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FIFTH
SECTION
CASE OF ČANGOV v. THE
FORMER YUGOSLAV REPUBLIC OF MACEDONIA
(Application
no. 14419/03)
JUDGMENT
STRASBOURG
24
February 2011
This
judgment is final but it may be subject to editorial revision
In the case of Čangov v. the
former Yugoslav Republic of Macedonia,
The
European Court of Human Rights (Fifth Section), sitting as a
Committee composed of:
Zdravka Kalaydjieva,
President,
Mirjana Lazarova Trajkovska,
Julia
Laffranque, judges,
and Stephen Phillips,
Deputy
Section Registrar,
Having
deliberated in private on 31 January 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no.14419/03) 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 Duško
Čangov (“the applicant”), on 12 February 2003.
- The
Macedonian Government (“the Government”) were represented
by their Agent, Mrs R. Lazareska Gerovska.
- On
28 November 2006 the
President of the Fifth Section decided to give notice of the
application to the Government. In accordance with Protocol No.
14, the application was allocated to a Committee of three Judges.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1942 and lives in Skopje. He is the manager and
sole owner of a limited liability company, the Tehno Interexport
company (“T.”), the acquirer and legal successor of the
Unimont company (“U.”), which ceased to exist on 4
February 1994.
A. The first set of proceedings
- On
13 June 1990 U. brought a compensation claim against another company.
- After
the case was remitted for reconsideration by the Supreme Court on 18
November 1998, the Gevgelija Court of First Instance, which had
meanwhile become the court with jurisdiction in the matter, partly
upheld T.’s claim on 24 October 2005. That decision was upheld
by the Skopje Court of Appeal on 28 June 2006. On 16 April 2008 the
Supreme Court rejected as out of time an appeal on points of law
submitted by T.
B. The second set of proceedings
- On
3 November 1992 U. requested the enforcement of a court decision
given in its favour. On 6 November 1992 the then competent court
made an enforcement order against a private company (“the
debtor”). On 21 December 1992 the order was set aside. The
proceedings continued on a contentious basis.
- In
proceedings to settle a conflict of jurisdiction (постапка
за решавање
на судир на
надлежности), the
case was assigned to the Skopje Court of First Instance (“the
first-instance court”), as the court with jurisdiction in the
matter.
- On
20 November 1998 T. appealed against the decision of 21 December
1992. The Skopje Court of Appeal dismissed the appeal in a decision
of 21 February 2001.
- On
6 December 2004 the first-instance court stayed the civil proceedings
as the debtor, now the defendant, had meanwhile ceased to exist. The
parties disagreed as to whether that decision was served on the
applicant. According to the Government, the case was archived on
25 December 2005. No evidence was produced as to whether that
information was communicated to the applicant.
C. The third set of proceedings
- On
31 January 1994 U. lodged a claim for damages against the then
Payment Exchange Office (“the Office”) (Служба
за Општествено
Книговодство
Скопје),
a State-run institution. The claim concerned alleged irregularities
in the enforcement of U.’s claim, which formed the subject of
the eighth set of proceedings (see section H. below).
- At
a hearing on 27 November 2002 T. indicated the Ministry of Finance,
the legal successor of the Office, as the defendant in the
proceedings.
- On
19 September 2003 the Skopje Court of First Instance dismissed T.’s
claim as it found that the Ministry of Finance had acted in
accordance with the law. That decision was upheld by the Skopje Court
of Appeal and the Supreme Court in judgments of 3 February 2005 and
14 June 2006 respectively.
D. The fourth set of proceedings
- On
7 April 1995 the applicant requested the enforcement of a final
judgment of 20 May 1988 by which three physical persons (“the
debtors”) had been ordered jointly to pay him a certain amount
of money. On 14 April 1995 the then competent court granted the
request and ordered the debtors to pay the debt, together with
interest.
- On
2 September 1996 the first-instance court annulled the court order of
14 April 1995 in respect of the interest. It upheld the remainder of
the order and ordered a recalculation of the interest. In the
meantime, two of the debtors died. Their successors took over the
debt. On 5 June 1997 the Skopje Court of Appeal quashed the
decision of the first-instance court and ordered the lower court to
continue with the enforcement.
- The
judgment debt was subsequently partly settled. It remained unenforced
in respect of only one of the debtors.
