Information Note on the Court’s case-law No. 146
November 2011
Adži-Spirkoska and Others v. "the former Yugoslav Republic of Macedonia" (dec.) - 38914/05 and 17879/05
Decision 3.11.2011 [Section I]
Article 35
Article 35-1
Exhaustion of domestic remedies
Effective domestic remedy
Length-of-proceedings complaint with the Supreme Court under the 2006 Courts Act, as amended: effective remedy
Facts – In 2000 the first four applicants instituted proceedings for the restitution of land. The proceedings were still pending when the European Court gave its decision. The fifth applicant brought a civil action against his former employer in 2001 and her proceedings were also ongoing. However, in 2010 he complained to the Supreme Court under the 2006 Courts Act, as amended, about the length of the proceedings in his case. In February 2011 the Supreme Court found a violation of his right to a hearing within a reasonable time, ordered the competent court to decide his case within six months and awarded him around EUR 2,000 in respect of non-pecuniary damage. In the proceedings before the European Court the Government objected that the first four applicants had failed to exhaust domestic remedies as they had not brought an action under the 2006 Courts Act, as amended, and that the fifth applicant could no longer claim to be a victim of a violation.
Law – Article 35 § 1: Following the Court’s judgment in Parizov*, the respondent State had passed legislation in 2008 amending the 2006 Courts Act. Its wording was clear and indicated that the new remedy was specifically designed to address the issue of the excessive length of proceedings before national authorities. The Supreme Court had exclusive competence to decide such complaints, on the basis of the Convention and the criteria established in the European Court’s case-law, within six months. If it found the length of the proceedings to have been unreasonable, it would award compensation and, where appropriate, set a time-limit for the competent court to decide the case at issue. It was clear from statistical data submitted by the Government that the length remedy as specified by the 2008 legislation was fully operational. Not only was it designed to ensure the acceleration of pending proceedings, it also provided a compensatory remedy. The remedy was therefore to be regarded as effective within the meaning of Article 35 § 1 and had to be exhausted, although, particularly as regards the level of just satisfaction awarded, that position could be subject to review in the future. This exhaustion requirement did not concern cases already pending before the Court where the impugned proceedings had ended and the applicants could no longer use the remedy. As regards cases pending before the Court where applicants had used the remedy, the Court would assess in each individual case whether they could still claim to be victims within the meaning of Article 34 of the Convention. The complaint of the first four applicants was therefore declared inadmissible for non-exhaustion of domestic remedies, despite the fact that it had been introduced prior to the creation of the new remedy.
Conclusion: inadmissible (failure to exhaust domestic remedies).
Article 34 – The fifth applicant, who had already availed himself of the new remedy, had received compensation comparable to what the Court would have been likely to award and the competent court had been ordered to decide his case within a set time-limit. In those circumstances, he could no longer claim to be a victim of a violation of the “reasonable-time” requirement.
Conclusion: inadmissible (absence of victim status).
* Parizov v. “the former Yugoslav Republic of Macedonia”, no. 14258/03, 7 February 2008.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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