JAKIMOVSKI proti Severní Makedonii

FIFTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 26657/02
by Zivko JAKIMOVSKI
against the former Yugoslav Republic of Macedonia

The European Court of Human Rights (Fifth Section), sitting on 23 October 2006 as a Chamber composed of:

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

Having regard to the above application lodged on 15 May 2002,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Zivko Jakimovski, is a citizen of the former Yugoslav Republic of Macedonia who was born in 1954 and lives in Skopje. He is represented before the Court by Mr P. Cvetanov, a lawyer practising in Skopje, in the former Yugoslav Republic of Macedonia.

A. The circumstances of the case

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

1. On 26 September 1994, the Army Chief Commander drew up a list of candidates (army officers) (“the list”) eligible to be granted a tenancy of a limited number of army apartments for the purpose of acquiring property. The applicant, an Army officer, was one of the candidates who applied for an apartment.

On 5 October 1994 the applicant objected to the results and the list. He complained that according to the criteria, as specified by the relevant Rules (Правилник за условите и начинот на решавање на станбените прашања на вработените во Министерството за одбрана, воените старешини и граѓанските лица на служба во Армијата на Република Македонија) (“the Rules”), he should have been ranked higher and accordingly been granted a tenancy of an apartment instead of some of the other army officers. His complaint was dismissed by the Army Chief Commander on 9 March 1995. Meanwhile, in November 1994 other members of the armed forces (Mr V.V., Mr I.Z and Mr D.Z.) were granted tenancies by the Army Chief Commander.

On 29 March 1995 the applicant brought a civil action against the Ministry of Defence (“the Ministry”) for the annulment of the list and the Army Chief Commander’s decisions granting tenancies to Mr V.V., Mr I.Z. and Mr D.Z. It was followed by a request for an interim order to prohibit the Ministry from concluding a sales agreement concerning the apartments granted to his colleagues.

On 4 April 1995 the then Skopje Municipal Court (Општински суд Скопје) requested the applicant to clarify his claim. On 21 April 1995 the applicant submitted to the court the required information (he inter alia, extended his claim to Mr V.V., Mr I.Z and Mr D.Z.).

On 27 June 1995 the Skopje Municipal Court dismissed the applicant’s request for an interim order.

On 21 July 1995 the applicant appealed against the decision.

On 2 November 1995 the then Skopje District Court (Окружен суд Скопје) dismissed the applicant’s appeal and upheld the lower court’s decision.

On 14 July 1997 the Skopje Court of First Instance dismissed the applicant’s claim on the merits. It established that the applicant had been an army officer since 1979, i.e. a major and that he had applied for an army apartment. The apartments were part of the Army’s housing fund scheduled for sale. The court found that there had been no procedural violation of the Rules and that it had not been necessary to announce the provision of the apartments. It held that Mr V.V. and Mr D.Z. had been correctly given a priority in respect to the applicant.

On 11 June 1998 the applicant appealed against this decision.

On 28 November 1998 the Skopje Court of Appeal dismissed the applicant’s appeal and upheld the lower court’s decision.

On 30 December 1998 the applicant lodged with the Supreme Court an appeal on points of law (ревизија).

On 20 December 2000 the Supreme Court dismissed the applicant’s appeal on points of law. It found no grounds to depart from the legal reasoning of the lower courts that domestic law had been correctly implemented and that the apartments had been granted in compliance with the relevant Rules. This decision was served on the applicant on 17 January 2002.

2. In a separate set of proceedings, in April 1996 the Ministry brought criminal charges for forgery against Mr D.Z., one of the successful candidates who had been granted tenancy of an apartment. On 3 June 1997 the public prosecutor rejected them as the charges did not concern an offence that could be prosecuted ex officio.

On 13 October 1998 the Ministry again brought criminal charges for forgery against Mr D.Z. On 29 October 1998 the public prosecutor rejected the Ministry’s criminal complaint as time-barred.

On 23 November 1998 the applicant brought separate criminal charges for forgery against Mr D.Z. On 31 March 1999 the public prosecutor lodged an indictment against him before the Skopje Court of First Instance.

On 26 June 2000 the Skopje Court of First Instance dismissed the charges and acquitted the accused. It appears that the applicant did not appeal this decision.

COMPLAINTS

1. The applicant complained under Article 6 of the Convention about the outcome of the proceedings, in particular that they were unfair and unreasonably lengthy and that the courts were biased as they decided on the basis of forged documents. In addition, he complained about the dismissal of his request for an interim order and of the charges against Mr D.Z.

2. The applicant complained under Article 13 of the Convention that the same person – the Army’s Chief of Command had decided in the first and, upon his objection also in the second instance.

