THIRD SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 64229/01 
by Dimče KOZAROV 
against the former Yugoslav Republic of Macedonia

The European Court of Human Rights (Third Section), sitting on 10 November 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, 
 Ms I. Ziemele, judges,  
and Mr V. Berger, Section Registrar,

Having regard to the above application lodged on 30 May 2000,

Having regard to the partial decision of 16 May 2002,

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 FACTS

The applicant, Mr Dimče Kozarov, is a Macedonian national who was born in 1932 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 parties, may be summarised as follows.

On 17 January 1997 the Skopje Pension and Disability Insurance Fund (“the Fund”), determined the amount of the applicant’s pension.

On 30 January 1997 the applicant lodged an appeal with the Fund’s Appeal Commission (Комисија за жалби при Фондот за пензиско и инвалидско осигурување на Македонија) on the ground that his pension entitlement had been incorrectly calculated.

On 5 June 1997 Appeal Commission dismissed his appeal.

Subsequently, the applicant instituted administrative contentious proceedings before the Supreme Court (Врховен суд на Република Македонија).

On 1 October 1997 the Supreme Court set aside the Fund’s decision and remitted the case to the Appeal Commission, pointing out that the administrative body had incorrectly interpreted and applied the law.

On 6 March 1998 the Government Appeal Commission (“the Commission”) dismissed the applicant’s appeal on the ground that Article 36 of the Pension and Disability Insurance Act (Закон за пензиското и инвалидското осигурување) imposed a general ceiling on the amount of pension awards, which also determined and had an effect on the highest pension award payable to the applicant.

On 6 May 1998 the applicant instituted administrative contentious proceedings before the Supreme Court.

On 6 October 1999 the court upheld his claim and declared the Commission’s decision null and void. It held that the applicant’s pension had not been calculated and upgraded correctly and gave instructions as to how the applicant’s pension was to be calculated in accordance with the Pension and Disability Insurance Act and its subsequent amendments.

The Commission took no action further to that judgment despite a submission by the applicant of 2 December 1999 that it should have not remained silent.

On 15 December 1999 the applicant applied to the Supreme Court, requesting it to render a judgment in the absence of an administrative decision concerning the amount of his pension pursuant to Article 64 § 2 of the Law on Administrative Disputes (Закон за управните спорови).

On 22 December 1999 the Supreme Court notified the Commission about the applicant’s request and asked for the reasons of its inactivity.

On 23 February 2000 the applicant repeated his submissions before the court, requesting adoption of a judgment in place of an administrative decision.

On 14 June 2000 the Supreme Court dismissed the applicant’s request on the ground that in the meantime, on 10 May 2000, the Commission had rendered a decision concerning the applicant’s claim and no judgment instead could be rendered.

On 7 June 2000 the applicant challenged the Commission’s decision by instituting administrative contentious proceedings before the Supreme Court. He observed, inter alia, that the Commission had again erred in law and had apparently disregarded the court’s legal reasoning and instructions given in its judgment of 6 October 1998. Pursuant to Article 63 of the Law on Administrative Disputes, the applicant asked the court to quash the decision and to decide in merits.

On 29 May 2002 the Supreme Court upheld the applicant’s complaint and declared the Commission’s decision null and void. It repeated its previous findings about wrongful application of the law and instructed the Commission to take into consideration its directives in the subsequent decision making.

On 30 August 2002 the Commission rendered a decision which was not in line with the instructions given by the Supreme Court.

On 30 September 2002, the applicant instituted, for the third time, administrative contentious proceedings before the Supreme Court on the same grounds as before.

On 16 April 2003 the Fund and the applicant concluded a court settlement about the pension amount to be awarded. It was concluded that the amount agreed would be retroactively paid to the applicant from the day when he met the criteria for age-retirement and that the difference between the amount actually paid and the amount agreed would be paid by the Fund in two instalments.

B.  Relevant domestic law

The relevant provisions of the Law on Administrative Disputes (Закон за управните спорови), which, in accordance with the Law on Implementation of the Constitution (Закон за спроведување на Уставот на Република Македонија) has continued to be applied, provide as follows:

Article 62 provides that when the court sets aside an administrative decision against which administrative contentious proceedings were instituted, the matter shall be restored to the state of affairs that existed prior to that decision. If the very nature of the subject-matter at issue in these proceedings requires a new decision to be made to replace the decision which has been set aside, the administrative body shall render such a decision without delay or within 30 days of delivery of the judgment at the latest. The administrative body is thus bound by the legal reasoning of the court and the instructions of the court in respect of the proceedings.

Article 63 governs situations where the administrative body, whose decision has been set aside, renders a decision contrary to the legal reasoning of the court or contrary to the instructions given by the court in respect of the proceedings. If the party lodges a further complaint, the court shall quash the challenged decision and by rule, shall resolve the subject-matter itself by rendering a judgment to this effect. Such a judgment shall replace in whole the decision of the relevant administrative body. The court shall accordingly notify the relevant supervisory body.

Pursuant to Article 64, if the administrative body whose decision was set aside does not give promptly or within 30 days a fresh administrative decision or a decision by which the court judgment is to be enforced, the party may request such a decision in his or her submission before it. In cases where the administrative body remains silent for seven days from the date of receipt of the party’s submission, the party may apply to the court that delivered judgment at first instance.

