FIRST SECTION
Application no. 38127/06
Blage MILOŠEVSKI against the former Yugoslav Republic of Macedonia
lodged on 7 September 2006
STATEMENT OF FACTS
The applicant, Mr Blage Miloševski, is a Macedonian national, who was born in 1960 and lives in Skopje. He is represented before the Court by Mr S. Janev, a lawyer practising in Skopje.
The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 14 August 2001 J.G. (apparently a Czech national, titled in the pay order as a “trustee and attorney” with two office addresses, one in UK and the other in Czech Republic) issued a “pay order” to T., a bank incorporated in the respondent State, ordering a payment of 1,450,000 USD to the applicant upon availability of funds on J.G.’s bank accounts in T. The pay order also specified that if funds had not become available on J.G.’s bank accounts, J.G., on the applicant’s demand, would be responsible to pay him in cash the pledged sum of money. The pay order was co-signed by the applicant.
On 29 June 2004 the applicant submitted the pay order to the Skopje Court of First Instance (“the first-instance court”) and requested its enforcement. In his submission, the applicant stated that both the bank and J.G. had failed to fulfil the provisions of the pay order and proposed his claim to be enforced against J.G.’s assets in the Czech Republic and alternatively in other countries, by forwarding the enforcement order through the respondent State’s Ministry of Justice to the Czech authorities.
On 9 November 2004 the first-instance court ordered enforcement, as claimed by the applicant. According to the instruction on legal remedies, the debtor (J.G.) could avail himself of an appeal (приговор) against the enforcement order within eight days from the day of receipt. The enforcement order was signed by judge V.B. As it became apparent in the subsequent course of the proceedings, the enforcement order, through the Ministry of Justice of the respondent State and the Czech authorities, was served on the debtor in the Czech Republic on 29 February 2005 (no such date exists in the calendar).
On 29 June 2005 the first-instance court, on its own motion, terminated the enforcement (се запира извршувањето) and quashed the enforcement measures undertaken (спроведените извршни дејствија се укинуваат). The first-instance court stated that the pay order had not been enforceable or authentic act (извршна или веродостојна исправа), that the enforcement order had been issued in error and that it was in the interest of both parties to terminate the enforcement. This decision was made by judge Z.C.
On 31 May 2006 the Skopje Court of Appeal remitted the case for fresh consideration. It found that the first-instance court was bound with its earlier decision of 9 November 2004 and that it was unclear why the first-instance court had concluded that it had been in the interest of both parties that the enforcement was terminated. In this connection it noted that neither party had appealed against the enforcement order and that the first-instance court had no jurisdiction to assess the substantive legality (материјалната законитост) of the enforcement order given the fact that it had become final. The Court of Appeal added that in the fresh consideration, the first‑instance court should assess whether any of the statutory conditions for termination of the enforcement (запирање на извршувањето) had been met.
On 12 July 2006 the first-instance court again terminated the enforcement and quashed the enforcement measures finding that the domestic courts had lacked jurisdiction ratione loci to proceed against the debtor’s assets abroad. The court also considered that the validity of the enforcement order, which was final, could not be re-examined. It stated however that it could not be established whether the debtor understood the served documents (the enforcement order) and added that it was apparent that the enforcement order had been issued in error. This decision was made by judge M.N.
On 20 July 2006 the applicant appealed inter alia that there had been no legal basis for the termination of the enforcement and that under a bilateral treaty between the respondent State and the Czech Republic, the enforcement order should have been forwarded to the competent Czech authorities so that the latter proceed further with the enforcement.
On 28 March 2007 the Skopje Court of Appeal dismissed the applicant’s appeal and confirmed the first-instance decision of 12 July 2006 finding that the first-instance court had not quashed the enforcement order, but it had only terminated the enforcement. In this connection it further stated that distinction should be made between termination of the enforcement proceedings (запирање на извршната постапка) as a final completion of the enforcement proceedings and termination of the enforcement (запирање на извршувањето) itself as only a stage of the enforcement proceedings. The Court of Appeal, without making reference to any treaty and relying on the Enforcement Proceedings Act, stated that the enforcement had concerned an amount of money, for which the enforcement was vested with the court where they were located. It therefore upheld the first-instance decision that, in view of the lack of jurisdiction ratione loci, the enforcement had been impossible through the domestic courts. The applicant was served with the Court of Appeal’s decision on 4 October 2007.
On 13 March 2008 the applicant’s appeal on the points of law was finally rejected as inadmissible.
On 3 July 2008 the applicant’s request that the courts attest the finality and enforceability of the enforcement order (издавање на правосилност и извршност на решение) was finally dismissed.
COMPLAINTS
The applicant complains under Article 6 of the Convention that the domestic courts terminated the enforcement on their own motion although the enforcement order had already become final. In this connection he argues that, instead, the domestic courts should have forwarded the enforcement order to the competent authorities abroad. He further complains about the length of the proceedings, violation of the principle of equality of arms and about lack of impartiality since four trial judges withdrew from the case.
The applicant also invokes Article 13.
Lastly, he complains under Article 1 of Protocol No. 1 in view of the respondent State’s failure to enforce his claim.
QUESTIONS TO THE PARTIES
1. Did the applicant have a fair hearing in the determination of his civil rights in accordance with Article 6 § 1 of the Convention? In particular, what was the legal ground for termination (запирање) of the enforcement? Was the termination of the enforcement in violation of the principle of legal certainty embodied in Article 6 of the Convention? Was there a bilateral treaty between the respondent State and the Czech Republic, as alleged by the applicant in his submissions of 10 October 2007, or any other ground requiring the respondent State to take additional measures that would enable the enforcement of the applicant’s claim abroad?
2. Did the enforcement order amount to possession within the meaning of Article 1 of Protocol No. 1 to the Convention? If so, has there been an interference with the applicant’s peaceful enjoyment of possessions, within the meaning of Article 1 of Protocol No. 1? If so, was that interference lawful and justified within the meaning of Article 1 of Protocol No. 1 to the Convention?
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