KERTAKOV v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"

FIFTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 13302/02
by Petre KERTAKOV
against the former Yugoslav Republic of Macedonia

The European Court of Human Rights (Fifth Section), sitting on 6 November 2006 as a Chamber composed of:

MrP. Lorenzen, President,
MrK. Jungwiert,
MrV. Butkevych,
MrsM. Tsatsa-Nikolovska,
MrJ. Borrego Borrego,
MrsR. Jaeger,
MrM. Villiger, judges,
and Mrs C. Westerdiek, Section Registrar,

Having regard to the above application lodged on 31 October 2001,

Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together.

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 Petre Kertakov, is a Macedonian national who was born 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.

In April 1991 the applicant made an oral agreement with a third party (“the defendant”) for setting up a joint venture and allocating the respective investments in the newly established company. The applicant was to invest his premises as an equity share and the defendant was to engage a construction company to construct a new building. As the parties allegedly failed to fulfil what they had agreed upon, the defendant instructed the construction company to cease the work. As it abandoned the applicant’s premises unfinished and unsecured, some of his belongings were stolen. On 4 March 1992 the applicant brought claims for damages against the defendant and the construction company claiming restoration of the building to its the previous state.

On 30 April 1992 the applicant requested the President of the first-instance court to exempt the trial judge from sitting in the case. He complained about the judge’s rudeness to him; that he was prevented from examining the witnesses and that some of his statements were not noted in the minutes. On 7 May 1992 the applicant’s request was refused.

On 13 May 1992 the applicant was fined by the trial judge for improper behaviour in court room. The hearing was postponed for an indeterminate time as the applicant had left the court room.

On 2 July 1992 the applicant modified his claim and proposed a witness concerning the previous state of the building.

On 9 November 1992 the Municipal Court of Štip (Општински суд во Штип) partially upheld the applicant’s claim and ordered the defendant and the construction company to repair the damage. It found that in 1991 the applicant had concluded an oral agreement with the defendant for opening a small textile factory in which he should invest the premises and the defendant should buy the equipment and engage at least two foreign investors. They also agreed that a separate weaving hall be constructed and attached to the present building for which the defendant engaged a construction company. The applicant was to invest part of his land in the equity of the newly established joint venture and to reimburse the construction costs incurred by the defendant once the company started working. As the applicant withdrew from the intention to invest his land in the joint venture’s equity, the defendant instructed the construction company to stop work. The court found that both parties concerned had been responsible for the damage sustained.

Between the introduction of the claim and the adoption of the first-instance decision eleven hearings were scheduled and adjourned as some of the defendants were absent and, on one occasion, as a witness and an expert had not appeared in court albeit properly summoned. During this time, the court made an on-site inspection. The composition of the trial court changed three times during the proceedings.

On 19 October 1993 the District Court of Štip (Окружен суд во Штип) upheld both parties’ appeals; found the lower court’s decision vague and ordered a retrial to determine the exact plea of the applicant and to establish the facts correspondingly.

On 25 January 1994 the trial court requested the applicant to clarify his claim. On 9 February 1994 the applicant submitted a written petition for clarification of his plea. He claimed compensation for failure to comply with the agreement, for the stolen belongings and for loss of income; he requested the court to order the defendant and the construction company to secure the building to prevent further destruction and to restore it to its previous state.

On 17 November 1994 the Municipal Court of Štip rejected the applicant’s claim as being vague and imprecise. It found that the applicant had failed to indicate the grounds and the amount of his claim and the reference period that it had concerned.

On 26 May 1995 the District Court of Štip dismissed the applicant’s appeal as ill-founded.

On 26 July 1995 the applicant submitted before the trial court an appeal on points of law (ревизија). On 22 September 1995 this was transferred to the Supreme Court for consideration. The latter received it on 21 February 1996.

On 4 June 1997 the Supreme Court upheld the applicant’s appeal on points of law, quashed the lower courts’ decisions and ordered a retrial.

On the hearing of 26 May 1998 the trial court ordered the applicant to clarify his claim in compliance with the higher courts’ findings and the latest corporative changes of the construction company. The applicant informed the court about another case concerning the same facts in which the defendant had charged him for an illegal enrichment (неосновано збогатување).

The next hearing was listed for 17 June 1998.

The hearings of 10 and 28 September and of 9 October 1998 were adjourned due to the absence of the defendant’s representative albeit properly summoned. The court decided the joiner of the proceedings.

Between 21 October and 26 November 1998 the court held three hearings at which it examined the evidence and heard the parties concerned.

On 16 December 1998 the Štip Court of First Instance (Основен суд во Штип) dismissed the applicant’s claim and upheld the defendant’s claim for unjust enrichment. It found that the parties had an oral agreement for setting up a joint venture. The textile factory (the joint venture) was to be opened in the applicant’s premises and another building was to be constructed and attached thereto. The defendant engaged a construction company which undertook some activities. The applicant was also to invest part of his land as an equity share. As the applicant withdrew from signing the partnership agreement and from investing his land, the defendant had instructed the construction company to cease work as he was paying for the construction costs. The court found the applicant responsible for not enforcing the oral partnership agreement, i.e. for not signing the agreement and for not investing his land in the joint venture.

