I incorrectly predicted that there's no violation of human rights in ANEV v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA".

Information

  • Judgment date: 2019-08-27
  • Communication date: 2017-03-10
  • Application number(s): 17807/15
  • Country:   MKD
  • Relevant ECHR article(s): P1-1
  • Conclusion:
    Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings
    Article 6-1 - Access to court)
    Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)
  • Result: Violation
    • SEE FINAL JUDGMENT

JURI Prediction

  • Probability: 0.510454
  • Prediction: No violation

  • Inconsistent


Legend

 In line with the court's judgment
 In opposition to the court's judgment
Darker color: higher probability
: In line with the court's judgment  
: In opposition to the court's judgment

Communication text used for prediction

The applicant, Mr Vele Anev, is a Macedonian national, who was born in 1968 and lives in Veles.
He is represented before the Court by Mr O. Gašev, a lawyer practising in Veles.
The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant owned two lorries which he used to transport lumber.
This was his main source of income.
On 7 August 2013 the applicant was transporting lumber using one of his lorries.
On the Veles – Gradsko road he was stopped by the police, who seeing that he was transporting lumber, summoned the forestry police.
The forestry police determined that the data contained in the permission (испратница) for the transport of the lumber which was presented by the applicant did not match the stamp (жиг) on the lumber and the vehicle used for the transport.
For these reasons, it was considered that the applicant was not in possession of a valid permission for the transport, and misdemeanour proceedings were lodged against him before Veles Court of First Instance.
On the same day, the applicant’s lorry, along with the lumber that he was transporting (seven cubic meters of oak wood), were temporarily seized by the forestry police.
On 16 January 2014 Veles Court of First Instance found the applicant guilty for “transporting lumber without the proper stamp or permission”, a misdemeanour stipulated in the Woods Act, section 104, subsection 1, paragraph 11.
He was fined with 3,000 euros (EUR).
By this decision the applicant’s lorry along with the lumber were confiscated in accordance with section 104 subsection 3 of the Act.
The applicant argued that he owned two lorries used for the transport of lumber, and both of them were transporting wood on the same day.
Because of this, the drivers had confused the permissions and each of them had taken the wrong one.
To this end the applicant supplied two permissions with consecutive serial numbers, but the court understood this as an admission on the facts in the case.
On 31 March 2014 the applicant appealed.
He claimed that the fine and the confiscation of his lorry (estimated to be worth EUR 10,000) imposed an excessive burden on him.
On 9 July 2014 Skopje Court of Appeal dismissed the applicant’s appeal.
It held that all the elements of the misdemeanour stipulated in the Forests Act were fulfilled, and therefore it upheld the lower courts’ decision in full.
B.
Relevant domestic law 1.
The Woods Act (Закон за Шумите, Official Gazette Nos.
64/09, 24/11, 53/11, 25/13, 79/13, 147/13, 43/14) Section 104, subsection 1 paragraph 11 of the Woods Act prescribes that a fine in the amount ranging from EUR 3,500 to EUR 4,000 will be imposed on anyone who transports cut lumber without a proper tag or permission.
Section 104, subsection 3 of the Act prescribes that in cases of offences defined in section 104 subsection 1, notwithstanding the fine, the domestic courts shall give a confiscation order regarding the objects which have been used in the commission of the administrative offence as well as the objects themselves (the lumber).
2.
Misdemeanours Act (Закон за Прекршоците, Official Gazette Nos.
62/06, 51/11) Section 41 of the Misdemeanours Act specifies that in case of confiscation of goods in misdemeanour proceedings, the courts shall refer to sections 97 – 100 - A of the Criminal code.
3.
Criminal Code (Кривичен Законик, Official Gazette Nos.
37/96, 80/99, 04/02, 43/03, 19/04, 81/05, 60/06, 73/06, 7/08, 139/08, 114/09, 51/11, 185/11, 142/12, 166/12, 55/13, 82/13, 14/14, 27/14, 28/14) Section 100-A of the Criminal Code specifies that the objects which were intended to be used or were used to commit an offence shall be confiscated from the offender, regardless of whether he or a third person is their owner, if the interests of general security, the health of other persons or the reasons of morale so require.
COMPLAINTS The applicant complains under Article 1 of Protocol No.
1 to the Convention that the confiscation of his lorry imposed an excessive burden on him.

