DREYER v. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA - 2040/04 [2011] ECHR 1133 (19 July 2011)

JUDGMENT STRASBOURG 19 July This judgment is final but it may be subject to editorial revision. In the case of Dreyer v. the former Yugoslav Republic of Macedonia, The European Court of Human Rights (First Section), sitting as a Committee composed of: Anatoly Kovler, President, Mirjana Lazarova Trajkovska, Linos-Alexandre Sicilianos, judges, and André Wampach , Deputy Section Registrar , Having deliberated in private on 28 June 2011, Delivers the following judgment, which was adopted on that date: PROCEDURE The case originated in an application (no. 2040/04) 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 German national, Mr Hartwig Dreyer (“the applicant”), on 9 January 2004 . The Macedonian Government (“the Government”) were represented by their Agent, Mrs R. Lazareska Gerovska. On 14 January 2009 the President of the Fifth Section decided to give notice of the application to the Government. . On 22 January 2009 the German Government was informed of their right to intervene in the proceedings (Article 36 § 1 of the Convention and Rule 44 of the Rules of Court). . On 1 February 2011 the Court changed the composition of its Sections (Rule 25 § 1). The 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 THE CIRCUMSTANCES OF THE CASE The applicant, Mr Hartwig Dreyer, is a German national who was born in 1926 and lives in Neumunster, Germany. On 8 September 1983 the Paris International Court of Arbitration ordered the company М . (“the debtor”) to pay the company Ingenieurbüro, H. D., which was solely owned and managed by the applicant, 110,000 German marks (DM), plus interest. By a final decision of 28 March 1991, the Federal Court in Belgrade recognised this decision. On 13 September 1993 the applicant sought enforcement of that decision before the Skopje Municipal Court against the debtor’s legal successors, which had resulted from its division in 1982. On 16 September 1993 the Skopje Municipal Court granted this request. On 2 March 1994 the applicant further specified the debtors, namely companies which succeeded the debtor’s legal successors after their transformation in 1990 (“the companies”). On 24 March 1994 the Skopje Municipal Court dismissed the companies’ objections that they had lacked the requisite capacity to stand in the proceedings. On 6 January 1995 the applicant specified that in 1989 the debtor had seized to exist and its rights and obligations had transferred to a newly created company M.c.o. . The applicant therefore sought the Skopje Municipal Court to amend the decision of 24 March 1994. This request remained undecided. On 12 February 1998 the Skopje Court of Appeal upheld the companies’ appeals and remitted the case for re-examination. On 28 April 2000 the Skopje Court of First Instance requested the applicant to specify the respective debtor or debtors, having in mind his submission of 6 January 1995 (see paragraph 11 above). On 26 May 2000 the applicant reiterated his submission of 2 March 1994 (see paragraph 10 above). On 1 March 2004 the Skopje Court of First Instance upheld the companies’ objections and set aside (“ се става вон сила ” ) the enforcement order of 16 September 1993. The court found that the companies had not had capacity to stand in the proceedings since company M., referring presumably to M.c.o., had still existed and it was to be considered as the debtor’s legal successor liable to pay the debt. On 27 September 2004 the applicant was served with the decision of 1 March 2004 through the Embassy of the respondent State in Germany. The parties did not dispute that the applicant’s appeal of 30 April 2005, which remained undecided, was lodged out of time. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION The applicant complained that the length of the enforcement 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 Court considers that the applicant can claim to be a victim of the alleged violation since he was the sole owner and manager of the company Ingenieurbüro, H. D., which was the party of the proceedings in question (see, mutatis mutandis, Graberska v. the former Yugoslav Republic of Macedonia , no. 6924/03, § 41, 14 June 2007). The Government objected that the applicant had not exhausted domestic remedies since he had failed to appeal, in good time, against the first-instance court’s decision of 1 March 2004 (see paragraph 15 above). The applicant disputed the Government’s objection. However he did not contest the fact that he had lodged his appeal out of time. The Court considers that an ordinary appeal, which provides a remedy for errors of facts and law, allegedly made by a first-instance court, cannot be regarded as an effective remedy concerning the applicant’s complaint in respect of the length of the proceedings (see, Josifov v. the former Yugoslav Republic of Macedonia , no. 37812/04, § 20, 25 June 2009). It follows that the Government’s preliminary objection must be rejected. The Court further considers that the application 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 The Government contended that there had been no violation of Article 6 § 1 of the Convention. In this connection they argued that the applicant had inaccurately specified debtors on