FIRST SECTION

DECISION

Application no . 53249/08 Snež ana GEROVSKA POPČEVSKA against the former Yugoslav Republic of Macedonia

The European Court of Human Rights (First Section), sitting on 17 October 2017 as a Committee composed of:

Aleš Pejchal , President, Armen Harutyunyan, Jovan Ilievski, judges,

and Renata Degener, Deputy Section Registrar ,

Having regard to the above application lodged on 1 November 2008,

Having deliberated, decides as follows:

PROCEDURE

1. The applicant, Ms Sne ž ana Gerovska Popčevska , is a Macedonian national who was born in 1954 and lives in Skopje. She was represented before the Court by Ms A. Pop- Trajkova Vangeli , a lawyer practising in Skopje.

2. The Macedonian Government (“the Government”) were represented by their Agent, Mr K. Bogdanov succeeded by Ms D. Djonova .

3. The applicant, a former judge, complained under Article 6 of the Convention about alleged unfairness and the retroactive application of law in proceedings in which an increased tax charge had been imposed on her in relation to funds, the receipt of which she had belatedly reported to the State Anti-Corruption Commission ( Државна комисија за спречување на корупцијата ).

4. On 28 August 2014 the above-mentioned complaints were communicated to the Government and the remainder of the application was declared inadmissible, pursuant to Rule 54 § 3 of the Rules of Court.

THE FACTS

A. Administrative proceedings in respect of the examination of the origin of pecuniary assets of the applicant

5. Upon the request of the State Anti-Corruption Commission, the Public Revenues Office ( Управа за Јавни Приходи ) launched proceedings for the examination of the origin of monetary funds (38,000 euros (EUR)) paid into the applicant ’ s bank account in 2004.

6. After hearing the applicant, on 26 December 2006 the Public Revenues Office held that she had failed to prove that the assets in question had been lawfully obtained and imposed a personal income tax charge amounting to 70% of the unreported assets – the tax charge levied on the applicant amounted to 1,627,712 Macedonian denars (MKD – approximately 26,500 euros), a rate specified in the 2004 Anti-Corruption Act (“the 2004 Act”). It dismissed the applicant ’ s arguments that the money in question had been transferred to her account by her brother in return for her waiving her right to inherit family property. The Ministry of Finance upheld this decision, finding that the applicant had failed to report those assets to the Anti-Corruption Commission within thirty days of her receiving the money – a time-limit specified in the Act.

7. The applicant lodged a claim challenging those decisions, requesting that the relevant court hold an “oral hearing” ( усна расправа ) – in the light of the factual complexity of the case and the unusualness of the legal issues raised – and adduce additional expert evidence. She also argued that the 2004 Act had not specified any time-limit for reporting an increase in a person ’ s assets. The thirty-day time-limit had been inserted into the wording of the Act on 1 December 2006 – that is to say only after the money had been transferred to her account – and could not therefore apply to her case. The applicant ’ s claim was forwarded to the Ministry of Finance. The latter ’ s submissions in reply were not communicated to the applicant.

8. On 4 April 2008 the Administrative Court dismissed the applicant ’ s claim, finding no reasons to depart from the decisions of the administrative authorities. It held that the applicant should have reported the assets in question within “a reasonable time, which was thirty days – the time-limit specified for the submission of a declaration of assets ( анкетен лист ) [by a person who has been] appointed to [a public] office”. The court did not comment on the applicant ’ s request for an “oral hearing” and the adducing of expert evidence.

B. Criminal proceedings against the applicant

9. On 18 February 2009 the public prosecutor rejected a criminal complaint accusing the applicant of “concealment of the origin of disproportionately acquired assets” ( прикривање на потеклото на несразмерно стекнат имот – that is to say assets that are extremely high compared to the regular income of the person concerned), a crime punishable under the Criminal Code . The prosecutor found that the applicant had not concealed the funds in question, but that they had been lawfully transferred to her bank account by her brother in return for property that he had inherited from their parents.

C. Subsequent developments

10. On 1 March 2010 the applicant sought the reopening of the administrative proceedings specified above. After several remittals, by a decision of 13 October 2015 the Ministry of Finance granted the request and ordered that the administrative proceedings be reopened in the light of the prosecutor ’ s decision. It declared the decision of t he Public Revenues Office of 26 December 2006 null and void ab initio ( поништува ) and ordered that the case be reconsidered.

11. In the renewed proceedings, on 2 February 2016 the Public Revenues Office held that the money in question had been lawfully obtained and could not be taxed. It accordingly terminated ( запирање на постапка ) the proceedings in respect of the examination of the origin of those funds.

12. On the basis of the above decision, the applicant sought that the Public Revenues Office reimburse her the amount of 1,627,712 Macedonian denars , together with the appropriate interest (the amount of which she did not specify). She also stated that she did not waive the right to claim compensation on the basis of the general rules on damages. On 6 April 2016 the Public Revenues Office granted the applicant ’ s request and ordered that the 1,627,712 Macedonian denars be reimbursed. None of the parties challenged this decision, notwithstanding the fact that it contained an explicit instruction in respect of legal remedies (specifically, that the decision in question could have been challenged before the Administrative Court). On 22 June 2016 the above-mentioned amount was paid into the applicant ’ s bank account.