On 23 March 1999 the trial court received the applicant’s appeal against the decision. On 25 May 1999 the applicant was requested to pay the court fees. As he failed to do so, on 15 June 1999 the court referred the matter to the Public Revenue Office for coercive payment measures.

On 1 July 1999 the applicant’s case was transferred to the Court of Appeal for consideration. On 1 October 1999 the applicant submitted a supplement to the appeal.

On 17 October 1999 the Štip Court of Appeal (Апелационен суд во Штип) dismissed the applicant’s appeal as ill-founded.

On 23 November 1999 the applicant lodged with the Supreme Court an appeal on points of law. On 20 December 1999 the trial court received the defendant’s reply. On 20 January 2000 the court ordered the applicant to pay the court fees. As the latter refused to pay as being unemployed, on 14 February 2000 the court referred to the Public Revenue Office for enforcement measures. The case-file was transferred to the Supreme Court on 5 April 2000.

On 29 March 2001 the Supreme Court dismissed the applicant’s appeal on points of law. The decision was served on the applicant on 15 June 2001.

COMPLAINTS

The applicant complained under Article 6 of the Convention that the proceedings at issue had been unreasonably lengthy and unfair; that the courts had erroneously established the facts and wrongly applied national law; that their findings had been based only on the statements of the defendant and his lawyer; that the courts ignored his objection concerning the time-bar of the defendant’s claim; that the courts did not examine a witness proposed by him; that they had decided differently on the same issue; and that they had not admitted certain evidence proposed by him and had not also taken into consideration the addendum to his appeal of 1 October 1999. He complained that the hearing before the trial court on 17 November 1994 had not been public. He furthermore alleged that the trial judge had been biased: that she had given false statements about her impartiality in the procedure for her removal; that she had changed the applicant’s statements during the trial; and that she had incorrectly drawn up the minutes. He also argued that she had been a friend of the President of the Štip District Court who had been a close relative to the defendant.

Relying on Article 1 of Protocol No. 1 the applicant complained that he had been denied the right to the peaceful enjoyment of his possessions.

THE LAW

1. The applicant complained that his case 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 ..., everyone is entitled to a fair ... hearing ... within a reasonable time by an independent and impartial tribunal...”

(a) The Government submitted that the period which had lapsed before the entry into force of the Convention in respect of the former Yugoslav Republic of Macedonia should not be taken into consideration. They maintained that the proceedings had been of a complex factual nature, as the applicant had several times modified his claim; the courts had joined the proceedings concerning the applicant’s and the defendant’s claim; and the case involved an oral agreement, a circumstance which had affected the time necessary for establishing the facts.

The Government also argued that the applicant had contributed to the length of the proceedings by availing himself of ordinary and extraordinary remedies; by changing his claims frequently; by failing to pay the court fees in good time. They also averred that he had failed to request the court to speed up the proceedings and they noted the absence of the defendant’s representative from three consecutive hearings in 1998.

In respect of the conduct of the authorities the Government maintained that the scheduled hearings had been held without any interruption and delays and that there had been no periods of inactivity attributable to the courts.

The applicant submitted that the subject-matter of the dispute had required urgent conduct by the courts. He argued that the technical modifications in his claim and the joinder of the cases had not added to the length of the proceedings. He disagreed that he had created any delays in the proceedings by having recourse to the remedies available under domestic law or by not paying the court fees. He contested the Government’s argument that he had not requested the courts to speed up the proceedings referring to several submissions that he had made to the relevant authorities. He also disagreed that the absence of the defendant’s representative from three hearings and the oral form of the agreement had affected the length of the proceedings. As regards the conduct of the authorities, the applicant maintained that the case should have been decided without being remitted for re-examination. He also noted that it had taken nearly a year for the trial court to fix the hearing after the case had been remitted back for re-examination by the Supreme Court; that three months lapsed between the hearings of 17 June and 10 September 1998; that it took seven months for the Court of Appeal to decide the applicant’s last appeal; and that it took one year and seven months for the Supreme Court to decide his appeal on points of law (including the time for service of the decision).

The Court notes that the proceedings complained of started on 4 March1992 when the applicant brought the civil claim before the then Štip Municipal Court. They were effectively terminated on 15 June 2001 when the Supreme Court’s decision was served on the applicant.

However, the period which falls within the Court’s jurisdiction did not begin on 4 March 1992, but on 10 April 1997, after the Convention entered into force in respect of the former Yugoslav Republic of Macedonia (see Atanasovic and Others v. “the former Yugoslav Republic of Macedonia”, no. 13886/02, § 26, 22 December 2005; Horvat v. Croatia, no. 51585/99, § 50, ECHR 2001‑VIII), though it will take the preceding period into account when considering the reasonableness of the time that elapsed after that date.

