AS TO THE ADMISSIBILITY OF
Application no. 26615/02
by Nada MILTENOVIC
against the former Yugoslav Republic of Macedonia
The European Court of Human Rights (Fifth Section), sitting on 19 June 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 19 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 Nada Miltenovic, is a Macedonian national who was born in 1940 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 7 July 1994 the applicant 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 together with interest. On 11 November 1998 the decision became final.
On 29 January 1999 the applicant requested the Skopje Court of First Instance II to enforce the judgment (предлог за извршување).
On 1 February 1999 it granted her request. On 10 February 1999 it transmitted the case to the Skopje Court of First Instance I, the court with jurisdiction to process her request.
On 26 March 1999 the Skopje Court of First Instance I granted the applicant’s request and ordered the Public Payment Bureau (Завод за платен промет) to transfer from her employer’s account the amount due to her. On 10 September 1999 it issued the order and served it on the Public Payment Bureau. However, the order was not enforced as there were no funds in the account.
The applicant did not request the court to enforce her claim by proposing other means of enforcement as specified by law (see “Relevant domestic law”).
2. The second set of proceedings
On 28 August 1995 the applicant instituted civil proceedings against her employer challenging her dismissal (in December 1994).
On 20 February 1998 the Skopje Court of First Instance II upheld her claim and ordered her employer to reinstate her and to reimburse her trial costs. On 28 April 1998 that decision became final.
On 30 June 1998 the applicant requested the court to enforce the decision by fining the employer and instituting criminal proceedings against its manager should he refuse to comply with the decision. On 2 September 1998 the court asked the applicant to produce a letter of authority for the attorney who had submitted the enforcement request on her behalf.
On 17 September 1998 the applicant submitted the letter of authority.
On 25 September 1998 the Skopje Court of First Instance II granted the applicant’s request.
On 17 November 1998 the Skopje Court of First Instance II fined the employer for failing to comply with the order. It also set another time-limit for compliance.
On 23 December 1998 the applicant made a fresh enforcement request in respect of the court costs that had been incurred in the enforcement proceedings.
On 30 December 1998 the Skopje Court of First Instance II granted her request and ordered her employer to pay the additional costs.
In separate criminal proceedings, on 18 March 1999 the Skopje Court of First Instance II convicted and fined the employer’s manager, Mr K., for failing to comply with its orders.
It would appear that the employer reinstated the applicant by a decision of 9 July 1998 which took effect from 29 March 1999. However, it did not pay the costs she had incurred in the substantive civil action and the enforcement proceedings.
On 1 June 1999 the Skopje Court of First Instance II ordered the Public Payment Bureau (Завод за платен промет) to transfer from the employer’s account the amount due to the applicant. It stipulated that in the event of there being insufficient funds, the Public Payment Bureau was to keep a record of the order and enforce it when funds became available.
The order was not enforced as there were no funds in the account.
The applicant did not request the court to enforce her claim by proposing other means of enforcement as specified by law.
3. The third set of proceedings
On an unspecified date in 1998 the applicant brought an action against the employer for the payment of salary and related allowances for the period from September 1994 to November 1998.
On 30 March 1999 the Skopje Court of First Instance II granted the applicant’s claim. On 7 June 1999 its decision became final.
On 21 June 1999 the applicant sought an order for the transfer of the amount due to her from the employer’s account.
On 2 July 1999 the Skopje Court of First Instance II granted the applicant’s request. At a hearing on 15 July 1999 the applicant asked the court to set the employer a new time-limit for voluntary compliance with the order. The court also ordered her to pay the court fees.
At a hearing on 5 October 1999 the applicant requested the court to allow her to propose an alternative means of enforcement in accordance with law, as the employer’s account reportedly had no funds. The court directed that, if she wished to seek a charging order over her employer’s immovable property, she should produce a certificate of title and written evidence that the property was not mortgaged.
According to the applicant, on 6 October 1999 she obtained a certificate of title confirming that her employer was the owner.
On 15 November 1999 the Skopje Court of First Instance I informed the trial judge (following his request of 8 November) that a third party had taken a mortgage over the property on 10 September 1998.
On 26 November 1999 the Skopje Court of First Instance II refused a request by the applicant for an inventory, valuation and public sale of the employer’s property as a result of the mortgage to the third party.
On 16 December 1999 the applicant appealed against that decision to the Skopje Court of Appeal (Апелационен Суд Скопје).
On 20 January 2000 the Court of Appeal quashed the lower court’s decision and ordered a retrial. It held that the mere fact that another creditor had taken a mortgage over the employer’s property did not justify refusing the applicant’s request. It instructed the lower court to determine the order of precedence of the claims and to proceed with the enforcement of the applicant’s claims in accordance with that order.
On 20 March 2000 the Skopje Court of First Instance II granted the applicant’s request and ordered a public sale of the property.
After an unsuccessful attempt to serve the order on the employer, on 24April and 8 June 2000 the court requested police assistance. On 20 June 2000 the police informed the court that the company had ceased trading for more than a year and the address of its head office was unknown.
At a hearing on 23 June 2000 the applicant asked for the order to be served on the manager of her employer at his home address.
