NOVESKI AND OTHERS v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"

FIRST SECTION

DECISION

Applications nos. 25163/08, 2681/10 and 71872/13
Vence NOVESKI against the former Yugoslav Republic of Macedonia
and 2 other applications
(see list appended)

The European Court of Human Rights (First Section), sitting on 13 September 2016 as a Chamber composed of:

Ledi Bianku, President,
Mirjana Lazarova Trajkovska,
Kristina Pardalos,
Aleš Pejchal,
Robert Spano,
Armen Harutyunyan,
Pauliine Koskelo, judges,
and Abel Campos, Section Registrar,

Having regard to the above applications lodged on the dates indicated in the appended table,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having decided to join the applications,

Having deliberated, decides as follows:

THE FACTS

1. Details about the applicants are set out in the appendix.

2. The Macedonian Government (“the Government”) were represented by their Agent, Mr K. Bogdanov.

A. The circumstances of the case

3. The facts of the case, as submitted by the parties, may be summarised as follows.

4. Mr Venče Noveski (“the first applicant”) is the applicant in applications nos. 25163/08 and 2681/10 and is the second applicant in application no. 71872/13. He is the brother-in-law of Mr Bogoljub Stoleski (“the second applicant”), who is the first applicant in application no. 71872/13. The second applicant lives in Skopje in the first applicant’s house, while the first applicant lives in Germany. The first applicant stated that he stayed in his house in the respondent State “when needed”, in particular during the summer and winter holidays. The Government did not submit any evidence to refute that statement.

1. Application no. 25163/08

(a) Criminal proceedings for misappropriation of a right (самовластие) (К.бр. 630/05)

5. On 25 March 2005 the first applicant lodged a criminal complaint against H., his neighbour, for the misappropriation of a right (самовластие). He alleged that on 19 March 2005 H. and other people had unlawfully demolished a wall on his property in order to get access to a road. He argued that he had suffered damage as a result. In a submission on 28 September 2006 the first applicant laid out the specifics of his claim for compensation.

6. On 8 November 2007 the Skopje Court of First Instance (“the trial court”) convicted H. and sentenced him to six months’ imprisonment, suspended for two years. The court relied on the fact that no penalty had previously been issued against H. as a mitigating circumstance. It further instructed the first applicant to pursue his compensation claim by means of a separate action for damages in order to not prolong the criminal proceedings (за да не се одолговлекува кривичната постапка).

7. The first applicant lodged a complaint against that decision. He submitted, inter alia, that the penalty was too lenient and that the trial court had failed to decide on his compensation claim.

8. On 15 January 2008 the Skopje Court of Appeal (“the appellate court”) dismissed the applicant’s complaints and upheld the lower court’s judgment and the penalty it had imposed. It remitted the issue regarding costs for fresh examination. It did not comment on the arguments concerning the compensation claim.

9. According to the first applicant while the trial was pending, H. had repeatedly attacked his property by throwing stones and fruit at his walls and attempting to break into his house.

(b) Civil proceedings for disturbance of possession (П.бр. 1224/05) and subsequent enforcement

10. On 7 July 2006 the trial court upheld a claim by the first applicant for disturbance of possession (нарушено владеење). It ordered H. to reconstruct the part of the wall he had demolished and refrain from further disturbance of the first applicant’s enjoyment of his property. As stated in the judgment, H. neither appeared before the court nor contested the first applicant’s claim. The court found that the first applicant had reported the incident to the police on two occasions. On 16 February 2007 the judgment became final.

11. On 9 July 2007 in enforcement of the above judgment, H. reconstructed the wall. The wall was again demolished the same day by Sh.H. (H.’s brother). Sh.H. was convicted of violent behaviour (насилство, see paragraph 30 below) over the incident and sentenced to one year and six months’ imprisonment, suspended for four years (trial court judgment of 18 May 2011).

12. On 16 July 2007 the first applicant lodged a fresh application, seeking to have a private bailiff order H. to reconstruct the wall (see paragraph 37 below). On 2 September 2007 he asked the bailiff to issue a fine against H., arguing that H. had again come onto his land. It appears that those requests remained undecided.

