Communicated on 2 May 2017
FIRST SECTION
Application no. 11438/15
Anne-Marie YAZBEK and Myrna YAZBEK
against the former Yugoslav Republic of Macedonia
lodged on 3 March 2015
STATEMENT OF FACTS
The applicants, Ms Anne-Marie Yazbek and Ms Myrna Yazbek, are French nationals who were born in 1984 and 1975 respectively and live in Skopje. They are represented before the Court by Mr G. Caloni, a lawyer practising in Paris.
A. The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
The applicants are two sisters who were legally residing in the respondent State. Their father was the owner of an international hotel in Skopje, where he lived from 1995 until his death in 2011. Both applicants were shareholders in a company that held the majority shares in the hotel. The applicants were also non-executive members of the board of directors of the hotel.
On 13 December 2012 the applicants brought a civil action against the hotel and three other individuals (one of whom was a national of the United States) requesting that the Skopje Court of First Instance (Основен суд Скопје) establish that the defendants had interfered with the applicants’ possession (смеќавање на владение) because they had prevented the applicants from entering an office located in the hotel.
On 24 July 2013 the Skopje Court of First Instance dismissed the applicants’ claim as ill-founded. As the applicants were the losing party, the first-instance court ordered them to jointly reimburse the defendants’ costs in the proceedings in a total amount of 631,947 Macedonian denars (MKD). The lawyers’ fees were calculated on basis of the official lawyers’ tariff (hereinafter: the “official tariff”, consolidated version, Тарифа за награда и надоместок на трошоците за работа на адвокатите – пречистен текст, Official Gazette no.152/2009). Section 3 of the official tariff provided that the fees for legal representation were to be doubled in cases in which one of the parties was a foreign natural or legal person. Accordingly, the sum that the first-instance court awarded by way of reimbursement of the opponents’ costs included a 100 per cent surcharge.
The applicants lodged an appeal against the first-instance decision, complaining, inter alia, about the decision concerning the cost reimbursement.
On 24 October 2013 the Skopje Court of Appeal (Апелационен суд Скопје) dismissed the applicants’ appeal in the part concerning the merits of the case and upheld the first-instance decision. In the part concerning the awarded costs, the second-instance court remitted the case for reconsideration. It held that the first-instance court had failed to specify on the basis of what evidence it had been established that the proceedings involved foreign nationals. The Court of Appeal noted that the first-instance court had awarded a 100 per cent increase in legal representation fees without determining whether the applicants or one of the defendants who was a national of the United States had obtained Macedonian nationality.
In the resumed proceedings, the applicants submitted copies of their residence permits to the first-instance court.
On 20 February 2014 the first-instance court determined the award of the costs of the proceedings and ordered the applicants to jointly reimburse the opponents’ costs in the amount of MKD 429,270. It held that the court was able to determine ‒ on the basis of the residence permits submitted by the applicants and the defendant who was a national of the United States ‒ that they were foreign nationals legally residing in the respondent State but had not acquired Macedonian nationality.
The applicants lodged an appeal against the decision of the first-instance court. They complained that in spite of their status as legal residents in the respondent State, the first-instance court had accepted the 100 per cent increase in fees for the opponents’ legal representation. They argued that as residents they had a legally regulated stay in the country and therefore could not be considered as “foreigners” within the meaning of section 3 of the official tariff. In their further submissions to the court the applicants asserted that as legal residents they should be treated on an equal footing with Macedonian nationals.
On 10 July 2014 the Skopje Court of Appeal partially granted the applicants’ appeal and ordered them to jointly reimburse the opponents’ costs in the amount of MKD 398,787. It held that the official tariff provides for increased lawyers’ fees in cases involving foreign nationals. Notwithstanding the fact that the applicants were legal residents in the respondent State, they had not acquired Macedonian nationality and were therefore to be considered as foreigners, within the meaning of section 3 of the official tariff.
The applicants’ legal representative received a copy of this decision on 4 September 2014.
B. Relevant domestic law
The relevant provision of the official lawyers’ tariff (consolidated version, Тарифа за награда и надоместок на трошоците за работа на адвокатите – пречистен текст, Official Gazette no.152/2009) reads:
Section 3
“In proceedings in which one of the parties is a foreign natural or legal person, as well as in the proceedings in which there are submissions in a foreign language, or in proceedings involving communication in a foreign language, the lawyers’ fees are to be increased by 100 per cent (наградата е двојно поголема).”
The relevant provisions of the Civil Proceedings Act (consolidated version, Закон за парничната постапка, Official Gazette no. 7/2011) read:
Section 148
“(1) A party which loses a case completely shall reimburse the costs of the opposing party and the party intervening on his or her side.
(...)”
Section 149
“(1) In deciding which costs shall be reimbursed to a party, the court shall take into account only those costs which were necessary for the conduct of the proceedings. When deciding which costs were necessary and the amount thereof, the court shall carefully consider all the circumstances.
(2) The fees for legal representation and other legal costs are calculated on the basis of the official lawyers’ tariff.”
COMPLAINTS
The applicants complain under Article 14, taken in conjunction with Article 6 of the Convention, that they were ordered to reimburse costs for the opposing party’s legal representation in proceedings before the domestic courts that were increased by 100 per cent due to a provision under domestic law that provided for a 100 per cent increase in lawyers’ fees in cases involving foreign nationals. The applicants complain that due to the operation of such a rule they were discriminated against on basis of their nationality.
The applicants submit the same complaint under Article 1 of Protocol No.12 to the Convention.
QUESTIONS TO THE PARTIES
1. Have the applicants suffered discrimination in the enjoyment of their Convention rights on the grounds of their nationality, contrary to Article 14 of the Convention read in conjunction with Article 6?
In particular, have the applicants been subjected to a difference in treatment in the calculation of the fees for legal representation in the domestic proceedings due to the operation of section 3 of the official lawyers’ tariff, which provides for a 100 per cent increase in legal representation fees in cases involving foreign nationals?
If so, did that difference in treatment pursue a legitimate aim; and did it have a reasonable justification?
2. In view of the applicants’ nationality, have they suffered discrimination in the calculation of the legal representation fees in the domestic proceedings, contrary to Article 1 of Protocol No.12?
The parties are required to submit a copy of the applicants’ domestic case-file.
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