Judgment

THIRD SECTION
CASE OF STEVANOVIĆ AND OTHERS v. SERBIA
(Applications nos. 43815/17 and 15 others - see appended list)

JUDGMENT
STRASBOURG
27 August 2019

This judgment is final but it may be subject to editorial revision. In the case of Stevanović and Others v. Serbia,
The European Court of Human Rights (Third Section), sitting as a Committee composed of:
Georgios A. Serghides, President,Branko Lubarda,Erik Wennerström, judges,and Fatoş Aracı, Deputy Section Registrar,
Having deliberated in private on 9 July 2019,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in sixteen applications (nos. 43815/17, 43819/17, 46335/17, 46382/17, 58825/17, 72892/17, 77141/17, 77875/17, 77876/17, 77879/17, 77882/17, 78142/17, 79575/17, 83186/17, 5791/18 and 6256/18) against the Republic of Serbia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by sixteen Serbian nationals. The applicants’ personal details are set out in the appendix to this judgment. 2. The applicants were represented by Ms T. Stojiljković, a lawyer practising in Leskovac. The Serbian Government (“the Government”) were represented by their Agent, Ms N. Plavšić. 3. On 25 September 2018 notice of the applications was given to the Government pursuant to Rule 54 § 2 (b) of the Rules of Court. 4. The Government objected to the examination of the application by a Committee. After having considered the Government’s objection, the Court rejects it. THE FACTS
5. The applicants were employed by the following socially/State-owned companies: Vučje, Inkol, Elektrouniverzal and Graditelj (hereinafter – “the debtors”). 6. They obtained final court decisions ordering the debtors to pay them their salaries plus default interest and costs and expenses. The essential information as to the domestic proceedings in respect of each application is indicated in the appendix to this judgment. 7. Between April 2009 and September 2010 the Leskovac Commercial Court opened insolvency proceedings in respect of the debtors. Since all the enforcement proceedings against the debtors were stayed by operation of law (see paragraph 12 below), the applicants reported their claims based on the court decisions mentioned in paragraph 6 above to the liquidator. On different dates the liquidator accepted their claims in the amount of the principal debt plus default interest accrued until the day of institution of the insolvency proceedings against the debtors, as provided for by domestic law (see paragraph 12 below). 8. On different dates (see the appendix to this judgment) the Commercial Court of Appeal found that the applicants’ right to a trial within a reasonable time had been violated and awarded them between 100 and 400 euros (EUR) each for non-pecuniary damage. No award was made in respect of the fifth and the seventh applicant. That court also ordered the Leskovac Commercial Court to speed up the insolvency proceedings against the debtors. 9. All the applicants complained to the Supreme Court of Cassation about the amount of the awards. The Supreme Court of Cassation rejected their appeals. 10. On different dates in 2017 the Constitutional Court found a violation of the applicants’ right to the peaceful enjoyment of their possessions and ordered that the claims accepted by the liquidator (see paragraph 7 above) be paid directly by the State within four months. Furthermore, it held that the sums awarded in respect of non-pecuniary damage were reasonable. 11. Soon thereafter, those claims were indeed paid by the State. 12. Pursuant to sections 85 and 93 of the Insolvency Act 2009 (Zakon o stečaju; Official Gazette nos. 104/09, 99/11, 71/12, 83/14, 113/17 and 44/18), as of the day of institution of insolvency proceedings against a company (both private and socially/State-owned), any ongoing enforcement proceedings against the company are stayed and default interest on any outstanding debt of the company cease to accrue. The Insolvency Act 2004 (Zakon o stečajnom postupku; Official Gazette nos. 84/04 and 85/05), which was in force until the entry into force of the Insolvency Act 2009, contained almost identical provisions. THE LAW
13. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment. 14. The applicants maintained that the final court decisions mentioned in paragraph 6 above had not been fully enforced. They relied on Article 6 § 1 of the Convention and Article 1 of Protocol No. 1, which, in the relevant part, read as follows:
Article 6 § 1
“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
Article 1 of Protocol No. 1
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. ...”
15. The Government submitted that the applicants could no longer claim to be victims within the meaning of Article 34 of the Convention, since the judgments in issue had been enforced, domestic courts had acknowledged the alleged breach and awarded appropriate and sufficient redress. In view of a dire economic situation in Serbia, it could not be expected of domestic courts to award higher amounts in this regard. The Government added that in Serbia, at the relevant time (in 2016), the average salary was less than EUR 400 and the average pension was less than EUR 200. 16. The applicants disagreed. Notably, they complained because they had not been paid default interest after institution of insolvency proceedings against the debtors. They also argued that the redress awarded in respect of non-pecuniary damage was not sufficient. 17. The Court notes that the applicants were entitled to receive, and they indeed received, the principal debt and default interest at the statutory rate until the institution of the insolvency proceedings against the debtors. They did not receive default interest after that date because they were not entitled to it (see paragraph 12 above). That being the case, the Court concludes that the domestic decisions in issue were fully enforced. In this connection, the Court agrees with the Government that although the respondent State is responsible for the judgment debts of socially/State-owned companies (see R. Kačapor and Others v. Serbia, nos. 2269/06 and 5 others, 15 January 2008), the general rules of domestic law still apply to any enforcement and insolvency proceedings against such companies. Those with non-enforced judgments against socially/State-owned companies have a possibility of transferring liability for their claims to the State since 2012 (see Marinkovic v. Serbia (dec.), no. 5353/11, 29 January 2013). In the present case, there is no reason to elaborate on the rules which apply to transferred claims, since the judgments in issue were enforced soon after the transfer of liability (see paragraphs 10-11 above). 18. The Court further reiterates that the enforcement of a judgment after substantial delay is not in principle sufficient to deprive an applicant of his status as a victim unless the national authorities have acknowledged the breach (at least in substance) and afforded appropriate and sufficient redress (see Burdov v. Russia (no. 2), no. 33509/04, § 56, 15 January 2009). 19. In the present case, the domestic courts expressly acknowledged the alleged breach, thereby effectively satisfying the first condition laid down in the Court’s case law. 20. With regard to the second condition, the Court has already held in length-of-proceedings cases that one of the characteristics of such redress, which may remove a litigant’s victim status, relates to the amount awarded (see Cocchiarella v. Italy [GC], no. 64886/01, § 93, ECHR 2006‐V). The principles developed in the context of length-of-proceedings cases are also applicable in the situation where applicants complain of the delayed enforcement of final judgments in their favour, as in the present case (see Kudić v. Bosnia and Herzegovina, no. 28971/05, § 17, 9 December 2008). States which, like Serbia, have opted for a remedy designed both to expedite proceedings and afford compensation are free to award amounts which – while being lower than those awarded by the Court – are still not unreasonable (see Cocchiarella, cited above, § 97). 