# أحكام المحاكم الأجنبية Decisions of Foreign Courts > أحكام المحكمة الأوروبية لحقوق الإنسان > Decisions of The European Court of Human Rights >  CASE OF ČAMINSKI  v. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA

## د.شيماء عطاالله

FIFTH SECTION






CASE OF ČAMINSKI  v. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA

(Application no. 1194/04)










JUDGMENT



STRASBOURG

24 February 2011


This judgment is final but it may be subject to editorial revision

In the case of Čaminski v. the former Yugoslav Republic of Macedonia,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
	Zdravka Kalaydjieva, President,
	Mirjana Lazarova Trajkovska,
	Julia Laffranque, judges,
and Stephen Phillips, Deputy Section Registrar,
Having deliberated in private on 31 January 2011,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 1194/04) against the former Yugoslav Republic of Macedonia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Macedonian national, Mr Aleksandar Caminski (“the applicant”), on 8 December 2003.
2.  The applicant was represented by Mr T. Fidovski, a lawyer practising in Skopje. The Macedonian Government (“the Government”) were represented by their Agent, Mrs R. Lazareska Gerovska.
3.  The applicant alleged, in particular, that the proceedings had been unreasonably lengthy and that he had been denied the right of access to court.
4.  On 2 February 2009 the President of the Fifth Section decided to give notice of the application to the Government. In accordance with Protocol no. 14, the application was allocated to a Committee of three Judges.
THE FACTS
I.  THE CIRCUMSTANCES OF THE CASE
5.  The applicant was born in 1956 and lives in Slovenj Gradec, Slovenia.
6.  In June 1992 criminal charges were brought against five people (“the defendants”) on suspicion of having caused grievous bodily harm to the applicant. On 16 September 1992 an investigating judge of the Skopje Court of First Instance (“the trial court”) opened an investigation against the defendants. According to statements taken on 25 September 1992 as part of the pre-trial proceedings, the applicant sought damages for loss of income and injuries sustained. He stated that he would subsequently specify his claim.
7.  During the proceedings, the trial court fixed about forty hearings. Most of them were postponed because it could not secure the attendance of the defendants, their representative or witnesses. No adjournment of any of the hearings was ordered on the applicant’s request. The trial court also obtained several expert opinions during the proceedings.
8.  On 4 July 2003 the trial court found three of the defendants guilty of grievous bodily harm and sentenced them to a suspended prison term. It further advised the applicant to pursue a compensation claim by means of a separate civil action. In this connection it observed that the applicant had hitherto sought compensation only for non-pecuniary damage.
9.  On 11 December 2003 the public prosecutor appealed against the above-mentioned decision. At a public hearing held on 27 January 2005, the Skopje Court of Appeal overturned the decision in respect of the sentence and confirmed the remainder. The three defendants were sentenced to six months’ imprisonment. According to the Government, on 10 November 2005 the Supreme Court confirmed this decision by dismissing the defendants’ appeal on points of law (барање за вонредно преиспитување на правосилна пресуда).
10.  On 6 December 2005 the applicant brought a civil action against the defendants and their employer, claiming compensation for the pecuniary and non-pecuniary loss he had sustained as a result of his injuries.
11.  On 26 June 2008 the trial court ruled partly in favour of the applicant and ordered the defendants and their employer jointly to pay him 1,200,000 Macedonian denars (equivalent to 19,500 euros) in respect of non-pecuniary damage. On 4 September 2008 the defendants appealed. The case is pending before the Skopje Court of Appeal. 
II.  RELEVANT DOMESTIC LAW
12.  The statutory provisions relevant for the present case were described in the Boris Stojanovski case (see Boris Stojanovski v. the former Yugoslav Republic of Macedonia, no. 41196/06, §§ 16-31, 6 May 2010).
THE LAW
I.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
13.  The applicant complained of the length of the criminal proceedings and of the lack of a decision in respect of his compensation claim. The Court considers that this latter complaint should be analysed as an “access to court” complaint. He relied on Article 6 § 1 of the Convention, which, in so far as relevant, reads as follows:
“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing within a reasonable time by [a] ... tribunal ...”
A.  Admissibility
1.  Compatibility
(a)  The parties’ submissions
14.  The Government objected that the application fell outside of the Court’s competence ratione materiae and ratione temporis. In support of this contention, they submitted the same arguments as those raised in the Boris Stojanovski case (see Boris Stojanovski, cited above, §§ 33, 34 and 41).
15.  The applicant did not comment.
(b)  The Court’s assessment
