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FIFTH
SECTION
CASE OF RISTESKA v. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA
(Application
no. 38183/04)
JUDGMENT
STRASBOURG
28
January 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 Risteska 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,
Mirjana Lazarova Trajkovska,
Zdravka
Kalaydjieva, judges,
and Claudia
Westerdiek, Section
Registrar,
Having
deliberated in private on 5 January 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no.38183/04) 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 a
Macedonian national, Ms Marina Risteska (“the applicant”),
on 2 October 2004.
- The
applicant was represented by Mr Z. Gavriloski, a lawyer practising in
Skopje. The Macedonian Government (“the
Government”) were represented by their Agent, Mrs R. Lazareska
Gerovska.
- On
11 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
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1966 and lives in Skopje.
- On
27 November 1997 she complained to her employer about her treatment
at work.
- On
9 December 1997 the employer dismissed the applicant, considering her
complaint as a request for resignation. The applicant’s
objection remained undecided.
- On
26 February 1998 she claimed before the Skopje Court of First
Instance (“the first-instance court”) annulment of the
dismissal decision, her reinstatement and payment of unpaid salary.
- On
17 February 1999 the court ordered expert examination of the
applicant’s mental state of health on 27 November 1997, the
date when she had submitted her complaints to the employer. The
applicant was ordered to pay the expert fees within fifteen days. On
12 June 2000 the first-instance court noted that the applicant had
failed to pay the fees.
- On
4 May 2001 the court ordered expert examination of the applicant’s
mental health again. The applicant paid the expert fees on 26 October
2001. The expert opinion was submitted on 15 November 2001.
- During
the trial proceedings, three hearings were adjourned due to the
incorrect delivery of court summons to the applicant and her lawyer.
- On
19 September 2002 the first-instance court dismissed (одбива)
the applicant’s claim as having been submitted out of
the fifteen-day statutory time-limit. On 27 March 2003 the Skopje
Court of Appeal quashed this decision since the applicant’s
claim should have been rejected (отфрла)
instead.
- On
15 October 2003 the first-instance court rejected the applicant’s
claim as out of time. On the same date the applicant was exempted of
court fees (судска
такса).
On 17 March 2004 the Skopje Court of Appeal dismissed the applicant’s
appeal of 5 December 2003.
- On
20 April 2004 the applicant submitted to the Supreme Court an appeal
on points of law (ревизија)
arguing that the fifteen-day time-limit had been of a non-binding
(инструктивен)
nature. In this connection, she referred to a decision of 28 December
1999 in which the Supreme Court allegedly had given such reasoning.
- On
30 March 2005 the Supreme Court dismissed the applicant’s
appeal stating that the statutory time-limit had been of a preclusive
nature. This decision was served on the applicant on 27 June 2005.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that the length of the 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 that 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
there had been complex circumstances related to the case, such as the
need for expert examination of the applicant’s mental health
(see paragraphs 8 and 9 above).
- They further argued that the
applicant had contributed to the length of the proceedings by failing
to comply with the court orders for the payment of expert’s
fees (see paragraphs 8 and 9 above). The improper delivery of court
summons was attributable to the applicant (see paragraph 10 above).
- The applicant contested the
Government’s arguments. She maintained, inter
alia, that she had failed to pay the
expert fees due to her financial situation, which was supported by
the fact that she had been exempted from court fees (see paragraph 12
above).
2. The Court’s assessment
- The
Court notes that the proceedings started on 26 February 1998 when the
applicant brought her claim before the first-instance court. They
ended on 27 June 2005 when the Supreme Court’s decision was
served on the applicant. They therefore lasted seven years and four
months at three court levels.
- 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).
- The
Court considers that the case was not particularly complex.
- The
Court agrees with the Government that the applicant contributed to
the protraction of the proceedings. It is not persuaded by the
applicant’s argument that she should not be considered liable
for the delay that occurred in relation to the expert fees, given
that she had been exempted of payment of court fees only at a later
stage (see paragraph 12 above) and as the exemption did not cover
expert fees. In this connection, the Court notes that the applicant
had failed to pay the expert fees even one year and four months after
the court’s order (see paragraph 8 above). In addition, she had
paid the expert fees the second time they were ordered with a
six-month delay (see paragraph 9 above). The Court hence concludes
that the applicant was responsible for a delay of one year and ten
months in the proceedings in question. On the other hand, it
notes that the three adjournments cannot be attributed to her
since it is the State’s responsibility to organise a proper
system of delivery of court summons. The Government did not present
any arguments to the contrary.
- The Court recalls that it is for the Contracting
States to organise their legal systems in such a way that their
courts can guarantee everyone’s right to obtain a final
decision on disputes relating to civil rights and obligations within
a reasonable time (see Horvat v. Croatia,
no. 51585/99, § 59, ECHR 2001-VIII). In this context, it
finds significant delays attributable to the first-instance court.
The Court thus observes that it took nearly four years and seven
months for that court to decide the applicant’s case (see
paragraph 11 above).
- The Court is of the view that what was at stake for
the applicant, who lost her 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 Article 6 § 1 of the
Convention.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant further complained under Article 6 of the Convention that
the national courts had wrongly interpreted the substantive
law concerning the time-limits for bringing employment-related
claims.
- The
Court has examined the applicant’s complaint 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, it does 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 3,000 euros (EUR) in respect of non-pecuniary
damage.
- The
Government contested this claim.
- The Court considers that the applicant must have
sustained non-pecuniary damage. Ruling on an equitable basis, it
awards award her EUR 800 under that head.
B. Costs and expenses
- The
applicant also claimed EUR 500 for the costs and expenses incurred
before the domestic courts and 210 EUR for those incurred before the
Court. This latter figure included legal fees and mailing expenses.
As to the legal fees claimed, the applicant
submitted a receipt attesting her donation to a non-governmental
organisation in which her representative was employed. She further
submitted a copy of mail receipts.
-
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)). 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 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). Concerning the
legal costs and expenses incurred before it, the Court notes that no
evidence was presented that her donation in amount of EUR 200 was
made with reference to the application before it. It therefore
rejects her claim in this respect. On the other hand, the Court
awards the sum of EUR 10 in respect of the mailing expenses, plus any
tax that may be chargeable to her.
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 length of the proceedings complaint
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 the
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 10 (ten 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 unanimously the remainder of the
applicant’s claim for just satisfaction.
Done in English, and notified in writing on 28 January 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