2. Application no. 2681/10

Criminal proceedings for breach of the inviolability of the home (нарушување на неповредливоста на домот) (К.бр. 646/06)

13. On 3 April 2006 the first applicant initiated criminal proceedings against H. and two others for a breach of the inviolability of the home (нарушување на неповредливоста на домот). He complained that between 17 March 2005 and 2 April 2006 H. had trespassed on his property. On 3 October 2006 he made a claim for compensation for damage.

14. On several occasions during the trial the first applicant alerted the trial court to the fact that H. had again demolished the wall, had repeatedly trespassed on his property, sounded his car horn, instructed others to throw objects at the first applicant’s house, and had threatened and even fired at him with an automatic gun.

15. On 24 December 2008 the trial court found H. guilty and sentenced him to six months’ imprisonment, suspended for two years. The court noted that H. had no criminal record. The court held that he had repeatedly gone onto the first applicant’s land, which was part of his home. In establishing the facts, it relied, inter alia, on the judgment in the proceedings referred to above, П.бр. 1224/05 (see paragraphs 10-12). Lastly, it advised the first applicant, in accordance with section 102 of the Criminal Proceedings Act, to pursue his compensation claim by means of a separate civil action for damages as he had not provided enough evidence to substantiate it.

16. The first applicant appealed, arguing that H. had already been convicted in earlier proceedings (see paragraphs 5-9 above). He requested that the court accordingly impose a more severe penalty. On 17 June 2009 the appellate court upheld the trial court’s judgment, finding no grounds to depart from the established facts and reasons provided.

3. Application no. 71872/13

Criminal proceedings for breach of the inviolability of the home (К.бр. 2966/09; К.бр. 2623/10)

17. On 7 September 2009 the first and second applicants lodged a criminal complaint against H. for breach of the inviolability of the home, alleging that on 29 July 2009 and on other occasions H. had again unlawfully gone onto the first applicant’s land and trespassed in his yard.

18. At the trial, H. stated that the applicants had objected to him using the road, which in his opinion was a public thoroughfare, because they considered it part of their property. He further stated that there was another road to his house, which he did not use. The court admitted in evidence a decision of 23 October 2008 in which the competent administrative authorities had ordered the wall to be demolished because it had been constructed unlawfully.

19. On 5 September 2012 the trial court convicted H. and sentenced him to one year’s imprisonment, suspended for three years. It further reprimanded him (судска опомена) for using insulting language to the second applicant in reply to the criminal complaint. The court relied on the final judgments in the previous proceedings against H. (see paragraphs 5-9 and 13-16 above) and took his previous convictions into consideration in determining the penalty. Lastly, it instructed the applicants to pursue their compensation claim by means of a separate civil action for damages.

20. The applicants appealed, arguing, inter alia, that the penalty that had been imposed would not fulfil the aims of punishment. On 16 April 2013 the appellate court dismissed the appeal, finding that the penalty would deter H. from reoffending.

4. Other proceedings

21. The first applicant lodged a criminal complaint against a police officer who had carried out an on-site inspection related to the incident of 19 March 2005, but it was rejected by the public prosecutor. The latter found, inter alia, that the incident concerned a dispute between neighbours over their land.

22. On 19 March 2007 the applicants informed the police that despite the judgment of 7 July 2006 (see paragraph 10 above), H. had repeatedly entered the first applicant’s property and had incited some children to throw stones at their house.

23. On several occasions between 26 February 2010 and 11 September 2013, the applicants reported H. to the police for uttering insults, entering and damaging their property or threatening to kill them.

24. In 2013 the applicants initiated another set of criminal proceedings against H. on account of a breach of the inviolability of the home. It appears that the proceedings are still pending.

B. Relevant domestic law and practice

1. Criminal Code 1996

25. Under Article 39 § 4 of the Criminal Code, in determining the sentence of a person with previous convictions, the court will specifically consider whether the previous conviction was related to a similar offence as the new one, whether the offences were committed with the same motive, and what period of time has elapsed from the previous conviction or sentence, whether served or pardoned.

26. Under Article 49, a suspended sentence (условна осуда) means the court will impose a sentence and decide that it will not be enforced if the convicted person does not reoffend within a period determined by the court, which cannot be less than one year or longer than five (“the control period”). A suspended sentence may also entail the court determining that the sentence will be enforced if the convicted person does not return the proceeds of a crime, does not pay compensation for damage, or does not fulfill other obligations.

