BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
[New search]
[Contents list]
[Printable RTF version]
[Help]
FIFTH
SECTION
CASE OF IVANOV AND DIMITROV v. THE FORMER YUGOSLAV REPUBLIC OF
MACEDONIA
(Application
no. 46881/06)
JUDGMENT
STRASBOURG
21 October
2010
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In
the case of Ivanov and Dimitrov v.
the former Yugoslav Republic of Macedonia,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer Lorenzen, President,
Renate
Jaeger,
Rait Maruste,
Isabelle
Berro-Lefèvre,
Mirjana Lazarova
Trajkovska,
Zdravka Kalaydjieva,
Ganna
Yudkivska, judges,
and Claudia
Westerdiek, Section
Registrar,
Having
deliberated in private on 28 September 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 46881/06) against the former
Yugoslav Republic of Macedonia lodged with the Court under Article 34
of the Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by two Macedonian nationals,
Mr Vasko Ivanov (”the first applicant”) and Mr Lazo
Dimitrov (“the second applicant”), on 6 November 2006. In
a letter of 12 January 2007 the second applicant informed the Court
that he wished to withdraw from the application.
- The
applicants were represented by Mr N. Radovik and Mr V. ZeZov, lawyers
practising in Štip. The Macedonian Government (“the
Government”) were represented by their Agent, Mrs R. Lazareska
Gerovska.
- The
applicants alleged, in particular, that the Štip Court of
Appeal had decided their case in contradiction of its already
established case-law and that the proceedings in question had been
excessively lengthy.
- On
2 February 2009 the President of the Fifth Section decided to give
notice of the application, in respect of the first applicant, to the
Government. It was also decided to examine the merits of the
application at the same time as its admissibility (Article 29).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicants were born in 1960 and 1962 and live in Karbinci and Štip
respectively.
- They
worked as wardens at a weekend retreat run by the Ministry of Labour
and Social Policy (“the employer”).
- On
2 April 2001 the applicants lodged a civil claim against the
employer, seeking payment of the following
employment-related benefits: an overtime allowance (надоместок
за прекувремена
работа),
night work allowance (надоместок
за ноќна работа)
and family separation allowance (надоместок
за одвоен живот).
They also claimed compensation in respect of annual leave in 2000
(надомест
на штета поради
неискористен
годишен одмор)
(“the compensation claim”).
- On
20 November 2001 the Štip Court of First Instance (“the
first instance court”) appointed an expert who, by a
letter of 12 December 2001, requested to be excluded from the case.
On 6 February 2002 another expert was appointed. He drew up a report
on 6 April 2002, which was supplemented on three occasions, namely 24
October 2003, 25 November 2003 and 9 January 2004.
- Hearings
fixed for 26 June 2002, 18 December 2002, 12 and 27 February
2003 and 25 November 2003 were adjourned because of the absence of
the employer, which was represented by the Attorney-General (Jавен
Правобранител).
On 30 January 2004 the first-instance court granted the applicants’
claims. This decision was quashed by the Štip Court of Appeal
on 1 September 2004. The parties did not provide a copy of the latter
decision.
- At
a hearing on 17 November 2004 the applicants supplemented their
claims. On that date the employer was asked to submit documentation
on the benefits claimed by the applicants, which it did on 6 July
2005. On 24 October and 16 November 2005 the expert submitted
additional expert reports in view of the applicants’ amended
claims.
- On
3 February 2006 the first-instance court ruled partly in favour of
the applicants and ordered the payment of the employment benefits. It
relied, inter alia, on the expert reports, the employer’s
Rules on Salary and Other Allowances (“the Rules”), and a
court decision in case П.бр.1262/97
(see paragraph 16 below). It established that the applicants’
residence had been 40 km away from their place of work, that they had
carried out their working duties for one week at a time without
interruption, and that during that time they had been separated from
their families. The employer did not have special rules regarding the
payment of employment-related benefits for such employees. The
applicants’ salary had been calculated as if they had worked
full-time despite the fact that they had actually worked fewer hours.
