FIFTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 27865/02
by Nevenka BOČVARSKA and Angel KUPEV
against the former Yugoslav Republic of Macedonia
The European Court of Human Rights (Fifth Section), sitting on 6 November 2007 as a Chamber composed of:
MrP. Lorenzen, President,
MrsS. Botoucharova,
MrK. Jungwiert,
MrV. Butkevych,
MrsM. Tsatsa-Nikolovska,
MrR. Maruste,
MrM. Villiger, judges,
and Mr J.S. Phillips, Deputy Section Registrar,
Having regard to the above application lodged on 29 April 2002,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having deliberated, decides as follows:
THE FACTS
The applicants, Ms Nevenka Bočvarska and Mr Angel Kupev, are Macedonian nationals who were born in 1958 and 1953, respectively and live in Skopje. They are represented before the Court by Ms L. Vanevska and Mr T. Torov, lawyers practising in Skopje and Štip, respectively. The Macedonian Government (“the Government”) are represented by their Agent, Mrs R. Lazareska Gerovska.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
On 23 June 1993 the Skopje District Commercial Court (Окружен Стопански суд) upheld the claim of STD (самостоен трговски дукан) Naša Kniga (“the undertaking”, unlike companies incorporated under the company law), and ordered AD Gazela (“the debtor”) to pay a debt amounting to 1,393,377.70 old Macedonian denars (MKD). The court found that the debtor and the undertaking had concluded a framework agreement under which the latter would produce paper products for the debtor. As the debtor had failed to pay for the products made, the court upheld the undertaking’s claim.
On 10 September 1993 the Macedonia-Skopje Commercial Court (Стопански суд на Македонија), sitting as an appellate court, dismissed an appeal by the debtor and upheld the lower court’s decision. On 22 March 1994 the Supreme Court dismissed an appeal on points of law (ревизија) by the debtor and upheld the lower courts’ decisions.
On 2 October 1993 the undertaking requested enforcement of the judgment debt, proposing the following means of enforcement: transfer of the money due from the debtor’s account and an inventory, as well as an evaluation and public auction of the debtor’s movable and immovable property. On 8 October 1993 the Skopje District Commercial Court granted the undertaking’s request and ordered the debtor to pay the debt. On 3 November 1993 it dismissed an objection by the debtor.
On 26 November 1993 the District Commercial Court dismissed a request by the debtor for postponement of enforcement. On 25 December 1993 the Commercial Court dismissed an appeal by the debtor and upheld its decision.
On 9 June 1994 the District Commercial Court upheld an objection by the debtor and discontinued the enforcement proceedings in so far as they concerned interest.
On 2 September 1994 the District Commercial Court ordered the Public Payment Office to require the bank in which the debtor had had its foreign currency account to transfer the balance due to the undertaking’s account. It also ordered the bank not to make any payments from the debtor’s account to other parties until the undertaking’s claim had been completely honoured. The court established that the undertaking had received part of the judgment debt. It further noted that, as there had been no other funds available in the debtor’s account, on 25 July 1994 the undertaking had requested the court to satisfy its claim from other accounts belonging to the debtor.
On 6 October 1994 the undertaking and the debtor reached a court settlement (“the settlement”) concerning the means of securing payment of the remaining balance, which amounted to 844,631 German marks. The undertaking agreed to receive the balance in twelve equal instalments within a year. The second applicant signed the settlement on behalf of the undertaking.
As the debtor did not pay the debt as agreed, on 27 October 1994 the District Commercial Court ordered an inventory and public auction of the debtor’s vehicles. On 30 November 1994 the Commercial Court dismissed an appeal by the debtor and upheld the lower court’s decision.
On 12 January 1995 the District Commercial Court partly allowed a request by the debtor for postponement of the enforcement in respect of some heavy goods vehicles and a bus. On 29 January 1996 the court ordered the confiscated vehicles to be returned to the debtor as they were necessary for its work. On 29 August 1996 the Skopje Court of Appeal (Апелационен суд) upheld those decisions.
On 5 January 1996 the District Commercial Court declared that it had no jurisdiction ratione loci to determine an application by the undertaking for a charging order on one of the debtor’s shops. It further stated that after that decision became final, the undertaking’s application would be transmitted to the Skopje Municipal Court (Општински суд), as the court with jurisdiction ratione materiae and ratione loci.