Article 64 § 2 imposes an obligation on the court to demand an explanation as to the reasons why the administrative body remained silent. The relevant administrative body is required to furnish the court with its justification within seven days. If no explanation whatsoever is provided, or if, in the court’s opinion, the reasons provided do not justify non-enforcement of the judgment, the court shall render a decision which will entirely replace the decision of the administrative body.

COMPLAINTS

The applicant complained under Article 6 § 1 of the Convention that he had not had his case heard within a “reasonable time”.

He further alleged a breach of Article 13 of the Convention in that he had no effective remedy against the protracted length of the proceedings.

THE LAW

The applicant complained under Article 6 § 1 of the Convention about the inordinate length of the proceedings. He further alleged a breach of Article 13 of the Convention in relation to the protracted length of the proceedings. Articles 6 and 13, insofar as relevant, provide:

Article 6

“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”

Article 13

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

A.  The Government’s objections

1.  The “status of victim”

The Government submitted that the applicant could not claim to be a victim as he had concluded a court settlement with the Fund about the amount of his pension. As the court settlement had waived the grounds for the applicant’s concern, he lost victim status and he could no longer claim to be directly affected with the issue complained of before the Court.

The applicant made no comments.

The Court notes that the word “victim” within the meaning of Article 34 of the Convention refers to the person directly affected by the act or omission at issue; and the existence of a violation is conceivable even in the absence of prejudice (see, inter alia, Van der Sluijs, Zuiderveld and Klappe v. the Netherlands, judgment of 22 May 1984, Series A no. 78, p. 16, § 37). Therefore, the fact that a court settlement concluded between private parties on their own, may have mitigated the disadvantage suffered by the applicant does not in principle deprive him of his status as “victim” (see Inze v. Austria, judgment of 28 October 1987, Series A no. 126, § 32). This is particularly so when the court settlement was not about the subject-matter raised by the applicant before the Court, but concerned the dispute before the national authorities. The position might have been otherwise if, for instance, the national authorities had acknowledged either expressly or in substance, and then afforded redress for, the alleged breach of the Convention (see, inter alia, Eckle v. Germany, judgment of 15 July 1982, Series A no. 51, § 66). The Court observes that the court settlement concluded between the applicant and the Fund did not acknowledge any failure to comply with the “reasonable time” requirement within the meaning of Article 6 § 1 of the Convention or afford the applicant redress in an express and measurable manner (see Jensen v. Denmark (dec.), no. 48470/99, ECHR 2001-X).

Accordingly, the Court finds that the applicant may claim to be a victim of a violation of his right to trial within a reasonable time. It follows that the Government’s objection must be rejected.

2.      Exhaustion of domestic remedies

The Government submitted that the applicant had failed to exhaust domestic remedies as he had instituted the proceedings before the Court in parallel with the proceedings before the national authorities. He had thus deprived the latter of the opportunity to determine his claim in meritum and asked the Court to decide instead.

The applicant rejected the Government’s arguments without elaboration.

The Court observes that the applicant’s complaint about the excessive length of the proceedings, lodged while they were still pending before the national authorities, did not influence the latter in deciding the subject-matter of the applicant’s claim. The issue of whether that claim was considered by the national authorities in “reasonable time” is a separate issue that is the subject matter of the applicant’s complaint before the Court. Therefore, the Court considers that the Government’s argument is misconceived. Nor have the Government specified what steps the applicant could have taken on a domestic level to expedite proceedings or otherwise obtain redress for the delay incurred. It follows that the Government’s objection must be rejected.

B.  Merits

The Government submitted that the proceedings under complaint consisted of two distinct sets of proceedings conducted on different grounds. In the first set of proceedings, the Supreme Court decided on the subject-matter of the applicant’s claim and remitted the case for re-examination to the administrative authorities. The dismissal of the applicant’s request for decision on the merits by the Supreme Court due to the inactivity of the administrative bodies fell within the first set. They argued that the second set of proceedings concerned the administrative contentious proceedings in which the Supreme Court set aside the Commission’s decision and remitted the case for re-examination a second time. None of these proceedings lasted for more than 24 months taken separately. The Government also noted the excessive workload of the Supreme Court and its proceedings with the complaints related to the local elections that took place in 2000.

As to the alleged lack of effective remedy against the protracted length of the proceedings, the Government stated that the administrative contentious proceedings were the means in which the applicant could and did obtain effective redress. In support, they referred to the Supreme Court’s independence and its jurisdiction to decide the matter on the merits and to the binding nature of its instructions to the administrative bodies. The court settlement on the pension award concluded before the Supreme Court confirmed that contention. As the dispute between the parties was of a financial, not a legal, nature (namely, determination of the amount of the applicant’s pension), the Supreme Court could not decide on the merits in place of the administrative authorities.

The applicant submitted in reply that the Government had not provided relevant arguments to counter his complaints before the Court. He reiterated that the administrative authorities did not follow the Supreme Court’s instructions and that the latter condoned their behaviour.

The Court considers, in the light of the criteria established by its case-law on the question of “reasonable time”, and having regard to all the material in its possession, that an examination of the merits of the complaint is required. It also finds that the complaint under Article 13 raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring them inadmissible has been established.

For these reasons, the Court unanimously

Declares the remainder of the application admissible, without prejudging the merits of the case.

Vincent Berger Boštjan M. Zupančič 
 Registrar President

KOZAROV v. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA DECISION


KOZAROV v. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA DECISION