Lexploria

FIRST SECTION

DECISION

Application no . 41107/07 Olga KOCESKA and others against the former Yugoslav Republic of Macedonia

The European Court of Human Rights (First Section), sitting on 22 October 2013 as a Chamber composed of:

Isabelle Berro-Lefèvre , President , Khanlar Hajiyev , Mirjana Lazarova Trajkovska , Julia Laffranque , Linos-Alexandre Sicilianos , Erik Møse , Ksenija Turković , judges , and Søren Nielsen , Section Registrar ,

Having regard to the above application lodged on 22 August 2007,

Having deliberated, decides as follows:

THE FACTS

1 . The applicants, Ms Olga Koceska (“ the first applicant”), M r Dimko K oceski (“the second applicant”) a nd Mr Blagoj č e K oceski (“the third applicant”), are Macedonian nationals, who were born in 19 57 , 19 5 4 and 199 5 respectively and live in Prilep . The first and second applicants are the parents of the third applicant.

A. The c ircumstances of the case

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

3 . As established in the course of the proceedings described below, companies M.T. and T.M.K. (“the companies”) started to construct a local telephone network. Heavy concrete pillars were unloaded on a children ’ s playground, which was near the construction site. At 5 p.m. on 23 October 2000 B.K., the fourteen-year old daughter of the first and second applicants, slipped and fell to the ground while climbing on the pillars. One pillar became dislodged and fell on top of her. As a result, she suffered serious head injuries and died on the spot. The third applicant, who was then four years old , was present at the time and witnessed the accident.

1. Criminal proceedings against Mr M.T. and Mr Z.K., the company employees held responsible

4 . On 27 September 2002 the Prilep Public Prosecutor ’ s office lodged an indictment of its own motion against Mr M.T. and Mr Z.K., employees in the companies responsible for the construction, accusing them of criminal offences directed against public safety. The first and second applicants took part in the proceedings as victims ( оштетени ).

5 . On 27 April 2005 the Prilep Court of First Instance found the accused guilty and sentenced them each to two years ’ imprisonment. The court held that, contrary to the applicable rules, they had failed to secure the construction site and the concrete pillars in order to avoid any risk of fatal consequences. It further advised the applicant s that t he y could claim compensation by means of a separate civil action before the civil courts.

6 . On 15 March 2006 the Bitola Court of Appeal accepted appeals by the accused and remitted the case to the trial court for a fresh examination. It ordered the trial court to reconsider the available evidence in order to establish whether the accused had been responsible for placing and securing the concrete pillars. It further rejected as inadmissible an appeal by the first and second applicants in which they complained about the penalty imposed.

7 . On 8 November 2006 the trial court acquitted Mr M.T., finding that he had not been responsible for the storage and unloading of the pillars. On the other hand, it convicted Mr Z.K. and sentenced him to one year ’ s imprisonment since he had authorised for the pillars to be unloaded and left unsecured in the vicinity of the children ’ s playground, despite the fact that he ought to have known that they were dangerous objects. The first and second applicants were again instructed that they could seek compensation before the civil courts. On 16 February 2007 the trial court rejected an appeal by the first and second applicants, finding that they had participated in the proceedings as victims and that they had been entitled, under the law, to challenge the judgment only in respect of the trial costs. Their appeal, by which they had challenged the merits of the judgment, had accordingly been inadmissible.

8 . On 28 March 2007 the Bitola Court of Appeal dismissed appeals by the public prosecutor and the first and second applicants (against the trial court ’ s decision of 16 February 2007) and allowed an appeal by Mr Z.K. As to the latter, the court dropped the charges on the ground that the prosecution of the offence had become time ‑ barred .

9 . In June 2009 the Ministry of Justice informed the first and second applicants that on 20 March 2009 the State Judicial Council ( Судски Совет на Република Македонија ) had dismissed the trial judge from office.

