FIFTH SECTION
FINAL DECISION
AS TO THE ADMISSIBILITY OF
Application no. 34112/02
by Risto BAJRAKTAROV
against the former Yugoslav Republic of Macedonia
The European Court of Human Rights (Fifth Section), sitting on 18 November 2008 as a Chamber composed of:
Peer Lorenzen, President,
Rait Maruste,
Karel Jungwiert,
Volodymyr Butkevych,
Renate Jaeger,
Mark Villiger,
Mirjana Lazarova Trajkovska, judges,
and Claudia Westerdiek, Section Registrar,
Having regard to the above application lodged on 26 August 2002,
Having regard to the partial decision of 12 June 2006,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Risto Bajraktarov, is a Macedonian national who was born in 1937 and lives in Štip. He was represented before the Court by Mr T. Torov, a lawyer practising in Štip. The Macedonian Government (“the Government”) were represented by their Agent, Mrs R. Lazareska Gerovska.
The facts of the case, as submitted by the parties, may be summarised as follows.
a) Criminal proceedings against the applicant
On 11 April 1984 the Štip Municipal Court convicted the applicant of several offences and sentenced him to seven years and one month’s imprisonment. The court also ordered confiscation of the proceeds gained by the applicant from the offences (“the confiscation order”).
On 20 December 1988 the then Federal Court of Yugoslavia partly quashed the lower court’s decision since the statutory rules on time-barred prosecutions had been wrongly applied.
On 5 October 1989 the Štip Municipal Court stayed the criminal proceedings against the applicant. It did so because the public prosecutor had withdrawn the charges as the prosecution had become time-barred. It also ordered restoration of the confiscated funds to the applicant (“the restoration order”). This decision became final on 24 October 1989.
b) Enforcement proceedings concerning the restoration order
On 17 December 1990 the Štip Municipal Court partly upheld a request by the applicant for enforcement of the restoration order. It ordered restoration of the confiscated funds, but refused to award interest because no provision for interest had been stipulated in the restoration order. The court also found that the confiscated funds had been transferred to the Municipality of Štip (“the Municipality”) and ultimately to the then Štip Secretariat of the Interior. An appeal by the Municipality was finally dismissed by a court decision of 20 February 1991. The confiscated funds were actually restored to the applicant on 12 April 1993.
c) The applicant’s compensation claim
On 21 October 1991 the applicant brought a civil action against the Municipality and the State claiming interest on the funds. He claimed interest for the period between the actual confiscation of the funds and their restoration.
On 8 April 1993 the Štip Municipal Court rejected the applicant’s claim as premature. It established that on 17 May 1990 the applicant had sought compensation for wrongful conviction before the then Skopje Secretariat for Justice and Administration (“the Secretariat”) only in respect of his earnings and other rights deriving from his employment, but that he had not claimed interest on the confiscated funds. On 19 August 1993 the Štip District Court upheld that decision.
On 8 February 1994 the Supreme Court allowed an appeal by the applicant on points of law and quashed the lower courts’ decisions. It found that his claim should not be regarded as a request for compensation for wrongful conviction and that, accordingly, he had not been required to apply to the relevant Ministry.
On 12 May 1994 the Štip Municipal Court ruled partly in favour of the applicant, allowing his claim only in respect of unpaid interest on the national-currency funds. It dismissed his claim for statutory interest on the foreign-currency funds. It further established that the foreign currency funds had actually been restored to the applicant on 12 April 1993.
On 30 November 1994 the Štip District Court partly upheld the lower court’s decision and remitted the dismissed part for reconsideration.
On 26 September 1995 the Supreme Court granted a request by the public prosecutor for the protection of legality (барање за заштита на законитоста) and quashed the lower courts’ decisions. It found that they had wrongly applied the national law by awarding double interest on the foreign currency funds.
On 15 December 1995 the Štip Municipal Court, after having obtained an expert report, upheld the applicant’s claim and ordered the Municipality and the State to pay him interest on the confiscated funds.
On 7 March 1996 the applicant requested the Štip Court of First Instance to enforce that decision. On 8 July 1996 the latter ordered the Public Payment Office (Завод за Платен Промет) to transfer the award to the applicant’s account.
On 14 May 1997 the Supreme Court quashed the lower courts’ decisions and ordered a retrial. It found that they had incorrectly applied the civil-law rules on compensation instead of the provisions of the Criminal Proceedings Act concerning wrongful convictions.
On 23 June 1998 the Štip Court of First Instance dismissed the applicant’s claim in respect of the Municipality and declared it inadmissible in respect of the State. The court found that the applicant had failed to submit his claim to the Secretariat and that, accordingly, he had not been entitled to claim compensation on that ground in the civil proceedings.
On 24 November 1998 the Štip Court of Appeal allowed an appeal by the applicant and remitted the case for re-examination.
On 30 June 1999 the Štip Court of First Instance dismissed the applicant’s claim. It found that the Federal Court of Yugoslavia had not pardoned the applicant or overturned his conviction on the merits, but had quashed it solely because of the time bar. The court therefore concluded that the applicant had not been wrongly convicted and that, consequently, the State had not been liable to pay any damages.
