FIFTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 34112/02 by Risto BAJRAKTAROV against the former Yugoslav Republic of Macedonia

The European Court of Human Rights ( Fifth Section), sitting on 12 June 2006 as a Chamber composed of:

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

Having regard to the above application lodged on 26 August 2002 ,

Having deliberated, decides as follows:

THE FACTS

A. The circumstances of the case

The applicant, Mr Risto Bajraktarov , is a national of the former Yugoslav Republic of Macedonia who was born in 1937 and lives in Å tip . He is represented before the Court by Mr T. Torov , a lawyer practising in Å tip , in the former Yugoslav Republic of Macedonia .

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

On 11 April 1984 Štip Municipal Court found the applicant guilty of several offences: bribery; trading with gold coins and foreign currency; abuse of office and theft, and sentenced him to seven years and one month ’ s imprisonment. The cour t also ordered the confiscation fro m the applicant ’ s bank accounts of funds related to the criminal offence of “trading with gold coins and foreign currency”.

On 17 January 1985 Štip District Court partly upheld the applicant ’ s appeal and reduced the sentence to three and a half years ’ imprisonment. It dismissed the appeal in so far as it concerned the alleged time bar applying to prosecution for the criminal offence of “trading with gold coins and foreign currency” and the confiscation of the applicant ’ s funds.

On 17 October 1986 Štip Municipal Court ordered the funds, confiscation of which had been ordered, to be transferred from the applicant ’ s bank accounts to the State ’ s budget.

On 20 December 1988 , on the applicant ’ s request, the then Federal Court of Yugoslavia quashed the lower courts ’ decisions in respect of the above-mentioned offence, the sentence imposed and the confiscated funds. It found that the courts below had wrongly applied the statutory rules concerning the time bar for prosecuting certain offences. It also ordered a retrial.

On 5 October 1989 Štip Municipal Court stayed the criminal proceedings against the applicant concerning the criminal offence of “trading with gold coins and foreign currency” as the Public Prosecutor had withdrawn the indictment because of the absolute time bar. It also decided that the confiscated funds should be returned to the applicant.

On 17 December 1990 Štip Municipal Court partly upheld the applicant ’ s request for enforcement of the court decision of 5 October 1989 and refused to award interest, as there had been no order in relation to interest. The court also found that the confiscated funds had been transferred to the Municipality of Štip which had subsequently transferred them to the then Štip Secretariat of the Interior.

On 14 January 1991 Štip Municipal Court dismissed the challenge by the Municipality of Štip . On 20 February 1991 Štip District Court dismissed the Municipality ’ s appeal against that decision.

On 19 October 1991 the applicant instituted civil proceedings for damages against the Municipality of Å tip and the State in respect of the interest on the unreturned funds. He claimed interest from 17 October 1986 (the date when the funds had been confiscated) until the funds had been restored on him (he meantime specified his claim requesting damages as of 20 October 1986 ).

On 8 April 1993 Štip Municipal Court rejected the applicant ’ s claim as premature, as he had failed to apply to the competent authority for compensation for the wrongful conviction. It established that on 17 May 1990 the applicant had asked the then Skopje Secretariat for Justice and Administration (“the Secretariat”) for compensation for the wrongful conviction only in respect of his earnings and other rights deriving from his employment, but that he had not asked for the interest on the confiscated funds.

On 19 August 1993 Štip District Court dismissed the applicant ’ s appeal and upheld the lower court ’ s decision.

On 8 February 1994 the Supreme Court upheld the applicant ’ s appeal on points of law ( ревизија) and quashed the lower courts ’ decisions. It held that the lower courts had wrongly applied domestic law as the applicant ’ s claim should not have been regarded as a request for compensation for wrongful conviction. The court found that the Municipal Court ’ s decision of 5 October 1989 had established that the confiscated funds should be returned to the applicant (which was actually done on 28 February 1993 ) and that decision was to be regarded as an order on which the applicant could base his claim for payment of interest. The court went on to conclude that the applicant had not needed to apply to the relevant Ministry for compensation, because there was a final order for restitution of the funds.