On 14 April 1997 the Skopje Court of First Instance (Основен суд) dismissed a request by the debtor to postpone the enforcement of the settlement.
On 17 April 1997 the Ministry of Finance’s Public Revenue Office in Skopje (Министерство за финансии/ Управа за Јавни Приходи Скопје) issued a notice attesting that the applicants had ceased to pursue business activities through the undertaking on 17 July 1992. The undertaking was re-registered in the name of the first applicant on 8 February 1993. The undertaking operated until 22 February 1995, when its activities were voluntarily terminated.
On 23 September 1997 the Court of First Instance upheld an objection by the debtor, who had argued that the undertaking had no legal capacity as a creditor in the proceedings as it had ceased to exist. It further stayed the enforcement proceedings and ordered the Public Payment Office to lift the charging orders on the debtor’s accounts. It dismissed the first applicant’s arguments that she had been a successor to the undertaking and that there had been a continuity of the undertaking’s claims. On 30 April 1998 the Court of Appeal rejected an appeal by the undertaking as inadmissible.
In light of the settlement, on 14 June 1996 the Skopje Municipal Court granted the undertaking’s request of 10 January 1996 and issued a charging order on a debtor’s shop (“the shop”). On 2 September 1996 the Skopje Court of First Instance dismissed an objection by the debtor. On 31 October 1996 the Court of Appeal quashed the lower court’s decision and ordered a re-examination of the case. On 21 November 1996 the Skopje Court of First Instance suspended the charging order as the shop had been exempted from enforcement since it was necessary for the debtor’s work. On 24 January 1997 the Court of Appeal quashed that decision and ordered a re-examination of the case. On 7 July 1997 the Court of First Instance dismissed an objection by the debtor.
On 18 February 1997 the undertaking requested the court to enforce its claim as established by the settlement. On 24 February 1997 the Court of First Instance granted the undertaking’s request for the sale of the debtor’s shop. On 19 March 1997 the Court of First Instance partly upheld an objection by the debtor and suspended the enforcement proceedings in so far as they concerned interest.
On 12 June 1997 the Court of Appeal allowed an appeal by the debtor and quashed the decision of 19 March 1997. It found that the lower court had failed to determine the debtor’s objection as to whether other enforcement proceedings had already been pending between the same parties concerning the same subject-matter.
On 8 July 1997 the Court of First Instance partly upheld an objection by the debtor and suspended the enforcement proceedings in so far as they concerned interest. The order for the sale of the shop remained unaffected.
On 12 September 1997 the Court of Appeal dismissed an appeal by the debtor and upheld the lower court’s decision.
As stated by the Government, on 26 September 1997 the Court of First Instance ordered an expert examination to determine the market value of the shop. On 8 October 1997 the debtor requested the trial court to suspend and to postpone the enforcement of the order as a request for the protection of legality (барање за заштита на законитоста) had been submitted in respect of the court’s decision of 24 February 1997, referred to above.
On 26 November 1997 the public prosecutor lodged with the Supreme Court a request for the protection of legality by which it had challenged the legality of the lower courts’ decisions of 8 July and 12 September 1997. It alleged that the settlement could not be regarded as an enforcement order (извршна исправа) as it had been concluded while the enforcement proceedings were already pending and it had merely concerned the means of enforcing payment of the outstanding debt. It argued that the second applicant had no authority to sign the settlement on behalf of the undertaking. It further contested, inter alia, the legal capacity of the undertaking in the enforcement proceedings as it had ceased to exist before it had lodged its application for enforcement on 18 February 1997. On 1 December 1997 the undertaking filed submissions in reply.
On 29 January 1998 the Supreme Court upheld the public prosecutor’s request for the protection of legality and quashed the impugned decisions. It found that the lower courts had wrongly considered the settlement to be an enforcement order that could validly be enforced. It instructed the lower courts, inter alia, to reconsider the undertaking’s legal capacity as a creditor in the enforcement proceedings.
On 2 April 1998 the Skopje Court of First Instance upheld the debtor’s objection concerning the undertaking’s capacity to take part in the proceedings as a creditor. It dismissed the undertaking’s application for enforcement and ordered the proceedings to be resumed in the name of the first applicant as a creditor. It held that the first applicant had been the last person who had pursued business activities through the undertaking before it had ceased to exist. As the undertaking did not have the capacity of a legal entity, all its rights and obligations, including its claim against the debtor, had to be considered to have been transferred to the first applicant, as the physical person who had run it.
