CASE OF ZHEZHOVSKI v. NORTH MACEDONIA

SECOND SECTION

CASE OF ZHEZHOVSKI v. NORTH MACEDONIA

(Application no. 52572/18)

JUDGMENT
 

STRASBOURG

6 February 2024

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

In the case of Zhezhovski v. North Macedonia,

The European Court of Human Rights (Second Section), sitting as a Committee composed of:

 Lorraine Schembri Orland, President,
 Jovan Ilievski,
 Diana Sârcu, judges,
and Dorothee von Arnim, Deputy Section Registrar,

Having regard to:

the application (no. 52572/18) against the Republic of North Macedonia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 1 November 2018 by a Macedonian/citizen of North Macedonia, Mr Mitko Zhezhovski, who was born in 1960 and lives in Bitola (“the applicant”), and who was represented by Mr S. Angeleski, a lawyer practising in Skopje;

the decision to give notice of the complaint concerning the alleged arbitrariness of the domestic courts’ decisions in counter-enforcement proceedings to the Government of North Macedonia (“the Government”), represented by their Agent, Ms D. Djonova, and to declare the remainder of the application inadmissible;

the parties’ observations;

Having deliberated in private on 16 January 2024,

Delivers the following judgment, which was adopted on that date:

SUBJECT MATTER OF THE CASE

1.  The case concerns the alleged arbitrariness of the domestic courts’ decisions in proceedings for counter-enforcement (противизвршување), in violation of Article 6 of the Convention.

2.  On 7 November 2013 the Bitola Court of First Instance (“the first-instance court”) ordered the applicant to pay costs to the respondent. That order was enforced (“the enforced decision”). In June 2017 the finality clause (клаузула за правосилност) in respect of the enforced decision was quashed with final effect, resulting in the decision becoming amenable to appeal. On 17 October 2017 the Bitola Court of Appeal (“the appellate court”) quashed the enforced decision.

3.  While the above-mentioned proceedings were still ongoing, the applicant lodged a claim for counter-enforcement against the respondent, seeking reimbursement of the amount paid. On 4 November 2017, following remittal, the applicant sent the first-instance court a copy of the appellate court’s decision of 17 October 2017 (see paragraph 2 above), which was received by the first-instance court on 6 November 2017 (as confirmed by that court in writing). On 22 January 2018, following another remittal, the first-instance court partly granted the applicant’s claim, given that the finality clause of the enforced decision had been quashed. On 20 April 2018 the appellate court overturned the decision of 22 January 2018 and dismissed the applicant’s claim, finding that the quashing of the finality clause was not a ground for counter-enforcement and that there was no evidence that the enforced decision had been quashed with final effect.

4.  The applicant complained under Article 6 that the domestic courts had arbitrarily dismissed his claim for counter-enforcement, in disregard of the decision of 17 October 2017.

THE COURT’S ASSESSMENT

5.  On 23 February 2022 the Government submitted a unilateral declaration in which they acknowledged that in the special circumstances of the case there had been a violation of Article 6 § 1 of the Convention and offered to pay the applicant a sum of money to cover any and all non-pecuniary damage together with any costs and expenses. They further requested the Court to strike the application out of its list of cases in accordance with Article 37 of the Convention. On 23 March 2022 the applicant objected to the striking-out, arguing in particular that under domestic law, only a judgment of the Court finding a violation could serve as grounds for reopening the case.

6.  For reasons similar to those given in Prodanov v. North Macedonia ([Committee], no. 73087/12, §§ 23‑25, 10 June 2021) and Radika Prevozi DOO Ljubljana v. North Macedonia ([Committee], no. 52003/18, §§ 6-7, 21 March 2023, with further references), namely that it cannot be said with a sufficient degree of certainty that the procedure for reopening of the counter-enforcement proceedings would be available were the Court to accept the Government’s unilateral declaration and strike the case out of its list, the Court rejects the Government’s request.

