AS TO THE ADMISSIBILITY OF
Application no. 44208/02
by Petar ARSOV
against the former Yugoslav Republic of Macedonia
The European Court of Human Rights (Third Section), sitting on 12 May 2005 as a Chamber composed of:
Mr B.M. Zupančič, President,
Mr J. Hedigan,
Mr L. Caflisch,
Mrs M. Tsatsa-Nikolovska,
Mr V. Zagrebelsky,
Mrs A. Gyulumyan,
Mr David Thór Björgvinsson, judges,
and Mr V. Berger, Section Registrar,
Having regard to the above application lodged on 19 November 2002,
Having deliberated, decides as follows:
The applicant, Mr Petar Arsov, is a citizen of the fomer Yugoslav Republic of Macedonia who lives in the city of Kocani.
The facts of the case, as submitted by the applicant, may be summarised as follows.
During 1978/1979 the applicant opened two certificates of deposits in foreign currency in the Kocani office of the Jsc. “Stopanska Banka” Skopje for a fixed period of 25 months. The terms of the agreement were stated on the cover of the bank account savings card. There was a bank stamp which defined three terms of the deposit: the amount of the savings, the duration of the deposit and the interest rate of 10%. Since the parties did not terminate the agreement after it expired, it was considered that the certificate was extended. Until 1992 the bank continued to pay him interest rate, but at differing rates.
On 14 June 1991 the applicant brought claims against the Kocani branch office of the Jsc. “Stopanska Banka” Skopje, for payment of the difference in the interest rate. He considered that the bank had paid him a lower amount of the interest than was agreed.
On 30 October 1991 the Municipal Court of Kocani dismissed the applicant's claim. It found that until the end of October 1982 the applicant had received 10% interest. From October 1982 till the end of June 1986 the bank paid the applicant 11% interest, which was 1% higher than was stated at the bank stamp on the bank account savings card. From 1 July 1986 till the end of 1990 the bank had paid the applicant interest at a rate lower than 10%. This was pursuant to a bank decision, which was based on an inter-bank agreement which stipulated that domiciliary interest rate was to be calculated on the foreign currency deposits as of July 1986. In pursuance of that inter-bank agreement, the bank paid the applicant domiciliary interest rate which was lower than 10%. In absence of a written contract specifying fixed interest rate and the fact that the applicant accepted the payment of an interest of 11% for a certain period, the court concluded that an agreement with changeable interest rate existed between the parties.
On 20 November 1992 the then District Court of Stip upheld the applicant's appeal, quashed the lower court decision and ordered a retrial. It instructed the lower court to assess if there was an agreement between the parties or not, i.e. to examine whether the stamp on the bank account savings card could be treated as an agreement.
On 14 May 1993 the Municipal Court of Kocani upheld the applicant's claim. It found that the terms of the certificate of deposit, as stated on the bank stamp, were agreed upon by the parties and remained valid afterwards.
On 10 June 1993 the applicant appealed this decision asking the court to calculate the interest in foreign, not domestic, currency. The bank also lodged an appeal.
On 9 July 1993 the District Court of Stip upheld the appeals and ordered a retrial. It considered that the lower court had erred in assessing the facts about the period of validity of the certificate of deposit. It also instructed it to call for an expert opinion whether the interest for the respective period was paid in foreign currency or not.
On 24 March 1994 the Municipal Court partially upheld the applicant's claim. It found that the bank stamp was to be considered as an agreement between the parties and ordered the bank to pay the difference in the interest. The court dismissed the applicant's claim to pay this difference in foreign currency.
The applicant appealed this decision again on the ground that the interest should be calculated in foreign currency and paid either in foreign currency or in denar counter value according to the exchange rate valid on the date of the payment.
On 4 October 1994 the District Court upheld the applicant's claim and overturned the decision. It considered that there was an unlawful enrichment by the bank and as such the difference in the interest should be paid in foreign currency.
Once the District Court decision became final and executive, on 31 January 1995 the applicant instituted enforcement proceedings to redeem his claim.
On 1 February 1995 the Municipal Court of Kocani ordered the Payment Office to execute the decision and transfer the money to the applicant's attorney bank account.
On 13 February 1995 the Municipal Court dismissed the bank's objection and ordered enforcement of the execution order.
On 30 June 1995 the District Court of Stip dismissed the bank's appeal concerning the manner of the execution and upheld the execution order.