On 11 June 1998 the Skopje Court of Appeal upheld the lower court’s decision, finding no grounds to depart from the reasons adduced.
On 22 September 1998 the public prosecutor submitted before the Supreme Court a request for the protection of legality by which it challenged the legality of those decisions, claiming that the first applicant had lacked the legal capacity to replace the undertaking and to take over the enforcement proceedings as a creditor. It further disputed that the settlement could not be regarded as an enforcement order, as the enforcement proceedings had already been pending at the time when it had been concluded. On or about 29 September 1998 the first applicant filed submissions in reply to the public prosecutor’s request for the protection of legality.
On 11 November 1998 the Supreme Court upheld the public prosecutor’s request for the protection of legality and quashed the lower courts’ decisions. It found that they had failed to establish whether the enforcement proceedings had been pending before the settlement was concluded. It further held it to be irrelevant that the undertaking had ceased to operate, as the undertaking’s founders bore its rights and obligations and it had been their responsibility to establish their status before the courts.
On 17 March 1999 the Court of First Instance ordered the enforcement of the settlement through the sale of the shop in favour of the first applicant. It held that the enforcement proceedings, which had been instituted before the settlement, had ended with the trial court’s decision of September 1997. It further recognised the first applicant’s capacity to take over the undertaking’s claim and to be given the status of a creditor.
On 13 May 1999 the Court of Appeal upheld the lower court’s decision and dismissed an appeal by the debtor, which had submitted, inter alia, that the first applicant had failed to establish that she had taken over the undertaking’s claim.
On 9 June 1999 the public prosecutor lodged a third request for the protection of legality with the Supreme Court. It reiterated its earlier allegations that the settlement could not be regarded as an enforcement order and that the first applicant could not automatically be considered to have taken over the undertaking’s claim.
On 17 February 2000 the Supreme Court upheld the public prosecutor’s request for the protection of legality and quashed the lower courts’ decisions. It found that they had erroneously established that the first applicant had taken over the undertaking’s claims ipso jure as she had been the last proprietor of the undertaking. It further instructed them to verify whether there had been a valid certificate by which the undertaking’s claim had been transferred to the first applicant.
On 23 June 2000 the Court of First Instance requested the first applicant to provide, in accordance with section 22 of the Enforcement Act (see “Relevant domestic law” below), written evidence that the undertaking’s claim had been transferred to her. On 29 June 2000 the first applicant submitted documents to the court, including a balance sheet (биланс на приходи и расходи), bank account details, a receipt (признаница) and a certificate issued by a bank.
On 6 October 2000 the Court of First Instance dismissed the first applicant’s application for enforcement of the claim as established by the settlement. Following the Supreme Court’s instructions, it held that there had been no valid certificate by which the undertaking’s claim had been transferred to the first applicant. It therefore concluded that the latter could not claim to have the status of a creditor.
On 1 March 2001 the Court of Appeal quashed the decision as the lower court had failed to establish whether the first applicant had owned and run the undertaking as the sole proprietor.
On 15 June 2001 the Court of First Instance dismissed the first applicant’s request as being ill-founded. It found that the documents submitted to the court on 29 June 2000 could not be regarded as a valid certificate by which the undertaking’s claim had been transferred to the first applicant. It concluded that the first applicant could not ipso jure have taken over the undertaking’s claim.
On 6 September 2001 the Court of Appeal overturned the decision and partly allowed the first applicant’s application for enforcement of the principal debt as established by the settlement. It dismissed the first applicant’s request for payment of the interest. It found, inter alia:
“...it is irrefutable that the creditor, Ms Bočvarska, owned the undertaking ..., which had no legal capacity... The fact that Ms Bočvarska carried out transactions on the market through the undertaking at the time when the latter still operated implied that she was responsible for all the rights and obligations arising from it... the lack of legal capacity of the undertaking ..., whose proprietor was the creditor [the first applicant], means that it was not a separate legal entity, but that its capacity, regarded as a pool of rights and obligations, is vested solely in the creditor, Ms Bočvarska ... there is no transfer of the undertaking’s claims to Ms Bočvarska, as the former does not have legal capacity, but the creditor [the first applicant] was ... liable for the undertaking’s obligations...”
