FIFTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 26602/02 
by Tihomir DIMITRIEVSKI 
against the former Yugoslav Republic of Macedonia

The European Court of Human Rights (Fifth Section), sitting on 9 May 2006 as a Chamber composed of:

Mr P. Lorenzen, President
 Mrs S. Botoucharova
 Mr K. Jungwiert
 Mr V. Butkevych
 Mrs M. Tsatsa-Nikolovska
 Mr R. Maruste, 
 Mrs R. Jaeger, judges
and Mrs C. Westerdiek, Section Registrar,

Having regard to the above application lodged on 2 July 2002,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Tihomir Dimitrievski, is a Macedonian national who was born in 1936 and lives in Skopje (the former Yugoslav Republic of Macedonia).

A.  The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

On 3 April 1995 the applicant instituted civil proceedings before the then Skopje Municipal Court (Општински Суд Скопје) against the Copyright Agency of Macedonia-Skopje (“the company”) claiming payment of outstanding dividend. He alleged that the company had been unlawfully transformed from a socially-owned one into a private one; that the company had not calculated and paid salary to its employees in compliance with the relevant law at that time (according to the applicant, the company was not wholly privatised and as such, it was bound when calculating salary by the Law on payment of salaries which was applicable to socially-owned enterprises). He complained that the company had unlawfully appropriated part of its profit and distributed it to its employees (who were the stake-owners) as salary, so that he should have received a higher dividend than he did (he claimed to own 13.63% of the company’s capital and not 11.918% and that he was entitled to a dividend in proportion to that amount).

On 29 May 1997 the applicant brought a civil action against the director of the company on the same grounds. As both claims had the same subject matter, the proceedings were subsequently joined.

On 3 December 1997 the applicant lodged a proposal for friendly settlement of the case. He claimed that his stake in the company’s capital had been 13.63% and that his dividend should correspond to this percentage. The company rejected the proposal.

On 4 May 1999 the applicant submitted a further application increasing his claim to cover the outstanding dividend not paid to him for 1998.

By an application of 25 April 2000 the applicant increased his claim to cover the outstanding dividend for 1999.

By an application of 25 April 2001, the applicant increased his claim to cover the outstanding dividend for 2000.

On 28 March 2002 the Skopje Basic Court dismissed the applicant’s claim for payment of the outstanding dividend for the period from 1994 to 2001. The court established that on 3 December 1990 the Employees’ Meeting of the then Yugoslav Copyright Agency –Copyright Agency of Macedonia had decided to re-organise itself into a privately-owned company. On 4 February 1991 the employees (including the applicant, who was the manager of the Copyright Agency) had paid a certain amount of money to the State in exchange for its share in the company. On 15 November 1990 the Employees’ Meeting had decided to issue 1074 internal shares of which 128 were bought by the applicant (equal to 11.918% of the company’s capital). On 17 December 1990 the company (managed by the applicant at that time) had lodged, with the then District Commercial Court of Skopje, a request for its registration as a private company. By a court decision adopted on 13 February 1991, the company had been registered as a joint stock company. The court also established that the company had paid salary in accordance with its internal decisions and the instructions issued by the relevant ministries, according to which the company had not been restricted in calculating and paying salary by the law which applied to socially-owned enterprises. The court established that it had not been disputed between the parties that the applicant had received dividend proportionate to his share in the company’s capital throughout the disputed period. On the basis of the company’s registration record and the expert opinions, the court also established that the applicant had owned 11.918% of the company’s capital. It therefore dismissed the applicant’s claim that he had possessed 13.63% of the company’s capital.

On 18 September 2002 the applicant appealed to the Skopje Appellate Court. He appealed against the trial court’s decision on all grounds: substantial infringement of civil procedure; erroneously established facts and wrong application of the substantive law. The applicant also requested the Appellate Court to hold a hearing.

On 19 December 2002 the Skopje Appellate Court dismissed the applicant’s appeal as ill-founded, upholding the facts established by the trial court and the way the latter had interpreted and applied the national law. The Appellate Court decided the case without holding a hearing.

