Communicated on 25 September 2014
FIRST SECTION
Application no. 25163/08
Vence NOVESKI against the former Yugoslav Republic of Macedonia
and 2 other applications
(see list appended)
STATEMENT OF FACTS
The applicants, Mr Venče Noveski (“V.N.”) and Mr Bogoljub Stoleski (“B.S.”) are Macedonian nationals, who were born in 1948 and 1950 respectively.
V.N. is B.S.’s brother-in-law. B.S. lives in Skopje, in V.N.’s house. V.N. lives in Germany. On the basis of the available material, it appears that V.N. stayed in his house in the respondent State between 21 July and 3 August 2007 and between 14 and 16 July 2008.
V.N. is the sole applicant in the applications nos. 25163/08 and 2681/10, lodged respectively on 16 May 2008 and 10 December 2009. Application no. 71872/13, lodged on 9 November 2013, was brought by V.N. and B.S.
A. The circumstances of the cases
The facts of the cases, as submitted by the applicants, may be summarised as follows.
The applications concern incidents described below between the applicants and their neighbour (“H”).
1. Application no. 25163/08
On 19 March 2005 H. partly demolished a wall in V.N.’s yard in order to cross through V.N.’s plot of land. V.N. informed the police of the incident.
(a) Civil proceedings for disturbed possession and subsequent enforcement
On 7 July 2006 the Skopje Court of First Instance (“the trial court”) upheld a claim by V.N. for disturbed possession (нарушено владеење) and ordered H. to reconstruct the demolished part of the wall. On 16 February 2007 the judgment became final.
On 9 July 2007, in enforcement of the above judgment, H. reconstructed the wall, but on the same day he apparently demolished it again. On 16 July 2007 V.N. lodged a fresh application requesting a private bailiff to order that H. construct the wall (see section 225 of the Enforcement Act, Relevant domestic law below). On 2 September 2007 he sought that the bailiff issues a fine against H. It appears that the bailiff did not decide these requests.
(b) Criminal proceedings
On 25 March 2005 V.N. lodged a criminal complaint against H. for misappropriation of a right (самовластие). He also sought financial reparation of the damage.
On 8 November 2007 the trial court convicted H. and sentenced him to six months’ imprisonment suspended for two years. It advised V.N. to pursue his civil claim by means of a separate action for damages.
On 15 January 2008 the Skopje Court of Appeal confirmed the judgment, in respect of the H.’s criminal responsibility and the penalty, and remitted the case in respect of the trial costs. On 14 April 2008 the trial court finally partly upheld V.N.’s claim in respect of the trial costs.
According to V.N., during the trial the neighbour had repeatedly attacked the property by stoning, throwing fruits against the walls and attempts to break into the house.
(c) Other proceedings
V.N. lodged a criminal complaint against a police officer who had carried out an on-site inspection of the place of the incident of 19 March 2005. On 8 July 2005 the public prosecutor rejected the complaint finding that the defendant had not abused the office.
On 19 March 2007 V.N. and B.S. informed the Ministry of Interior that between 13 and 16 March 2007 groups of children, operating under the guidance of the neighbour, had repeatedly stoned the house.
2. Application no. 2681/10
On 3 April 2006 V.N. initiated criminal proceedings against H. and two other persons for 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 been trespassing V.N.’s property, despite his warnings not to do so. On 3 October 2006 he made a claim for financial reparation of the damage.
On several occasions during the trial, V.N. alerted the trial court that H. had again demolished the wall, had repeatedly trespassed his property, had instructed others to throw objects at V.N.’s house and had made noise with his car horn.
On 24 December 2008 the Skopje Court of First Instance convicted H. It found that he had repeatedly entered V.N.’s property, which had been part of his home. It sentenced him to six months’ imprisonment suspended for two years. It further advised V.N. to pursue his compensation claim by means of a separate civil action for damages, as he had failed to substantiate his claim with any evidence. On 17 June 2009 the Court of Appeal upheld the lower court’s judgment.
3. Application no. 71872/13
On 7 September 2009 V.N. and B.S. lodged a criminal complaint against H. for breach of the inviolability of the home, alleging that on 29 July 2009 H. had again trespassed their property. At the trial, H. stated that V.N. and B.S. objected to him using the road, which in his opinion was public, since 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 as evidence a decision of 23 October 2008 in which competent administrative authorities had ordered demolition of the wall, as unlawfully constructed.
On 5 September 2012 the Skopje Court of First Instance convicted H. and sentenced him to one years’ imprisonment, suspended for three years.