On or about 15 January 2002 the public prosecutor lodged a request for the protection of legality with the Supreme Court in respect of the Court of Appeal’s decision.
At the public prosecutor’s request, on 28 January 2002 the Court of First Instance postponed the enforcement of the order until the Supreme Court had determined the request for the protection of legality.
On the same date, the first applicant filed submissions with the Court of First Instance in reply to the public prosecutor’s request for the protection of legality.
On 30 May 2002 the Supreme Court upheld the public prosecutor’s request for the protection of legality, overturned the Court of Appeal’s decision and upheld the first-instance court’s decision of 15 June 2001. It found, inter alia, that the lower courts had established the following facts:
“...the enforcement proceedings were pending before the District Commercial Court between the [undertaking] and [the debtor]. On 6 October 1994 they concluded a court settlement on the basis of which the enforcement proceedings were instituted... on 23 September 1997 the Skopje Court of First Instance stayed the proceedings... on 30 April 1998 the Court of Appeal rejected the [undertaking’s] appeal as being inadmissible [these decisions concern the enforcement proceedings instituted before the settlement was concluded]... on 8 February 1993 the [undertaking] was registered in the name of Ms Bočvarska.... On 22 February 1995 [the undertaking]... ceased to exist. Ms Bočvarska was the last sole proprietor of the [undertaking], which had been set up by her funds and her labour force.”
The court went on to conclude that the Court of Appeal had wrongly applied the substantive law for the following reasons:
“In the present case, the requirements of the provision cited above [referring to section 22 of the Enforcement Proceedings Act], for the granting of enforcement at the request of a person not indicated as a creditor in the enforcement order, were not satisfied. There is no written certificate attesting that the claim was transferred from [the undertaking] to Ms Bočvarska, as a creditor. The termination of the undertaking’s operations does not ipso jure entail the transfer of its claims to the last proprietor who ran it... Moreover, the court settlement of 6 October 1994 cannot be regarded as an enforcement order as it resulted from the enforcement proceedings already pending between the same creditor [meaning the undertaking] and the debtor... the subject of this settlement was the means of enforcing the outstanding debt...”
The decision was served on the first applicant on 25 July 2002.
The undertaking and the first applicant submitted several requests to the national courts to speed up the proceedings.
B. Relevant domestic law
1. The Constitution
Article 101 of the Constitution provides that the Supreme Court is the highest court and that it ensures the uniform application of the laws by the courts.
2. Civil Proceedings Act (Закон за парничната постапка) of 1998
Section 319 of the Civil Proceedings Act (“the Act”), which was in force at the material time, provided that a decision became final when an appeal could no longer be lodged against it.
In accordance with section 380(1) of the Act, in the event of substantial flaws in civil proceedings, the Supreme Court quashed the first- and the second-instance decision or the second-instance decision only and referred the case back for fresh consideration.
Section 381 of the Act provided that where the substantive law had been incorrectly applied, the Supreme Court upheld the appeal on points of law and overturned the impugned decision. In cases where the facts were erroneously established because of the incorrect application of the substantive law and where there were no grounds for overturning the impugned decision, the Supreme Court upheld the appeal on points of law and referred the case back for fresh consideration.
In accordance with section 387 of the Act, the public prosecutor could submit within three months a request for the protection of legality in respect of a final decision. When the request was lodged in respect of a second-instance decision, this term started to run from the date on which the last party was served with the decision. Where the parties concerned had lodged an appeal on points of law against the second-instance decision, the public prosecutor could submit a request for the protection of legality in respect of that decision within thirty days from the date of service of the appeal on points of law.
Section 389 provided that a request for the protection of legality was to be lodged by the public prosecutor.
In accordance with section 390, a request for the protection of legality could be lodged either in the event of a substantial flaw in the civil proceedings or in the event of an incorrect application of substantive law. It could not be lodged where the impugned decision went beyond the scope of the claim or where the facts were erroneously or incompletely established.
Section 394(2) of the Act provided, inter alia, that sections 370, 373 to 381 and 383 to 385 applied, mutatis mutandis, to proceedings concerning a request for the protection of legality.
