SECOND SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 58185/00 by Sofka JANEVA against the Former Yugoslav Republic of Macedonia

The European Court of Human Rights, sitting on 23 October 2001 as a Chamber composed of

Mr C.L. Rozakis , President , Mr A.B. Baka , Mrs V. Stráznická Mrs M. Tsatsa-Nikolovska , Mr E. Levits , Mr A. Kovler ,

Mr V. Zagrebelsky , judges , and Mr E. Fribergh , Section Registrar ,

Having regard to the above application introduced on 9 February 2000 and registered on 19 June 2000,

Having deliberated, decides as follows:

THE FACTS

A. The circumstances of the case

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

The applicant, Sofka Janeva, is a national of the Former Yugoslav Republic of Macedonia and lives in Štip (the Former Yugoslav Republic of Macedonia). She is represented before the Court by Mr Trajče Torov, a lawyer practising in Štip.

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

On 31 October 1991 the applicant’s husband Mr J. was dismissed from his job as chief-salesman in a private shop because of breach of professional duties and of disciplinary regulations. He was accused of not having observed the general manager’s instruction prohibiting sale on credit, thereby causing considerable material damage to the company.

On an unspecified date criminal proceedings were instituted against Mr J. for having misappropriated company funds. Subsequently, they were terminated on the ground that no criminal offence had been committed.

On 30 December 1991 Mr J. lodged an appeal against his dismissal with the Å tip Labour Court.

At the beginning of 1992, following the abolition of the labour courts, Mr J.’s case was transferred to the Štip Municipal Court. On 26 January 1993 the court dismissed the appeal holding that Mr J. had been lawfully dismissed.

On 10 June 1993 the Štip County Court granted Mr J.’s subsequent appeal and referred the case back to the Štip Municipal Court. It instructed the lower court to examine the investigation file concerning the charges against Mr J. for having misappropriated company funds and to order preparation of a financial report, inter alia , in respect of the alleged deficit on the shop’s balance sheet.

On 24 March 1994 the Štip Municipal Court quashed the order for Mr J’s dismissal on the grounds that he was only following instructions from his superiors and that the balance sheet of the shop where Mr J. used to work had not shown any deficit.

On 28 December 1994 the Štip County Court, quashed the lower court’s judgment and referred the case back to it for re-examination on the ground that Mr J.’s lawyer had not been properly empowered. It instructed the lower court to order preparation of a financial report in order to establish if there had been a deficit on the balance sheet of the respective shop and to hear some additional witnesses.

Following the enactment of the Law on Courts on 27 July 1995, the Å tip County Court became the Å tip Appellate Court and the Å tip Municipal Court became the Å tip Trial Court.

The Štip Trial Court listed several hearings between 1995 and the beginning of 1997. Most of them were adjourned as the judge had been replaced or because some of the summoned witnesses, experts, or the other party’s representative failed to appear before the court.

On 20 April 1997 Mr J. died.

At the hearing of 27 May 1997 before the Štip Trial Court the applicant, being Mr J.’s heir, informed the court that she would continue the labour proceedings. As some of the lay-judges in the case had been replaced, the main hearing and the examination of the evidence had to start all over again in accordance with Article 315 of the Code of Civil Procedure as applicable at the relevant time. However, the hearing was adjourned again as one of the witnesses failed to appear before the court.

At the hearing of 16 June 1997 the applicant agreed not to interrogate an additional witness who on several occasions, albeit summoned, failed to appear before the court. The Štip Trial Court found in a judgment of the same date that the applicant’s husband had been unlawfully dismissed as the financial report prepared by two experts indicated that the shop where the applicant’s husband used to work did not show any deficit.

On 21 January 1998 the Štip Appellate Court quashed the first instance court’s judgment holding that the court had assessed the facts wrongly. It remitted the case for re-examination to the Štip Trial Court and instructed it to order an additional expert report which would take into account that in the meanwhile there had been a revalorization of the national currency.

On 16 March 1998 the Å tip Trial Court adjourned the hearing in view of the establishment of the above-mentioned report.

On 30 March 1998 the expert report was prepared and served on the parties.

The Štip Trial Court adjourned the hearing of 7 May 1998 as the applicant’s representative asked an additional question to be put to the expert. At the hearing of 28 May 1998 the other party agreed to the applicant’s motion that some witnesses who had already given evidence be re-interrogated.

The hearing was adjourned until 25 June, and then until 2 and 28 September and 21 October 1998, as the applicant’s representative and some witnesses, albeit summoned, failed to appear before the court.

On 21 October 1998 the Å tip Trial Court ordered that some witnesses should be forcibly brought before it and then adjourned again the hearing.