On 14 February 2000 the Štip Appeal Court allowed an appeal by the applicant and ordered a retrial. It held that his claim should not be considered under the rules for wrongful conviction, but as a civil compensation claim.
On 18 April 2000 the President of the Štip Court of First Instance refused a request by the applicant for exclusion of the judge sitting in his case.
On 23 May 2000 the Štip Court of First Instance dismissed the applicant’s claim. It established that the applicant’s compensation claim for interest in respect of his wrongful conviction had been submitted to the Secretariat out of time. It held, inter alia, as follows:
“... the court finds that the applicant’s compensation claim concerns unpaid interest on confiscated funds ... since the legal ground of that claim is the confiscation of the funds, as a security measure issued within the criminal proceedings, the case is to be analysed under the rules on compensation for wrongful conviction and detention ... Under section 542(1) of the Criminal Proceedings Act, a plaintiff [the applicant] can claim compensation before the authorised State body and is entitled to receive compensation within three years of the date on which a decision staying the proceedings becomes final. In the instant case the decision of 5 October 1989, by which the criminal proceedings ... were stayed, was served on the applicant on 20 October 1989 and became final on 24 October 1989. On 7 September 1993 the plaintiff submitted his claim for unpaid interest on the confiscated funds to the Secretariat for Justice and Administration. On 30 September 1993 the latter instructed the plaintiff to submit his claim to the court of competent jurisdiction. It transpires that the deadline for the plaintiff’s claim was 24 October 1992. The application lodged on 7 September 1993 was therefore time-barred ...”
The court further found that the funds had been confiscated in lawful judicial proceedings. The Federal Court of Yugoslavia had neither pardoned the applicant nor found substantial procedural deficiencies. It had quashed the applicant’s conviction merely because of the time bar. The court therefore went on to conclude that the State could not be held liable for damage sustained by the applicant. On 13 November 2000 the Štip Court of Appeal dismissed an appeal by the applicant in which he had, inter alia, expressed doubts about the impartiality of the first-instance court judge.
In December 2000 the applicant lodged an appeal with the Supreme Court in which he restated his arguments that his claim should be considered under the civil-law rules on compensation.
On 6 March 2001 the public prosecutor submitted observations to the Supreme Court supporting in part the applicant’s appeal related to his claim against the State. It stated that interest should be calculated as of the day when the restoration order had become final until restoration actually occurred.
On 29 November 2001 the Supreme Court dismissed the appeal by the applicant on points of law and upheld the lower courts’ findings that the damage had derived from the criminal proceedings and that, accordingly, compensation should have been sought under the rules related to wrongful conviction. This decision was served on the applicant on 27 February 2002.
COMPLAINTS
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. Relying on Article 1 of Protocol No.1, he alleged that he had been deprived of his possessions since he had not been awarded the compensation claimed.
THE LAW
The applicant complained that his cases had not been heard within a reasonable time, in breach of Article 6 § 1 of the Convention, which, insofar as relevant, reads as follows:
“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”
a) As to the criminal and enforcement proceedings
To the extend that the applicant might be understood to have complained about the length of these proceedings, the Court notes that the criminal proceedings against the applicant were stayed by the Štip Municipal Court’s decision of 5 October 1989, which became final on 24 October 1989. The enforcement proceedings in which the applicant successfully requested restoration of the confiscated funds ended with the court’s decision of 20 February 1991. The funds were actually restored on 13 April 1993.
The Court observes that both sets of proceedings ended before 10 April 1997, the date when the Convention entered into force in respect of the former Yugoslav Republic of Macedonia.
It follows that the complaint under this head is incompatible ratione temporis with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.
b) As to the civil proceedings concerning the applicant’s compensation claim
i. The parties’ submissions
The Government submitted that the period which had 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 stated that there had been complex circumstances related to the case, including the necessity of requesting expert examinations, hearing evidence from numerous witnesses and reviewing voluminous documentation.
As regards the applicant’s behaviour, they argued that he had contributed to the length of the proceedings by failing to submit evidence in good time; failing to specify his claim; and by seeking the exclusion of two judges and availing himself of the available remedies.
As to the conduct of the national courts, they submitted that no delays had been attributable to them. They conceded that the courts had given seventeen decisions during the proceedings, but submitted that that had been due to the extensive use of the available remedies by both parties.
The applicant contested the Government’s argument that the case had been complex. He further disagreed with the Government that he had contributed to the length of the proceedings. The fact that he had availed himself of the available remedies could not be considered to be to his detriment. Lastly, he stated that the case had been reconsidered on many occasions for which the national courts had borne sole responsibility.
ii. The Court’s consideration
The Court notes that the proceedings in question started on 21 October 1991, when the applicant brought his claim before the then Štip Municipal Court. However, as noted by the Government, the period which falls within its competence did not begin on that date but on 10 April 1997 (see Parizov v. the former Yugoslav Republic of Macedonia, no. 14258/03, § 52, 7 February 2008). 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 over five years and five months for three levels of jurisdiction.
