AS TO THE ADMISSIBILITY OF
Application no. 22731/02
by Zaneta MARTINOVSKA
against the former Yugoslav Republic of Macedonia
The European Court of Human Rights (Fifth Section), sitting on 25 September 2006 as a Chamber composed of:
Mr P. Lorenzen, President,
Mrs S. Botoucharova,
Mr V. Butkevych,
Mrs M. Tsatsa-Nikolovska,
Mr R. Maruste,
Mr J. Borrego Borrego,
Mrs R. Jaeger, judges,
and Mrs C. Westerdiek, Section Registrar,
Having regard to the above application lodged on 10 April 2002,
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 applicant, Ms Zaneta Martinovska, is a citizen of the former Yugoslav Republic of Macedonia who was born in 1956 and lives in Skopje. The Macedonian Government (“the Government”) were represented by their Agent, Mrs R. Lazareska-Gerovska.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
1. The first set of proceedings
On an unspecified date in 1994 the applicant, together with two other individuals, instituted civil proceedings against her employer, a company called G. (“the employer”) for payment of salary and other related allowances for the period of May 1993 to November 1994.
On 28 April 1998 the Skopje Court of First Instance II granted her claim (and of the other claimants) together with interest. On 11 November 1998 the Court of Appeal upheld the lower court’s judgment. As stated by the applicant, the judgment was served on her seven months later, on an unspecified date.
On an unspecified date, the applicant requested the Skopje Court of First Instance I to enforce the judgment (предлог за извршување). On 10 September 1999 it granted her request and ordered the Public Payment Bureau (“the Bureau”) (Завод за платен промет) to transfer from the employer’s account the amount due to her. On 7 October 1999 the applicant completed her application as requested by the court. However, the order was not enforced as there were no funds in the account.
On 22 December 1999 the applicant requested the Skopje I Court of First Instance to enforce her claim proposing another means of enforcement: an inventory, valuation and public sale of an employer’s property (the same property which was the subject-matter of the second set of proceedings). She requested the court to complete the enforcement by the proposed means only if her claim could not have been discharged by transferring the amount due to her from the employer’s account.
On 7 December 2000 the Skopje I Court of First Instance forwarded the case-file to the Skopje II Court of First Instance, as court competent ratione loci.
In April 2006 the court requested the applicant to submit a certificate of title concerning the employer’s property. It appears that in May 2006 she obtained a certificate of title and submitted it to the court.
2. The second set of proceedings
On an unspecified date in 1998 the applicant brought against the employer a compensation claim for payment of salary and other related allowances for the period of 1994 to 1997, after she had successfully challenged the lawfulness of her dismissal.
On 4 November 1998 the Skopje II Court of First Instance partially granted her claim. On 6 October 1999 the Skopje Court of Appeal dismissed the employer’s appeal and upheld the lower court’s judgment.
On 7 October 1999 the applicant requested the Skopje I Court of First Instance to enforce the judgment by transferring the amount due to her from the employer’s account into her account. On 24 November 1999 the applicant completed her application submitting a copy of the judgment, as requested by the court.
On 28 February 2000 the Skopje I Court of First Instance granted the applicant’s request and ordered the Bureau to transfer the amount due to her from the employer’s account.
On 7 May 2001 the applicant proposed another means of enforcement, namely an inventory, valuation and public sale of an employer’s property. It was sent to the Skopje I Court of First Instance with a request for forwarding the file to the Skopje II Court of First Instance as court competent ratione loci. On 25 June 2001 the applicant submitted an addendum to the request.
On 13 July 2001 Skopje II Court of First Instance refused the applicant’s request for a charging order over the employer’s property, as it had been the subject of other enforcement proceedings and sold to a third person on 3 June 1999. On 10 November 1999 the creditor in those proceedings had taken possession of the property (this decision became final on 4 December 1999).
On 13 September 2001 the applicant appealed against the judgment before the Skopje Court of Appeal (Апелационен Суд Скопје).
On 10 October 2001 the Skopje Court of Appeal dismissed the applicant’s appeal and upheld the lower court’s judgment.
The applicant did not request the court to enforce her claim against other assets nor did she propose other means of enforcement as specified by law.
The applicant’s cases concerning both sets of proceedings were set to archive in September, November and December 2003, respectively.
3. The applicant’s application for joined examination of her requests
On 15 November 2000 the applicant requested the Skopje II Court of First Instance to join the two sets of enforcement proceedings and to proceed only in respect to the employer’s property, as its account reportedly had no funds.
On 27 March 2001 the applicant repeated her request for joining the two sets of enforcement proceedings. She also requested to have her enforcement proceedings joined with the proceedings of another creditor, Mrs N.M., instituted against the employer.
On 28 March 2001 the applicant submitted a corrected version of her request. On 12 June 2001 the applicant repeated her request.