On 12 May 1994 Štip Municipal Court upheld the applicant ’ s claim in part concerning the unpaid interest on the national currency funds. It dismissed the part concerning the payment of statutory interest in respect of the outstanding interest on foreign currency funds. It established inter alia that the foreign curren cy funds had been transferred to the applicant ’ s account on 12 April 1993 .

On 30 November 1994 Štip District Court partly upheld the lower court ’ s decision. Upon the applicant ’ s appeal, it quashed the part concerning the statutory interest on foreign currency funds instructing the lower court to establish whether the applicant had received interest on these funds during the period preceding the confiscation.

On 26 September 1995 the Supreme Court upheld the request for the protection of legality ( барање за заштита на законитоста) lodged by the Public Prosecutor and quashed the lower courts ’ decisions. It found that the lower courts had erroneously applied national law awarding the applicant double interest on the foreign currency funds. It concluded that the applicant had received an interest, but that it had not been apparent what that interest had been about.

On 15 December 1995 Štip Municipal Court upheld the applicant ’ s claim ordering the Municipality of Štip and the State to award the applicant interest on the confiscated funds from 1 January 1989 until 12 April 1993 (the date of restoration of the confiscated funds) together with interest from 13 April 1993 to 15 December 1995 .

On 31 January 1996 Štip District Court dismissed the appeals of the Municipality of Štip and the Deputy Solicitor General ( Заменик Јавен Правобранител) and upheld the lower court ’ s decision.

On 7 March 1996 the applicant lodged before Å tip Court of First Instance a request for enforcement of that decision.

On 8 July 1996 Štip Court of First Instance ordered the Public Payment Office ( Завод за Платен Промет) to transfer the awarded money to the applicant ’ s account .

On 14 May 1997 the Supreme Court quashed the lower courts ’ decisions and ordered a retrial. It found that they had wrongly applied domestic law in that they had incorrectly referred to the principles of the civil law in respect of compensation for damage instead of applying the provisions of the Criminal Proceedings Act concerning compensation for damage, rehabilitation and the restoration of other rights to persons wrongfully convicted and imprisoned.

On 8 July 1997 Štip Court of First Instance ordered the Payment Exchange Office ( Завод за Платен Промет ) to transfer the amount from the Municipality ’ s account to the applicant ’ s.

On 29 October 1997 the Municipality of Štip lodged with the court a request for restoration of the funds already transferred in the applicant ’ s account on the basis of the court decision of 15 December 1995 .

On 23 June 1998 Štip Court of First Instance dismissed the applicant ’ s claim in respect of the Municipality of Štip and declared inadmissible the part directed against the State. It found that the applicant had failed to claim the interest as compensation for wrongful conviction before the then Secretariat and as such, had lost the right to institute civil proceedings for damages on the same ground. As that claim could only have been lodged against the State, the court concluded that the Municipality was immune from suit in the instant case.

On 24 November 1998 Štip Court of Appeal upheld the applicant ’ s appeal and remitted the case for re-examination. It found that the lower court had erroneously established the facts in that it had ignored that the applicant had, on 7 September 1993, requested the then Ministry of Justice and Administration to pay him the interest and that, in the Ministry ’ s letter of 30 September 1993, the applicant had been instructed to lodge a civil claim before the court of competent jurisdiction.

On 30 June 1999 Štip Court of First Instance dismissed the applicant ’ s claim against the Municipality of Štip and the State. The court held that the Municipality was immune from suit in the instant case and, concerning the claim against the State, the court concluded that the Federal Court of Yugoslavia had not pardoned the applicant or overturned his conviction on the merits, but had quashed it solely because of the absolute time bar. Therefore, the trial court found that the applicant had not been wrongly convicted and that consequently, the State had not been responsible for the damage.

On 14 February 2000 Štip Appeal Court upheld the applicant ’ s appeal and ordered a retrial. It found that the trial court had erroneously established the facts and wrongly applied domestic law. It held that the applicant ’ s claim should not have been regarded as a compensation claim for wrongful conviction (under the Criminal Proceedings Act), but should be treated as a civil claim for damages.