THE LAW

ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION

13. Regarding the administrative proceedings completed on 4 April 2008, the applicant complained about the lack of an oral hearing before the Administrative Court, a violation of the principle of equality of arms; she furthermore complained about the retroactive application of a statutory provision which had not been in force when the money had been transferred. She relied on Article 6 of the Convention, which in so far as relevant, reads as follows:

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

A. The parties ’ submissions

14. In view of the fact that the impugned proceedings had been reopened and that the applicant had recovered the money levied on her in those proceedings, the Government argued that she could no longer claim to be a “victim” within the meaning of Article 34 of the Convention. The developments that had arisen subsequent to the applicant ’ s application before the Court had been to her advantage and constituted sufficient redress for any alleged violations complained of. The Government invited the Court to either (i) declare the application inadmissible on the grounds that the applicant could no longer claim to be the victim of the alleged violations or (ii) strike the case out of its list of cases.

15. The applicant maintained that the reopening of the impugned proceedings and the reimbursement of the overpaid tax should not prevent the application from being examined. The alleged breaches of the Convention complained of before the Court had not been acknowledged, and neither had any redress been offered in that respect. Accordingly, the fact that she had recovered the overpaid tax did not deprive her of her “victim” status. Moreover, the damage that she had sustained on account of the fact that the impugned proceedings had been incompatible with Article 6 of the Convention was irreversible. She also observed that she had been entitled to obtain interest on the amount that she had been charged during the impugned proceedings.

B. The Court ’ s assessment

16. As the Court has repeatedly held, a decision or measure favourable to the applicant is not, in principle, sufficient to deprive him or her of his or her status as a “victim” for the purposes of Article 34 of the Convention unless the national authorities have acknowledged, either expressly or in substance, and then afforded appropriate and sufficient redress for the breach of the Convention (see Murray v. the Netherlands [GC] , no. 10511/10 , § 83, ECHR 2016 ) .

17. As to whether the application should be rejected as being incompatible ratione personae with the provisions of the Convention as a result of the impugned proceedings being reopened and the money restituted to the applicant, the Court notes that the national authorities dealing with the case have not found a violation of the relevant provisions of the Convention in view of the applicant ’ s complaints before it (see Dalban v. Romania [GC], no. 28114/95, §§ 41-45 , ECHR 1999 ‑ VI ).

18. In the absence of such an acknowledgment by the national authorities, the Court considers that it cannot declare the application inadmissible and reject it (pursuant to Article 35 § 4 in fine of the Convention) on the grounds that the applicant can no longer claim to be the “victim” of the alleged violation (see Pisano v. Italy (striking out) [GC], no. 36732/97, § 38, 24 October 2002).

19. It follows that the Government ’ s preliminary objection must be dismissed.

20. That conclusion does not render it unnecessary for the Court to examine whether the case should be struck out of its list by reason of events which occurred after its communication, on the grounds set out in Article 37 § 1 of the Convention, which provides:

“1. The Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that

(a) the applicant does not intend to pursue his application; or

(b) the matter has been resolved; or

(c) for any other reason established by the Court, it is no longer justified to continue the examination of the application.

However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires. ...”

21. Since the applicant gave a clear indication that she intended to pursue her application, sub-paragraph (a) of Article 37 § 1 is not applicable. In order to ascertain whether Article 37 § 1 (b) applies to the present case, the Court must answer two questions in turn: firstly, whether the circumstances complain ed of directly by the applicant still obtain and, secondly, whether the effects of a possible violation of the Convention on account of those circumstances have also been redressed (see El Majjaoui and Stichting Touba Moskee v. the Netherlands (striking out) [GC], no. 25525/03, § 30, 20 December 2007).

22. Having regard to the nature of the developments following the communication of the case and to the parties ’ observations, it considers that the matter has been resolved for the following reasons.

23. Firstly, the Ministry ’ s decision that the impugned proceedings should be reopened resulted in the quashing of the payment order of 26 December 2006. The order was declared null and void ab initio and was accordingly deprived permanently of any legal effect. Subsequently, the renewed proceedings in respect of the examination of the origin of the applicant ’ s assets were terminated (see, mutatis mutandis , Dimitriev v. the former Yugoslav Republic of Macedonia ( dec. ), no. 16345/03, 10 March 2009). Even supposing that the Court were to consider the merits of the application and to find in the applicant ’ s favour, the Committee of Ministers ’ supervision of the execution of the judgment under Article 46 of the Convention could no longer pursue the aim of having the proceedings in the applicant ’ s case reopened (see Pisano , cited above, § 45).

24. Secondly, the Court notes that after the payment order had been set aside and the renewed proceedings terminated, the applicant successfully applied to be reimbursed the money that she had paid on the basis of the payment order. Any claim to interest on that amount was to be pursued within the context of those proceedings or under the general rules of compensation, which were available to the applicant. In such circumstances, the Court is satisfied that the possible effects of the situation of which the applicant complained to it were sufficiently remedied.

25. In the light of the above, the Court considers that the matter has been resolved within the meaning of Article 37 § 1 (b) of the Convention and that respect for human rights, as defined in the Convention and the Protocols thereto, does not require it to continue the examination of the application under Article 37 § 1 in fine .

26. Accordingly, the case should be struck out of the list.

For these reasons, the Court, unanimously,

Decides to strike the application out of its list of cases.

Done in English and notified in writing on 16 November 2017 .

Renata Degener AleÅ¡ Pejchal              Deputy Registrar President