2. Compensation proceedings regarding the incident

10 . In 2003 the applicants lodged civil action for damages with the Prilep Court of First Instance claiming compensation from the two companies concerned; company B. that was also involved in the construction; the municipality of Prilep and the State (on behalf of the Prilep Public Prosecutor ’ s office and the first-instance court) for the pecuniary and non-pecuniary loss sustained as a result of the death of B.K. According to the applicants, no action had been taken in respect of their claim until December 2007, when their case was transferred to the Bitola Court of First Instance for consideration.

11 . On 12 September 2008 the Bitola Co urt of First Instance partly ruled in the applicants ’ favour . Referring to the findings of the criminal courts, the court ruled that the companies were at fault for having stored the concrete pillars unsecured on the children ’ s playground. It thus awarded the applicant s 61,000 Macedonian denars (MKD) in respect of p ecuniary damage for funeral costs and MKD 1,900,000 in respect of non-pecuniary damage on account of the mental distress caused. The court fixed the interest at the statutory rate to be calculated from the date of B.K. ’ s funeral (in respect of the pecuniary damage) and from the date of the judgment (concerning the non-pecuniary damage). It dismissed the applicants ’ claim against the municipality of Prilep and the State, finding no evidence that any responsibility could be attributed to them for the damage sustained. Lastly , it awarded the applicants MKD 157,400 for the trial costs incurred in the compensation proceedings. It dismissed their claim for reimbursement of the trial costs incurred in the criminal proceedings against Mr M.T. and Mr Z.K., arguing that they could only have been claimed in the course of those proceedings. On appeal by the applicants, in 2009 the Bitola Court of Appeal quashed that judgment and ordered a retrial.

12 . On 23 April 2010 the first-instance court again partly allowed the applicants ’ claim and awarded them the same amount in respect of pecuniary damage. It also increased the award in respect of non-pecuniary damage to MKD 2,500,000 and it awarded them MKD 376,630 for the trial costs incurred in those proceedings. It dismissed the claim against the municipality for lack of evidence and it noted that the applicants had withdrawn the claim against the State.

13 . On 24 January 2011 the Bitola Court of Appeal overturned that judgment and increased the amount of compensation awarded in respect of non-pecuniary damage by an additional MKD 200,000 It also amended the decision regarding the calculation of the interest. The rest of the first-instance court ’ s judgment remained the same. Consequently, the final award was set at MKD 61,000 (approximately EUR 1,000) in respect of pecuniary damage; MKD 2,700,000 (approximately EUR 44,000) in respect of non-pecuniary damage and MKD 376,630 (approximately EUR 6,120) in respect of trial costs and expenses.

B. Relevant domestic law

1. Civil Proceedings Act of 2005 ( Закон за парничната постапка )

14 . Section 1 1 (3) of the Civil Proceedings Act provides that civil courts are bound by decisions given by criminal courts finding an accused guilty, in respect of the commission of the offence and the convict ’ s criminal responsibility.

15 . Section 200 enumerates grounds under which civil proceedings are suspended ipso jure . Under section 201(2), the civil court may suspend proceedings if the decision depends on whether a criminal offence prosecutable ab initio was committed, who the perpetrator was and if he or she was guilty.

2. Criminal Code of 1996 ( Кривичен Законик )

16 . Pursuant to Article 107 § 1 ( 5 ) of the Criminal Code, prosecution of offences subject to a prison sentence of more than a year becomes statute- barred three years after the offence was committed.

17 . Under Article 108 § 6 of the Criminal Code, a prosecution will in any event be barred by prescription after a period equal to double the length of the statutory limitation period for prosecution of the offence has elapsed.

COMPLAINTS

18 . The applicants complained that the failure of the criminal courts to establish criminal responsibility for the death of B.K. had violated their rights under Article 2 of the Convention. Relying on Article 3, they alleged that they had suffered mental distress during the trial against Mr M.T. and Mr Z.K. and that there had also been a violation of their rights under Article 8 of the Convention on that account. They also complained under Article 6 of the Convention that the criminal proceedings had been lengthy and that both judgments of the trial court in those proceedings ( April 2005 and November 2006) had not been delivered in public. Lastly, they relied on Article 13 of the Convention.