On 8 July 2000, with assistance from the police, officials from the court handed the order to the manager.
At a hearing on 6 October 2000 an expert was appointed with instructions to provide a valuation of the property by 2 November 2000. He was granted an extension of time until 24 November 2000. However, as the decision to grant the extension was not served on the manager, the court set 21 December 2000 as the new date for the valuation. The manager was not served with these decisions until 11 February 2001, and, as a result, the valuation was postponed until 5 April 2001.
However, it did not take place on that date either as, according to the manager, the third party mortgagee had already foreclosed.
On 10 April and 4 June 2001 the Skopje Court of First Instance II requested the Skopje Court of First Instance I, which kept the records of the mortgage, to confirm whether this was true.
On 27 June 2001 the Skopje Court of First Instance I forwarded the case-file to the Skopje Court of First Instance II.
In the meantime, the applicant wrote to the court four times requesting it to decide her claims.
On 13 July 2001 the Skopje Court of First Instance II dismissed 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 party on 3 June 1999. On 10 November 1999 the creditor in those proceedings had taken possession of the property.
On 7 September 2001 the applicant appealed against that decision to the Skopje Court of Appeal (Апелационен Суд Скопјe)
On 25 October 2001 the Skopje Court of Appeal upheld the decision of the lower court, holding that it had correctly decided that the enforcement proceedings could not continue as the employer’s property had already been transferred to a third party.
The applicant did not request the court to enforce her claim by proposing other means of enforcement as specified by law.
B. Relevant domestic law
Section 27 of the Enforcement Proceedings Act (“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 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.
Section 225 provides, inter alia, that a fine may be used to secure an employer’s compliance with an order for reinstatement of an employee.
The applicant complained under Article 6 of the Convention about the inordinate length of each set of 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 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 noted that under the domestic law the courts were bound to act in accordance with the creditor’s (in the instant case, the applicant’s) requests for enforcement. In each of the proceedings complained of the applicant had initially submitted a request for the money due to her to be paid from the employer’s account. Only in the third set of proceedings had she subsequently requested a charging order over her employer’s property after realising that her employer had no funds in its account. According to the Government, the courts could not be held responsible for the lack of funds. They further maintained that the courts had proceeded with the case with due diligence and in accordance with domestic law. In particular, the scheduled hearings had been held without any interruption or delays and the courts had decided the applications with reasonable expeditiousness. They also argued that the applicant had unnecessarily burdened the courts with allegations that the employer had been unlawfully restructured and the mortgage forged, as those issues had been res judicata: the judge had only acted upon her submitted request and had no authority to reopen the issue of the validity of the mortgage once it had been established in another proceedings.
The applicant argued that the protracted length of the proceedings was wholly attributable to the State, as it had failed to put in place an organised and coordinated system of communication between public institutions, including the Restructuring Agency (Агенција за Приватизација). She contested the Government’s argument that her claim could not have been enforced because of a lack of funds in her employer’s account, noting that the courts had delayed in drafting the decision in the first set of proceedings, and had thus failed to submit the order to the Public Payment Bureau in good time. Moreover, she asserted that she had been instructed by the courts to choose a particular means of enforcement. She also observed that the restructuring of her employer was neither complete or in the correct form and alleged that it was still a socially-owned company.
1. The Court notes that none of the civil proceedings on the merits lasted more than four years and four months: the first set of proceedings lasted from 7 July 1994 to 11 November 1998; the second from 28 August 1995 to 28 April 1998; and the third from 1998 to 7 June 1999. Concerning the first and second sets 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.
Having regard to the fact that the period falling within the Court’s competence ratione temporis in relation to each set of proceedings did not exceed a year and seven months, the Court does not consider that they 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 that are the subject of the applicant’s complaints, the Court reiterates that, according to its established case-law, Article 6 § 1 of the Convention, secures to everyone the right to have any claim relating to his civil rights and obligations brought before a court or tribunal; in this way it embodies the "right to a court", of which the right of access, that is the right to institute proceedings before courts in civil matters, constitutes one aspect (see Philis v. Greece, judgment of 27 August 1991, Series A no. 209, p. 20, § 59). However, that right would be illusory if a Contracting State’s domestic legal system allowed a final, binding judicial decision to remain inoperative to the detriment of one party. It would be inconceivable that Article 6 § 1 should describe in detail procedural guarantees afforded to litigants – proceedings that are fair, public and expeditious – without protecting the implementation of judicial decisions; to construe Article 6 as being concerned exclusively with access to a court and the conduct of proceedings, would be likely to lead to situations incompatible with the principle of the rule of law which the Contracting States undertook to respect when they ratified the Convention (see, mutatis mutandis, Golder v. the United Kingdom, judgment of 21February 1975, Series A no. 18, pp. 16-18, § 34-36). Execution of a judgment given by any court must therefore be regarded as an integral part of the "trial" for the purposes of Article 6 (see Hornsby v. Greece, judgment of 19 March 1997, Reports of Judgments and Decisions 1997-II, § 40; Burdov v. Russia, no. 59498/00, § 34, ECHR 2002-III).
