DIKA v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"

THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 13270/02
by Islam DIKA
against the former Yugoslav Republic of Macedonia

The European Court of Human Rights (Third Section), sitting on 3 November 2005 as a Chamber composed of:

MrB.M. Zupančič, President,
MrJ. Hedigan,
MrL. Caflisch,
MrsM. Tsatsa-Nikolovska,
MrV. Zagrebelsky,
MrsR. Jaeger,
MrDavid Thór Björgvinsson, judges,
and Mr V. Berger, Section Registrar,

Having regard to the above application lodged on 29 September 2001,

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 Islam Dika, is a Macedonian national who was born in 1966 and lives in the village Livadi, Struga, the former Yugoslav Republic of Macedonia. He was represented before the Court by Mr N. Merdzanoski, a lawyer practising in Struga.

The facts of the case, as submitted by the parties, may be summarised as follows.

On 5 March 1993 a Fokker airplane, which was operated by the Macedonian company PALAIR (“the first defendant”), crashed at Skopje airport during taking off. The applicant was one of the few passengers who survived the accident. He sustained serious physical injuries.

The attempt of a friendly settlement between the applicant and the PALAIR, Fokker Airkraft B.V. and Airkraft Financing & Trading B.V. from the Netherlands and Lloyds of London was unsuccessful.

On 17 February 1995 the applicant brought a civil action before the Skopje Basic Court (Основен суд Скопје I Скопје) requesting the court to award him compensation of pecuniary and non-pecuniary damages he had sustained as a result of the accident. In particular, he asked the court to order the defendants (PALAIR, Fokker Airkraft B.V. and Airkraft Financing & Trading B.V.) to compensate the loss of his personal belongings, the expenses of his medical treatment and loss of income, and to be awarded a just compensation for his mental sufferings and a life-time alimony due to alleged permanent loss of his working ability.

The first hearing was held on 27 October 1995 and was attended by all parties. It was adjourned upon the applicant’s lawyer’s request for submission of the evidence in support to the lawsuit.

The hearing fixed for 8 December 1995 was adjourned due to the applicant’s illness.

At the hearing held on 6 February 1996, the court provided the defendants with the evidence previously submitted by the applicant and fixed the next hearing for 26 March 1996. As all the parties were present, the hearing was held, but it was rescheduled as the defendants required time to examine the applicant’s submissions. Meanwhile, the applicant had appointed another lawyer to represent him. At the hearing held on 14 May 1996, one of the defendants was asked to provide some evidence.

At the hearing held on 27 June 1996, the court ordered a forensic expertise to be carried out in order to establish the applicant’s loss of income on the basis of his work permit in Switzerland.

The hearings scheduled for 21 November 1996 and 11 February 1997 were adjourned as the parties were not properly summoned.

On 25 March 1997 the court held a hearing at which the applicant’s lawyer asked for an adjournment to clarify the statements of claim in writing.

At the hearing held on 9 May 1997, one of the defendants asked for postponement to examine the applicant’s submissions.

On 26 June 1997 the court adjourned the hearing due to lack of evidence that the forensic expert and the first defendant were properly summoned.

On 24 October 1997 the court held a hearing at which the expert was heard. The court ordered the applicant to specify his claim and to provide information about the sum of money he had received from the first defendant.

On 17 November 1997 the applicant asked the Minister of Justice to intervene before the competent court for a speedy resolution of his case.

On 24 January 1998 the applicant complained before the President of the Skopje Basic Court that no decision has yet been taken although all relevant evidence and expert opinions had been gathered. On 14 May 1998 he repeated his grievances before the President of the Skopje Appellate Court.

Adjournments were ordered for the hearings fixed for 18 December 1997 and 17 February 1998, as there was no evidence that the first defendant had been properly summoned.

The parties asked the court to postpone the hearing held on 21 April 1998 as they contemplated reaching an out-of-court settlement.

The hearing held on 22 May 1998 was postponed as the first defendant’s lawyers terminated the power of attorney and withdrew from the case.

The hearing of 11 September 1998, 19 November 1998 and 16 February 1999 were adjourned due to lack of evidence that some of the parties were properly summoned. The minutes stated that the slip of the mail receipt bore only the signature but not the stamp of the first defendant.

On 19 February 1999 the applicant asked to be exempted from paying the court fees.

The court adjourned the hearing of 13 April 1999 as the applicant failed to provide supporting evidence to his request for exemption of the court fees. The next hearing fixed for 8 June 1999 was adjourned due to improper delivery of the court summon (as was the case with the next two hearings fixed for 5 October and 7 December 1999).

On 8 November 1999 the applicant asked the Skopje Basic Court to declare itself incompetent ratione loci and to confer the further handling of his case on the Struga Basic Court. He maintained that because of his difficult financial situation he could not sustain the expenses of travelling from his place of residence to Skopje in order to attend the court hearings.