The impugned proceedings ended on 27 February 2002, when the Supreme Court’s decision of 29 November 2001 became final. The proceedings therefore lasted ten years, four months and six days, of which four years, ten months and seventeen days fall to be examined by the Court for three levels of jurisdiction.
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 Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII; Humen v. Poland [GC], no 26614/95, § 60, unreported; Comingersoll S.A. v. Portugal [GC], no. 35382/97, ECHR 2000-IV; and Philis v. Greece (no. 2), judgment of 27 June 1997, Reports of Judgments and Decisions 1997-IV, § 35).
The Court considers that the applicant’s case was of some legal complexity, but not for the reasons advanced by the Government. The latter did not present any evidence, apart from one expert report, that numerous witnesses had been heard and that volumes of documents had been examined.
It also observes that there were no delays attributable to the applicant. Furthermore, although he cannot be blamed for using the venues available to him under domestic law in order to protect his interests, he must accept that such actions necessarily prolong the proceedings concerned (see Malicka-Wąsowska v. Poland, (dec.), no. 41413/98, 5 April 2001).
As regards the conduct of the authorities, the Court notes that, during the period under consideration, the applicant’s case was reconsidered on three occasions. There were eight decisions given within this period. The domestic courts cannot therefore be said to have been inactive. However, the Court notes that repetition of remittal orders within one set of proceedings discloses a serious deficiency in the judicial system (see Pavlyulynets v. Ukraine, no. 70767/01, § 51, 6 September 2005; Wierciszewska v. Poland, no. 41431/98, § 46, 25 November 2003). The main reason for the numerous remittals was the different legal opinion of the first- and second-instance courts as to the applicable legal regime. It was that issue that increased the complexity of the case and affected, accordingly, the length of the proceedings. On the other hand, the nature of the dispute did not require special diligence on the part of the authorities. Lastly, the intervals between the decisions of the different instances were not excessive.
Against this background, the Court considers on the whole that the proceedings in the present case in the relevant period were conducted within a reasonable time (see Kertakov v. the former Yugoslav Republic of Macedonia (dec.), no. 13302/02 , 6 November 2006). Accordingly, the applicant’s complaint concerning their length is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
2. The alleged violation of Article 1 of Protocol No. 1 of the Convention
Relying on Article 1 of Protocol No. 1, the applicant complained having being deprived of his possession. Article 1 of Protocol No. 1 reads as follows:
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
a) The parties’ submissions
The Government maintained that the applicant had no possession within the meaning of the Article invoked. In addition, they argued that he could not be regarded as having had a legitimate expectation of receiving the amount claimed since it had not been established by a court decision.
The applicant argued that his right to obtain interest on the confiscated funds had been based on the restoration order and the savings contracts which he had had with banks. Furthermore, he argued that his “legitimate expectation” of obtaining interest had derived from the civil-law rules on compensation. That claim constituted an “asset” and amounted to a possession within the meaning of this Article. Finally, he submitted that the State’s interference with his possession had served no public interest and had been disproportionate.
b) The Court’s consideration
The Court reiterates that an applicant may allege a violation of Article 1 of Protocol No. 1 only in so far as the impugned decisions relate to his or her “possessions” within the meaning of that provision. The concept of “possessions” has an autonomous meaning which is independent from the formal classification in domestic law. “Possessions” can be “existing possessions” or assets, including claims, in respect of which an applicant can argue that he has at least a “legitimate expectation” (which must be of a nature more concrete than a mere hope) that they will be realised, that is, that he or she will obtain effective enjoyment of a property right. A claim may be regarded as an asset only when it is sufficiently established to be enforceable. No “legitimate expectation” can come into play in the absence of a claim sufficiently established to constitute an asset. Accordingly, a conditional claim cannot be considered an asset (see Gavella v. Croatia (dec.), no. 33244/02, 11 July 2006, and the references cited therein).
The Court notes that the applicant’s action did not concern his “existing possessions” and he did not have the status of an owner but was merely a claimant. It therefore remains to be determined whether he had a “legitimate expectation” that his claim would be determined in his favour.
In this respect, the Court notes that the applicant advanced before it the same arguments as those put forward before the national courts: that his claim concerning interest on funds confiscated in the criminal proceedings should have been considered under the civil rules for compensation. Having regard to the information before it and considering that it has only limited power to deal with alleged errors of fact or law committed by the national courts (see García Ruiz v. Spain [G.C.] no. 30544/96, § 28, ECHR 1999-I, and Kopp v. Switzerland, judgment of 25 March 1998, § 59), the Court considers that it cannot substitute its view for that of the national courts that provisions concerning compensation for wrongful conviction laid down in the Criminal Proceedings Act were to be applied, as the lex specialis, in the applicant’s case and that he had failed to meet the formal requirements laid down in section 542 of the Criminal Proceedings Act.
Thus under the relevant law, as applied and interpreted by domestic authorities, the applicant neither had a right nor a claim amounting to a “legitimate expectation”, in the sense of the Court’s case-law, of obtaining interest and therefore no “possession” within the meaning of Article 1 of Protocol No. 1 of the Convention.
It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Declares inadmissible the remainder of the application.
Claudia WesterdiekPeer Lorenzen
RegistrarPresident
Full & Egal Universal Law Academy