was at stake for
the applicant, the Court considers that the length of the proceedings
was excessive and failed to meet the “reasonable time”
requirement.
- There
has accordingly been a breach of that provision.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- Referring to the outcome of both sets of proceedings,
the applicant complained that the domestic courts had wrongly
dismissed his claim for reinstatement and that they had taken
conflicting decisions during the proceedings. He also complained that
he had not been compensated for unpaid salaries and work-related
allowances.
- The
Court has examined the remainder of the applicant's complaints and
finds that, in the light of all the materials in its possession, and
in so far as the matters complained of are within its competence,
they do not disclose any appearance of a violation of the rights and
freedoms set out in the Convention or its Protocols.
- It
follows that this part of the application is manifestly ill-founded
and must be rejected in accordance with Article 35 §§ 3 and
4 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- 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
- The
applicant claimed 52,695 euros (EUR) in respect of pecuniary damage
related to allegedly unpaid salaries and other work-related
allowances. He also claimed EUR 11,920 in respect of non-pecuniary
damage due to lack of subsistence funds.
- The
Government contested these claims.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged. Furthermore, the applicant was
partly awarded the claims under this head: (see paragraph 17 above),
it therefore rejects this claim. On the other hand, ruling on an
equitable basis, it awards him EUR 800 in
respect of non-pecuniary damage, plus
any tax that may be chargeable.
B. Costs and expenses
- The
applicant also claimed a global sum of EUR 813,59 for the costs and
expenses incurred before the domestic courts and for those incurred
before the Court. The latter figure included, inter alia,
court and legal fees, as well as the costs for mailing and
translation of documents.
- The
Government contested these claims.
- 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
Kyrtatos v. Greece,
no. 41666/98, § 62,
ECHR 2003 VI (extracts)). Concerning the applicant's request for
reimbursement of the costs incurred in the proceedings before the
domestic courts, the Court notes that such costs had not been
incurred in order to seek through the domestic legal order prevention
and redress of the alleged violation complained of before the Court.
Accordingly, it does not award any sum under this head (see Milošević
v. the former Yugoslav Republic of Macedonia,
no. 15056/02, § 34, 20 April 2006). In
respect of the costs and expenses
incurred before it, regard being had to the supporting documents
submitted by the applicant and the above criteria, the Court awards
the sum of EUR 60, plus any tax that may be chargeable to the
applicant.
C. Default interest
- The
Court considers it appropriate that the default interest 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
- Declares the complaint concerning the length of the
proceedings admissible and the remainder of the application
inadmissible;
- Holds that there has been a violation of Article 6 §
1 of the Convention in respect of the length of proceedings;
- Holds
a)
that the respondent State is to pay the applicant, within three
months from the date on which the judgment becomes final in
accordance with Article 44 § 2 of the Convention,
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 800 (eight hundred euros) in respect of
non-pecuniary damage, plus any tax that may be chargeable;
(ii) EUR 60 (sixty euros) in respect of costs and expenses,
plus any tax that may be chargeable to the applicant;
(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;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 22 April 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
