FIFTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 37018/03
by Vera KOCAROVA
against the former Yugoslav Republic of Macedonia
The European Court of Human Rights (Fifth Section), sitting on 13 November 2006 as a Chamber composed of:
MrP. Lorenzen, President,
MrsS. Botoucharova,
MrV. Butkevych,
MrsM. Tsatsa-Nikolovska,
MrR. Maruste,
MrJ. Borrego Borrego,
MrsR. Jaeger, judges,
and Mrs C. Westerdiek, Section Registrar,
Having regard to the above application lodged on 10 November 2003,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mrs Vera Kocarova, is a citizen of the former Yugoslav Republic of Macedonia who was born in 1926 and lives in Strumica. She is represented before the Court by Mr T. Koshevaliski and Mr J. Madzunarov, lawyers practising in Stip, in the former Yugoslav Republic of Macedonia.
The facts of the case, as submitted by the applicant, may be summarised as follows.
In or about August 1994 Mr P.S., the applicant’s brother, instituted civil proceedings before the then Strumica Municipal Court (Општински Суд Струмица) for termination of a care agreement (“the agreement”) that he had concluded on 16 October 1975 with Mr G.P. Mr P.S. claimed that Mr G.P. had not provided him with a regular financial assistance, as specified by the agreement. Under the agreement, Mr G.P. was authorised to collect the rent obtained from Mr P.S.’s movable and immovable property, which would then have been transferred in his possession after Mr P.S.’s death.
On 8 May 1995 the Strumica Municipal Court granted Mr P.S.’s application and terminated the 1975 agreement. After examining considerable evidence, namely several witnesses, the parties to the proceedings and the correspondence between them, the court found that the agreement had not been carried out, as Mr P.S. had sufficient financial means and it had been he who had actually given money to Mr G.P, contrary to what had been agreed.
On 14 February 1996 the then Stip District Court upheld Mr G.P.’s appeal and quashed the lower court’s decision, as it had not properly established whether the latter had fulfilled his obligations under the agreement.
On 25 June 1996 the Strumica Municipal Court upheld Mr P.S.’s claim and terminated the agreement. After examining other witnesses and additional correspondence between the parties, the court held that Mr G.P. had not provided Mr P.S. with a regular financial maintenance as agreed.
On 11 January 1997 the Stip Court of Appeal upheld Mr G.P.’s appeal and remitted the case for a fresh consideration. It held that the trial court had not been established by law, as the case had been tried by a single judge instead of by a panel of judges.
On an unspecified date in January 1997 Mr P.S. passed away. The latter’s heirs, including the applicant, instituted inheritance proceedings concerning his property. By a court decision of 24 April 1997, they were instructed to institute separate civil proceedings to determine the ownership of the property at stake and to take over Mr P.S.’s case. It appears that this decision was subsequently overturned by the Court of Appeal’s decision of 26 August 1997, by which the inheritance proceedings had been stayed. Mr P.S.’s heirs, including the applicant, took over the case and joined the proceedings complained of.
On 17 September 1999 the Strumica Court of First Instance upheld Mr P.S.’s claim and terminated the agreement. The court held that the number of contacts between Mr G.P. and Mr P.S. had diminished over time and stopped some years before the latter’s death; that Mr G.P. had not given the monthly financial support to Mr P.S. as agreed and that it was the applicant who had started caring for him instead. It established that the applicant, despite prior misunderstandings with her late brother, had endeavoured to improve their personal relationships. The court also found that Mr P.S., as recognition of the applicant’s efforts, had vowed that after his death all his property should be transferred in her possession.
On 31 August 2000 the Stip Court of Appeal dismissed Mr G.P.’s appeal and upheld the lower court’s decision. It overturned it in part concerning the trial costs entitling the applicant and the other heirs of Mr P.S. to collect the reduced award.
On 13 October 2000 Mr G.P. submitted to the Supreme Court an appeal on points of law (ревизија).
On 8 March 2001 the applicant states that she was provided with a copy of it.
On 7 March 2001 Mr G.P. lodged with the Strumica Court of First Instance a request for re-opening of the proceedings (предлог за повторување на постaпката). He claimed that the courts had wrongly accepted the applicant and the others as claimants in the instant proceedings, as there had been no court decision ascertaining them as Mr P.S.’s heirs. He further claimed that the courts had wrongly considered Mr P.S. as a party to the proceedings after his death. He also referred to another care agreement of 1969 concluded between the same parties and to the Supreme Court’s decision of 17 January 2001, adopted in different set of proceedings, by which he had been allegedly recognised as an owner of the property on the basis of the 1969 agreement.
On 14 September 2001 the Strumica Court of First Instance dismissed Mr G.P.’s request for re-opening of the proceedings. It found that the Supreme Court’s decision of 17 January 2001 had been made in administrative contentious proceedings (управен спор) concerning administrative decisions for payment of personal income tax related to Mr P.S.’s property. The Supreme Court had referred in this decision to the Court of Appeal’s decision of 1997 by which the inheritance proceedings concerning Mr P.S.’s property had been stayed, as it had already been transferred into Mr G.P.’s ownership by virtue of the 1969 and 1975 agreements. The court held that the facts, which the Supreme Court had referred to in its decision of January 2001, could not be regarded as a new evidence that had been unknown to Mr G.P. during the proceedings and that consequently, they could not be considered as a proper ground for re-opening of the proceedings. The court used the same reasoning to dismiss the other arguments for re-opening of the proceedings.