27. Under Article 51 § 1 the court shall revoke a suspended sentence during the control period if the convicted person commits one or more offences for which he or she is sentenced to imprisonment of two years or longer. Under Article 51 § 2, in cases of a less serious offence, the court assesses all the circumstances concerning the offences and the offender, especially the relation between the offences, their significance and the motives for them, and decides whether or not to revoke the suspended sentence. The court cannot impose a suspended prison sentence if the offender is to be sentenced to more than two years’ imprisonment for the initial and the new offences. Under Article 51 § 4 if the court does not revoke the suspended sentence it can pass another suspended sentence for the new offence. If the court finds that it should issue a suspended sentence for the new crime, it must determine a single sentence for the initial and new offence and a new control period. That period cannot be less than one year or longer than five.

28. Under Article 54 § 1, a suspended sentence may be revoked during the control period. If the convicted person commits an offence during that period which calls for the suspended sentence to be revoked and which was imposed by a final judgment after the expiry of the control period, the suspended sentence may be revoked within one year of the day of expiry of the control period. Under Article 54 § 2 if the convicted person does not fulfill some of the obligations referred to in Article 49, the court may decide, within a year of the expiry of the control period, that the suspended sentence should be enforced.

29. Under Article 145 § 1, any person who enters without authorisation another person’s home, a closed or fenced area belonging to that home, or private business premises designated as such, or does not leave such an area at the request of an authorised person, can be fined or imprisoned for one year.

30. Under Article 386 § 1, anyone who ill-treats or grossly insults another person, or threatens his safety or performs an act of gross violence against him and thereby causes a feeling of insecurity, threat or fear in the rest of the general public, can be imprisoned for between three months to three years.

31. Under Article 392 § 1, anyone who wilfully (самовласно) appropriates for himself a right or a right that he considers to be his own, can be fined or imprisoned for six months.

2. Criminal Proceedings Act 1997

32. Chapter 10 of the Criminal Proceedings Act 1997 regulated pecuniary claims (имотно-правни барања) lodged in criminal proceedings. Under section 96 (renumbered to section 97 with the 2005 consolidated text of the Act, Official Gazette no. 15/2005) a compensation claim relating to a criminal offence was to be decided in criminal proceedings, unless it significantly delayed those proceedings.

33. Under section 100 (section 101 of the consolidated text), the court could question the accused about the grounds of the compensation claim. If a decision on the compensation claim would significantly delay the proceedings, the court confined itself to gathering evidence which would be impossible or very difficult to gather at a later stage.

34. Section 101 (section 102 of the consolidated text) provided that if the court found the accused guilty, it could fully or partially decide the compensation claim. If the evidence in the criminal proceedings did not provide a sufficient basis for a decision on the compensation claim, and there was a danger that the criminal proceedings would be prolonged unjustifiably in order to obtain such evidence, the court could decide solely on the existence of the grounds for compensation, or on the grounds and partially on the compensation claim, and adopt a supplementary judgment (дополнителна пресуда) for the rest of the claim. If the amount of compensation could not be determined on the basis of other evidence or if obtaining such evidence would lead to significant delays in the proceedings, the court could decide on the compensation claim by awarding just satisfaction (правичен надоместок).

35. If the accused was acquitted, the indictment was rejected, or the proceedings were discontinued, the court was to instruct the victim to pursue his or her compensation claim in civil proceedings (section 101(3)).

36. Under section 494(1) (section 543(1) of the consolidated text), if a suspended prison sentence required the convicted person to return the proceeds of the crime, provide damages or fulfill other duties but which he failed to do, the trial court could revoke the suspended prison sentence on the proposal of an authorised plaintiff (овластен тужител) or of its own motion. If the court found that the obligations had not been fulfilled, it could issue a judgment prolonging the period for fulfilment, releasing the convicted person from fulfilment or replacing that duty with another one. It could also revoke the suspended sentence or decide that the suspended prison sentence be executed (section 494(4)).

3. Enforcement Act 2005

37. Section 225 of the Enforcement Act provides that if after an enforcement title (извршна исправа) concerning disturbance of possession (смеќавање на посед) has been enforced the respondent again disturbs the possession in the same manner, a private bailiff can order a return to the status quo ante on the basis of the same enforcement title.

4. Civil Proceedings Act 2005

38. Under section 11(3) a court in civil proceedings is bound by a criminal court’s final decision in respect of the existence of the offence and the criminal liability of the offender.