THE LAW

19 . The applicants complained , under Article 2 of the Convention that, despite the death of B.K., those responsible for the incident had not been convicted and sentenced. T he Court note s that the focus of the applicants ’ complaint wa s the failure of the criminal courts to establish any criminal guilt for the incident in which B.K. had died . The applicants raise d no complaints or criticism as regards the civil proceedings . However, the Court considers that this complaint should be analysed in the context of the State ’ s positive obligation to protect the right to life . Article 2 of the Convention reads, in so far as relevant, as follows:

“1. Everyone ’ s right to life shall be protected by law .. .”

20 . The Court reiterates that Article 2 does not concern only deaths resulting from the use of force by agents of the State. In the first sentence of its first paragraph it places a positive obligation on the Contracting States to take appropriate steps to safeguard the lives of those within their jurisdiction. Such a positive obligation has been found to arise in a range of different contexts examined so far by the Court, for example, in the health ‑ care sector, be it public or private, as regards the acts or omissions of health professionals (see Dodov v. Bulgaria , no. 59548/00, §§ 70, 79-83 and 87 , 17 January 2008 ; Byrzykowski v. Poland , no. 11562/05, §§ 104 and 106 , 27 June 2006 ; and Vo v. France [GC], no. 53924/00, §§ 89-90 , ECHR 2004 ‑ VIII , with further references), as well as in respect of the management of dangerous activities (see Öneryıldız v. Turkey [GC], no. 48939/99, § 71, ECHR 2004 ‑ XII ), and ensuring safety on board a ship (see Leray and Others v. France ( dec. ), no. 44617/98 , 16 January 2001 ) or on building sites (see Pereira Henriques and Others v. Luxembourg ( dec. ), no. 60255/00, 26 August 2003).

21 . T he State ’ s duty to safeguard the right to life extend s to the taking of reasonable measures to ensure the safety of individuals in public places and, in the event of serious injury or death, having in place an effective independent judicial system securing the availability of legal means capable of establishing the facts, holding accountable those at fault and providing appropriate redress to the victim (see Ciechońska v. Poland , no. 19776/04 , § 67, 14 June 2011 , where the applicant ’ s husband died after being hit by a tree in a health resort).

22 . In some exceptional situations the Court has held that the authorities ’ positive obligations under Article 2 of the Convention entail recourse to criminal law remedies (see Öneryıldız , cited above, § 93, concerning a dangerous household-refuse tip, as well as Al Fayed v. France ( dec. ), no. 38501/02 , §§ 73-78, 27 September 2007, and Railean v. Moldova , no. 23401/04 , § 28, 5 January 2010, concerning road traffic accidents in which lives were lost in suspicious circumstances). However, if the infringement of the right to life is not intentional, Article 2 does not necessarily require such remedies; the State may meet its obligation by affording victims a civil - law remedy, either alone or in conjunction with a criminal - law one, enabling any responsibility of the individuals concerned to be established and any appropriate civil redress, such as an order for damages, to be obtained (see Anna Todorova v. Bulgaria , no. 23302/03, § 73, 24 May 2011).

23 . The Court reiterates in this connection that the choice of means for ensuring the positive obligations under Article 2 is in principle a matter that falls within the Contracting State ’ s margin of appreciation. There are different avenues to ensure Convention rights, and even if the State has failed to apply one particular measure provided by domestic law, it may still fulfil its positive duty by other means (see Ilbeyi Kemaloğlu and Meriye Kemaloğlu v. Turkey , no. 19986/06 , § 37, 10 April 2012, and Ciechońska , cited above, § 65). However, Article 2 of the Convention will not be satisfied if the protection afforded by domestic law exists only in theory: above all, it must also operate effectively in practice ( ibid . , § 66).