The shortfall in the regular working hours (редовно
работно време)
had been compensated for by night work, for which the employer
had not paid any allowance to the applicants. The court did not award
the applicants the night-work allowance, but only a 35% increase, as
specified in the Rules. On the other hand, it awarded them the
allowances for overtime and family separation, plus the increase set
forth in the Rules. The court dismissed the applicants’
compensation claim.
- On
15 March 2006 the employer appealed. On 13 April 2006 the Štip
Court of Appeal allowed the appeal and overturned the lower court’s
decision in respect of the benefits claimed. It endorsed the
statement of facts, but found that the substantive law had been
applied incorrectly. It held that the applicants had not been
entitled to receive the benefits claimed since they had obtained the
same salary as if they had worked full-time, although they had
actually worked fewer hours. Relying on a Government Decree on the
calculation of allowances for employees of administrative bodies
(“the Decree”), the court stated that the applicants had
not been entitled to a family separation allowance since their place
of residence had been adjacent to the employer’s seat.
- The
applicants were served with this decision on 8 May 2006.
- On
4 July 2006 the applicants filed a request with the public prosecutor
for the protection of legality in which they alleged that the
substantive law had been applied incorrectly. They further complained
that the courts, including the Štip Court of Appeal, had
granted identical claims in other cases filed by them. According to
the applicants, the public prosecutor rejected their request.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- Section
400 of the Civil Proceedings Act provides that a case may be reopened
if the European Court of Human Rights has given a final judgment
finding a violation of the Convention or its Protocols ratified by
the respondent State.
- Between
July 1999 and September 2001, the Štip first- and
second-instance courts had delivered four judgments in which they had
ruled in favour of the applicants and Mr G.P. (a warden at the same
weekend retreat), awarding them the same employment-related benefits,
including the increase, as those claimed by the applicants in the
present case (Гж.бр.1746/2000,
Гж.бр.993/2001,
Гж.бр.
1269/97 and П.бр.1262/1997).
In those cases, the courts had established that the claimants had
carried out their working duties for one week at a time without
interruption; that during that time they had been separated from
their families; that they had received the same salary as if they had
worked full-time; and that the employer had no special rules
regarding the payment of employment-related benefits for wardens. In
their decisions, the courts had referred, inter alia, to the
Rules and the Decree. As to the latter, the Štip Court of
Appeal had established that in May 2000 the Constitutional Court had
declared it unconstitutional since it concerned issues that could be
regulated only by law (U.br.29/2000 of 17 May 2000). It had
found therefore that the Decree was inapplicable to the applicants’
case (Гж.бр.1746/2000).
THE LAW
I. THE
SECOND APPLICANT
- The
Court notes that, by a letter of 12 January 2007, the second
applicant expressed his wish to withdraw his application. Thus the
Court considers that the second applicant may be regarded as no
longer intending to pursue his application within the meaning of
Article 37 § 1 (a) of the Convention. Furthermore, in accordance
with Article 37 § 1 in fine, the Court finds that there
are no special circumstances regarding respect for human rights as
defined in the Convention and its Protocols which require the
continued examination of his case. In view of the above, it is
appropriate to continue the examination of the application only in so
far as it concerns the first applicant (see Oršuš
and Others v. Croatia, no. 15766/03, § 33, 17 July
2008).
II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
- The
first applicant complained under Article 6 of the Convention that the
length of the proceedings had been excessive. He further alleged lack
of impartiality since the courts had rejected his claim
notwithstanding the fact that identical
claims had been accepted in previous cases. The Court considers that
this complaint concerns, in substance, an alleged inconsistency in
the domestic case-law and should be analysed accordingly. Article 6 §
1 of the Convention, in so far 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 independent and impartial tribunal established by
law”
A. Admissibility
- The
Government did not raise any objection as to the admissibility of the
application.
- The
Court notes that the application, in respect of the first applicant,
is not manifestly ill-founded within the meaning of Article 35 §
3 of the Convention. It further notes that it is not inadmissible on
any other grounds. It must therefore be declared admissible.