several occasions. The applicant disagreed. The Court observes that, in order to determine the reasonableness of the delay in question, regard must also be had to the state of the case on the date of ratification (see Jankulovski v. the former Yugoslav Republic of Macedonia , no. 6906/03, § 36, 3 July 2008). The Court further notes that the enforcement proceedings started on 13 September 1993 when the applicant requested enforcement of his claim. Thus, on 10 April 1997, the enforcement proceedings had already been pending for over three years and seven months. Although there has been no formal decision rendered by the appeal court, in practice the enforcement proceedings ended with the first-instance court’s decision of 1 March 2004, served on the applicant on 27 September 2004, since the applicant’s appeal lacked any prospect of success (see paragraphs 15 and 19 above, see also, mutatis mutandis, Miltenovic v. the former Yugoslav Republic of Macedonia (dec.), no. 26615/02, 19 June ). The proceedings, thus, lasted nearly eleven years and one month of which seven years, five months and twenty days fall within the Court’s temporal competence (since the ratification of the Convention by the respondent State on 10 April 1997) for two levels of jurisdiction. Under the Court’s case law, 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 (see Markoski v. the former Yugoslav Republic of Macedonia , no. 22928/03, § 32, 2 November 2006). The Court considers that the case was of some complexity, but that this cannot, in itself, justify the length of the proceedings. 30. As to the applicant’s behaviour, the Court is not convinced, as the Government argued, that his failure properly to establish the relevant debtor or debtors in accordance with their transformation, added much to the length of the enforcement proceedings. Moreover, the applicant’s submissions specifying his request cannot be considered to his detriment (see Ivanovski and Others v. the former Yugoslav Republic of Macedonia , no. 34188/03, § 28, 26 November 2009) . 31. On the other hand, the Court considers that the domestic courts did not display the requisite vigilance when conducting the enforcement proceedings. In this connection, it observes that the proceedings, which lasted over seven years and five months within the Court’s temporal competence, were pending approximately six years before the Skopje Court of First Instance (see paragraphs 12 and 14 above). In the light of the criteria laid down in its case-law and having regard to all the circumstances of the case, the Court considers that the length of the enforcement proceedings failed to satisfy the reasonable-time requirement. There has, accordingly, been a violation of Article 6 § 1 of the Convention. II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION The applicant further complained under Article 14 of the Convention that he had been discriminated against by virtue of the Enforcement Proceedings Act, valid at the material time. He also alleged a violation of Article 1 of Protocol No. 1 for having not been able to honour his claim. . The Court has examined these 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 EUR 2,892,859 in respect of pecuniary damage and EUR 1,053,400 in respect of non-pecuniary damage. The Government contested these claims. The Court does not discern any causal link between the violation found and the pecuniary damage alleged: it therefore rejects this claim. However, it considers that the applicant must have sustained non-pecuniary damage for the protracted length of the proceedings. Ruling on an equitable basis, it awards him EUR 2,400 under that head. B. Costs and expenses The applicant also claimed a global sum of EUR 1,700,974 for the costs and expenses incurred before the domestic courts and for those incurred before the Court. The latter figure included, inter alia , the costs for mailing, translation and photocopy of documents, for which the applicant submitted a copy of 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 Jovanovski v. the former Yugoslav Republic of Macedonia , no. 40233/03, § 44, 25 March 2010) . 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, the Court awards the sum of EUR 1,464, 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 excessive length of the enforcement proceedings admissible and the remainder of the application inadmissible; Holds that there has been a violation of Article 6 § 1 of the Convention; Holds (a) that the respondent State is to pay the applicant within three months, the following amounts, to be converted into the national currency of the respondent State at the rate applicable on the date of settlement: i) EUR 2,400 (two thousand and four hundred euros) in respect of non-pecuniary damage, plus any tax that may be chargeable; ii) EUR 1,464 (one thousand and four hundred sixty-four euros) in respect of costs and expenses, plus any tax that may be chargeable to the applicants; (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; Dismisses the remainder of the applicants’ claim for just satisfaction. Done in English, and notified in writing on 28 June 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. André Wampach Anatoly Kovler Deputy Registrar President BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII