THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 68286/01 by Dimitar NAKOV against the Former Yugoslav Republic of Macedonia

The European Court of Human Rights (Third Section) , sitting on 24 October 2002 as a Chamber composed of

Mr G. Ress , President , Mr L. Caflisch , Mr P. Kūris , Mr B. Zupančič , Mr J. Hedigan , Mrs M. Tsatsa-Nikolovska , Mr K. Traja , judges , and Mr V. Berger , Section Registrar ,

Having regard to the above application lodged on 28 November 2000,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Dimitar Nakov, is a national of the Former Yugoslav Republic of Macedonia, who was born in 1942 and lives in Štip. He is represented before the Court by Mrs Lenče Sofronievska and Ms Ana Sofronievska, lawyers practising in Skopje.

A. The circumstances of the case

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

On 21 October 1983 the Å tip Municipal Public Prosecutor ( Општинскиот јавен обвинител од Штип ) filed a request with the Å tip Municipal Court ( Општински суд во Штип ) to open an investigation procedure against the applicant on the basis of serious and well-reasoned suspicions that the applicant had abused his official duty as a Deputy General Manger of “MK Astibo” company and had thus committed the criminal offence proscribed in Section 177 § 4 in conjunction with § 1 of the Criminal Code ( Кривичен закон на Социјалистичка Република Македонија ). In addition, the prosecutor proposed to the court to issue an order for the detention of the applicant on remand because there were reasonable suspicions that he might impede the investigation by influencing witnesses and destroying material evidence.

On 26 October 1983 the Å tip Municipal Court rendered a decision for opening investigation proceedings against the applicant and ordered his detention on remand for 30 days, effective on the same date.

On 24 November 1983 that court quashed the detention order, finding that the grounds for maintaining the applicant in detention had ceased to exist.

On 9 December 1996 the Štip Basic Court ( Основен суд во Штип ) rendered a decision closing the investigation proceedings against the applicant because, as indicated in the statement of the Štip Higher Public Prosecutors Office ( Вишо јавно обвинтелство во Штип ) supplied to the court on 6 December 1996, the statutory time-limit for prosecution had expired.

The applicant submits that subsequently, on 6 May 1997, he filed a civil action against the State before the Štip Basic Court ( Основен суд во Штип ) for the compensation of pecuniary and non-pecuniary damages suffered during investigation and for deprivation of liberty. He further maintains that he instituted the court proceedings following a request filed with the Ministry of Justice ( Министерство за правда ) to which there was no reply within the statutory time-limit.  The total amount of the applicant’s claim for just compensation was 1,224,000 denars .

On 15 September 1998 the Å tip Basic Court rendered a judgment by which it partially accepted the applicant’s claim and awarded him compensation of a total amount of 950,440 denars. The amount of 50,440 denars was awarded as compensation for the pecuniary damages related to defence expenses incurred in the investigation proceedings, whereas the remaining portion of 900,000 denars was awarded in compensation for the mental sufferings and pain caused by the impairment of the applicant’s honour, reputation, and fundamental rights and freedoms experienced during the investigation proceedings, which lasted for almost 13 years.

The court also imposed an obligation on the defendant State to pay to the applicant a statutory default interest computed as of 7 May 1997, the date when the applicant lodged his complaint with the court. In addition, it awarded the applicant costs and expenditures incurred in these proceedings amounting to 89,620 denars .

On 14 December 1998 the Å tip Appellate Court ( Апелационен суд Штип) partially accepted the appeal lodged by the defendant State, finding that the lower court erred in the application of the law. It reversed the judgment of the first-instance court and substantially reduced the amount of compensation awarded to the applicant, by holding that the applicant was to receive compensation only for non-pecuniary damage suffered on account of his deprivation of liberty during the 30-day detention on remand, of an amount of 100,000 denars, coupled with statutory default interest which was to be computed from the date of delivery of the first-instance judgment. It also reduced the procedural costs awarded to the applicant to 38,500 denars .

On 15 March 2000 the Supreme Court ( Врховен суд на Република Македонија ) refused to entertain the applicant’s appeal on points of law and refrained from examining the merits of the applicant’s case on the basis of Article 368 § 2 of the Code of Civil Procedure ( Закон за парничната постапка ), which provides that such an extraordinary judicial remedy may be used only in disputes whose value, as set out in the impugned part of the final judicial decision, exceeds a certain value prescribed by law. The court found that the value of the applicant’s dispute as set out in the impugned Appellate Court’s decision was lower than that set by law, which according to the new procedural rule amounted to 1,000,000 denars. The applicant alleges that he was served with that decision on 30 May 2000.

B. Relevant domestic law

Article 13 § 2 of the Constitution of the Republic of Macedonia ( Устав на Република Македонија ), published in the Official Gazette no.52/91 , provides, inter alia , that a person unlawfully detained, apprehended or convicted has a right to legal redress and other rights determined by law.