On 10 December 2001 the Stip Court of Appeal upheld Mr G.P.’s appeal and overturned the lower court’s decision. It granted his request for re-opening of the proceedings and quashed the decisions of 17 September 1999 and 31 August 2000, respectively, by which the 1975 agreement had been terminated. It held that the evidence provided by Mr G.P. had been new and that he could not have used it in the previous proceedings.
On 10 April 2002 the public prosecutor lodged with the Supreme Court a request for the protection of legality (барање за заштита на законитоста) against the appeal court’s decision, as it had been incoherent and had lacked sufficient reasoning as to how the newly discovered evidence could have been beneficial for the party concerned if admitted in the previous proceedings.
On 26 December 2002 the Supreme Court upheld the public prosecutor’s request and quashed the Appeal Court’s decision of 10 December 2001.
On 21 February 2003 the Stip Court of Appeal dismissed Mr G.P.’s appeal against the court’s decision of 14 September 2001. It reiterated the lower court’s reasoning to dismiss Mr G.P.’s request for re-opening of the proceedings.
On 24 March 2004 the Supreme Court rejected (отфрла) the appeal on points of law of 13 October 2000 submitted against the Appeal Court’s decision of 31 August 2000. The court considered it as inadmissible as the value of the dispute fell below the statutory threshold. It accordingly rejected Mr G.P.’s appeal on points of law filed against the Appeal Court’s decision of 21 February 2003.
COMPLAINT
The applicant complains under Article 6 of the Convention that the proceedings lasted unreasonably long.
THE LAW
The applicant complained about the excessive length of the civil proceedings concerning the termination of the 1975 care agreement. She invokes Article 6 § 1 which reads, insofar as relevant, as follows:
“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”
The Court notes at the outset that the proceedings on the merits were concluded on 31 August 2000 when the Court of Appeal finally dismissed Mr G.P.’s appeal and upheld the trial court’s decision terminating the agreement. Mr G.P. subsequently availed himself of two separate extraordinary remedies: an appeal on points of law and a request for re-opening of the proceedings.
Concerning Mr G.P.’s appeal on points of law against the Court of Appeal’s decision of August 2000, the Court considers that the time elapsed for the subsequent proceedings before the Supreme Court which ended on 24 March 2004 by rejecting his appeal on points of law should not be taken into consideration, as that remedy was without prospect of success as the claim was below the statutory threshold (see Kostovska v. the former Yugoslav Republic of Macedonia, no. 44353/02, § 36, 15 June 2006; Rezgui v. France (dec.), no. 49859/99, ECHR 2000‑XI). As the application was lodged with the Court on 10 November 2003, it finds that the applicant failed to comply with the six-month rule under Article 35 of the Convention.
It follows that this complaint has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
As regards the proceedings concerning Mr G.P.’s request for the re-opening of the proceedings, the Court notes that after the trial court’s dismissal of this request, the Court of Appeal revoked the decisions on the merits and admitted Mr G.P.’s application for re-opening. Even assuming that the proceedings were re-opened as of 10 December 2001, they ended on 26 December 2002 by the Supreme Court’s decision upholding the public prosecutor’s request for the protection of legality (барање за заштита на законитоста). On 21 February 2003 the Court of Appeal dismissed MrG.P.’s appeal against the trial court’s decision of 14 September 2001. The Supreme Court rejected as inadmissible Mr G.P.’s appeal on points of law against the decision.
The Court recalls that Article 6 § 1 is not applicable to proceedings concerning an application for the re-opening of civil proceedings (see Kaisti v. FInland (dec.), no. 70313/01, ECHR 2004; joined applications nos. 13601/88 and 13602/88 in the case of Frank Surmont and Helena De Meurechy and others v. Belgium, Dec. 6 July 1989, D.R. 62, pp. 284-302). The Court then notes, however, that if the proceedings are re-opened, the requirements of Article 6 must be respected as those proceedings, unlike the re-opening proceedings, result in a decision which directly affects the civil rights and obligations of the person concerned. Thus, Article 6 applies to the re-opened proceedings which in the present case, however, must be regarded as separate from the proceedings between 1994 and 2000. The Court considers that the period to be taken into account in respect of these proceedings can only be counted from the date on which the re-opened proceedings began, i.e. 10 December 2001. This period terminated with the Supreme Court’s decision of 26 December 2002. It appears that the decision was served on the applicant before 21 February 2003 when the Court of Appeal subsequently dismissed Mr G.P.’s appeal against the court’s decision of 14 September 2001. The Court therefore finds that the applicant failed to comply with the six-month rule under Article 35 § 1 of the Convention.
It follows that this complaint has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
In any case, as Mr G.P.’s application for the re-opening of civil proceedings turned out as unsuccessful, the Court considers that Article 6 does not apply to the proceedings concerning the request for re-opening of the proceedings as such.
It follows that the complaint concerning the length of the proceedings on Mr G.P.’s application for re-opening of the proceedings 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 the application inadmissible.
Claudia WesterdiekPeer Lorenzen
RegistrarPresident
Full & Egal Universal Law Academy