- On
6 September 1999 the first-instance court ordered the seizure of that
debtor’s salary. The enforcement was not successful as the
debtor had meanwhile been dismissed from his job.
- On
30 June 2000 the applicant sought an enforcement order in respect of
a plot of land owned by the debtor in question. On 13 October 2000
the first-instance court granted that request.
- On
27 December 2001 the first-instance court ordered an expert valuation
and public sale of the land. It requested the applicant to make an
advance payment of the expert’s fees. The court also
informed the applicant that the decision of 13 October 2000
had not been served on the debtor. It requested the applicant to
assist the court’s bailiff in the service of the order. The
applicant stated that he had made two unsuccessful attempts to serve
the order on the debtor.
- On
8 November 2002 the first-instance court stayed (запира)
the proceedings since part of the debt had already been
settled and the applicant had failed to pay the expert’s fees
in relation to the remaining part of the debt. According to the
applicant, he learnt about that decision on 13 March 2007. On 21
March 2007 the applicant appealed. In the absence of any evidence to
the contrary, no further decision has been taken in the course of
these proceedings.
E. The fifth set of proceedings
- On
26 November 1999 T. requested the enforcement of a court decision of
24 December 1998 establishing a judgment debt against a private
company (“the debtor”). It proposed that the debtor’s
income obtained from renting business premises be transferred into
its account. On 30 November 1999 the first-instance court granted
that request. On 13 December 1999 it ordered T. to pay court
fees and to submit evidence that the premises concerned were in the
debtor’s possession.
- On
30 March 2000 T. withdrew the initial request since it could not
provide a certificate of title regarding the immovable property at
issue. It also made a fresh request proposing an alternative means of
enforcement, namely an inventory and public sale of the debtor’s
movable property. T. also proposed that the court fees be deducted
from its account. On 4 April 2000 the first-instance court granted
T.’s request.
- Owing
to structural changes affecting the debtor, on 5 April 2001 T.
withdrew its request and submitted a fresh request, seeking the
confiscation, valuation and public sale of stakeholders’ shares
(удели)
in the capital of the debtor’s legal successor (“the
successor”).
- On
17 May 2001 the first-instance court, in a formal decision, rejected
T.’s request of 26 November 1999 as it had failed to comply
with the order of 13 December 1999. In a separate decision of the
same date, the court granted T.’s request of 5 April 2001 and
ordered the successor to register the confiscation order in its
records. It also prohibited any trading in the shares. The court
ordered their sale once they had been valued and once the decision of
17 May 2001 had become final. One of the successor’s
shareholders challenged that decision by means of an appeal, which
was rejected on 9 November 2001.
- According
to the Government, on 18 April 2002 T. was requested to pay the court
fees. No evidence was submitted in support of that assertion.
- On
22 December 2003 T. informed the first-instance court that its
account had been blocked by a competent State agency (Агенција
за работа со
блокирани
сметки)
and proposed that the court fees be paid through that agency.
- On
11 March 2004 the first-instance court ordered T. to submit
information about the successor and its seat, with a warning that in
the event of non-compliance the request would be rejected.
T. was also ordered to pay the court fees.
28. It
appears that the case was archived, but that it was reopened
following a request submitted by T. on 27 September 2005. That
transpired from a letter from T. dated 10 August 2006 in which it
sent the court information about the successor’s address. On
21 September 2006 T. withdrew the enforcement request.
Consequently, on 22 September 2006 the first-instance
court stayed the enforcement
proceedings.
- On
18 December 2006 T. requested enforcement by private bailiffs in
accordance with the Enforcement Act of 2005
(see paragraph 52 below). In the absence of any evidence to
the contrary, T’s enforcement claim has not yet been enforced.
F. The sixth set of proceedings
- On
11 November 1993 the then competent court ordered the enforcement of
a final court decision given in favour of U. against a private
company (“the debtor”). On 1 December 1994 that decision
became final.
- On
12 May 1998 T. requested the court to resume the enforcement
proceedings. On 15 July 1998 the Skopje Court of First Instance (“the
first-instance court”) rejected that request as civil
proceedings were pending between the parties regarding the same legal
issues. On 7 October 1998 the Skopje Court of Appeal upheld T.’s
appeal and quashed the lower court’s decision.