B. Merits
1. Length-of-proceedings complaint
21. The
Government submitted that there had been complex
circumstances involved in the case, including the number of expert
examinations and the volume of material evidence. They further argued
that the first applicant had contributed to the length of the
proceedings by supplementing his initial claim. They stated that the
proceedings, taken as a whole, had not been excessive and that no
significant delays could be attributed to the domestic courts.
- The
first applicant reiterated his complaint that the proceedings in
question had been excessively lengthy.
- The Court notes that the proceedings began on 2 April
2001 when the applicants brought their claim before the
first-instance court. They ended on 8 May 2006 when the Court of
Appeal’s decision of 15 March 2006 was served on them. The time
taken for the subsequent proceedings before the public prosecutor
cannot be taken into consideration since the applicants were not
required to exhaust this remedy for the reasons detailed in the
Dimitrovska case (see Dimitrovska v. the former
Yugoslav Republic of Macedonia (dec.), no.
21466/03, 30 September 2008). The relevant period therefore lasted
just over five years and one month at two levels of jurisdiction.
- The
Court reiterates that the reasonableness of the length of proceedings
must be assessed in the light of the circumstances of the case and
with reference to the following criteria: the complexity of the case
and the conduct of the applicants and the relevant authorities (see
Frydlender v. France [GC], no. 30979/96, § 43, ECHR
2000-VII).
- The
Court considers that the case was not legally complex given the
already established case-law of the same courts (see paragraph 16
above). Some factual complexity arose because of the need to
determine the amount of the first applicant’s claim, but that
cannot in itself justify the length of the proceedings.
- The
Court also observes that there were no delays attributable to the
first applicant. The amendment to his claim did not add much to the
length of the proceedings.
- On
the other hand, the Court considers that there were a number of
delays imputable to the State. In this connection, it notes that the
first instance court was unable to secure the attendance of the
employer, a State body, between 26 June 2002 and 30 January 2004 (see
paragraph 9 above). In addition, it took over eight months for the
employer to comply with the court’s order to submit the
required documentary evidence (see paragraph 10 above). Furthermore,
the time taken for the expert examinations can be attributed solely
to the State (see Stojanov v. the former Yugoslav Republic of
Macedonia, no. 34215/02, § 60, 31 May 2007). In view of the
foregoing, the Court considers that the length of the proceedings
cannot be regarded as reasonable.
- There
has accordingly been a breach of Article 6 § 1 of the Convention
in respect of the length of the proceedings.
2. Alleged inconsistency in the domestic case-law
- The
Government admitted that the Štip Court of Appeal had deviated
from the case-law that it had already established, but considered
that it had provided sufficient reasons for its decision. That
departure had been due to the fact that the first-instance court had
erred on the facts and law and that in all previous cases concerning
the same issues of fact and law, the courts had failed to take into
consideration 1) the absence of special employer’s rules
concerning the payment of employment-related benefits to wardens; 2)
the fact that the first applicant had received the same salary as if
he had worked full-time and 3) the Decree. Lastly, they submitted
that case-law could develop according to the circumstances of each
case.
- The
first applicant contested the Government’s arguments.