On 3 and 15 October 2001, respectively, the applicant and Mrs N.M. requested the president of the Skopje II Court of First Instance and the Court of Appeal to join their proceedings.
On 16 October 2001 the Skopje II Court of First Instance informed the applicant and Mrs N.M. that on 12 July 2001 the presiding judge had decided not to join the proceedings.
B. Relevant domestic law
Section 2 of the Enforcement Proceedings Act (“the Act”) (Закон за извршната постпка) provides that enforcement and security proceedings are launched on creditor’s request.
Section 27 of the Act provides the following means for enforcing judgment debts: (i) sale of movable property, (ii) sale of immovable property, (iii) transfer of a pecuniary claim, (iv) encashment of other proprietary rights, and (v) transfer of funds from an account managed by the Public Payment Bureau, in accordance with the regulations.
In accordance with section 29 of the Act, the courts are required to enforce judgment debts by the means and against the assets specified in the request for execution.
Section 35 provides that a request for execution should specify: the creditor and debtor; the final order; the debtor’s duty; the means and assets for enforcement and other information necessary for completion of the enforcement.
In accordance with section 39 § 1, the enforcement order is served on the creditor and the debtor. The dismissal of the request for execution is served only on the creditor.
Section 141 of the Act provides that enforcement over immovable property is effected by recording the order in the register, obtaining a valuation of the property, selling it and settling the creditors’ claims from the proceeds of sale.
Section 142 paragraph 1 of the Act provides, inter alia, that in support of a request for a charging order over immovable property, the creditor should submit an extract from the public records, as evidence that the property is owned by the debtor.
Section 198 of the Act states that the court will not stay enforcement proceedings if there are no funds in the debtor’s account managed by the Public Payment Bureau. Instead, the Payment Bureau is required to keep a record of the order and to make the transfer when there are funds in the account.
The applicant complains under Article 6 of the Convention about the length of all the aforementioned proceedings.
The applicant complained that the length of each set of proceedings was incompatible with the “reasonable-time” requirement laid down in Article 6 § 1 of the Convention, which reads 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 Government submitted that the period which had lapsed before the entry into force of the Convention should not be taken into consideration. They maintained that the length of the proceedings was a consequence of the lack of funds in the employer’s account and the applicant’s conduct throughout the proceedings. They argued that the applicant’s complaint concerned two different types of proceedings: civil and enforcement. They noted that each of the civil proceedings had terminated rapidly; that they had not been stalled at any stage and that the Court of Appeal had decided with reasonable expedition. Concerning the enforcement proceedings, they submitted that, under the domestic law, the courts were bound to act in accordance with the creditor’s requests for enforcement. In each of the proceedings the applicant had initially submitted an incomplete request for the money due to her to be paid from the employer’s account. After the applicant had submitted the required information, the courts granted her requests in a short time ordering the Bureau to enforce them. According to the Government, the courts could not be held responsible for the lack of funds. Moreover, the enforcement proceedings were not stayed, but the order was kept for execution once funds should become available. The applicant subsequently requested a charging order over her employer’s property after realising that it had no funds in its account. She contributed to the length of proceedings by frequently submitting various submissions, corrections and requests for joined examination of her requests with that of a third person against the employer. The Government also claimed that the applicant’s inactivity after 2001 was unjustified.
The applicant contested the Government’s observations. She asserted that she had been instructed by the courts to choose a particular means of enforcement. Referring to the first set of enforcement proceedings, she argued that it took a year for the Skopje I Court of First Instance to transfer the file to the Skopje II Court of First Instance as competent ratione loci after she had requested charging order over the employer’s property of 22 December 1999. She also noted that she had never been served with a decision concerning her request for joined examination of her requests. With regard to the second set of enforcement proceedings, she observed that it had taken four months to the court to consider her request of 7 October 1999. She alleged that the courts had wrongly dismissed her request for charging order over the employer’s property. Moreover, she disagreed that the employer had no property and that consequently it had not been necessary to propose another means of enforcement.
1. The Court notes that none of the civil proceedings on the merits lasted more than four years. The first set of proceedings lasted from 1994 to 11 November 1998 i.e. the date of the Court of Appeal’s judgment. The Court considers that the applicant did not indicate the exact date when she had been served with the Court of Appeal’s judgment nor did she substantiate her allegations about the late service of this judgment. The second set lasted from 1998 to 6 October 1999. Concerning the first set of proceedings, the Court observes that it did not acquire jurisdiction until 10 April 1997, when the Convention entered into force in respect of the former Yugoslav Republic of Macedonia.
The Court does not consider that the period falling within the Court’s competence ratione temporis in relation to each set of proceedings lasted unreasonably long, in particular as, within this period, the courts delivered final judgments on the merits on each of the applicant’s claims.