16.  The Court notes that the criminal proceedings started in June 1992 when the criminal charges were brought against the defendants. On 25 September 1992 the applicant made a claim for financial reparation of the loss he had sustained as a result of the assault. It was at that point in time that he acquired the status of a civil party to the criminal proceedings, even though there had been no formal decision admitting him to the proceedings in that capacity. The proceedings ended with the Supreme Court’s decision of 10 November 2005.
17.  In such circumstances and for the reasons described in the Boris Stojanovski judgment (see Boris Stojanovski, cited above, §§ 40 and 43) which likewise apply to this case, the Court considers that the application is compatible ratione materiae with the provisions of the Convention and that the Court has temporal jurisdiction to examine the criminal proceedings in so far as they concern the applicant, at least from 10 April 1997 when the respondent State ratified the Convention. Accordingly the Government’s objections must be rejected.
2.  Access to court complaint
(a)  The parties’ submissions
18.  The Government stated that the trial court had correctly advised the applicant to pursue his compensation claim by means of a separate civil action, given that he had not submitted his claim as part of the criminal proceedings and in accordance with the applicable rules, namely that the claim had not been specified or supported by any evidence. As the applicant had been successful in the subsequent civil proceedings, there were no grounds for finding of a violation of his right of access to court.
19.  The applicant did not comment.
(b)  The Court’s assessment
20.  The Court notes that the applicant was granted compensation in the civil proceedings which he instituted on the trial court’s instruction. It is true that the proceedings are still pending, but the complaint before the Court is one of access to court, and the applicant has now had access to court.
21.  The Court, thus, considers that it is no longer justified to continue the examination of this part of the application (Article 37 § 1(c)) (see, mutatis mutandis, SAS Arcalia v. France (déc.), no 33088/08, 31 August 2010). In addition, there are no particular reasons relating to respect for human rights as defined in the Convention which would require the Court to continue its examination under Article 37 § 1 in fine.
22.  Accordingly, this part of the application should be struck out of the Court’s list of cases.
3.  Length of proceedings
23.  The Government did not raise any objection as to the admissibility of this complaint.
24.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
B.  Merits
1.  The parties’ submissions
25.  The Government conceded that the overall length of the criminal proceedings had been excessive. The trial court’s failure to secure the defendants’ attendance had affected their length.
26.  The applicant did not comment.
2.  The Court’s assessment
27.  In view of the findings described in paragraph 16 above, the Court considers that the period to be taken into consideration in respect of Article 6 of the Convention started to run on 25 September 1992, the date upon which the applicant acquired the status of a civil complainant within the criminal proceedings (see Atanasova v. Bulgaria, no. 72001/01, § 52, 2 October 2008). The proceedings ended on 10 November 2005 with the Supreme Court’s decision. The relevant period therefore lasted over thirteen years at three levels of jurisdiction, of which eight years and seven months fall within the Court’s temporal jurisdiction (after 10 April 1997, the date when the respondent State ratified the Convention).
28.  The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case; and the conduct of the applicants and the relevant authorities (see Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII).
29.  The Court does not consider that the case was complex or that any delays were attributable to the applicant.
30.  On the other hand, the Court considers that the main problem that affected the length of the proceedings was the trial court’s inability to secure the attendance of the defendants, their representative or the witnesses. This deficiency was also acknowledged by the respondent Government (see paragraph 27 above). For that reason it took eleven years for the trial court to decide the case. This period was, without doubt, excessive and cannot be compensated for by the fact that the Appeal and Supreme Courts decided the case with reasonable expediency.
31.  Accordingly, there has been a violation of Article 6 § 1 of the Convention in respect of the “reasonable time” requirement.
II.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
32.  Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
33.  The applicant did not submit a claim for just satisfaction. Accordingly, the Court considers that there is no call to award him any sum on that account.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1.  Decides to strike the application out of its list of cases in so far as it relates to the alleged lack of a decision in respect of the applicant’s compensation claim;

2.  Declares the complaint in relation to the length of the criminal proceedings admissible;

3.  Holds that there has been a violation of Article 6 § 1 of the Convention in respect of the length of the criminal proceedings;
Done in English, and notified in writing on 24 February 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Stephen Phillips	Zdravka Kalaydjieva 	Deputy Registrar	President

----------