In this respect, the Court reiterates that Article 6 § 1 of the Convention requires that all stages of legal proceedings for the “determination of ... civil rights and obligations”, not excluding stages subsequent to judgment on the merits, be resolved within a reasonable time (see Estima Jorge v. Portugal, judgment of 21 April 1998, Reports of Judgments and Decisions 1998-II, §35; Robins v. the United Kingdom, judgment of 23 September 1997, Reports 1997-V, p. 1809 § 28). Therefore, the execution of a judicial decision cannot be unduly delayed (see Immobiliare Saffi v. Italy [GC], no.22774/93, ECHR 1999-V, § 66).
The Court reiterates that it is for the Contracting States to organise their legal systems in such a way that their courts can guarantee everyone’s right to obtain a final decision on disputes relating to civil rights and obligations within a reasonable time (see among other authorities, Muti v. Italy, judgment of 23 March 1994, Series A no. 281-C, § 15; Horvat v. Croatia, no. 51585/99, § 59, ECHR 2001-VIII).
Turning to the present case, the Court notes that Article 6 applies to the enforcement proceedings the applicant brought against her employer. It must, therefore, determine whether the enforcement proceedings were incompatible with the “reasonable-time” requirement as set forth in Article 6 of the Convention.
(a) The Court notes that the first set of proceedings began on 29 January 1999 after the court decision of 28 April 1998, upholding the applicant’s claim, had become final. The court issued the order on 1 February 1999. As the applicant did not lodge the request with the court with jurisdiction ratione loci, the case was transmitted to the court of competent jurisdiction, which issued the order on 26 March 1999. The decision was made and forwarded to the Public Payment Bureau on 10 September 1999. The order was based on the applicant’s request and required the Payment Bureau to transfer the money due to the applicant from the employer’s account. It has not been enforced to date as there were no funds in the account.
In these circumstances, although the enforcement proceedings are technically still open, the Court considers that for all practical purposes they “ended” in respect of the means of enforcement as proposed by the applicant (transfer of funds from the employer’s account) in September 1999 after the order was served on the Payment 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 Payment Bureau for execution once funds become available. Furthermore, as the national courts are 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 action once it had complied with the applicant’s request as submitted. As the applicant failed to suggest an alternative means of enforcement, the court was not required to take any further steps. Therefore, the enforcement proceedings which were pursued in accordance with law lasted about eight months, almost two months of which were the result of the applicant’s submitting her request to the wrong court.
The Court, therefore, does not consider that the length of the first set of proceedings failed to comply with the “reasonable-time” requirement.
(b) The Court observes that the second set of enforcement proceedings began on 30 June 1998 after the court decision of 20 February 1998, declaring the applicant’s dismissal null and void, became final. After the applicant had finalised her request by submitting the letter of authority for her lawyer, on 25 September 1998 the court made an order requiring her employer to reinstate her. On 17 November 1998 it fined the employer for refusing to comply with the order. On 29 March 1999 the applicant was reinstated. A further request lodged with the court on 23 December 1998 for enforcement of the order for costs incurred in the enforcement proceedings was upheld on 30 December 1998. On 1 June 1999 the court ordered the Payment Bureau to transfer the money due to the applicant from the employer’s account. This order has not been enforced to date as there are no funds in the account.
The Court notes that the proceedings relating to the applicant’s reinstatement lasted approximately five months (from June until November 1998). Three months of that period were taken up waiting for the letter of authority the applicant had been requested to submit for her lawyer. Under the domestic law, a fine may be imposed on a recalcitrant employer to secure compliance with a reinstatement order. Given the manner in which the enforcement proceedings were pursued, the Court considers that there was no unreasonable delay in enforcing the applicant’s request for reinstatement.
The Court observes that its reasoning in relation to the length of the first set of proceedings (see above) applies mutatis mutandis to the proceedings concerning the applicant’s subsequent request for enforcement of the order for costs. Although there has been no formal decision staying the proceedings, in practice they “ended” five months after they were brought, as the applicant has failed to lodge a request proposing other means of enforcement as specified by law. The Court’s opinion is that that duration cannot be considered unreasonable.
(c) On 2 July 1999 the domestic court granted the applicant’s initial request of 21 June 1999 for an order attaching the employer’s account. In October 1999 the applicant sought a charging order over the employer’s property. The enforcement proceedings concerning the latter means as proposed by the applicant ended. They lasted about two years (until October 2001) for two levels of jurisdiction, with three first-instance decisions and two court of appeal decisions. The Court notes that the proceedings in issue were factually complex, as they were initially directed at obtaining a valuation of the employer’s property and subsequently continued with the refusal of the applicant’s request as the property had already been transferred into the possession of a third party. They also required the solution of complicated practical issues for which police assistance was requested to serve the orders on the employer whom they had had difficulty in tracing. Given the manner in which the enforcement proceedings were pursued, the Court cannot conclude that the events between the submission of the applicant’s request for enforcement of the employer’s property (October 1999) and the court of appeal’s decision dismissing it (October 2001), infringed the applicant’s right to have the court decision enforced without unduly delay.
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
MILTENOVIC v. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA DECISION
MILTENOVIC v. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA DECISION