- On
20 September 1999 the first-instance court rejected T.’s
request as res judicata. According to the applicant, T.
appealed against that decision to the Skopje Court of Appeal, but the
case file was allegedly not transmitted by the first-instance court
for consideration, since T. did not pay the court fees. No evidence
was submitted to confirm the applicant’s allegation.
- According
to the Government, the case was archived in 2003 and destroyed in
2005.
G. The seventh set of proceedings
- According
to the applicant, the Office (see paragraph 11 above) was ordered, on
the basis of a final court decision of 1998, to transfer a certain
amount of money from the account of a socially owned enterprise to
T.’s account. The Office partly enforced the order, but
allegedly failed to transfer interest as requested by T.
Consequently, on 12 February 1999 T. requested the court to rectify
the allegedly erroneous calculation of the interest by the Office.
- On
18 February 1999 the Skopje Court of First Instance ordered an agency
to draw up an expert opinion as to the calculation of interest and
whether the Office had complied with the order. T. was ordered to pay
the expert’s fees. The expert allegedly returned the case file
to the court to transfer it to the Office.
- According
to the applicant, the case was never transferred to the Office, as
the latter had ceased to exist and no legal successor was specified
by law.
- It
would appear that the case was archived in 2005. The Government
confirmed that the case had been archived and destroyed. The
applicant did not specify the date when he learnt that the case had
been archived.
H. The eighth set of proceedings
- On
3 November 1992 U. sought an enforcement order against a handcraft
cooperative (градежна
занаетчиска
задруга)
(“the debtor”). Оn
17 November 1992 the then competent court made an enforcement order.
- After
two remittal orders were given, on 11 November 1993 the court noted
that the decision of 17 November 1992 had become final in respect of
the principal debt and interest (calculated until 15 October 1992)
and ordered the Office to transfer the amount due into U.’s
account. It further ruled that the proceedings regarding the
remaining part of the interest would continue on a contentious basis.
That decision was confirmed on 7 December 1993.
- In
the contentious proceedings, on 1 March 1994 the first-instance court
upheld U.’s claim in a decision which was confirmed on appeal
on 31 May 1994. On 22 December 1994 the Supreme Court upheld a
legality review request (барање
за заштита на
законитоста)
lodged by the public prosecutor and quashed those decisions.
- At
a hearing held on 9 June 1995, the applicant being the legal
representative (законски
застапник)
of U. stated that the principal debt with interest (calculated
until 15 October 1992) had been settled. On the same date, the
Commercial Court dismissed as time-barred U.’s claim in respect
of the remaining part of the interest. On 15 May 1997 the Skopje
Court of Appeal upheld the lower court’s judgment. On 25
December 1998 the Supreme Court rejected an appeal on points of law
lodged by U.
- According
to the applicant, in 1996 T. lodged a request for enforcement of a
claim (“the first request”) established by a final
judgment. As the request had allegedly been lost, on 16 May 1996 T.
lodged another request for enforcement (“the second request”).
According to the applicant, these two requests concerned the order of
17 November 1992.
- On
an unspecified date, the Commercial Court requested T. to indicate
the final judgment to which the second request referred and to
provide a stamp attesting that that judgment had been enforceable
(потврда
за извршност).
T. did not comply with that request.
- According
to the applicant, no action has been taken since that time because
the file was lost and T. was under no obligation to submit a fresh
request for the third time.
II. RELEVANT DOMESTIC LAW AND
PRACTICE
A. Enforcement Proceedings Act of 1997 (Закон
за извршната
постапка)
- In
accordance with section 13 of the Enforcement Proceedings Act of 1997
(“the 1997 Act”), the provisions of the Civil Proceedings
Act were applicable to enforcement proceedings, unless otherwise
specified in the 1997 Act or any other law.
- In
accordance with section 29 of the 1997 Act, the courts were required
to enforce judgment debts by the means and in respect of the assets
specified in the request for enforcement.
- Section
32 provided that expenses relating to enforcement were to be covered
in advance by the creditor.
- Section
35 provided that a request for enforcement should specify: the
creditor and debtor; the final order; the debtor’s duty; the
means and assets for enforcement; and any other information necessary
for completion of the enforcement.
