Communicated on 23 February 2016
FIRST SECTION
Applications nos 21891/13 and 32327/13
Nuhi FERATI against the former Yugoslav Republic of Macedonia
and Risto NOVOSELSKI against the former Yugoslav Republic of Macedonia
lodged on 22 March 2013 and 13 May 2013 respectively
STATEMENT OF FACTS
The applicant in the first case, Mr Nuhi Ferati, is a Macedonian national, who was born in 1952 and lives in Skopje. He is represented before the Court by Mr J. Mitrinovski, a lawyer practising in Skopje.
The applicant in the second case, Mr Risto Novoselski, is a Macedonian national, who was born in 1935 and lives in Skopje.
The facts of the case, as submitted by the applicants, may be summarised as follows.
A. Application no. 21891/13
The applicant was a farmer. At the relevant time and region, cattle were struck by foot-and-mouth disease (шап и лигавка). On 1 July 1996 a commission set up within the Ministry of Agriculture and Forestry drawn up a report according to which the applicant’s cattle (82 animals) had to be killed due to the viral illness. It also specified that the value of killed animals had been 1,309,500 Macedonian denars (MKD) (approximately 21,400 euros). The applicant objected both as regards the number of animals killed and their market value. Since his objection remained unanswered, he brought a civil action against the respondent State claiming monetary compensation corresponding to the market value of 86 animals killed.
On 31 January 1997 the Skopje Court of First Instance delivered a partial judgment and awarded the applicant the amount which had been specified in the commission’s report of 1 July 1996. It was decided that the issue of the exact number of animals killed and their market value would be subject to a separate judgment. On 11 December 1997 the Skopje Court of Appeal upheld this judgment. Both judgments were based on sections 38 and 67 of the Animals Health Care Act according to which all costs and compensation for killed cattle suffered from foot-and-mouth disease were to be borne by the State.
On 12 April 2000 the Supreme Court upheld the lower courts’ judgments and the reasoning provided.
The proceedings continued regarding the remaining part of the applicant’s claim. On 13 January 2009 the Skopje Court of First Instance partially ruled in the applicant’s favour and ordered the State to pay MKD 905,500, together with interest, as the difference between the sum paid (see above) and the market value of the animals killed. In specifying this amount, the court relied on an expert report drawn up by the Veterinary Institute, to which the defendant had not objected. On 1 October 2009 the Skopje Court of Appeal upheld the lower court’s judgment regarding the award and overturned it in respect of the interest. Both judgments again were based on sections 38 and 67 of the Animals Health Care Act.
On 12 April 2012 the Supreme Court overturned the lower courts’ judgments and dismissed the applicant’s claim. The court found that the lower courts had erred on the law in that the Animals Health Care Act, as the lex specialis, did not provide for compensation of damages. That issue was the subject of regulation by the Tort Act. According to the applicant, this judgment was served on him in November 2012.
B. Application no. 32327/13
On 14 November 2002 the applicant lodged a lawsuit against a neighbour who had moved forward the entrance to his apartment and had thus misappropriated a part of a residential building which was in joint possession by all residents. As specified in the lawsuit, the applicant sought that the court “declare that the defendant (had misappropriated part of the building) and order him to restore it in the previous state ... (and) restore it in the (applicant’s) actual possession (владение) ...”
On 22 September 2005 the Skopje Court of First Instance granted the applicant’s claim. This judgment was set aside by the Skopje Court of Appeal, by a judgment of 12 July 2006.
On 2 April 2009 the first-instance court dismissed the applicant’s claim holding that the applicant had not been entitled to claim restoration of the disputed part of the building into his actual possession. The applicant appealed. In the appeal he referred, inter alia, to earlier judgments in which the same courts accepted identical claims that he had submitted against other neighbours for similar actions (see below). On 24 October 2012 the Skopje Court of Appeal dismissed the applicant’s appeal finding no reasons to depart from the reasons given by the lower court.
The applicant submitted copies of several judgments delivered between 1990 and 2007 in which the same courts (Skopje Court of First Instance and Court of Appeal) accepted his claim which was identical to that in the present case (П.бр. 2994/89; П.бр.1247/92; П.бр. 1248/92; П.бр. 2397/96; П.бр.3239/03). Statutory provisions that were applicable in the period under consideration contained identical rules regarding joint possession of common parts in residential buildings.
COMPLAINTS
The applicants complain under Article 6 of the Convention that the domestic courts applied inconsistent practice in their cases. Mr Ferati also complains that the Supreme Court did not give any reasons for the alleged departure. Lastly, the applicants invoke Article 1 of Protocol No. 1.
QUESTIONS TO THE PARTIES
1. Did the applicants have a fair hearing in the determination of their civil rights and obligations, in accordance with Article 6 § 1 of the Convention? In particular, was the principle of judicial certainty contained in this provision complied with by the domestic courts given the alleged inconsistent case-law applied in their cases? With respect to application no. 21891/13, did the Supreme Court’s judgment of 12 April 2012 contain sufficient reasons for the alleged departure from its previous case-law set in the impugned proceedings?
2. Has there been an interference with the applicants’ peaceful enjoyment of possessions, within the meaning of Article 1 of Protocol No. 1? If so, was that interference in compliance with this provision?
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