2. As regards the enforcement proceedings, as a second stage of the proceedings, the Court reiterates that the execution of a judgment given by any court must be regarded as an integral part of the "trial" for the purposes of Article 6 (see Burdov v. Russia, no. 59498/00, § 34, ECHR 2002-III; Estima Jorge v. Portugal, judgment of 21 April 1998, Reports of Judgments and Decisions 1998-II, §35; Hornsby v. Greece, judgment of 19 March 1997, Reports of Judgments and Decisions 1997-II, § 40). This principle has been found applicable in cases concerning the length of proceedings (see, for example, the Di Pede v. Italy and Zappia v. Italy judgments of 26 September 1996, Reports of Judgments and Decisions 1996-IV, pp. 1383-1384, §§ 20-24, and pp. 1410-1411, §§ 16-20, respectively). Accordingly, the execution of a judicial decision cannot be unduly delayed (see Immobiliare Saffi v. Italy [GC], no.22774/93, ECHR 1999-V, § 66; Miltenovic v. the former Yugoslav Republic of Macedonia (dec.), no. 26615/02, 19 June 2006). Moreover, the State responsibility for enforcement of a judgment against a private company extends no further than the involvement of State bodies in the enforcement procedures. Once the enforcement procedures were closed by a court in accordance with the national legislation, the responsibility of the State ended (see Shestakov v. Russia (dec.), no. 48757/99, 18 June 2002; Kravchuk v. Russia (dec.), no. 72749/01, 1 February 2005).
(a) The Court notes that the first set of enforcement proceedings began on an unspecified date purportedly in 1999. As the applicant did not indicate the exact date when she had brought her request for execution before the Skopje I Court of First Instance, the Court will calculate the length from the date of the order, i.e. 10 September 1999. The order was based on the applicant’s request requiring the Bureau to transfer the money due to her from the employer’s account. It has not been enforced to date as there were no funds in the account.
In these circumstances, the Court considers that for all practical purposes the enforcement proceedings in respect of the means of enforcement as proposed by the applicant (transfer of funds from the employer’s account) “ended” after the order was served on the Bureau for execution. It notes that, under the domestic law, if there are insufficient funds in the debtor’s account, the enforcement proceedings are not stayed, but the order is kept by the Bureau for execution once funds should become available.
After being informed that the employer had no funds in its account, on 22 December 1999 the applicant sought a charging order over the employer’s property. As she did not lodge the request with the court with jurisdiction ratione loci, on 7 December 2000 the case was transmitted to the Skopje II Court of First Instance as a court of competent jurisdiction. It would appear that the national courts did not reach a formal decision concerning her request for a charging order over the employer’s property in this set of proceedings. However, the Court considers noteworthy that this request concerned the same property as the one that was the subject-matter of the applicant’s subsequent request of 7 May 2001 submitted in the second set of proceedings. By decision of 13 July 2001 the applicant was informed that the enforcement could not be executed on the property at issue, which had meanwhile been subject of other enforcement proceedings and sold to a third person who had taken possession of the property on 4 December 1999 i.e. before the applicant submitted her request (22 December 1999).
In these circumstances, the Court considers that for all practical purposes the enforcement proceedings in respect of the means of enforcement as proposed by the applicant ended in 2001 within a period of about one year and ten months which does not appear excessive, in particular as the applicant created some delays by indicating means of enforcement which could be to no avail. The Court finds that the query made by the Court of First Instance in April 2006 is a new initiative for the purpose of securing the enforcement of the applicant’s claim against the private debtor, which cannot engage the State’s responsibility for the duration of the proceedings which were not formally closed or stayed under domestic law.
(b) In the second set of enforcement proceedings, on 28 February 2000 the domestic court granted the applicant’s initial request of 7 October 1999, as completed on 24 November 1999, for an order attaching the employer’s account. As the national courts were bound to act in accordance with the creditor’s requests, it would appear that the enforcement court could not have been expected to take any further action once it had complied with the applicant’s request as submitted. Therefore, this part of the enforcement proceedings, which were pursued in accordance with the law, lasted about four months and twenty-four days, which included the time taken by the applicant to complete her request.
It was not until 7 May 2001 that the applicant sought a charging order over the employer’s property. Her request was finally refused by the Court of Appeal’s decision of 10 October 2001, as the property had already been transferred into possession of a third person. The enforcement proceedings concerning this means of enforcement as proposed by the applicant thus came to an end. They lasted about five months for two levels of jurisdiction. In these circumstances, the Court cannot conclude that the second set of the enforcement proceedings infringed the applicant’s right to have the court decision enforced without unduly delay.
In sum, the Court considers that the proceedings did not disclose the breach of the “reasonable time” requirement of Article 6 of the Convention.
It follows that the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention, and must be declared inadmissible pursuant to Article 35 § 4.
For these reasons, the Court unanimously
Decides to discontinue the application of Article 29 § 3 of the Convention,
Declares the application inadmissible.
Claudia Westerdiek Peer
MARTINOVSKA v. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA DECISION
MARTINOVSKA v. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA DECISION