5. Relevant practice

39. The Government submitted a copy of three judgments in which the courts granted a request by victims of a crime for the revocation of a suspended prison term after the offender failed to pay compensation or fulfil other obligations (the payment of maintenance).

COMPLAINTS

40. The first applicant complained under Article 6 of the Convention about the lack of a decision by the criminal courts on the compensation claims he submitted during the criminal proceedings against H. Both applicants complained under Article 8 and Article 1 of Protocol No.1 to the Convention that the State’s response to their complaints about H.’s harassment had been inadequate and ineffective. The first applicant also complained under Article 13 of the Convention.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION

41. The first applicant complained that the criminal courts had not taken a decision on the compensation claims he had lodged in the criminal proceedings against H. He relied on Article 6 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 ... by [a] ... tribunal ...”

A. The parties’ submissions

42. The Government submitted that the domestic courts had decided on the compensation claims by instructing the applicant to pursue them in civil proceedings. Although the criminal courts had not ruled on the merits of the claims, they had adopted procedural decisions which had not terminated or extinguished those claims. Under section 97 of the Criminal Proceedings Act (see paragraphs 35 and 46 above), the criminal court was not obliged to decide on the merits of a compensation claim if that significantly prolonged the proceedings. That provision had been of a general nature and applicable to all criminal proceedings, irrespective of their outcome. An additional condition for the application of the provisions of the Chapter was a causal link between the offence in question and the damage claimed, and there was no such link in either set of criminal proceedings (see paragraphs 5-8 and 13-16 above). The criminal court was therefore not obliged to make a decision on those claims. Had it done so, it would have taken on the competences of a civil court. If the applicant had initiated civil proceedings as instructed by the criminal court, he would have been able to further state what damage he had allegedly sustained as a result of the offences.

43. The applicant argued that section 101 of the Criminal Proceedings Act had been completely disregarded. If the criminal courts had decided on his compensation claim, it would have led to a more serious criminal penalty and enabled the facts to be quickly established. Civil proceedings would have been costly and lengthy. The damage suffered by him was direct and indirect because H. had not only wanted to demolish the wall but also to use violence to pass through the first applicant’s property.

B. The Court’s assessment

44. The Court notes at the outset that the first applicant complained about the lack of a decision on the merits on his compensation claim. The Court considers that this complaint should be viewed as one of access to a court (see Boris Stojanovski v. the former Yugoslav Republic of Macedonia, no. 41196/06, § 56, 6 May 2010).

1. General principles deriving from the Court’s case-law

45. The Court reiterates that Article 6 § 1 embodies the “right to a court”, of which the right of access, that is the right to institute proceedings before courts in civil matters, constitutes one aspect (see Cudak v. Lithuania [GC], no. 15869/02, § 54, ECHR 2010).

46. However, the right of access to a court secured by Article 6 § 1 of the Convention is not absolute, but may be subject to limitations. These are permitted by implication since the right of access by its very nature calls for regulation by the State. In this respect, the Contracting States enjoy a certain margin of appreciation, although the final decision as to the observance of the Convention’s requirements rests with the Court. It must be satisfied that the limitations applied do not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired. Furthermore, a limitation of the right of access to a court will not be compatible with Article 6 § 1 if it does not pursue a legitimate aim and if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be achieved (see ibid., § 55, with further references).

47. While the Court’s duty, according to Article 19 of the Convention, is to ensure the observance of the engagements undertaken by the Contracting Parties to the Convention, it is not its function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention. Moreover, it is primarily for the national authorities, notably the courts, to interpret and apply domestic law. The Court’s role is confined to ascertaining whether the effects of such an interpretation are compatible with the Convention (see Prince Hans-Adam II of Liechtenstein v. Germany [GC], no. 42527/98, §§ 49 and 50, ECHR 2001‑VIII).

2. Application of the above principles to the above case

48. Turning to the present case, the Court observes that under section 96 of the Criminal Proceedings Act (section 97 of the consolidated text), the criminal courts were to decide on a compensation claim lodged in criminal proceedings provided that that did not significantly prolong those proceedings. Section 101 (section 102 of the consolidated text), on the other hand, provided that if the court found the accused guilty, it could decide on the compensation claim in full or in part (see paragraphs 33-34 above). The Government argued that the first provision (section 96) was to be regarded as a general clause applicable to all criminal proceedings, irrespective of their outcome. The Court observes that in the impugned criminal proceedings the courts did not explain how a decision on the compensation claim would have prolonged those proceedings. However, the applicant neither alleged nor demonstrated that there was an established domestic practice that compensation claims were always decided in criminal proceedings if they ended with a conviction. Moreover, in the proceedings for breach of the inviolability of the home, the trial court found that the compensation claim had not been substantiated with any evidence. Having regard to its limited power regarding the application and interpretation of domestic law (see paragraph 47 above), the Court accepts that the criminal courts were not obliged to decide on the applicant’s compensation claim.

49. The Court further observes that both sets of criminal proceedings ended with H.’s final convictions (compare and contrast Boris Stojanovski, cited above, where the criminal proceedings were discontinued as prosecution had become time-barred). In this connection, the Court observes that it has struck out of its list of cases a similar complaint because compensation proceedings initiated by the applicant following an instruction by the criminal court were pending (see Čaminski v. the former Yugoslav Republic of Macedonia, no. 1194/04, §§ 20-22, 24 February 2011). The Court notes that the first applicant was instructed by the criminal court to pursue his compensation claim by means of a separate action for damages. It has not been presented with any argument that the applicant was prevented from submitting a claim for pecuniary compensation to the civil courts owing to the operation of any legal or procedural rule. Lastly, it observes that both sets of criminal proceedings lasted for around three years at two levels of jurisdiction, which cannot be deemed excessive under the criteria laid down in the Court’s case-law (see, for example, ibid., §§ 50 and 52, and compare and contrast Boris Stojanovski, cited above, § 56, where the applicant was instructed to lodge a civil claim more than ten years after the incident which was the subject of the impugned criminal proceedings).

50. In view of the foregoing, the Court finds that the applicant’s right of access to a court was not restricted in a manner incompatible with Article 6 § 1 of the Convention (see paragraph 46 above).

51. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION

52. Relying on Articles 8 and 13 of the Convention and Article 1 of Protocol No. 1 to the Convention, the applicants complained of a failure by the respondent State to provide adequate protection from their neighbour. Being the master of the characterisation to be given in law to the facts of the case, the Court will examine the applicants’ complaints solely under Article 8 which, in so far as relevant, reads as follows:

Article 8

“Everyone has the right to respect for his private and family life, his home ... “

A. The parties’ submissions

1. The Government

53. The Government argued that the first applicant’s house in the respondent State could not be considered as his home within the meaning of Article 8 of the Convention, as he had been living in Germany with his entire family for a long time. He had resided in the respondent State only between 21 July 2007 and 3 August 2007, between 14 July 2008 and 16 July 2008 and for a brief period in the summer of 2009. H.’s actions subject to applications nos. 25163/08 and 2681/10 had taken place on the first applicant’s property in 2005 and 2006. The second applicant had been living in the house since 1985 and the first applicant had only stayed there for short periods during the summer. The first applicant’s allegations under this head were therefore incompatible ratione personae.

54. The Government agreed that H.’s actions had affected the second applicant’s rights under Article 8 of the Convention. However, the domestic legislation and the actions of the domestic authorities had provided adequate protection. Article 145 § 1 of the Criminal Code provided for a fine or imprisonment of up to one year for anyone who committed the offence of breaching the inviolability of the home. The potential penalty had contained sufficient preventive and punitive elements to be in accordance with the requirements of Article 8. In H.’s case, the one-year prison sentence, suspended for three years, had been proportionate to H.’s actions and had fully met the purpose of the punishment. H. had no longer been reported for violating the second applicant’s home as there had been no further proceedings against him on that account after the impugned criminal proceedings.