24 . T urning to the present case, t he Court observes that under the applicable legislation there were two available remedies in relation to the death of B.K., namely a State prosecution relating to the circumstances surrounding the incident and a civil action in tort that was open to the applicants against those they considered responsible. In the instant case, both avenue s of redress were used. The question is therefore whether in the circumstances of the case any of those procedures satisfied the State ’ s obligation under Article 2 of the Convention to provide an effective judicial system (see Anna Todorova , cited above, § 74).

25 . Having regard to the particular circumstances, the Court will proceed from the assumption that the events relating to the death of B.K. fall within the scope of Article 2 of the Convention. It also observes that there is no indicat ion that the tragic event was caused intentionally, and that the circumstances in which it occurred were not such as to raise suspicions in that regard. That was neither suggested by the applicants before the Court, nor could any such inferences be drawn from the available material. The refore , a criminal - law remedy was not necessarily called for under Article 2. However, as criminal proceedings were nevertheless brought, the Court deems it appropriate to examine whether they were sufficient to satisfy the State ’ s positive obligations under Article 2.

26 . The Court observes that the tragic incident which resulted in the death of B.K. occurred on 23 October 2000. Two years later the Prilep Public Prosecutor ’ s office lodged an indictment in proprio motu against two employees of the companies which were responsible for the construction. It took over two and a half years for the trial court to give the judgment of 27 April 2005 in which it found the accused guilty. After the Court of Appeal remitted the case to the trial court for a fresh examination, the trial court acquitted Mr M.T. and convicted Mr Z.K. However, that judgment was partly overturned by the Bitola Court of Appeal, which dropped the charges in respect of Mr Z.K. as the statutory time-limit had expired. In such circumstances, the investigation and the ensuing proceedings in the instant case can hardly be regarded as having been effective for the purposes of Article 2. It is, then, necessary to examine the effectiveness of the civil proceedings brought by the applicants ( ibid . , § 79).

27 . As to t he civil action for compensation that the applicants brought against the companies, it is not in doubt that such proceedings are, in principle, capable of providing adequate redress in relation to a negligent act causing death , as was the case with the death of B.K. Those proceedings were instituted in 2003, three years after the incident. No explanation was given for this delay. As stated by the applicants, their action had not been considered until December 2007, when the case was transferred to the Bitola Court of First Instance. No information was provided as to why those proceedings lay dormant during that time. However, it may be assumed that they were, in fact, stayed pending the outcome of the criminal proceedings (see paragraphs 14 and 15 above). Three years after the case had been assigned to the Bitola Court of First Instance and after one remittal, t he civil court s found , in a final judgment, that the companies were liable for the death of B.K. (see paragraph s 12 and 13 above ), and awarded the applicants a reasonable amount of compensation in respect of pecuniary and non-pecuniary damage . There is no information to suggest that the applicants have not been able to recov er the sums due from the companies. Accordingly , the civil ‑ law remedy that was available to the applicants can in the circumstance of the present case be regarded as effective for the purposes of Article 2 of the Convention.

28 . In the light of the above considerations, notwithstanding the undoubtedly tragic events in this case, it cannot be held that the State failed to provide an effective judicial system in relation to the death of B.K. ( see, mutatis mutandis , Demir v. Turkey ( dec. ), no. 34885/06, 13 November 2012). The Court therefore considers that this part of the application must be rejected pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

29 . The applicants also complained about the negative effect of the criminal proceedings on their rights under Articles 3 and 8 of the Convention. They further alleged under Article 6 that those proceedings were incompatible with the “reasonable time” requirement and that the trial court ’ s judgments had not been delivered in public. Lastly, they invoked Article 13 of the Convention.

30 . The Court has examined these complaints as submitted by the applicants. However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.

31 . It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Søren Nielsen Isabelle Berro-Lefèvre Registrar President

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KOCESKI v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"

KOCESKI v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"