On 11 February 2000 the Skopje Basic Court dismissed the applicant’s request as out of time. By a decision of 21 September 2000 the Skopje Appellate Court dismissed the applicant’s appeal.

On 25 October 2000 the Supreme Court dismissed the applicant’s request to transfer his case to another court competent ratione materiae. It held that the applicant’s arguments that the proceedings had lasted for almost five years, and that he and his family were beneficiaries of a social welfare and had scarce means of subsistence could not be regarded as sufficient legal grounds to justify such a measure.

On 20 October 2000 the applicant complained about the postponement of hearings and delays in the proceedings concerning his claim before the Judicial Council of the Republic (a body responsible to nominate for election, discipline and propose dismissal of judges to the Parliament).

On 6 December 2000 the applicant requested the Skopje Basic Court to provide him with copies of the minutes of all the hearings held before it. It appears that he was not furnished with them.

The hearing fixed for 22 December 2000 was adjourned as neither of the parties showed up. The next hearing of 20 March 2001 was adjourned again due to improper summon of one of the parties.

On 17 April 2001 the applicant’s lawyer requested a special delivery of the court summons to the first defendant.

On 3 July 2001 all the parties attended the hearing. However, the court adjourned it as it considered as relevant to check the first defendant’s company status and the validity of its lawyer’s letter of authority. The court undertook to secure information as to whether the defendant in question had been wound up.

On 30 October 2001 the court was informed that preliminary winding up proceedings were instituted against the first defendant. As that information did not reach the court in time, it adjourned the hearing fixed for 8 November 2001. The court asked for the receiver to be summoned for the next hearing.

The hearings of 27 December 2001, 14 March and 16 May 2002 were adjourned due to improper delivery of the court summons to the first defendant or the receiver. The applicant proposed further summons for the first defendant to be announced at the court’s notice board.

On 4 July 2002 the court was notified that the preliminary winding up proceedings against the first defendant were suspended. In order to confirm the validity of the power of attorney of its lawyer, the court adjourned the hearing fixed for 10 September 2002.

The court adjourned the hearing of 8 November 2002 as the first defendant was not properly summoned and, upon the applicant’s request, fixed the next hearing for 11 March 2003.

The court has not yet reached any decision as to the merits of the applicant’s action.

COMPLAINT

The applicant complained about the excessive length of the proceedings concerning his compensation claim, which are still pending before the first instance court.

THE LAW

The applicant’s complaint related to the length of the proceedings, which began on 17 February 1995 and were still pending without a decision being reached by the trial court.

Article 6 § 1 of the Convention, in so far as relevant, reads:

“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”

The Government submitted that the period which 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 considered that there were exceptionally complex circumstances attending the examination of the case by the first instance court, such as: the examination of the legal status of the first defendant; one of the parties was a foreign company; the applicant submitted volumes of evidence, clarified and amended his claims at a late stage; and a financial expertise was required for certain items of the applicant’s claim. They stated that the civil proceedings were based on the principle of the autonomy of parties and that the court was dependent on their course of action.

With respect to the behaviour of domestic authorities, the Government claimed that the trial court has shown diligence in the conduct of the proceedings. In particular, they pointed out that the Basic Court Skopje had held hearings at regular intervals with the exception of the summer recess and that it did not delay the proceedings without particular justification.

The Government contended instead that the behaviour of the applicant contributed to the delays, as about 10 hearings out of 34 were adjourned due to his fault nor did he file motions specifying his claims on time. Moreover, he filed a motion for a transfer of the case to another court, which caused the longest delay in the course of the proceedings (11 February 2000 – 21 December 2000). In addition, the applicant changed his lawyer six times during the proceedings.

The applicant submitted that the case was not of a complex nature; that the court had on its disposal all the elements for reaching a decision but instead of deciding the merits it unreasonably delayed the proceedings. The case was of utmost importance for the applicant, as he lost his working capacity and his family was in a poor economic situation. He claimed that he had acted correctly throughout the proceedings; he had followed the court orders and filed the evidence in time, as it was in his interest. He submitted that it was his right to choose his own representatives and their frequent replacement did not influence the length of the proceedings. He stated that he failed to attend only one hearing due to his illness.

While the applicant accepted that the court conducted the proceedings in a diligent manner until 26 June 1996 when the trial judge was replaced, he contended that the proceedings had been delayed without legal justification after the new trial judge took over the case. The applicant also contested the accuracy of some of the court minutes. He submitted that the national courts were responsible for the unreasonable delays in the proceedings concerning his request for compensation.

The Court considers, in the light of the criteria established in its case-law on the question of “reasonable time” (the complexity of the case, the applicant’s conduct and that of the competent authorities), and having regard to all the information in its possession, that an examination of the merits of this complaint is required.

For these reasons, the Court unanimously

Declares the application admissible, without prejudging the merits.

Vincent BergerBoštjan M. Zupančič
RegistrarPresident

 

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