55. The Government argued that the national legislation and the actions of the national authorities had been compliant with their positive obligations in relation to issues raised by the applicant under Article 8 and Article 1 of Protocol No. 1. In that connection, the final judgment in the civil proceedings for disturbance of possession had been enforced on 9 July 2007 as the wall had been rebuilt. After it had been again demolished by Sh.H., the latter had been convicted for violence. The first applicant’s request under section 225 of the Enforcement Act had therefore been ill-founded as the second disturbance of possession had not been committed by H. The first applicant had lodged a compensation claim in the criminal proceedings against Sh.H. In the criminal proceedings for the misappropriation of a right and breach of the inviolability of the home the trial courts had imposed the highest possible prison sentences, albeit suspended. That had satisfied the positive obligations under Article 1 of Protocol No. 1 and Article 8 alike. The subsequent conviction of H. had provided the first applicant with the possibility to have H.’s previous sentence enforced, under section 543 of the Criminal Proceedings Act, but he had failed to do that. Instead, he had requested that H.’s suspended sentences be revoked in the subsequent criminal proceedings against him. In the criminal proceedings the domestic courts had taken H.’s previous conviction as an aggravating circumstance and had imposed the heaviest penalty possible.

2. The applicants

56. The applicants contested the Government’s arguments, saying that it was irrelevant, in view of section 225 of the Enforcement Act, that it had not been H. himself who had demolished the wall on 9 July 2007. It had been H.’s brother and nephew and although he had been absent H. had coordinated their actions. After the criminal proceedings against Sh.H. for that incident, the compensation proceedings had still been pending.

57. The first applicant had the title to the house and land in question. He resided there occasionally and had made improvements to it. It was therefore to be regarded as his home. Under domestic legislation, it sufficed to rent somewhere for a certain amount of time for that place to become a home. The criminal courts had unlawfully imposed suspended sentences on H., although he had reoffended. The sanctions had not been proportionate. Another set of criminal proceedings under Article 145 of the Criminal Code was also pending about an incident on 18 September 2013.

58. The applicants further argued that they had not been provided with adequate legal protection by the authorities. It had not been section 543 of the Criminal Proceedings Act that had applied to their cases, but Articles 51 and 52 of the Criminal Code. When the criminal courts had imposed the penalties on H. they had not given enough weight to the type of offence at issue and whether the aim of imposing the punishment would be fulfilled. They had also not taken into consideration the fact that H. had continually reoffended. There had been other criminal proceedings initiated against H. for the offence of violence in 2009 and 2013.

B. The Court’s assessment

1. General principles deriving from the Court’s case-law

59. Article 8, while primarily intended to protect the individual against arbitrary interference on the part of the public authorities, may also entail the adoption by the latter of measures to secure the rights guaranteed by that Article even in the sphere of relations between individuals, including in cases of alleged harassment (see, for example, López Ostra v. Spain, judgment of 9 December 1994, Series A no. 303-C, § 51; Moreno Gómez v. Spain, no. 4143/02, § 55, 16 November 2004; and Surugiu v. Romania, no.48995/99, § 59, 20 April 2004). Whether the case is analysed in terms of a positive duty on the State or in terms of interference by a public authority to be justified in accordance with paragraph 2 of Article 8 of the Convention, the applicable principles are broadly similar. In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole. Furthermore, even in relation to the positive obligations flowing from the first paragraph of Article 8, in striking the required balance the aims mentioned in the second paragraph may be of certain relevance. Moreover, the scope of this obligation will inevitably vary in the light of the diversity of situations obtaining in Contracting States and the choices that must be made in terms of priorities and resources. Nor must such an obligation be interpreted in such a way as to impose an impossible or disproportionate burden on the authorities (see Novoseletskiy v. Ukraine, no. 47148/99, §§ 69 and 70, ECHR 2005‑II (extracts)).

60. The State’s positive obligations concerning allegations of serious acts of violence by private parties under Article 8 of the Convention imply that the authorities have a duty to apply criminal-law mechanisms of effective investigation and prosecution. Nevertheless, only significant flaws in the application of the relevant mechanisms amount to a breach of the State’s positive obligations under Article 8. Accordingly, the Court will not concern itself with allegations of errors or isolated omissions since it cannot replace the domestic authorities in the assessment of the facts of the case; nor can it decide on the alleged perpetrators’ criminal responsibility (see B.V. v. Croatia [dec.], no. 38435/13, § 151, 15 December 2015).