The proceedings therefore lasted nine years, three months and eleven days of which four years, two months and five days fall to be examined by the Court for three levels of jurisdiction. This period includes the time lapsed for service of the Supreme Court’s decision.

The Court considers that the case was of some factual complexity, but that this does not justify the length of the proceedings.

Nor, having regard to the material before it, does the Court consider that the applicant contributed significantly to the length of the proceedings. The applicant’s failure to pay the court fees in good time did not add significantly to the length of the proceedings.

As regards the conduct of the authorities, the Court notes that the case lay dormant for nearly a year after the case had been remitted back for re-examination by the Supreme Court (4 June 1997-26 May 1998). However, a delay at some stage may be tolerated if the overall duration of the proceedings cannot be deemed excessive (see Nuutinen v. Finland, no. 32842/96, § 110, ECHR 2000‑VIII). The trial court’s decision was adopted within the subsequent seven months. The Court observes that the appeal court’s decision was rendered eight months after the applicant had introduced his appeal. Furthermore, it does not find that the time that lapsed for review of the applicant’s appeal on points of law by the Supreme Court was excessive (see, mutatis mutandis, Sergi v. Italy (dec.), no. 46998/99, 26 September 2000).

Having regard to the criteria laid down in its case-law for assessing the reasonable-time requirement contained in Article 6 § 1 of the Convention (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII; Comingersoll S.A. v. Portugal [GC], no. 35382/97, ECHR 2000-IV and the Philis v. Greece (no. 2), judgment of 27 June 1997, Reports of Judgments and Decisions 1997‑IV, § 35), the Court considers on the whole that the proceedings in the present case were conducted within a reasonable time and that 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.

(b) In so far as the applicant’s complaint about the alleged unfairness of the proceedings may be understood as concerning the assessment of the evidence and the result of the proceedings before the domestic courts, the Court reiterates that, it is not its function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention (see García Ruiz v. Spain [GC], no. 30544/96, § 28, 29, ECHR 1999‑I). Moreover, while Article 6 of the Convention guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence or the way it should be assessed, which are therefore primarily matters for regulation by national law and the national courts (see the Schenk v. Switzerland judgment of 12 July 1988, Series A no. 140, p. 29, §§ 45-46). The Court also recalls that it is not within the province of the Court to substitute its own assessment of the facts for that of the national courts. The Court’s task is to ascertain whether the proceedings in their entirety, including the way in which evidence was permitted, were “fair” within the meaning of Article 6 § 1 (see Dombo Beheer B.V. v. the Netherlands, judgment of 27 October 1993, Series A no. 274, § 31).

The Court considers that the applicant had the benefit of adversarial proceedings, in which he was able to submit the arguments which he considered relevant to his case and that these arguments, while duly taken into account by the domestic courts, were nevertheless rejected on the basis of a reasoning which appears consistent and devoid of any arbitrariness (see Dimitrievski v. the former Yugoslav Republic of Macedonia (dec.), no.26602/02, 9 May 2006; Osmani and Others v. the former Yugoslav Republic of Macedonia (dec.), no. 50841/99, 6 April 2000). The applicant’s allegations about the refusal of the national courts to admit certain evidence provided by him do not disclose any appearance of unfairness in the circumstances of the case. His allegations that the courts based their decisions on the statements of the defendant and his lawyer are unsubstantiated. The courts admitted considerable written evidence, examined a number of witnesses and heard the parties concerned. In short, the interests of justice and fairness were, in the circumstances, met in the present case.

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.

(c) The Court observes that the applicant’s complaint about the lack of publicity of the hearing of 17 November 1994 relates to an event that occurred before 10 April 1997 when the Convention entered into force in respect of the former Yugoslav Republic of Macedonia.

The Court therefore, considers that this complaint 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.

(d) In respect of the applicant’s complaint that the trial judge was biased, the Court notes that his motion for removal of the trial judge was decided on 7 May 1992 i.e. before the Convention entered into force in respect of the respondent State. Moreover, the applicant failed to raise such motion after the Convention entered into force in relation to the Former Yugoslav Republic of Macedonia. In any event, the Court is not persuaded that any ground for objective and legitimate misgivings arose in respect of the participation of the judge concerned, based on her acquaintance with the President of the District Court who was allegedly a close relative to the other party.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

2. Referring to the outcome of the proceedings, the applicant complained under Article 1 of Protocol No. 1 that he had been denied the right to the peaceful enjoyment of his possessions. 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.”

The Court observes that since the applicant’s complaint under Article 1 of Protocol No. 1 relates solely to the outcome of the proceedings, it is in fact a restatement of the complaints under Article 6 and dismissed under (b) above. It follows that this complaint is likewise manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Decides to discontinue the application of Article 29 § 3 of the Convention;

Declares the application inadmissible.

Claudia WesterdiekPeer Lorenzen
RegistrarPresident

 

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