B. Civil Proceedings Act of 1998
(Закон за
парничната
постапка)
- Under
section 158(1) of the Civil Proceedings Act (“the 1998 Act”),
as valid at the time, a court would exempt from payment of procedural
costs (трошоци
на постапката)
a party to the proceedings who, on the basis of his or her financial
status, could not bear the trial costs without causing prejudice to
the necessary means of subsistence of himself or herself and his or
her family.
- Section
158(2) provided that the exemption from procedural costs concerned
court fees and advance payment of costs regarding witnesses and
experts, on-site inspections (увид)
and court announcements (судски
огласи).
- Under
section 158(3), the relevant court could exempt a party to the
proceedings from payment of court fees (судска
такса)
only if the payment thereof would substantially decrease the means of
subsistence of that party and the members of his or her family.
C. Enforcement Act of 2005 (Закон
за извршување)
52. Section
3 of the Enforcement Act of 2005 (“the 2005 Act”)
provides that bailiffs (извршители)
are to carry out enforcement.
-
Enforcement proceedings instituted before the 2005 Act entered into
force were to continue, until 1 July 2011, under the 1997 Act.
Thereafter, the 2005 Act would apply (according to Law of 2010
amending the 2005 Act).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that the length of certain of the impugned sets
of proceedings and the non-enforcement of final judgments in the
other sets of proceedings had not complied with the “reasonable
time” requirement under Article 6 of the Convention. He further
alleged that the T. company had been denied the right of access to a
court in the fifth and sixth sets of proceedings since the domestic
law had not entitled legal entities to request exemption from trial
costs and court fees. Article 6 § 1 of the Convention, in so far
as relevant, reads as follows:
“In the determination of his civil rights and
obligations ... everyone is entitled to a fair ... hearing within a
reasonable time by [a] ... tribunal ...”
A. Admissibility
1. Objection of incompatibility ratione
personae in respect of the first, second, third, fifth,
sixth, seventh and eighth sets of proceedings
- The
Government objected that the applicant’s complaints in respect
of the above-mentioned sets of proceedings were incompatible ratione
personae with the provisions of the Convention. They argued that
only U. and T., as legal entities, had been parties to the impugned
proceedings, whereas the applicant had acted merely as their legal
representative.
- The
applicant contested the Government’s arguments.
- The
Court reiterates that the term “victim” in Article 34 of
the Convention denotes the person directly affected by the act or
omission which is at issue (see, for example, Eckle
v. Germany, 15 July 1982, § 66,
Series A no. 51). In the present case, the Court notes that
the applicant was not a party of the relevant proceedings. It
further observes that he was the sole owner and manager of T., the
acquirer and, accordingly, legal successor of U. However, the
applicant is the sole owner of a limited liability company and he did
not present any evidence that T. had ceased to exist and that it was
not able to pursue the application in its own name. Consequently, the
Government’s objection must be sustained (see, a
contrario,
Graberska v. the former
Yugoslav Republic of Macedonia (no. 6924/03, § 41, 14
June 2007).
- It
follows that the applicant’s complaints in respect of the above
proceedings are 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.
2. Conclusion
59. The
Court considers that the applicant’s complaint in respect of
the fourth set of proceedings is not manifestly ill-founded within
the meaning of Article 35 § 3 (a) of the Convention. It also
finds that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
Non-enforcement complaint in respect of the fourth set
of proceedings
(a) General principles
- The
Court reiterates that the execution of a judgment given by any court
must be regarded as an integral part of the “trial” for
the purposes of Article 6 of the Convention (see Jankulovski v.
the former Yugoslav Republic of Macedonia, no. 6906/03, §
33, 3 July 2008). Moreover, it considers that the State has a
positive obligation to organise a system for enforcement of judgments
that is effective both in law and in practice and ensures their
enforcement without undue delay (see Pecevi v. the former Yugoslav
Republic of Macedonia, no. 21839/03, § 29, 6 November 2008).
However, the Court notes that State responsibility for enforcement of
a judgment against a private party extends no further than the
involvement of State bodies in the enforcement procedures. Once the
enforcement procedures have been terminated by a court in accordance
with the national legislation, the responsibility of the State ends
(see Martinovska v. the former Yugoslav Republic of
Macedonia, (dec.), no. 22731/02, 25 September 2006).
(i) The parties’ submissions
- The
Government stated that the proceedings had been stayed as the
applicant had failed to pay the expert’s fees (see paragraph 20
above).
