FIRST SECTION
DECISION
Application no. 52471/08
Marjančo TOMOVSKI and others
against the former Yugoslav Republic of Macedonia
and 3 other applications
(see list appended)
The European Court of Human Rights (First Section), sitting on 15 March 2016 as a Committee composed of:
Kristina Pardalos, President,
Robert Spano,
Pauliine Koskelo, judges,
and André Wampach, Deputy Section Registrar,
Having regard to the above applications lodged on 21 October 2008,
Having regard to the absence of any indication by the Bulgarian Government that they wish to intervene in the proceedings under Article 36 § 1 of the Convention,
Having regard to the declaration submitted by the respondent Government on 4 August 2015 requesting the Court to strike the applications out of the list of cases,
Having deliberated, decides as follows:
FACTS AND PROCEDURE
The applicants, Mr Marjančo Tomovski (“the first applicant”), Ms Julijana Tomovska (“the second applicant”) and Mr Boško Tomovski (“the third applicant”), are Macedonian nationals, who were born in 1960, 1964 and 1997, respectively, and live in Skopje. The first and third applicants also have Bulgarian nationality. The first and second applicants are the parents of the third applicant. The Macedonian Government (“the Government”) were represented by their Agent, Mr K. Bogdanov.
The applications had been communicated to the Government.
The facts of the cases, as submitted by the parties, may be summarised as follows.
1. Background of the case
In 2001 an armed conflict broke out in the respondent State. The applicants lived in Lešok village, in the area of Tetovo, which was substantially affected by the conflict. On 23 July 2001 they were forced to leave their home by armed members of the National Liberation Army. On 25 July 2001 they were declared internally displaced persons (“IDPs”) and placed in P., a State-run youth hostel in Skopje (the Government confirmed that they lived in a room of 26 sq. m). According to the Government, in September 2001 there were 76,054 IDPs, of whom 3,228 were accommodated in collective centres. In the initial period, they were provided with humanitarian aid including food, hygiene packs and school material. The Government also paid a daily allowance for each person accommodated in a collective centre to cover costs related to accommodation, food, cleaning, utilities and maintenance. The applicants had been receiving that aid until June 2003 when they were allegedly informed that the Government would no longer pay for their accommodation at the hostel. Notwithstanding the request to leave, the applicants still live there. The parties presented contradictory information and documents as to whether the applicants are still regarded as IDPs or not.
By a decision of 25 February 2011, following an action taken by the applicants, the first applicant was awarded a one-off allowance (еднократна парична помош). As stated in the decision:
“... the claimant does not receive any social assistance. He has been an IDP since the 2001 conflict and lives in the hostel P. in Skopje. Due to his poor financial situation, the family is at risk [of poverty] ...”
Following a separate application by the applicants, an identical allowance was awarded to them in February 2013. The first and third applicants were hospitalised or asked for medical assistance due to alcoholism and psychological issues, respectively.
The applicants’ case was followed by the media and the Helsinki Committee in Skopje. In March 2012 a parliamentary question concerning their case was also put to the respondent Government.
2. Application no. 52471/08
(a) Compensation proceedings against the respondent State
On 5 February 2004 the applicants instituted civil proceedings against the State seeking compensation for the pecuniary and non-pecuniary damage related to their expulsion from their home.
After one remittal, on 21 October 2011 Skopje Court of First Instance partly accepted the applicants’ claim and awarded them the equivalent of 35,000 euros (EUR) in respect of pecuniary damage. By judgments of 3 June 2013 and 5 November 2014 Skopje Court of Appeal and the Supreme Court confirmed the first-instance court’s judgment by which the applicants had been awarded compensation. The remainder was remitted for re-examination.
(b) Complaint concerning the length of the compensation proceedings
Following new proceedings instituted by the applicants, the Supreme Court found in judgments of 13 April 2010 and 25 January 2011, that the length of the compensation proceedings had been excessive and set a time-limit for the lower courts to decide on the applicants’ claim. In the latter judgment, which the applicants did not appeal, it also awarded them the equivalent of EUR 650 in damages. By a judgment of 12 June 2012, in a separate complaint lodged by the applicants, the Supreme Court dismissed the applicants’ “length remedy” finding that the time under consideration (from 25 January to 13 October 2011) had not been excessive. The applicants did not appeal against this judgment.
3. Application no.54201/08
On 19 January 2004 the first and second applicants instituted civil proceedings against the State for EUR 150,000 in compensation for: having discontinued the provision of food and other humanitarian aid; having annulled their social benefits; the failure to “take any measure for [their] restoration [to their prior position]; the failure to provide minimum living conditions; their deteriorated state of health; the trauma and psychological terror [resulting from] threats for forceful removal from the hostel P.”.
With a final judgment of 30 January 2008, the courts, at three levels of jurisdiction, dismissed the applicants’ claim.
4. Application no. 56066/08
On 23 June 2005 the third applicant, represented by the first and second applicants, requested that the Skopje Social Care Centre (“the Centre”) award him child allowance (детски додаток) because of the poor financial situation of his family.
After three remittal orders, on 6 April 2011 the Centre dismissed the third applicant’s claim. This decision was confirmed by the Ministry of Labour and Social Policy and the Administrative Court in decisions of 25 May 2011 and 16 May 2012, respectively. Following an appeal by the applicants, the proceedings are apparently still pending before the Higher Administrative Court.
