CASE OF DIKA v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"
Violation of Art. 6-1
Peer Lorenzen
6. The applicant was born in 1966 and lives in the village Livadi, Struga, the former Yugoslav Republic of Macedonia. 7. On 5 March 1993 a Fokker airplane, which was operated by the Macedonian company Palair (“the first defendant”), crashed at Skopje airport during taking off. The applicant was one of the few passengers who survived the accident. He sustained serious physical injuries. 8. Settlement negotiations between the applicant, the Palair, Fokker Airkraft B.V. (“the second defendant”), Airkraft Financing & Trading B.V. from the Netherlands and Lloyds of London were unsuccessful. 9. On 17 February 1995 the applicant brought a civil action before the Skopje Court of First Instance (Основен суд Скопје I Скопје) requesting the court to award him compensation for the pecuniary and non-pecuniary loss sustained as a result of the accident: in particular, he asked the court to order the defendants to compensate him for the loss of his personal belongings, medical expenses, his loss of income and loss for his mental suffering, as well as to pay him a life-time pension given his permanent incapacity. 10. The first hearing was held on 27 October 1995 and was attended by all parties. It was adjourned on the request of the applicant to allow him to submit additional evidence. 11. The hearing fixed for 8 December 1995 was adjourned due to the applicant's illness. 12. At a hearing held on 6 February 1996, the court provided the defendants with evidence previously submitted by the applicant. 13. The next hearing of 26 March 1996 was rescheduled on the defendants' request for further time to examine the applicant's submissions. Meanwhile, the applicant changed lawyers. At the hearing of 14 May 1996, the court ordered one of the defendants to provide further evidence. 14. At a hearing on 27 June 1996, the court ordered a forensic expert examination to establish the applicant's loss of income given that he had a work permit in Switzerland. 15. Hearings scheduled for 21 November 1996 and 11 February 1997 were adjourned as the parties had not been properly summoned. 16. At a hearing of 25 March 1997 the applicant had requested an adjournment to allow him to further particularise his claim. 17. At a hearing held on 9 May 1997, one of the defendants requested a postponement to examine the applicant's more recent submissions. 18. On 26 June 1997 the court adjourned the hearing: there was no evidence that the forensic expert and the first defendant had been properly summoned. 19. On 24 October 1997 the court heard the expert. The court further ordered the applicant to further particularise his financial claim and to provide information about a sum of money he had already received from the first defendant. 20. On 17 November 1997 the applicant requested the Minister of Justice to intervene before the competent court for a speedy resolution of his case. 21. On 24 January 1998 the applicant complained before the President of the Skopje Court of First Instance that no decision had been taken although all relevant evidence and expert opinions had been obtained. On 14 May 1998 he repeated his grievances before the President of the Skopje Appeal Court. 22. Adjournments of hearings fixed for 18 December 1997 and 17 February 1998 were afforded in the absence of evidence that the first defendant had been properly summoned. 23. A hearing fixed for 21 April 1998 was adjourned on the parties' request, as they were pursuing an out-of-court settlement. 24. A hearing held on 22 May 1998 was postponed as the first defendant had withdrawn from the case. 25. Hearings fixed for 11 September 1998, 19 November 1998 and 16 February 1999 were adjourned again due to a lack of evidence that the first defendant had been properly summoned. The court record stated that the slip of the mail receipt had borne the signature, but not the stamp, of the first defendant. 26. On 19 February 1999 the applicant requested to be exempted from court fees. 27. The court adjourned a hearing fixed for 13 April 1999 as the applicant had failed to provide evidence supporting his request for exemption. Hearings fixed for 8 June, 5 October and 7 December 1999 were adjourned due to improper delivery of the court summons on the first defendant. 28. On 8 November 1999 the applicant requested the Skopje Court of First Instance to declare it incompetent ratione loci and to confer the further handling of his case on the Struga Court of First Instance. He maintained that, because of his poor financial situation, he could not sustain the travelling expenses from his place of residence to Skopje to attend the court hearings. 29. On 11 February 2000 the Skopje Court of First Instance dismissed the applicant's request as out of time. By a decision of 21 September 2000 the Skopje Court of Appeal dismissed the applicant's appeal. 30. On 25 October 2000 the Supreme Court dismissed the applicant's request to transfer his case to another court competent ratione materiae: his arguments, that the proceedings had lasted almost five years and that he had scarce means of subsistence, could not be regarded as sufficient to justify that measure. 31. On 20 October 2000 the applicant complained before the State Judicial Council about the delays in the proceedings. 32. A hearing fixed for 22 December 2000 was adjourned as none of the parties appeared at court. 33. On 17 April 2001 the applicant requested a special delivery of the court summons on the first defendant. 34. The court adjourned a hearing fixed for 3 July 2001, in the parties' presence, to allow it examine the first defendant's legal status and the validity of the letter of authority of its lawyer. The court also undertook to secure information as to whether the first defendant had been insolvent. 35. On 30 October 2001 the court was informed that preliminary bankruptcy proceedings had been instituted against the first defendant. As that information did not reach the court in time, it adjourned a hearing fixed for 8 November 2001. The court decided to summon the first applicant's receiver for the next hearing. 36. The hearings fixed for 27 December 2001, 14 March and 16 May 2002 were adjourned due to improper delivery of the court summons on the first defendant or the receiver. The applicant proposed that a further summons for the first defendant be announced on the court's notice board. 37. On 4 July 2002 the court was notified that the preliminary bankruptcy proceedings against the first defendant had been suspended. The court adjourned a hearing fixed for 10 September 2002 to confirm the validity of the letter of authority of the first defendant's lawyer. 38. The court then adjourned a hearing of 8 November 2002 as the first defendant had not been properly summoned. In response to the applicant's request, it fixed the next hearing for 11 March 2003. 39. On 15 May 2003 the Skopje Court of First Instance partly upheld the applicant's claim and ordered the first defendant to pay just compensation for his non-pecuniary loss and for his pecuniary loss from March until November 1993. It dismissed the remainder of his claim against the first defendant. The court further dismissed his claim against the second defendant given the latter's lack of legal capacity (немање на пасивна легитимација). 40. On 10 September 2004 the Skopje Court of Appeal dismissed the applicant's appeal and upheld the trial court's decision. 41. On 19 April 2006 the Supreme Court dismissed the applicant's appeal on points of law (ревизија). 42. The applicant had six different representatives during these proceedings. 43. Section 10 of the Civil Proceedings Act (Закон за парничната постапка) (“the Act”) provided, at the relevant time, that it was incumbent upon the court to undertake to conduct the proceedings without undue delay and economically, and to inhibit any attempt of abuse of the rights afforded to the parties concerned.