3. Civil Proceedings Act (Закон за парничната постапка) of 2005
The new Civil Proceedings Act, which repealed the 1998 Act, does not provide for a request for the protection of legality.
4. Enforcement Proceedings Act (Закон за извршната постапка) of 1997
Section 13 of the Enforcement Proceedings Act (“the Act”) provides that the provisions of the Civil Proceedings Act apply in enforcement and security proceedings, unless otherwise provided by law.
Section 22(1) of the Act provides that enforcement may be granted at the request of a person not indicated as a creditor in an enforcement order only if that person proves, by a public or otherwise legally certified order, that the claim has been transferred to him or her. Should that be impossible, proof of the transfer of the claim is provided by a final decision given in civil proceedings.
5. Entrepreneurship Act (Закон за самостојно вршење дејност со личен труд) of 1989
Section 3 §§ 1 and 3 of the Entrepreneurship Act provided that an entrepreneur, in order to pursue business activities, could set up an undertaking (дуќан). The undertaking could have a legal personality.
Section 10 provided that an entrepreneur set up an undertaking by submitting an application to the relevant municipal administrative body.
In accordance with section 16 § 1 (1) of that Act, an undertaking would cease to exist if the above application had been withdrawn.
COMPLAINTS
The first applicant initially complained under Article 6 § 1 of the Convention about the excessive length of the enforcement proceedings. In a letter of 14 March 2003 she further complained that she had been denied a fair hearing and that the courts had been biased.
In a letter of 16 October 2002 the first applicant invoked Article 1 of Protocol No. 1.
In a letter of 26 June 2003 the second applicant joined the application. In support of his position, he provided a copy of the statement by which the first applicant had authorised him to recover any claims that might be granted to her at national level.
THE LAW
A. The applicants’ complaints under Article 6 of the Convention
The applicants complained under Article 6 of the Convention of the length of the enforcement proceedings. They further alleged that they had been denied a fair hearing and that the courts had not been impartial. Article 6, in so far as relevant, reads as follows:
“In the determination of his civil rights and obligations ... everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. ...”
1. The second applicant’s “victim status”
The Government disputed that the second applicant could be considered to have the status of a victim in the present case as he had not been a proprietor (самостоен вршител на самостојна дејност) of the undertaking at the time when the first-instance court had given its decision of 23 June 1993, by which the undertaking had instituted the enforcement proceedings.
The second applicant disagreed with the Government’s argument, submitting that he had been a co-owner of the undertaking until 17 July 1992, when it had ceased to exist. In addition, he relied on the first applicant’s authorisation for him to redeem any claims that might be granted at national level.
The Court reiterates that under Article 34 of the Convention it may receive applications from individuals and others “claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto”. In order to claim to be a victim of a violation, a person must be directly affected by the impugned measure (see Amuur v. France, judgment of 25 June 1996, Reports of Judgments and Decisions 1996‑III, p. 846, § 36, and Buckley v. the United Kingdom, judgment of 25 September 1996, Reports 1996‑IV, p. 128, p. 846, §§ 56-59).
Turning to the present case, the Court considers that the second applicant cannot be regarded as having locus standi to complain before it about the enforcement proceedings as he was not a party to those proceedings. The first applicant’s authorisation for him to redeem any claims that might be granted at national level cannot be regarded as conferring on him the status of a victim of the alleged violations. The Court notes that that authorisation was of a purely private nature and concerned the interpersonal relations between the applicants.
It follows that the second applicant’s complaints are incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.
2. Alleged unfairness and lack of impartiality
The Court observes that these complaints were first raised in a letter of 14 March 2003. It therefore finds that the first applicant lodged them more than six months after 25 July 2002, when she was served with the Supreme Court’s decision of 30 May 2002.
It follows that these complaints have been introduced outside of the six-month time-limit and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
3. The length-of-proceedings complaint
(a) The parties’ submissions
The Government submitted that the period before the entry into force of the Convention in respect of the former Yugoslav Republic of Macedonia should not be taken into consideration.
They further submitted that the case had been of a complex legal nature as it had required the national courts to decide several difficult issues: the undertaking’s and the first applicant’s capacity to take part in the proceedings; whether there had been other enforcement proceedings already pending between the same parties at the time when the undertaking had requested enforcement of the settlement; and whether the latter should be regarded as an enforcement order.