On 12 February 2003 the applicant appealed on points of law (ревизија) to the Supreme Court.

On 23 June 2003 the Supreme Court dismissed the applicant’s appeal on points of law. It repeated the facts as established by the trial court (and subsequently upheld by the Appellate Court) and found that the lower courts had properly established that the applicant’s share of the company’s capital was 11.918% and not 13.63% as claimed. It also upheld the lower courts’ reasoning that the company had been privatised in accordance with the Law on socially-owned capital (Закон за општествен капитал) and that they had thus correctly applied the relevant law.

It appears that five trial judges were replaced in the course of the proceedings, one at the applicant’s request and another of her own motion.

B.      Relevant domestic law

Article 348 of the Law on Civil Proceedings (Закон за парничната постапка) provides that the Appellate Court decides, as a rule, without holding a hearing. The Chamber of the Appellate Court would decide to hold a hearing if it found it necessary to repeat the evidence which had already been adduced to establish the facts properly.

Article 356 requires the Appellate Court to quash the trial court’s decision and remit the case for re-examination if it finds that a new trial hearing is necessary to establish the facts properly. It would do so only if it had not held a hearing itself. According to Article 356 § 2, the Appellate Court would do so even if the parties concerned did not challenge the facts, if there were reasonable doubts with regard to the correctness of the facts established. According to paragraph 3 of this Article, if the Appellate Court finds, in private or at the hearing, that new facts should be established or new evidence should be adduced to establish the facts properly, it must quash the trial court’s decision and refer the case back for re-examination.

COMPLAINTS

1. The applicant complained under Article 6 § 1 of the Convention that the proceedings had been unfair, that the courts had not been impartial and that the proceedings had been too long. He alleged arbitrariness, erroneous establishment of facts and wrongful application of the national law, that the courts had failed to decide his claims, and that they had wrongly calculated the dividend. He also complained that the Appellate Court had decided the case in private despite his request for an oral hearing.

2. Relying on Article 1 of Protocol No. 1, the applicant complained that he had been deprived of the outstanding dividend he was entitled to.

3. Referring to the outcome of the proceedings, the applicant complained under Articles 2, 3, 5, 14 and 17 of the Convention alleging health problems, mental suffering and humiliation due to the unfairness and the inordinate length of the proceedings. He also complained that he had been put in a disadvantageous position in relation to the other parties in the dispute (the company and its director); that the courts had based their decisions on forged documents and that they had concealed some evidence.

THE LAW

1.The applicant complained under Article 6 of the Convention alleging unfairness of the proceedings and arbitrariness in the decision-making of the national courts, in particular that they had erred in establishing the facts; that they had wrongly interpreted and applied the national law; that they had based their decisions on forged documents and that they had misinterpreted his claims. He alleged that the courts had not been impartial and that the proceedings had not complied with the “reasonable time” requirement. He also complained that the Appellate Court had decided the case in private despite the fact that he had requested a hearing.

Article 6, in so far as relevant, reads as follows:

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”

The applicant complaints that the length of proceedings was excessive.

(a) The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint at the present stage and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this point of the application to the respondent Government.

(b) The Court finds that the applicant’s complaints concerning the alleged erroneous establishment of facts, the incorrect assessment of the evidence and the wrongful application of the national law are manifestly ill-founded as of a fourth-instance nature, in particular as they relate to the outcome of the proceedings. According to its case-law, it is not the function of the Court to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention (see García Ruiz v. Spain [GC], no. 30544/96, § 28, 29, ECHR 1999-I). Moreover, while Article 6 of the Convention guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence or the way it should be assessed, which are therefore primarily matters for regulation by national law and the national courts (see Schenk v. Switzerland, judgment of 12 July 1988, Series A no. 140, p. 29, §§ 45-46). The Court also recalls that it is not within the province of the Court to substitute its own assessment of the facts for that of the national courts. The Court’s task is to ascertain whether the proceedings in their entirety, including the way in which evidence was permitted, were “fair” within the meaning of Article 6 § 1 (see Dombo Beheer B.V. v. the Netherlands, judgment of 27 October 1993, Series A no. 274, § 31). The Court notes that in the instant case the applicant was given sufficient opportunity to put forward his arguments and that these arguments, while duly taken into account by the domestic courts, were nevertheless rejected on the basis of a reasoning which appears consistent and devoid of any arbitrariness (see Osmani and Others v. the former Yugoslav Republic of Macedonia (dec.), no. 50841/99, 6.4.2000).