61. As the Court stated in B.V. (ibid., § 154), previous cases in which it found that Article 8 of the Convention required an effective application of criminal-law mechanisms concerned the sexual abuse of a mentally handicapped individual; allegations of a physical attack on the applicant; the beating of a thirteen-year-old by a grown-up man, causing multiple physical injuries; the beating of an individual causing a number of injuries to her head and requiring admission to hospital; and serious instances of domestic violence (ibid., with further references). In contrast, as far as concerns less serious acts between individuals which may cause injury to someone’s psychological well-being, the obligation of the State under Article 8 to maintain and apply in practice an adequate legal framework affording protection does not always require that an efficient criminal-law provision covering the specific act be in place. The legal framework could also consist of civil-law remedies capable of affording sufficient protection (see Söderman v. Sweden, [GC], no. 5786/08, § 85, ECHR 2013).

2. Application of the above principles to the present case

62. Turning to the present case the Court notes first of all that the actions of H. which were examined by the domestic authorities mainly concerned attacks on the first applicant’s property, notably the demolition of a wall and the use of a road on his property without the applicants’ consent. The domestic courts considered that those actions amounted to a breach of the inviolability of the applicants’ home. However, the applicants also alleged that H. had repeatedly threatened, insulted and harassed them in other ways.

63. The Court notes that the available evidence is not conclusive as to whether the first applicant resided in the respondent State and whether he was indeed subjected to continuous harassment, as alleged. However, it will not address that particular issue and it will not decide whether the house in the respondent state can be regarded as a home within the meaning of Article 8 as the complaints are in any event inadmissible for the following reasons.

64. In the first place, the Court observes that the acts of harassment alleged by the applicants in the criminal complaints lodged with the police did not consist of physical violence (see, conversely, Remetin v. Croatia, no. 29525/10, § 91, 11 December 2012, and Sandra Janković v. Croatia, no. 38478/05, § 47, 5 March 2009). The harassment complained of consisted of alleged insults, threats, the stoning of the applicants’ house, entering their property (see paragraphs 13, 14, 17 and 22 above). The applicants alerted the police about those alleged incidents, but it appears that no response came from them.

65. The Court further notes that the incidents which were subject to the domestic proceedings consisted of demolishing a wall on the first applicant’s property and using a road on his land. The applicants have not argued that they were at any time completely unable to use their home (compare and contrast Novoseletskiy, cited above).

66. The Court considers it relevant that the case at issue concerns an ongoing, long-lasting dispute between the applicants and their neighbour (see B.V., cited above, § 155) concerning the use of their land. That was also established by the domestic authorities, who encouraged the neighbours to settle their dispute peacefully or to take it up with the competent authorities.

67. The Court observes that the domestic criminal courts on three occasions accepted the applicants’ criminal complaints concerning H.’s actions: he was convicted once for the misappropriation of a right and twice for a breach of the inviolability of the home. Moreover, the criminal courts passed prison sentences on him, albeit suspended, finding that those penalties sufficed to fulfill the aims of the punishment, one of them being prevention. In that regard, the Court reiterates that it is not its task to replace the domestic authorities in the assessment of the facts of a case, by, for example, finding that a more serious penalty should have been imposed. Similar considerations apply in respect of the applicants’ arguments about the possibility for the courts to revoke suspended prison sentences of their own motion.

68. As to the possibility for the applicants to turn to civil-law remedies, the Court refers to its previous finding that it was possible for the first applicant to pursue his compensation claims for the damage he had suffered as a result of H.’s acts (see paragraph 49 above). In that connection, it notes that both applicants were told to pursue such a claim following the second set of criminal proceedings for breach of the inviolability of the home. The court notes that the applicants failed to provide a reasonable explanation for their failure to pursue that remedy.

69. For the reasons stated above, the Court finds that there is no appearance of any deficiencies in the relevant domestic legal framework concerning the applicants’ specific complaints.

70. It follows that the applicants’ complaints are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Decides to join the applications;

Declares inadmissible the applications.

Done in English and notified in writing on 6 October 2016.

Abel CamposLedi Bianku
RegistrarPresident

APPENDIX

No

Application No

Lodged on

Applicant

Date of birth

Place of residence

Represented by[1] 

25163/08

16/05/2008

Venče NOVESKI

10/09/1948

Skopje

Bogoljub STOLESKI 

2681/10

10/12/2009

Venče NOVESKI

10/09/1948

Skopje

Bogoljub STOLESKI 

71872/13

09/11/2013

Bogoljub STOLESKI

28/08/1950

Skopje

Venče NOVESKI

10/09/1948

Skopje

Bogoljub STOLESKI

[1]. Mr Stoleski was authorised to represent himself and Mr Noveski before the Court.

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