THIRD SECTION

PARTIAL 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 16 May 2002 as a Chamber composed of

Mr G. Ress , President , Mr I. Cabral Barreto , 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 30 May 2000,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Dimce Kozarov, is a national of the Former Yugoslav Republic of Macedonia who was born in 1932 and lives in Skopje.

A. The circumstances of the case

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

On 17 January 1997 the Skopje Pension Fund ( Фонд за пензиско и инвалидско осигурување на Македонија – Подрачна единица Скопје ), being a public entity, determined the amount of the applicant’s pension.

On 30 January 1997 the applicant lodged an internal appeal on the ground that his pension entitlement had been incorrectly calculated.

His appeal was dismissed by the Appeals Board ( Комисија за жалби при Фондот за пензиско и инвалидско осигурување на Македонија) on 5 June 1997.

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 pension fund’s decision and remitted the case to the Appeals Board, pointing out that the administrative body had incorrectly interpreted and applied the law.

By a decision of 6 March 1998 the Government Appeals Board (Комисија за решавање во втор степен по предметите од пензиското и инвалидското осигурување при Владата на Република Македонија) dismissed the applicant’s administrative appeal on the ground that section 36 of the Pension and Disability Insurance Act 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.

Following a complaint lodged by the applicant on 6 May 1998 concerning the same claim, the Supreme Court, in a judgment delivered on 6 October 1999, set aside that decision. 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 Government Appeals Board took no action further to that judgment despite a submission by the applicant of 2 December 1999 that the appeal board should have not remained silent.  

On 15 December 1999 the applicant applied to the Supreme Court, requesting it to render a judgment in lieu of a missing administrative decision concerning the amount of his pension pursuant to section 64 § 2 of the Law on Administrative Disputes.

On 22 December 1999 he repeated his submission before the court, requesting urgent delivery of a judgment that would entirely replace the administrative decision.

On 14 June 2000 the Supreme Court dismissed that application on the ground that in the meantime, on 10 May 2000, the Government Appeals Board had rendered a decision concerning the applicant’s claim and no judgment in lieu thereof could be rendered.

On 7 June 2000 the applicant challenged the administrative decision by lodging a complaint before the Supreme Court. He observed, inter alia , that the Government Appeals Board had again erred in law and had apparently disregarded the court’s legal reasoning and instructions given in its judgment of 6 October 1998. Т he applicant , in accordance with section 63 of the Law on Administrative Disputes, asked the court to quash the administrative decision of 10 May 2000 and to render a judgment that would finally accept and rectify his claim. These proceedings are still pending before the Supreme Court.

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 published in the Official Gazette No.52/91 (Закон за спроведување на Уставот на Република Македонија), has continued to be applied after the independence of the Former Yugoslav Republic of Macedonia , provide as follows:

Section 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.

Section 63, which is of particular relevance in this case, 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 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.

Section 64 provides that 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.

Paragraph 2 of section 64 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

1. The applicant complains in substance about the length of proceedings without relying on any specific provision of the Convention.  

2. He further relies on Article 13 of the Convention, complaining that he has no effective remedy at his disposal in respect of such excessive length of proceedings. 

3. The applicant also complains under Article 1 of Protocol No. 1 to the Convention of an infringement of his right to peaceful enjoyment of his possessions.

4. Finally, he alleges a violation of Article 13 of the Convention, claiming that he does not have an effective remedy under the domestic legal system, which will rectify the amount of his pension entitlement.

THE LAW

1. The applicant complains that the proceedings he instituted before the administrative authorities and the Supreme Court have been unreasonable long, without relying on any specific provision of the Convention to that effect. The Court considers it necessary to examine his complaint under Article 6 § 1 of the Convention, the relevant parts of which read 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 § 3 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

2. The applicant further complains about the lack of an effective domestic remedy in respect of his right guaranteed by Article 6 § 1 of the Convention. He relies in that connection on Article 13 of the Convention, which reads as follows:

“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.”

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 § 3 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

3. The applicant also complains that the failure of the relevant national authorities to rectify his pension entitlement resulted in a violation of his property right in breach of Article 1 of Protocol No. 1 to the Convention.

In the light of the judicial decisions delivered in the instant case and the information furnished by the applicant, the Court notes that the proceedings that gave rise to the complaint under Article 1 of Protocol No. 1 are still pending before the Supreme Court. Therefore, this part of the application is premature.

It follows that this part of the application must be rejected under Article 35 § 1 of the Convention for non-exhaustion of domestic remedies.

4. Lastly, the applicant complains that he has no effective remedy at his disposal for the protection of his right to the peaceful enjoyment of his possessions because no redress in respect of his right to a pension has yet been afforded.

The Court reiterates that Article 13 of the Convention does not require a remedy which is bound to succeed, but simply an accessible remedy before an authority competent to examine the merits of a complaint.  

The Court observes that the applicant was able to lodge an appeal and a complaint concerning his claim before the national authorities.

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

Decides to adjourn the examination of the applicant’s complaint under Article 6 § 1 of the Convention concerning the length of the proceedings and his complaint under Article 13 of the Convention concerning the lack of an effective remedy in this respect;

Declares inadmissible the remainder of the application.

Vincent Berger Georg Ress Registrar President