- The
Court notes that the present case reflects the development of the
domestic jurisprudence as to whether the first applicant was entitled
to receive the employment-related benefits specified in paragraph 7
above. In this connection, the Court observes that the initial
case-law on the matter was in favour of the first applicant (see
paragraph 16 above). In the present case, the first-instance court
also applied this jurisprudence by having relied on a previous court
decision (see paragraph 11 above). It was the Court of Appeal which
departed, as conceded by the Government, from the previous case-law
established before several years regarding identical claims submitted
by the applicants and Mr G.P. (see paragraph 16 above). In the
absence of any evidence to the contrary, it appears that no other
similar case has been brought before the domestic courts since the
present one (see, a contrario, Atanasovski
v. the former Yugoslav Republic of Macedonia,
no. 36815/03, §§ 20 and 37,
14 January 2010).
- In
such circumstances, the Court does not consider that this
jurisprudential development, which was manifested after several years
and only in this one instance, has created a state of judicial
uncertainty capable of depriving the first applicant of a fair
hearing. In this connection it recalls that the requirement of
judicial certainty and the protection of legitimate expectations do
not involve the right to an established jurisprudence (see Unédic
v. France, no. 20153/04, § 74, 18 December 2008). As to
whether the Court of Appeal’s approach was wrong, the Court
reiterates that it has a limited role regarding the interpretation
and application of the domestic law, which is primarily within the
jurisdiction of the domestic courts (see, mutatis mutandis,
García Ruiz v. Spain [GC], no. 30544/96, § 28,
ECHR 1999 I). In the absence of an explicit complaint by the
first applicant, the Court need not assess whether the Court of
Appeal’s decision was sufficiently reasoned (see, a
contrario, Atanasovski, cited
above).
- 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.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
first applicant claimed 16,250 euros (EUR) in respect of pecuniary
damage, representing the sum, plus interest, sought in his claim
against the employer, and EUR 8,200 in respect of non-pecuniary
damage for the stress suffered in relation to the alleged violations
of the Convention.
- The
Government contested these claims, arguing that there was no causal
link between the alleged violation and the damages claimed. In
addition, they submitted that finding a violation should in itself
constitute sufficient just satisfaction for the first applicant, who
would ultimately be able to request the reopening of the proceedings
on the basis of the Court’s judgment and seek a new decision in
his favour (see paragraph 15 above).
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim. It
considers however that the non-pecuniary damage would not be
adequately compensated by the finding of a violation. Consequently,
ruling on an equitable basis, it awards the first applicant EUR 1,600
in respect of non-pecuniary damage, plus any tax that may be
chargeable.
B. Costs and expenses
- The
first applicant also claimed EUR 4,000 for the costs and expenses
incurred before the Court and the domestic courts. In support of this
claim he submitted an itemised list of costs.
- The
Government contested the claim as excessive and unsubstantiated. They
further argued that the costs and expenses incurred domestically
could be recovered before the domestic courts should the proceedings
be reopened under section 400 of the Civil Proceedings Act.
- According to the Court’s case-law, an applicant
is entitled to the reimbursement of costs and expenses only in so far
as it has been shown that these have been actually and necessarily
incurred and are reasonable as to quantum (see Editions Plon v.
France, no. 58148/00, § 64, ECHR 2004 IV). In the
present case, regard being had to the documents in its possession and
the above criteria, the Court finds the amount claimed by the first
applicant in respect of the costs and expenses incurred in the
proceedings before it to be excessive and partly unsubstantiated, and
awards him instead the sum of EUR 250, plus any tax that may be
chargeable to him.
- Concerning the first applicant’s request for
reimbursement of the costs incurred in the domestic proceedings, the
Court reiterates that legal costs are only recoverable in so far as
they relate to the violation found (see Ernestina Zullo v. Italy
[GC], no. 64897/01, § 153, 29 March 2006; Belvedere
Alberghiera S.r.l. v. Italy (just satisfaction), no. 31524/96, §
45, 30 October 2003; and Van de Hurk v. the Netherlands, §
66, 19 April 1994, Series A no. 288). As such costs were not incurred
in seeking the prevention and redress through the domestic legal
order of the alleged violations complained of, the Court does not
award any sum under this head (see Milošević v. the
former Yugoslav Republic of Macedonia, no. 15056/02, § 34,
20 April 2006).
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Decides to discontinue the examination of the
application in so far as it concerns the second applicant;
- Declares the length complaint admissible and the
remainder of the application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention in respect of the length of the
proceedings;
- Holds
(a) that
the respondent State is to pay the first applicant, within three
months of the date on which the judgment becomes final in accordance
with Article 44 § 2 of the Convention, the following amounts to
be converted into the national currency of the respondent State at
the rate applicable on the date of settlement:
(i) EUR
1,600 (one thousand six hundred euros), plus any tax that may be
chargeable, in respect of non-pecuniary damage;
(ii) EUR
250 (two hundred and fifty euros), plus any tax that may be
chargeable to him, in respect of costs and expenses;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the first applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 21 October 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