The Government argued that the debtor had availed itself of all procedural and legal remedies, including the request for postponement of the enforcement, and that this had contributed to the length of the proceedings. Its poor economic situation had also affected the length of the proceedings. They further submitted that the public prosecutor had on four occasions lodged a request for the protection of legality as an extraordinary remedy.
Concerning the first applicant’s conduct, they averred that she had contributed to the length of the proceedings by failing to submit until June 2000 any written evidence to substantiate her allegations that the undertaking’s claim had been transferred to her.
They further queried whether the enforcement proceedings could be treated as a single set of proceedings or as a combination of two different sets. In the latter case, the first set had lasted from 1993 until 1997 and the second set from 1997 until 2002.
As regards the conduct of the authorities, the Government maintained that the courts had endeavoured to hasten the proceedings by taking all reasonable steps to avoid unnecessary postponement.
The first applicant submitted that the enforcement proceedings had started on 28 December 1992, when the undertaking had lodged its application for enforcement, and had ended on 25 July 2002, when the Supreme Court’s decision had been served on her. She further maintained that even assuming that the proceedings were not treated as a single set, they had not ended within a reasonable time.
The first applicant further stated that the case had not been of a complex legal nature and that the allegedly poor financial situation of the debtor had not affected the length of the proceedings. She asserted that the public prosecutor had availed himself four times of the extraordinary remedy of a request for the protection of legality, which was not common practice, and that he had availed himself of that remedy under pressure from the then ruling political party, which had obtained possession of the debtor’s property in 2000.
She further argued that the fact that the debtor and the public prosecutor had repeatedly used all available remedies could not be counted as her contribution to the length of the proceedings. On the contrary, she rejected as unsubstantiated the Government’s argument that she had added to their length in any way.
(b) The Court’s assessment
The Court considers, in the light of the parties’ submissions and having regard to all the information in its possession, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court therefore concludes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.
B. The first applicant’s complaint under Article 1 of Protocol No. 1
The first applicant complained under Article 1 of Protocol No. 1 that she had been denied the legal capacity to obtain payment of the undertaking’s judgment debt, although she had been its last owner and sole proprietor. 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.”
1. The parties’ submissions
The Government submitted that, contrary to the undertaking’s claim which could have fallen within the ambit of Article 1 of Protocol No. 1, the first applicant could not be considered to have had a “possession” within the meaning of this Article as she had failed to establish that the undertaking’s claim had been transferred to her. They averred that the first applicant had not been granted the status of a creditor by an irreversible decision. Despite the fact that she had been established as a creditor three times in final decisions of the Court of Appeal, those decisions had been reviewed by the Supreme Court, which, in accordance with the principle of legality, had upheld the prosecutor’s request for the protection of legality.
They further stated that even assuming that the first applicant could be regarded as having a “possession” under this provision, she had been deprived of it in the public interest and in accordance with the conditions provided for by law. The alleged deprivation had taken place further to the public prosecutor’s request for the protection of legality, an extraordinary remedy provided for in the public interest. The Government avowed that the aims of that remedy had been to ensure the uniformity of the legal system and the principle of legality. In addition, they stated that through that remedy the State had exercised its power of review in cases where a law or an international agreement had been infringed by a final court decision.
The first applicant contested the Government’s argument that she did not have a possession within the meaning of the provision relied on. She stated that the undertaking should not be regarded as a legal entity, but as a physical person whose business activities had been registered with the authorised Ministry. Indeed, its proprietors were personally liable for the undertaking’s debts and obligations vis-à-vis third parties. She further disputed the Government’s argument that the public prosecutor’s interference in the proceedings had been in the public interest for the following reasons: the prosecutor was biased, as he was proposed by the Government and elected by a majority vote of the members of the National Parliament representing the ruling party’s interests; he had represented the private interests of only one of the parties concerned; and the substantive law had been wrongly applied.
2. The Court’s assessment
The Court considers, in the light of the parties’ submissions and having regard to all the information in its possession, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court therefore concludes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.
For these reasons, the Court unanimously
Declares admissible, without prejudging the merits, the first applicant’s complaints under Article 6 of the Convention (the length of the proceedings) and Article 1 of Protocol No. 1;
Declares inadmissible the remainder of the application.
Stephen Phillips Peer Lorenzen
Deputy RegistrarPresident
Full & Egal Universal Law Academy