5. Application no. 56067/08
On 23 June 2005 the applicants requested that the Centre award them social-welfare benefit given the fact that they were unemployed and had no income. The Centre, and subsequently, the relevant Ministry, did not decide on the applicants’ request within the statutory time-limit. On 18 October 2006 the Supreme Court ordered the Ministry to adjudicate on the applicants’ request.
On 11 January 2007 the Centre carried out on on-site inspection of the applicants’ room in the hostel P. and stated, inter alia:
"... [the applicants] live in the hostel P. in one room where the conditions and hygiene are poor and inadequate for living."
After one remittal, on 28 November 2011 the Ministry ordered the Centre to decide on the applicants’ request. The proceedings are still pending.
COMPLAINTS
The applicants complain under Articles 3 and 8 of the Convention of the poor living conditions in the hostel P. They also allege that the respondent State’s response to their situation was in breach of its positive obligations under Article 8 of the Convention to protect their right to respect for the private and family life, their physical and mental integrity. Lastly, they complain, under Article 6, about the length of the compensation proceedings.
THE LAW
The Court considers that, in accordance with Rule 42 § 1 of the Rules of Court, the applications should be joined, given their similar factual and legal background.
After the failure of attempts to reach a friendly settlement, by a letter of 4 August 2015 the respondent Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issues raised in the applications. They further requested the Court to strike out the applications in accordance with Article 37 of the Convention.
The declaration read as follows:
“The Government would hereby like to express - by a way of unilateral declaration - its acknowledgement that in the special circumstances of the present case, [the impugned proceedings] did not fulfill the requirements of the applicants’ rights protected by the Convention. Consequently, the Government is prepared to pay a sum of 10,800 EUR jointly to Marjančo, Julijana and Boško Tomovski [the applicants] and 400 EUR to cover any and all costs and expenses, plus any tax that may be chargeable to the applicants. In its view, this amount would constitute adequate redress and sufficient compensation for the violation of the Convention, and thus a reasonable sum as to quantum in the present cases in the light of the Court’s case law. This sum is to cover any pecuniary and non-pecuniary damage, as well as the costs and expenses and will be free of any taxes that may be applicable. This sum will be payable to the personal account of the applicants within three months from the date of the notification of the Court decision, pursuant to Article 37 § 1 (c) of the Convention ... In the light of the above and in accordance with Article 37 § 1 (c) of the Convention the Government, having in mind the terms of this declaration, would like to suggest that the circumstances of the present cases allow the Court to reach the conclusion that for “any other reason” it is no longer justified to continue the examination of the applications. Moreover, there are no reasons of a general character, as defined in Article 37 § 1 in fine, which would require the further examination of the cases by virtue of that provision. Therefore, the Government invites the Court to strike the applications out of its list of cases.”
The applicants did not comment on the terms of the unilateral declaration.
The Court reiterates that Article 37 of the Convention provides that it may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to one of the conclusions specified, under (a), (b) or (c) of paragraph 1 of that Article. Article 37 § 1 (c) enables the Court in particular to strike a case out of its list if:
“for any other reason established by the Court, it is no longer justified to continue the examination of the applications”.
It also reiterates that in certain circumstances, it may strike out an application under Article 37 § 1 (c) on the basis of a unilateral declaration by a respondent Government even if the applicants wish the examination of the cases to be continued.
To this end, the Court has examined the declaration carefully in the light of the principles emerging from its case-law, in particular the Tahsin Acar judgment (see Tahsin Acar v. Turkey [GC], no. 26307/95, §§ 75-77, ECHR 2003-VI; WAZA Spółka z o.o. v. Poland (dec.), no. 11602/02, 26 June 2007; and Sulwińska v. Poland (dec.), no. 28953/03, 18 September 2007).
Having regard to the nature of the admissions contained in the Government’s declaration, as well as the amount of compensation proposed – which the Court finds to be reasonable given the circumstances of this case – the Court considers that it is no longer justified to continue the examination of the applications (Article 37 § 1 (c)). Moreover, the Court is satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of the applications (Article 37 § 1 in fine).
Lastly, the Court emphasises that, should the Government fail to comply with the terms of their unilateral declaration, the applications could be restored to the list in accordance with Article 37 § 2 of the Convention (see Josipović v. Serbia (dec.), no. 18369/07, 4 March 2008).
In view of the above, it is appropriate to strike the applications out of the list.
For these reasons, the Court, unanimously,
Decides to join the applications;
Takes note of the terms of the respondent Government’s declaration under Articles 3, 6 and 8 of the Convention and of the modalities for ensuring compliance with the undertakings referred to therein;
Decides to strike the applications out of its list of cases in accordance with Article 37 § 1 (c) of the Convention.
Done in English and notified in writing on 7 April 2016.
André WampachKristina Pardalos
Deputy RegistrarPresident
APPENDIX
1.
52471/08
TOMOVSKI v. the former Yugoslav Republic of Macedonia
2.
54201/08
TOMOVSKI v. the former Yugoslav Republic of Macedonia
3.
56066/08
TOMOVSKI v. the former Yugoslav Republic of Macedonia
4.
56067/08
TOMOVSKI v. the former Yugoslav Republic of Macedonia
Full & Egal Universal Law Academy