On 18 April 2000 the President of Štip Court of First Instance dismissed as ill-founded the applicant ’ s complaints that the trial judge had been incompetent, unethical, biased and had prolonged the proceedings. It found that the grounds on which the applicant had based his request for the judge ’ s removal from the case were to be considered as grounds for appealing the trial court decision and not as grounds on which to challenge the judge.

On 23 May 2000 Štip Basic Court dismissed as ill-founded the applicant ’ s claim against the Municipality of Štip and the State without making a distinction within the period for which interest was claimed. It held that the Municipality had been immune from suit in the instant case as the compensation claim for wrongful conviction could only have been lodged against the State. It established that the applicant had lodged his compensation claim for wrongful conviction, in respect of the interest, with the then Secretariat out of time (three years after the final decision by which the criminal proceedings against him were stayed) and as such it was time-barred. It inter alia , held that:

“... In accordance with section 542 § 1 of the Criminal Proceedings Act, the plaintiff [the applicant] can claim damages under section 542 § 2 of the Act before the competent State body and is entitled to be compensated within three years after the decision to stay the proceedings becomes final. In the instant case, the decision of 5 October 1989 by which the criminal proceedings ... were stayed was served on the applicant on 20 October 1989 and it became final on 24 October 1989 . On 7 September 1993 the plaintiff lodged his claim for unpaid interest on the confiscated funds with the Secretariat for Justice and Administration. On 30 September 1993 the latter instructed the plaintiff to lodge his claim with the court of competent jurisdiction. It appears that the plaintiff could have lodged such a request until 24 October 1992 at the latest. Therefore, the application lodged on 7 September 1993 was time-barred ...”

Despite that, the trial court considered the case on the merits and found that the funds had been confiscated in lawful proceedings held by the courts. The Federal Court of Yugoslavia neither pardoned the applicant nor found substantial procedural defects or an erroneous establishment of facts. It had quashed the lower courts ’ decisions because of the time bar. The trial court therefore went on to conclude that the State could not be held liable for the damage sustained by the applicant.

On an unspecified date the applicant appealed. He also expressed his doubts as to the trial judge ’ s impartiality, challenging her capacity and the way she had interpreted and applied domestic law. She had requested the appellate court to remit the case to another trial judge if and when it ordered a retrial.

On 13 November 2000 Štip Court of Appeal dismissed the applicant ’ s appeal as ill-founded. It held inter alia that:

“... In accordance with section 543 § 3 of the then Criminal Proceedings Act, a claim for damages is lodged against the Republic...on the territory of which the first-instance court is located... That provision precisely determines the entity against which a compensation claim can be lodged and as the Municipality is not included therein ... it can be decisively concluded that in the instant case proceedings can only be brought against the Republic of Macedonia . Therefore, the Court of First Instance correctly concluded that the Municipality was immune from suit ...”

It went on to conclude that:

“... section 542 § 1 of the Criminal Proceedings Act governs proceedings concerning compensation claims. The party concerned was obliged to lodge his claim for damages first with the then Secretariat for Justice and Administration (the Ministry of Justice) and to propose a settlement for the damage, namely its form and amount. If the compensation claim was not upheld or the administrative body failed to adjudicate within three months from the day the claim was brought, the party concerned could lodge his claim for damages with the court of competent jurisdiction... In the instant case, the decision of 5 October 1989 to stay the criminal proceedings was served on the plaintiff on 20 October 1989 and became final on 24 October 1989 . He lodged his claim for damages in respect of unpaid interest with the Secretariat for Justice and Administration on 7 September 1993 although it was supposed to have been filed by 24 October 1992 at the latest. That means that it was not lodged within the time provided for in section 542 of the then Criminal Proceedings Act... The first-instance court correctly dismissed the plaintiff ’ s [the applicant ’ s] claim because, in the opinion of this court, the plaintiff is not entitled to court protection unless and in so far as he complied with section 542 § 2 of the then Criminal Proceedings Act ...”

In December 2000, the applicant lodged with the Supreme Court an appeal on points of law in which he had reiterated his claim and had referred to the previous decisions adopted at different court levels throughout the proceedings. He restated that his claim should not be considered as a damage claim for wrongful conviction, but as civil one.