7.  The Government argued that the applicant had failed to exhaust domestic remedies, in that he had not raised, either in his appeals against the first-instance decision before the second remittal and against the decision of 22 January 2018 or in the first-instance proceedings after the second remittal, the fact that the decision of 17 October 2017 had not been taken into consideration; nor had he lodged a civil claim for unlawful enrichment. The general principles in respect of exhaustion of domestic remedies have been summarised in Vučković and Others v. Serbia ((preliminary objection) [GC], nos. 17153/11 and 29 others, §§ 69-77, 25 March 2014). It is immaterial whether the applicant raised his complaint in the proceedings before the second remittal as those proceedings did not end with a final decision. Furthermore, the applicant’s appeal against the decision of 22 January 2018 concerns the part of his claim (statutory interest and the costs of the proceedings) that was dismissed by the first-instance court, and not the main claim (reimbursement of the sum subject to the enforcement order), which was upheld; hence it is unreasonable that the applicant should be required to challenge the findings of the first-instance court which had been to his advantage. Lastly, the gist of the applicant’s complaint in respect of the appellate court’s decision of 20 April 2018 concerns its disregard of the decision of 17 October 2017. In the absence of examples of relevant domestic case-law, the Court cannot conclude that a civil claim for unlawful enrichment would be an adequate or effective remedy for the purposes of this particular complaint. The Court therefore dismisses the Government’s objections.

8.  This complaint is furthermore not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.

9.  The general principles have been summarised in Pavlović and Others v. Croatia (no. 13274/11, §§ 42-45, 2 April 2015). In particular, an error of fact or law by the national court which is so evident as to be characterised as a “manifest error” may be such as to disturb the fairness of the proceedings required by Article 6 (ibid., § 45).

10.  In its decision of 20 April 2018, the appellate court overturned the lower court’s decision and dismissed the applicant’s counter-enforcement claim for the sole reason that there was no evidence that the decision of 7 November 2013 had been invalid. The court reached that conclusion despite the fact that the applicant had submitted to the first-instance court a copy of the decision of 17 October 2017 quashing the one of 7 November 2013. The first-instance court received that submission and included it in the file (see paragraph 3 above). The Government did not make any plausible arguments that the decision of 17 October 2017 had, for any reason, not been in the case file when the appellate court had ultimately decided the case. It is therefore immaterial that the applicant submitted it before the second (and final) remittal and that he did not argue again after the second remittal that the enforced decision had been quashed. In such circumstances, the Court cannot but conclude that the appellate court made a manifest factual error by overlooking the decision of 17 October 2017 (see, similarly, Pavlović and Others, cited above, § 49). Lastly, there is no indication in the appellate court’s decision that it considered that, by submitting the decision of 17 October 2017, the applicant had amended or exceeded the counter-enforcement claim initially submitted.

11.  There has accordingly been a violation of Article 6 § 1 of the Convention.

APPLICATION OF ARTICLE 41 OF THE CONVENTION

12.  The applicant claimed the equivalent of approximately 900 euros (EUR) in respect of pecuniary damage (the amount subject to enforcement) and EUR 30,000 in respect of non-pecuniary damage, as well as the equivalent of EUR 16,180 in respect of costs and expenses incurred before the domestic courts and EUR 1,480 for those incurred before the Court.

13.  The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. In this connection, it refers to the possibility available to the applicant to request the reopening of the proceedings under section 400 of the Civil Proceedings Act, which would allow for a fresh examination of his claim (see Strezovski and Others v. North Macedonia, nos. 14460/16 and 7 others, § 95, 27 February 2020). Ruling on an equitable basis, it awards the applicant EUR 3,600 in respect of non-pecuniary damage, plus any tax that may be chargeable.

14.  The Court dismisses the claim in respect of costs and expenses before the domestic courts as the applicant failed to demonstrate that these were incurred for the prevention or redress of the violation at issue. Having regard to the documents in its possession, the Court considers it reasonable to award EUR 1,220 for costs and expenses incurred in the proceedings before the Court, plus any tax that may be chargeable to him.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

(a)  that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i)  EUR 3,600 (three thousand six hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii)  EUR 1,220 (one thousand two hundred and twenty euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

Done in English, and notified in writing on 6 February 2024, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 Dorothee von Arnim Lorraine Schembri Orland
 Deputy Registrar President