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.

(c) The Court finds unsubstantiated the applicant’s complaints that the national courts were not impartial, as no evidence has been provided in support of such allegations nor does it appear that the applicant challenged the trial judge who adopted the trial court decision.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

(d) Concerning the applicant’s complaint that the Appellate Court decided the case in private despite his request for an oral hearing, the Court reiterates that according to its case-law Article 6 § 1 does not guarantee a right of appeal. Nevertheless, a Contracting State which sets up an appeal system is required to ensure that persons within its jurisdiction enjoy before appellate courts the fundamental guarantees of Article 6 (see Delcourt v. Belgium, judgment of 17 January 1970, Series A no. 11, p. 14-15, § 25). However, the personal attendance of the applicant does not necessarily take on the same significance in an appeal hearing. Indeed, even where an appellate court has full jurisdiction to review the case on questions both of fact and law, Article 6 does not always entail the rights to a public hearing and to be present in person (see Belziuk v. Poland, judgment of 25 March 1998, Reports 1998-II, § 37). In this respect, regard must be had, inter alia, to the special features of the proceedings involved and the manner in which the defence’s interests are presented and protected before the appellate court, particularly in the light of the issues to be decided by it and their importance for the appellant (see among others Ekbatani, cited above, p. 12, § 25; Helmers v. Sweden, judgment of 29 October 1991, Series A no. 212-A, p. 15, §§ 31–32; and Kremzow v. Austria, judgment of 21 September 1993, Series A no. 268-B, p. 43, §§ 58–59).

The Court notes at the outset that the Skopje Basic Court heard the case in public before giving its decision. The Appellate Court was also called upon to examine the case as to the facts and the law. The applicant’s special request for a hearing before the Appellate Court had the purpose of giving him the opportunity to present his complaints orally and to put forward the material and oral evidence which he considered relevant. It is not apparent however that any new elements were raised which could not be examined on the basis of the existing file or that it involved any new evidence implying erroneous establishment of the facts.

In the circumstances, the Court considers that the Appellate Court could fairly and properly determine the issues before it without hearing the applicant in person. As the Appellate Court found no reasonable grounds to overrule the facts as established by the trial court, it upheld the latter’s decision, finding no reasons to depart from its conclusion. In short, the interests of justice and fairness were, in the circumstances, met by the applicant’s being able to present relevant considerations through making written submissions.

Accordingly, the Court’s view is that the applicant was not denied the right to a fair trial under Article 6 by the fact that the Appellate Court dispensed with a public hearing. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

2. Referring to the outcome of the proceedings, the applicant complained under Article 1 of Protocol No.1 that he had been deprived of the outstanding dividend he claimed to have been entitled to. Article 1 of Protocol No.1 reads as follows:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

The Court observes that since the applicant’s complaint under Article 1 of Protocol No.1 relates solely to the outcome of the proceedings, it is in fact a restatement of the complaints under Article 6 and dismissed under (b) above. It follows that this complaint is likewise manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

3. Referring to the outcome of the proceedings, the applicant complained under Articles 2, 3, 5, 14 and 17 of the Convention alleging health problems and mental suffering caused by the proceedings and that he had been put in a disadvantageous position in relation to the other parties to the dispute.

The Court finds these complaints wholly unsubstantiated and/ or misconceived. It follows that these complaints are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant’s complaint concerning the length of proceedings;

Declares the remainder of the application inadmissible.

Claudia Westerdiek Peer Lorenzen  
 Registrar President

 DIMITRIEVSKI v. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA DECISION


DIMITRIEVSKI v. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA DECISION