21. In cases against Serbia, when a final judgment rendered in a labour dispute has remained unenforced for more than five years, as in the present case, the Court normally awards EUR 4,700 for non-pecuniary damage (see Adamović v. Serbia, no. 41703/06, § 51, 2 October 2012, and Klikovac and Others v. Serbia, no. 24291/08, § 25, 5 March 2013). In view of a very large number of non-enforced domestic decisions against socially/State-owned companies, the Court reduced that sum to EUR 2,000 (see Stošić v. Serbia, no. 64931/10, § 67, 1 October 2013). In doing so, it took into consideration also the economic situation in Serbia to which the Government referred. Since that amount is already much lower than what the Court would have normally awarded in such cases, any lower amount awarded at the domestic level is considered to be unreasonable. It should be added, however, that the Court could accept a lower domestic award, if the respondent State opts for a comprehensive solution and transfer the liability for all non-enforced domestic decisions against socially/State-owned companies to the State by virtue of law (see Knežević v. Bosnia and Herzegovina (dec.), no. 15663/12, §§ 11-15, 14 March 2017, accepting a domestic award of EUR 50 in respect of non-pecuniary damage). 22. Since the applicants received less than EUR 2,000 in this respect, they did not lose their status as victims within the meaning of Article 34 of the Convention. The Government’s objection must therefore be dismissed. In view of the finding that the domestic decisions in issue were fully enforced (see paragraph 17 above), there is no need to examine the Government’s remaining objections. 23. Since the application is neither manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention nor inadmissible on any other grounds, it must be declared admissible. 24. The Court has frequently found violations of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 in cases raising similar issues (see, among many other cases, R. Kačapor and Others, cited above, and Crnišanin and Others v. Serbia, nos. 35835/05 and 3 others, 13 January 2009). There is no reason to depart from that jurisprudence. 25. There has accordingly been a violation of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1. 26. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
27. The applicants claimed EUR 2,000 each in respect of non-pecuniary damage, EUR 1,500 each for the costs and expenses incurred before the domestic courts and EUR 1,000 each for those incurred before the Court. 28. The Government considered the sums requested to be excessive. 29. In view of its case-law (see Stošić, cited above), the Court awards the applicants EUR 2,000 each, less any amounts which may have already been paid in that regard at the domestic level, in respect of non-pecuniary damage, costs and expenses and dismisses the remainder of the applicants’ claims for just satisfaction. 30. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY,
(a) that the respondent State is to pay the applicants, within three months EUR 2,000 (two thousand euros) each, less any amounts which may have already been paid in that regard at the domestic level, in respect of non-pecuniary damage, costs and expenses, plus any tax that may be chargeable, which is to be converted into the currency of the respondent State at the rate applicable at the date of settlement;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount 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 27 August 2019, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Fatoş Aracı Georgios A. SerghidesDeputy RegistrarPresident
No. Application no. and date of introduction
Applicant’s name
date of birth
Final domestic decision (trial court, case no., date of decision)
Enforcement order (enforcement court, case no., date of order)
Final domestic decision concerning the length of proceedings (trial court, case no., date of decision)
Amounts awarded domestically for non-pecuniary damage
Constitutional Court decision details
43815/17
12/06/2017
Srđan STEVANOVIĆ
06/07/1965
Leskovac Municipal Court
P.br. 2663/2003
07/10/2003
Leskovac Municipal Court
I.br. 1313/07
08/05/2007
Commercial Court of Appeal
R4 St 251/15
13/05/2015
170 euros
Už-6940/2015
27/04/2017
43819/17
12/06/2017
Goran ILIĆ