The provision contained in Section 530 § 1, item 1, of the Code of Criminal Procedure ( Закон за кривичнатa постапка ) , which, in accordance with the Law on the Implementation of the Constitution of the Republic of Macedonia (Закон за спроведување на Уставот на Република Македонија), published in the Official Gazette no.52/91 , has continued to be applied after the independence of the FYR of Macedonia , presribes that the person entitled to compensation for damages shall be the person who was detained on remand and gainst whom no criminal proceedings were instituted or were terminated by a final court decision, or the person who was acquited by a final judgment or the criminal charges against whom were rejected.

The relevant parts of Section 382 of  the Code of Civil Procedure ( Закон за процесната постапка ) which, in accordance with the Law on the Implementation of the Constitution has continued to be applied after the independence of the FYR of Macedonia, and which has governed the procedural rules concerning appeals on points of law (hereinafter referred as revision) prior to the enactment of the new law by which the financial threshold for its admissibility was increased, read as follows:

“The parties may lodge a request for revision against a final judgment rendered at second instance within 30 days from the date when the party was served with a certified copy of the judgment.

The revision shall be inadmissible in disputes where the claim pertains to money, the delivery of objects or the undertaking of certain activities, provided that the value of the dispute as set out in the impugned part of the final judgment does not exceed 8,000 dinars.”

Section 368 of the Code of Civil Procedure ( Закон за парничната постапка ), published in the Official Gazette no.33/98, applicable as of 19 July 1998, provides inter alia that revision shall be inadmissible in disputes where the claim pertains to money, the delivery of objects or the undertaking of certain activities, provided that the value of the dispute as set out in the impugned part of the final judgment does not exceed 1,000,000 denars.

The transitional and final provisions contained in Section 475 of the Code of Civil Procedure inter alia state that if the first-instance judgment was brought after the date of entry into force of the new Code, the proceedings shall continue to be conducted according to its provisions.

COMPLAINTS

1. The applicant complains under Article 3 of Protocol No. 7 to the Convention about not being afforded just compensation for the damage he suffered during his detention on remand and for an apparent miscarriage of justice in his case by the national authorities. In this respect he asks the Court to quash the domestic courts’ decisions granting him extremely low compensation and to award him just satisfaction under Article 41 of the Convention.

2. The applicant further relies on Article 6 § 1 of the Convention, alleging that his right of access to a court was breached because of the refusal of the Supreme Court to entertain his appeal on points of law and to adjudicate on the merits of the case contrary to the procedural rules governing the admissibility of this remedy.

THE LAW

1. The applicant complains that he was not awarded just compensation for the damages he suffered during his detention on remand and for the miscarriage of justice in his case, in breach of Article 3 of Protocol No. 7 to the Convention, which reads as follows:

“When a person has by a final decision been convicted of a criminal offence and when subsequently his conviction has been reversed, or he has been pardoned, on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to the law or the practice of the State concerned, unless it is proved that the non ‑ disclosure of the unknown fact in time is wholly or partly attributable to him.”

The Court notes that the applicant was detained on remand for about thirty days over the course of the investigation proceedings instituted against him on 26 October 1983. It also notes that the investigation proceedings against the applicant were terminated by a final court decision on 9 December 1996 on the ground that the statutory time-limit for prosecution had expired.

The Court observes that the Article invoked by the applicant in support of his complaint guarantees the right to compensation only when a person has been convicted of a criminal offence by a final decision, whereas in the instant case the applicant has never been brought to a trial and has never been convicted.

The Court recalls that the applicant was afforded compensation for his sufferings during his detention on remand by the national courts. As to the applicant’s request to quash the domestic courts’ decisions because of the low compensation awarded to him for the alleged miscarriage of justice in his case, the Court stresses that it is not called upon, within the Convention system, to play the role of a court of cassation vis-à-vis national courts.

In the light of all the material in its possession, and in so far as the matters complained of were within its competence, the Court finds that they do not disclose any appearance of a violation of the rights set out in Article 3 of Protocol No.7 to the Convention.

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

2. The applicant further complains of a violation of his right to a court because the Supreme Court refused to entertain his appeal on points of law. In this respect, he relies on Article 6 § 1 of the Convention, the relevant parts of which read as follow:

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

At the outset, the Court reiterates that Article 6 of the Convention does not compel the Contracting States to set up courts of appeal or of cassation (see, among other authorities, Delcourt v. Belgium , judgment of 17 January 1970, Series A no. 11, pp. 14–15, §§ 25–26). However, where such courts do exist, the guarantees of Article 6 must be complied with, for instance in that it guarantees to litigants an effective right of access to the courts for the determination of their “civil rights and obligations”.