At the hearing of 16 November 1998 the parties to the proceedings agreed that the statements of witnesses who had not been properly summoned be read out in open court. The parties gave their final statements.

On 16 November 1998 the Štip Trial Court dismissed the applicant’s appeal on the ground that it had been established from the expert report that her husband Mr J. committed a breach of professional duties and of disciplinary regulations and, therefore, had been lawfully dismissed from work.

On 14 December 2000 the applicant was served with the Štip Trial Court’s judgment.

On 2 February 2001 the applicant lodged an appeal with the Å tip Appellate Court. On 15 March 2001 the court rejected the appeal. On 10 May 2001 the applicant lodged an appeal on points of law with the Supreme Court. The proceedings are still pending.

B. Relevant domestic law

1. Code of Civil Procedure (entered into force on 1 July 1998)

Article 320, inter alia , provides that a judgment will be legally binding with respect of the parties to the proceedings from the day they have been served with a certified copy.

Article 323, inter alia , provides that a judgment that has been publicly pronounced shall be prepared in writing within eight days or fifteen days if the case was more complex. The parties shall be served with a certified copy.

According to article 408, the courts have an obligation to deal urgently with labour disputes. Under article 434 of the old Code of Civil Procedure the courts were under the same duty.

2. Act on Courts

Sections 76 and 77, inter alia , provide that the Ministry of Justice ensures the prompt administration of justice.

Section 81, inter alia , provides that the presidents of the courts shall undertake measures, so that the cases are dealt with promptly.

COMPLAINTS

The applicant complains under Article 6 § 1 of the Convention about the length of the proceedings before the competent domestic courts.

THE LAW

The applicant complains under Article 6 § 1 of the Convention about the length of the proceedings before the competent domestic courts.

Article 6 § 1, in so far as relevant, reads as follows:

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

a. The Government invite the Court to reject the application on the ground that the applicant had failed to exhaust domestic remedies for the following reasons: firstly, the applicant should have directly invoked the Convention in domestic courts as, pursuant to Article 118 of the Constitution, the ratified treaties are part of the internal legal system and cannot be changed by law. Secondly, she had the opportunities under Sections 77 and 81 of the Act on Courts to ask the Ministry of Justice, or the president of the respective court to expedite the proceedings at issue . Thirdly, she failed to lodge a complaint concerning the conduct of the judge of the Å tip Trial Court with the president of the court, or with the Judicial Council. These actions would have resulted in a speedier conduct of the proceedings.

The applicant denies that those were effective domestic remedies to exhaust.

The Court recalls that in respect of the length of civil proceedings, the questions of the methods whereby the applicant could have accelerated the proceedings is not one which concerns the problem of exhaustion of domestic remedies (application no. 12686/87, D. v. Belgium, decision of 3 October 1990, DR 66, p. 105). The Government’s arguments in this respect cannot be considered as formal obstacles to the admissibility of the application, but will be examined by the Court together with the merits of the application.

b. The Government submit that the part of the proceedings which took place prior to 10 April 1997, when the Convention entered into force in respect of the Former Yugoslav Republic of Macedonia, should not be taken into consideration in respect of the length of time in question.

For her part, the applicant invokes the Court’s case law according to which in order to determine the reasonableness of the length of time in question regard should be had to the stage reached in the beginning of the period under examination.

As regards the merits of the case, the Government contend that the possible delays in the labour proceedings until the Å tip Trial Court reached its verdict on 16 November 1998 had been attributable to the applicant, as on several occasions she had requested the interrogation of witnesses who had already been heard, or had asked the expert report to be supplemented, or her representative failed to appear before the court.

The Government admit that the fact that the applicant was served with the judgment of 16 November 1998 only on 14 December 2000 contributed to the delay in the proceedings. However, the applicant never inquired about the state of the proceedings in the court.

The applicant submits that the courts failed to comply with their duty under Article 408 of the Code of Civil Procedure to deal with labour disputes promptly. In particular, the hearings were often adjourned due to the court’s failure to ensure the attendance of some witnesses.

She further states that under Article 280 of the Code of Civil Procedure the court could have held a hearing even without the applicant or her representative appearing before the court.

The applicant considers that the major delay in the proceedings was caused by the fact that the court took two years and one month to serve the Štip Trial Court’s judgment in spite of her alleged request to speed up the proceedings.

The Court considers, in the light of the criteria established in its case-law on the question of “reasonable time” (the complexity of the case, the applicant’s conduct and that of the competent authorities), and having regard to all the information in its possession, that an examination of the merits of this complaint is required.

For these reasons, the Court unanimously

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

Erik Fribergh Christos Rozakis     Registrar President