- The
applicant contested the Government’s arguments.
(ii) The Court’s assessment
- The
Court notes that the enforcement proceedings, which began in 1995,
were initially launched against three individuals. By 1999 the
applicant’s claim had been enforced against two of the debtors.
As to the remainder of the claim, the applicant requested
enforcement on 30 June 2000. The Court will therefore examine the
applicant’s complaint in respect of the proceedings from that
date. The proceedings were stayed on 8 November
2002 owing to the applicant’s failure to pay the expert’s
fees. No further action was taken until 21 March 2007, when the
applicant appealed against that decision. It appears that no
further decision has been taken in the course of these proceedings.
- The
Court cannot but conclude that the applicant’s claim of 30 June
2000 has not yet been enforced.
- The
Court observes that the applicant did not show any active interest in
the outcome of the proceedings from 2001 to 2007 (see paragraphs
19-20 above).
- Notwithstanding
the above, having regard to all the circumstances of the case, the
Court considers that by refraining from taking adequate and effective
measures to enforce the remainder of the applicant’s claim, the
domestic courts deprived the provisions of Article 6 § 1 of the
Convention of all useful effect (see Kalanoski v. the former
Yugoslav Republic of Macedonia, no. 31391/03,
§§ 26-27, 17 December 2009).
- There
has therefore been a violation of Article 6 § 1 of the
Convention.
III. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION
- The
applicant further complained that T. had been discriminated against
in the fifth and sixth sets of proceedings, as the domestic law had
provided for different rules for legal and natural persons concerning
exemption from court fees.
- Article
14 of the Convention provides:
“The enjoyment of the rights and freedoms set
forth in [the] Convention shall be secured without discrimination on
any ground such as sex, race, colour, language, religion, political
or other opinion, national or social origin, association with a
national minority, property, birth or other status.”
- The Court observes that the applicant failed to lodge
a constitutional complaint with the Constitutional Court alleging
discriminatory treatment, although under national law that court has
full jurisdiction to deal with complaints filed by any individual who
claims to be the victim of a violation of the very same rights and
freedoms of which the applicant now alleges a violation before the
Court (see, mutatis mutandis, Šijakova and others
v. the former Yugoslav
Republic of Macedonia (dec.), no.
67914/01, § 2, 6 March 2003).
- It
follows that these complaints must be rejected under Article 35 §§ 1
and 4 of the Convention for non-exhaustion of domestic remedies.
IV. 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 89,660 euros (EUR) in respect of pecuniary damage
concerning all the impugned sets of proceedings. This figure
corresponded to his lost income and to the
amount awarded in the substantive proceedings, together with
interest. He also claimed a global sum of EUR 96,000 in
respect of non-pecuniary damage for the
emotional suffering resulting from the ineffectiveness of the
domestic proceedings.
- The
Government contested these claims.
- The
Court notes that in respect of the fourth set of proceedings, the
applicant did not submit any evidence that the debtor, a private
individual, had sufficient funds to honour his claim. The Court
therefore rejects the claim under this head.
- The
Court finds, however, that the applicant must have suffered
non-pecuniary damage on account of the violation found. Ruling on an
equitable basis, it awards him EUR 600 under this head.
B. Costs and expenses
- The
applicant also claimed EUR 3,202 for the costs and expenses incurred
before the domestic courts. He did not make any claim in respect of
the costs and expenses incurred before the Court.
- The
Government contested the claim.
- The
Court reiterates that only such costs and expenses as were actually
and necessarily incurred in connection with the violation found, and
are reasonable as to quantum, are recoverable under Article 41 (see
Kyrtatos v. Greece,
no. 41666/98, § 62,
ECHR 2003 VI). As to the applicant’s request for
reimbursement of the costs incurred in the proceedings before the
domestic courts, the Court notes that such costs were not incurred in
order to seek, through the domestic legal order, the prevention of
and redress for the violations alleged 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).
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 lengthy
non-enforcement of a final judgment in the fourth set of 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 fourth set of
proceedings;
- Holds
(a) that
the respondent State is to pay the applicant within three months from
the date of the present judgment, EUR 600 (six hundred euros) in
respect of non-pecuniary damage, plus any tax that may be chargeable,
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;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 24 February 2011,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen Phillips Zdravka Kalaydjieva Deputy Registrar President