V.N. and B.S. appealed arguing that, in view of the previous H.’ convictions, the imposed suspended imprisonment would not fulfil the aims of the punishment. On 16 April 2013, the Court of Appeal dismissed the appeal, finding that the Court of First Instance correctly found that the sanction imposed would influence H. not to commit further similar offences.
B. Relevant domestic law
1. Criminal Code 1996
Under Section 39 (4) of the Criminal Code, in determining the sentence to a person who had previous convictions, the court will specifically consider whether the previous conviction was related to a similar offence, whether the offences were committed with the same motive and the period of time which had lapsed from the previous conviction or the sentence served or pardoned.
Under section 145 (1), any person who enters without authorization another person’s home, closed or fenced area belonging to that home, or private business premises designated as such, or upon the request of an authorized person does not withdraw from such an area, can fined or imprisoned for one year.
Under section 392 (1), anyone who on his own will (самовласно) obtains his right or a right that he considers his own, can be fined or imprisoned for six months.
2. Criminal Proceedings Act 1997
Under section 96 of the Criminal Proceedings Act 1997, in force at the material time, a compensation claim related to a criminal offence was to be decided in criminal proceedings, unless it significantly delayed those proceedings.
Under section 100, 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 significantly difficult to gather at a later stage.
Section 101 provided that if the court found the accused guilty, it fully or partially decided the compensation claim. If the evidence in the criminal proceedings did not provide sufficient basis for a decision concerning the compensation claim, and there would be a danger of unjustified prolongation of the criminal proceedings in order to obtain such evidence, the court would decide solely the existence of the ground for compensation, or the ground and partially the amount of the compensation claim, and would adopt an addendum (дополнителна пресуда) for the remainder of the claim. If the amount of compensation could not be determined on the basis of other evidence or in case when obtaining such evidence would lead to significant delays in the proceedings, the court would decide on the compensation claim awarding just satisfaction (правичен надоместок).
When the accused was acquitted, or the indictment was rejected, or the proceedings was discontinued, the court was to advise the victim to pursue his or her compensation claim in civil proceedings (section 101 (3)).
3. Enforcement Act 2005
Section 225 of the Enforcement Act provides that when, after an enforcement title (извршна исправа) concerning disturbed possession (смеќавање на посед) was enforced, the debtor re-disturbs the possession in the same manner, the private bailiff orders the restitution of the status quo ante on the basis of the same enforcement title.
COMPLAINTS
In applications nos. 25163/08 and 2681/10 V.N. complains under Article 6 of the Convention about the lack of a decision of the criminal courts in respect of his compensation claim submitted in the course of the criminal proceedings against H. Both applicants in all applications complain under Article 8 of the Convention that the State’s response to their complaints concerning the nuisance caused by H. was inadequate and ineffective. In application no. 25163/08, V.N. also complains under Article 13. Both applicant (in applications nos. 2681/10 and 71872/13) further complain under Article 1 of Protocol No.1, raising similar arguments as under Article 8 of the Convention.
QUESTIONS TO THE PARTIES
1. Did the failure of the criminal courts to decide V.N.’s compensation claim submitted in the criminal proceedings against H., the neighbour (applications nos. 25163/08 and 2681/10), amount to a breach of V.N.’s right of access to a court, within the meaning of Article 6 of the Convention (see Boris Stojanovski v. the former Yugoslav Republic of Macedonia, no. 41196/06, 6 May 2010)?
2. Can the house in question located in the respondent State be regarded as V.N.’s "home", within the meaning of Article 8 of the Convention?
3. Did the actions complained of affect the applicants’ home and/or their private life as provided for under Article 8 of the Convention? In this connection and in view of the facts of the cases, have the State authorities complied with their positive obligations under Article 8 of the Convention to protect the applicants’ rights to respect for their home and/or their private life from H.?
4. To what extent did the matters complained of adversely affect the applicants’ peaceful enjoyment of their possessions within the meaning of Article 1 of Protocol No. 1? Have the State authorities complied with their positive obligations under Article 1 of Protocol No. 1 (see, mutatis mutandis, Kotov v. Russia [GC], no. 54522/00, 3 April 2012)?
APPENDIX
No
Application No
Lodged on
Applicant
Date of birth
Place of residence
25163/08
16/05/2008
Vence NOVESKI
10/09/1948
Skopje
2681/10
10/12/2009
Vence NOVESKI
10/09/1948
Skopje
71872/13
09/11/2013
Bogoljub STOLESKI
28/08/1950
Skopje
Vence NOVESKI
10/09/1948
Herford
Vence NOVESKI
10/09/1948
Skopje
Full & Egal Universal Law Academy