3. Relying on Article 14 of the Convention, the applicant complained that he had been discriminated against on the basis of his social origin, in particular as the successful candidate was allegedly granted an apartment as his father had been a high ranking police officer.

THE LAW

1. The applicant complained under Article 6 of the Convention about the outcome of the proceedings, in particular that they had been unfair and unreasonably lengthy and that the courts had been biased. He also complained about the dismissal of his request for an interim order and about the acquittal of his colleague. Article 6 § 1, in so far as relevant, provides:

“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.”

Even assuming that the present case concerned the applicant’s “civil rights and obligations” within the meaning of Article 6 of the Convention, the Court considers that the applicant’s complaints under this head are inadmissible for the following reasons:

(a) As regards the applicant’s complaints about the alleged unfairness of the proceedings, their outcome and that the courts were biased, the Court recalls that it is not its function to deal with errors of fact or law allegedly committed by a national 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, while Article 6 of the Convention guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence or the way it should be assessed, which are therefore primarily matters for regulation by national law and the national courts (see the Schenk v. Switzerland judgment of 12 July 1988, Series A no. 140, p. 29, §§ 45-46). Furthermore, there is no indication in the file as to the proceedings in question being arbitrary or unfair in any manner.

The Court considers therefore, that there are no indications which could lead to the conclusion that the applicant was not afforded a fair hearing within the meaning of Article 6 § 1 of the Convention.

It follows that these complaints are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

(b) As to the applicant’s complaint that the proceedings were not conducted within a reasonable time, the Court notes that the proceedings complained of started on 29 March 1995 when the applicant brought the civil claim before the then Skopje Municipal Court. They were effectively terminated on 20 December 2000 when the Supreme Court dismissed the applicant’s appeal on points of law. This decision was served on the applicant on 17 January 2002.

The Court finds that the period which falls within its jurisdiction began on 10 April 1997 when the Convention entered into force in respect of the former Yugoslav Republic of Macedonia (see Atanasovic and Others v. the former Yugoslav Republic of Macedonia, no. 13886/02, § 26, 22 December 2005; Horvat v. Croatia, no. 51585/99, § 50, ECHR 2001‑VIII).

The proceedings, including the time lapsed for service of the Supreme Court’s decision therefore lasted six years, nine months and nineteen days of which four years, nine months and seven days fall to be examined by the Court for three levels of jurisdiction.

The Court does not find the length of this period for three court levels unreasonable having regard to the criteria laid down in its case-law (see among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII; the Comingersoll S.A. v. Portugal [GC], no. 35382/97, ECHR 2000-IV and the Philis v. Greece (no. 2), judgment of 27 June 1997, Reports of Judgments and Decisions 1997‑IV, § 35).

Accordingly, the applicant’s complaint concerning the length of the proceedings in the instant case is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

(c) Concerning the applicant’s complaint about the dismissal of his request for an interim order, the Court notes that it relates to the courts’ decisions taken before 10 April 1997, i.e., when the Convention entered into force in respect of the former Yugoslav Republic of Macedonia. The last decision concerning the applicant’s request for an interim measure was that of the District Court of 2 November 1995.

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

(d) Concerning the applicant’s complaints about the criminal charges against D.Z., the Court recalls that the Convention does not generally provide for a right to prosecute third parties.

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.

2. Тhe applicant also complained under Article 13 of the Convention that the same person – the Army’s Chief of Command had decided in the first, and upon his objection also in the second instance. Article 13 provides:

“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 this complaint, as put forward by the applicant under Article 13 of the Convention, is in substance the same as the one raised above. The Court recalls that according to its case-law, Article 13 applies only where an individual has an “arguable claim” to be the victim of a violation of a Convention right (see Boyle and Rice v. the United Kingdom, judgment of 27 April 1988, Series A no. 131, § 52).

The Court has found above that the substantive complaints are inadmissible. For these reasons, the applicant does not have an “arguable claim”, and Article 13 is therefore inapplicable to his case.

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

3. Relying on Article 14 of the Convention, the applicant complained that he had been discriminated against on the basis of his social origin, in particular as the successful candidate was allegedly granted an apartment as his father had been a high ranking police officer. Article 14 provides:

“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

The Court notes that the applicant failed to raise this complaint before the Constitutional Court, which has full jurisdiction to deal with constitutional complaints filed by any individual claiming to be a victim of discrimination (see Sijakova and others v. the former Yugoslav Republic of Macedonia (dec.), no. 67914/01, 6 March 2003). In any event, this complaint is unsubstantiated as the applicant failed to provide any evidence that his social origin played a role in the proceedings complained of.

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.

Claudia Westerdiek Peer Lorenzen
Registrar President