12/09/1969
Leskovac Municipal Court
P.br. 2575/03
20/11/2003
P1.br. 3239/07
13/03/2008
Leskovac Municipal Court
I.br. 4338/07
10/12/2007
I.br. 1316/08
03/07/2008
Commercial Court of Appeal
R4 St 122/15
17/03/2016
250 euros
Už-6963/2016
(Už-2506/2014)
27/04/2017
46335/17
14/06/2017
Radmila STAMENKOVIĆ
03/04/1951
Leskovac Municipal Court
P.br. 1255/03
13/11/2003
P1.br. 3308/07
14/02/2008
Leskovac Municipal Court
I.br. 4172/07
27/11/2007
I.br. 1812/08
18/09/2008
Commercial Court of Appeal
R4 St 122/15
17/03/2016
250 euros
Už-6963/2016
(Už-2506/2014)
27/04/2017
46382/17
13/06/2017
Slađanka NOVAKOVIĆ
03/02/1963
Leskovac Municipal Court
P.br. 2034/03
13/06/2003
P1.br. 2797/07
01/02/2008
Leskovac Municipal Court
I.br. 757/06
03/05/2006
I.br. 1602/08
30/062008
Commercial Court of Appeal
R4 St 122/15
17/03/2016
250 euros
Už-6963/2016
(Už-2506/2014)
27/04/2017
58825/17
02/08/2017
Zlata PAVLOVIĆ
23/06/1962
Leskovac Municipal Court
P1.br. 1932/06
25/06/2007
-
Commercial Court of Appeal
R4 St 167/15
20/08/2015
-
Už-10085/2016
22/06/2017
72892/17
02/10/2017
Tamara KOSTIĆ
19/07/1961
Leskovac Municipal Court
P.br. 1032/01
13/06/2001
P.br. 2651/2001
05/12/2001
P.br. 4098/2003
01/08/2003
P.br. 2167/04
10/11/2004
Leskovac Municipal Court
I.br. 1328/01
17/07/2001
I.br. 1390/02
18/07/2002
I.br. 3662/03
28/11/2003
I.br. 305/05
20/12/2006
Commercial Court of Appeal
R4 St. 84/2015
22/05/2015
100 euros
Už-7258/2015
(Už-1407/2014)
01/06/2017
77141/17
23/10/2017
Radmila ILIĆ
03/12/1947
Leskovac Municipal Court
P1.br. 3504/07
25/02/2008
Leskovac Municipal Court
I.br. 1684/08
18/09/2008
Commercial Court of Appeal
R4 St 869/2014
06/04/2015
-
Už-6950/2015
20/04/2017
77875/17
30/10/2017
Tomislav ĐORĐEVIĆ
11/09/1948
Leskovac Municipal Court
P.br. 862/03 (940/03)
04/03/2003
P1.br. 3130/07
10/01/2008
Leskovac Municipal Court
I.br. 4201/07
28/11/2007
I.br. 3109/08
04/11/2008
Commercial Court of Appeal
R4 St 104/15
16/06/2016
170 euros
Už-40/2017
(Už-2506/2014)
07/09/2017
77876/17
30/10/2017
Dragan CVETKOVIĆ
11/10/1953
Leskovac Municipal Court
P.br. 1928/03
13/06/2003
Leskovac Municipal Court
I.br. 1227/08
26/03/2008
Commercial Court of Appeal
R4 St 116/15
29/12/2015
170 euros
Už-4184/2016
(Už-2506/2014)
20/09/2017
77879/17
30/10/2017
Slađana KRSTIĆ
16/02/1968
Leskovac Municipal Court
P.br. 2467/03
20/05/2003
Leskovac Municipal Court
I.br. 1525/07
28/06/2007
Commercial Court of Appeal
R4 St 116/15
29/12/2015
170 euros
Už-4184/2016
(Už-2506/2014)
20/09/2017
77882/17
31/10/2017
Olivera ĐORĐEVIĆ
28/09/1976
Leskovac Municipal Court
P.1.br. 1162/06
20/09/2006
P1.br. 469/09
24/06/2009
Leskovac Municipal Court
I.br. 168/09
03/11/2009
I.br. 3412/09
07/12/2009
Commercial Court of Appeal
R4 St 2840/15
15/06/2016
170 euros
Už-9747/2016
19/07/2017
78142/17
03/11/2017
Zlatica STEFANOVIĆ
02/02/1959
Leskovac Municipal Court
P.br. 424/04
16/03/2005
P.1.br. 1912/06
05/12/2006
Leskovac Municipal Court
I.br. 283/06
28/04/2006
(I.br. 413/07
23/04/2007)
I.br. 598/07
08/02/2007
Commercial Court of Appeal
R4 St. 498/14
14/01/2015
400 euros
Už-2924/2015
(Už-1932/2014)
18/05/2017
79575/17
13/11/2017
Rade GAVRILOVIĆ
11/03/1954
Leskovac Municipal Court
P.br. 902/2003
30/06/2003
P1.br. 1130/06
20/07/2006
Leskovac Municipal Court
I.br. 4332/07
08/02/2008
I.br. 4317/07
21/04/2008
Commercial Court of Appeal
R4 St 1931/15
20/08/2015
100 euros
Už-931/2016
28/09/2017
83186/17
06/12/2017
Aca PAVLOVIĆ
24/10/1961
Leskovac Municipal Court
P.br. 1310/03
20/03/2003
P1.br. 2859/07
05/02/2008
Leskovac Municipal Court
I.br. 3515/07
09/10/2007
I.br. 1254/08
20/05/2008
Commercial Court of Appeal
R4 St 849/14
27/05/2015
R4 St 870/14
04/062015
270 euros
Už-7341/2015
20/09/2017
5791/18
22/01/2018
Sunčica JORGAČEVIĆ
19/01/1967
Leskovac Municipal Court
P1.br. 3252/07
30/01/2008
Leskovac Municipal Court
I.br. 2604/08
04/11/2008
Commercial Court of Appeal
R4 St. 124/2015
27/05/2015
100 euros
Už-412/2016
09/11/2017
6256/18
22/01/2018
Saša STANKOVIĆ
17/05/1967
Leskovac Municipal Court
P1.br. 263/08
15/04/2008
Leskovac Municipal Court
I.br. 2923/08
12/12/2008
Commercial Court of Appeal
R4 St. 124/2015
27/05/2015
100 euros
Už-412/2016
09/11/2017