The Court further recalls that the “right to a court”, of which the right of access is one aspect, is not absolute; it is subject to limitations permitted by implication, in particular where the conditions of admissibility of an appeal are concerned, since by its very nature it calls for regulation by the State, which enjoys a certain margin of appreciation in this regard. However, these limitations must not restrict or reduce a person’s access in such a way or to such an extent that the very essence of the right is impaired; lastly, such limitations will not be compatible with Article 6 § 1 if they do not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be achieved (see, among other authorities, Brualla Gómez de la Torre v. Spain , judgment of 19 December 1997, Reports of Judgments and Decisions 1997-VIII, p. 2955, § 33, and Edificaciones March Gallego S.A. v. Spain , judgment of 19 February 1998, Reports 1998-I, p. 290, § 34).

The manner in which Article 6 § 1 applies to courts of appeal or of cassation depends on the special features of the proceedings concerned and account must be taken of the entirety of the proceedings conducted in the domestic legal order and the court of cassation’s role in them. In this connection, the Court has recognised that the conditions of admissibility of an appeal on points of law may be stricter than for an ordinary appeal (see, among other authorities, Levages Prestations Services v. France , judgment of 23 October 1996, Reports 1996-V, p. 1544, §§ 44–45).

The rules which govern the conditions for the admissibility of appeals before highest judicial authorities are undoubtedly designed to ensure the proper administration of justice and compliance with, in particular, the principle of legal certainty. Those concerned must expect those rules to be applied (see, mutatis mutandis , Pérez de Rada Cavanilles v. Spain , judgment of 28 October 1998, Reports 1998-VIII, p. 3255, § 45).

In the instant case, the Court observes that the applicant’s claim for compensation of the damage suffered in the course of his detention on remand was examined by the court of first instance. The applicant also availed himself of the right to appeal to the court of second instance.

The Court further notes that the applicant’s appeal on points of law subsequently lodged with the Supreme Court was dismissed, in a preliminary examination and without entering into the merits of the case, on the ground that the conditions for admissibility required by the new procedural law, which entered into effect almost two months before the first-instance judgment in respect of the applicant’s claim was delivered, were not fulfilled. In particular, the Supreme Court held that the value of the dispute as set out in the impugned part of the Appellate Court’s decision was lower than that prescribed by the new law.

The Court attaches a particular importance to the fact that a new Code of Civil Procedure was enacted and entered into force while the proceedings concerning the applicant’s claim for compensation of damages were still pending before the court of first instance. However, it appears that the new Code and its application by the Supreme Court have had no retroactive effect, since according to the transitional provisions of Section 475, the new procedural rules were applicable to all subsequent stages of the proceedings where the first-instance judgment was given after the date of its entry into effect, i.e. 19 July 1998. These new procedural rules were thus applied in the applicant’s case since the first-instance judgment ruling on his claim was made on 15 September 1998. The Court notes that this solution follows the generally recognised principle that, save where expressly provided otherwise, new procedural rules apply to proceedings that are underway, as they were in the instant case. The Court also maintains that the enactment of the new Code of Civil Procedure cannot be regarded as having been aimed at prejudicing the outcome of the applicant’s case.

Having regard to the fact that the new rules for the admissibility of appeals before the Supreme Court were prescribed by a law published in the Official Gazette, and thus were foreseeable and accessible, the Court concludes that the applicant should have been aware of the procedural restrictions when seeking redress and being able to avail himself of the right to appeal before the highest national judicial authority.

Insofar as the applicant’s complaint may be understood to concern the way in which the Supreme Court has interpreted and applied these procedural rules, by taking the value of the dispute as established in the impugned part of the Appellate Court’s decision to be the relevant figure, instead of the value of the dispute as set out in the initial complaint filed with the court of first instance, which according to the applicant would have been the correct interpretation, the Court reiterates that it is not its task to take the place of the domestic courts. It is primarily for the national authorities, notably the courts, to resolve problems of interpretation of domestic legislation, and the Convention organs must not substitute their own interpretation to that of the domestic courts in the absence of arbitrariness. This applies in particular to the interpretation by courts of procedural rules concerning formal requirements and time-limits for lodging of appeals (see, mutatis mutandis , Tejedor García v. Spain , judgment of 16 December 1997, Reports 1997-VII, p. 2796, § 31).

In the Court’s opinion the manner in which the Supreme Court interpreted the relevant procedural rules, and its finding that the applicant’s appeal on points of law did not meet the admissibility requirement prescribed therein, cannot be viewed as arbitrary and unreasonable.

The Court above all notes that the appeal to the Supreme Court was made in the instant case after the applicant’s claim had been heard by both courts of first and of second instance (the Štip Basic Court and the Štip Appellate Court), each of which had full jurisdiction. It also notes that the applicant did not call into question the fairness of the proceedings before those courts. Therefore, the mere fact that the Supreme Court refused to entertain the applicant’s appeal on points of law cannot be regarded as a denial of access to court.

In light of the foregoing and having regard to the proceedings as a whole, the Court considers that the very essence of the applicant’s right guaranteed under Article 6 § 1 of the Convention was not impaired.

It follows that this complaint 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

Declares the application inadmissible.

Vincent Berger Georg R ess Registrar President