On 6 March 2001 the Public Prosecutor lodged with the Supreme Court an observation concerning the applicant ’ s appeal on points of law, as a possibility deriving under the Civil Proceedings Act (see “Relevant domestic law”). It stated that it would refrain from lodging a separate request for the protection of legality with a purpose of not prolonging the proceedings. It supported the appeal in part, concerning the claim against the State, submitting that domestic law had been wrongly applied in that the courts had found that the applicant should first have sought compensation from the relevant Ministry before applying to the court of competent jurisdiction. It stated that interest should be calculated as of the day when the court decision staying the criminal proceedings had become final until the restoration of the confiscated funds.

On 29 November 2001 the Supreme Court dismissed the applicant ’ s appeal on points of law ( ревизија) and upheld the lower courts ’ decisions. It considered reasonable the findings that the damage had originated in the criminal proceedings and that as such the compensation should have been claimed in accordance with the principles of the criminal, not the civil, law. The court did not comment on the Public Prosecutor ’ s observation.

The decision was served on the applicant on 27 February 2002 .

B. Rele vant domestic law

In accordance with section 376 of the Civil Proceedings Act ( Закон за парничната постапка) the presiding judge of the council of the first-instance court shall submit a copy of a timely, complete and admissible appeal on points of law ( ревизија) to the opponent party to the proceedings and to the public prosecutor competent to lodge a request for the protection of legality . The public prosecutor shall also be served with a transcript of the judgment challenged by the appeal on points of law. Within 30 days of the service of the appeal on points of law, the opponent party may submit to the court a reply to the appeal and the public prosecutor may comment on it.

COMPLAINTS

The applicant complained under Article 6 of the Convention of procedural unfairness, in that the courts had arbitrarily decided his case as they had wrongly applied domestic law and had adopted different decisions on the merits. He alleged that in its last decision the Supreme Court had not provided reasons for the different legal conclusions and that it had failed to comment on the Public Prosecutor ’ s observation in support of the applicant ’ s appeal on points of law. He complained that the trial judge had been biased as she had worked as an assistant to the Deputy Solicitor General (who represented the State in the instant case) when they had both worked in the Public Prosecutor ’ s Office and that she had acted under the latter ’ s instructions in prolonging the proceedings. He also complained that his case had not been heard within a reasonable time.

The applicant complained under Article 5 § 5 of the Convention that he had not been compensated for the deprivation of his liberty by a decision which had subsequently been reversed.

The applicant complained under Article 1 of Protocol No.1 that he had been deprived of his possessions (court costs plus interest) without that being justified by any public interest.

He relied on Article 3 of Protocol No.7, claiming that he had only partly been compensated for the wrongful conviction (he had never received interest on the confiscated funds).

THE LAW

1. The applicant complained under Article 6 of the Convention of unfairness, on the following grounds: lack of reasoning; lack of impartiality of the trial judge and unreasonable length of proceedings. 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 ... hearing within a reasonable time by an independent and impartial tribunal established by law.”

(a) The Court considers that it cannot, on the basis of the case file, determine the admissibility of the length-of-proceedings 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.

(b) The applicant essentially complained that the courts had wrongly applied domestic law and had adopted different decisions on the merits throughout the proceedings. He also complained that the decisions had lacked reasoning, in particular the last decision of 29 November 2001 in which the Supreme Court had not commented on the Public Prosecutor ’ s observations in support of the applicant ’ s appeal on points of law.

In so far as the applicant ’ s complaint may be understood to concern the result of the proceedings in the domestic courts, the Court recalls that it is not its function to deal with errors of fact or law allegedly committed by a domestic 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, Article 6 of the Convention does not preclude domestic courts from reaching different decisions throughout the proceedings, unless there is an indication of arbitrariness followed by a flagrant denial or miscarriage of justice, which is not apparent in the instant case. The Court therefore considers that the applicant ’ s allegations of arbitrariness are of a clear fourth-instance nature.