Before instituting the enforcement proceedings, on 4 January 1995 the applicant lodged a petition for review before the Supreme Court challenging the District Court decision on the ground that it did not charge the bank with the interest on the amount awarded. The bank also appealed to the Supreme Court.
On 26 February 1997 the Supreme Court upheld the parties' petitions for review (its decision was based on the arguments provided by the bank) and quashed the District Court decision of 4 October 1994. It held that the lower court had wrongfully applied the national law when assessing that there was unlawful enrichment by the bank. It also instructed the District Court to give consideration to the fact that the applicant had accepted the payment of a higher interest (11%) for a certain period of time and complained only when the bank had paid him lower interest. It judged that such behaviour revealed implicit consent of the applicant to a changeable interest rate.
Taking the Supreme Court instructions into consideration, on 17 November 1997 the Appellate Court of Stip quashed the lower court decision and ordered a retrial. It found that the lower court had erred in establishing and assessing the facts, especially whether and how the applicant responded when the bank had paid him higher interest (11%) than what was allegedly agreed.
On 23 November 2001 the Basic Court of Kocani dismissed the applicant's claim for payment of the difference in the interest rate on foreign currency deposits as ill-founded. It found that the applicant was aware of and accepted the payment of the interest rate of 11% (from October 1982 until July 1986) without challenging it. It also found that the applicant was presumed to be aware of the bank decision of lower interest rate on foreign currency deposits after July 1986, since it had posted the announcement at the bank counters. Having regard to the applicant's behaviour, the court furthermore concluded that an agreement for a changeable interest rate existed between the parties.
On 29 May 2002 the Appellate Court of Stip dismissed the applicant's appeal and upheld the lower court decision. Having regards to the established facts, the evidence adduced and the behaviour of the parties, the Appellate Court upheld the lower court's finding that the parties had agreed on a changeable interest rate in pursuance to the bank's internal regulations.
1. The applicant complains under Article 6 § 1 of the Convention that the proceedings lasted unreasonably long. He states that the procedure lasted for almost 11 years which contradicts the “reasonable time” requirement under the Convention.
2. The applicant complained under Article 1 of Protocol No. 1 that the national courts adopted two contradictory final judgments on the same issue. He alleged that the second decision of the Appellate Court of Stip from 2002 infringed the right to peaceful enjoyment of his possession over lawfully gained money.
1. The applicant complains under Article 6 § 1 of the Convention that the length of proceedings was excessive as they lasted for 10 years, 11 months and 11 days (they started on 14 June 1991 and ended on 29 May 2002). Article 6, insofar as relevant, 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 Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.
2. The applicant complained that the decision of 29 May 2002 which conflicted with an earlier decision of 4 October 1994 threatened the peaceful enjoyment of the money awarded under the latter decision.
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 considers that the applicant's complaints under Article 1 of Protocol No. 1 relate to the outcome of the proceedings solely. His allegations of violation of his right to peaceful enjoyment of his possession over the pecuniary sums received in the enforcement proceedings have to be examined within the structure of the proceedings before the national courts as a whole.
The circumstances of the case do not constitute an interference with the applicants' right to the peaceful enjoyment of his possessions as guaranteed by Article 1 of Protocol No. 1. The Court notes that it is for the national courts to establish the facts, adduce the evidence and apply the national law. The applicant neither complains, nor provides any evidence, of alleged arbitrariness or unfairness in the courts' reasoning during the proceedings, especially that of the Supreme Court which directed the subsequent procedure to the applicant's detriment. It is to be expected that the national courts may reach different judgments on the same issue during proceedings involving the establishment of facts. What matters is whether there is any indication of arbitrariness or unfairness in their decision making.
Moreover, the applicant could not have been unaware of the risk he was taking when bringing the enforcement proceedings against the bank. Having regard to the relevant applicable legislation the applicant must have known (and knew in practice) that the Supreme Court might have rejected or overturned the Appellate Court decision, annulling or changing thus the legal ground for the executive order. The applicant knew about the bank's petition for review and also lodged the same remedy before the Supreme Court. Such a situation where the applicant had accepted the risk of a possible different decision making in the subsequent stages of the procedure could not therefore reasonably have founded any legitimate expectation on his part.
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.
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.
Vincent Berger Boštjan
ARSOV v. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA DECISION
ARSOV v. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA DECISION