Concerning the applicant ’ s complaints that the decisions lacked reasoning, the Court reiterates at the outset that “the national courts must ... indicate with sufficient clarity the grounds on which they based their decision. It is this, inter alia , which makes it possible for the accused to exercise usefully the rights of appeal available to him” ( see Hadjianastassiou v. Greece , judgment of 16 December 1992 , Series A no. 252, § 33) . Moreover, “Article 6 § 1 obliges the courts to give reasons for their judgments, but cannot be understood as requiring a detailed answer to every argument. The extent to which this duty to give reasons applies may vary according to the nature of the decision. It is moreover necessary to take into account, inter alia , the diversity of the submissions that a litigant may bring before the courts and the differences existing in the Contracting States with regard to statutory provisions, customary rules, legal opinion and the presentation and drafting of judgments. That is why the question whether a court has failed to fulfil the obligation to state reasons, deriving from Article 6 of the Convention, can only be determined in the light of the circumstances of the case” (see Ruiz Torija v. Spain , judgment of 9 December 1994, Series A no. 303 ‑ A, § 29) .

Turning to the present case, the Court observes that the national courts indeed reached different decisions on the merits throughout the proceedings, but that those decisions did not lack sufficient reasoning. The factual and legal reasons for the last trial court decision of 2000 dismissing the applicant ’ s claim as time-barred were duly set out . Moreover, the trial court went on to consider the applicant ’ s claim on the merits and provided sufficient reasons for its findings. In the judgment at the appeal stage , the appellate c ourt endorsed the statement of the facts and the legal reasoning given by the trial court in so far as they did not conflict with its own findings. The applicant may not therefore validly argue that these judgments lacked reasons . The fact that the Supreme Court did not address in its decision of 29 November 2001 the Public Prosecutor ’ s observation in support of the applicant ’ s appeal on points of law does not alter such conclusion because that observation was not a significant factor in the decision-making as it did not provide any new information that had been unknown to the court.

Therefore, the Court notes that the applicant was given sufficient opportunity to present his arguments and that such 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 arbitrariness (see Osmani and Others v. the former Yugoslav Republic of Macedonia ( dec .), no. 50841/99, ECHR 2001 ‑ X ).

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

(c) The applicant alleged that there had been a legitimate reason to fear bias on the part of the trial judge as she had formerly been an assistant of the Deputy Solicitor General (who represented the State in the instant case) when they had both worked in the Public Prosecutor ’ s Office. The case file shows that the applicant challenged the trial judge on several grounds: for being incompetent, unethical, biased and for having prolonged the proceedings. The Court notes that the President of Štip Court of First Instance dismissed the applicant ’ s objections as ill-founded, finding those grounds insufficient for the judge ’ s removal. The applicant however failed to raise his misgivings as to the trial judge ’ s impartiality owing to her close relationship with the Deputy Solicitor General in the subsequent appeal to the appellate court. The Court therefore considers that the applicant failed to exhaust the domestic remedies with regard to his allegations that the trial judge was biased.

It follows that this complaint must be rejected under Article 3 5 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

2. The applicant complained under Article 1 of Protocol No.1 that he had been deprived of his possessions in that he had not been awarded the damage he had claimed (the interest on the confiscated funds) or the court costs. 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 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.

3. Although the case file does not reveal whether the applicant served the sentence, the Court observes that the appl icant ’ s complaint under Article 5 § 5 is incompatible ratione temporis since the facts complained of relate to a period prior to 10 April 1997, when the Convention entered into force in respect of the former Yugoslav Republic of Macedonia.

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

4. Concerning the applicant ’ s complaint under Article 3 of Protocol No.7, the Court observes that this Article provides for a right to compensation for miscarriages of justice, when an applicant has been convicted of a criminal offence by a final decision and has suffered punishment as a result. It finds that this Article is inapplicable in the present case, as the applicant was not convicted by a "final decision": the criminal proceedings against him were stayed as the Public Prosecutor had withdrawn the indictment because of the absolute time bar (see Stamoulakatos v. Greece ( dec .), no. 42155/98).

It follows that this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.

F or these reasons, the Court unanimo usly

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

Declares the remainder of the application inadmissible.

Claudia Westerdiek Peer Lorenzen Registrar President