I correctly predicted that there's no violation of human rights in JAKIMOVSKI AND KARI PREVOZ v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA'".

Information

  • Judgment date: 2023-06-01
  • Communication date: 2014-10-08
  • Application number(s): 51599/11
  • Country:   MKD
  • Relevant ECHR article(s): P1-1
  • Conclusion:
    Struck out of the list (Article 37-1 - Striking out applications)
    Damage - award (Article 41 - Just satisfaction)
  • Result: No violation
    • SEE FINAL JUDGMENT

JURI Prediction

  • Probability: 0.611721
  • Prediction: No violation

  • Consistent


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 first applicant, Mr Savčo Jakimovski, is a Macedonian national who was born in 1967.
The second applicant, Kari Prevoz d.o.o.
Sv.
Nikole, is a company founded by the first applicant and incorporated in the respondent State.
They are represented before the Court by Mr T. Torov, a lawyer practising in Štip.
A.
The circumstances of the case The facts of the case, as submitted by the applicants, may be summarised as follows.
On 10 March 2008 the first applicant entered the respondent State at the border crossing point C.I.
Novo Selo, driving a truck loaded with commercial goods.
After a customs officer had allegedly examined the truck and the relevant documents, the applicant continued driving to the customs terminal in Bitola (approximately 200 kilometres away) where the customs duty for the transported goods was apparently paid.
It appears that on the same day the custom authorities seized the applicant’s truck and the transported goods.
On 11 March 2008 the Bitola branch of the Customs Office (Царинска управа) requested that the Commission for Customs-related Minor Offences (Комисија за одлучување по царински прекршок, “the Commission”) initiated minor-offence proceedings against the first applicant.
The request stated that a certain document (“ЕЦД-то за транспорт“) had not been registered by the C.I.
Novo Selo, the customs checking-point where the first applicant had entered the respondent State, which amounted to a minor offence punishable under the Customs Act.
In the request, the value of the transported goods was set at 30,890 euros (EUR).
On 30 May 2008 the first applicant’s representative requested that the Customs Office accelerate the proceedings.
In this connection he argued that the truck had been held by the Office for three months; that his family had no other sources of income; that a bank, which had given him loan to buy the truck, intended to sell their apartment, under which a charging order had been recorded in respect of the bank; and that the owner of the goods had threatened that he would sue him and claim compensation.
He also invoked Article 1 of Protocol No.
1 of the Convention.
On 26 June 2008 a valuation record was prepared in respect of the truck, the value of which was estimated to a total of 805,000 Macedonian denars.
On 11 July 2008 the Commission convicted the first applicant for a minor offence under the Customs Act imposing a fine in the equivalent to EUR 15,000 and it confiscated the truck and the goods which had been transported.
On 8 May 2009 the Administrative Court quashed the Commission’s decision, finding that the Commission had changed the elements of the offence as formulated in the initial request.
On 22 June 2009 the Commission again established that the first applicant had committed a minor offence under the Customs Act, namely that the customs transit declaration (царинска транзитна декларација) had not been registered by the customs authority at the moment of entering the State, i.e.
that the applicant did not submit the transported goods for inspection at the moment of entering the State.
The Commission fined the first applicant with the equivalent to EUR 1,500.
In determining the fine, the Commission took, as a mitigating circumstance, the fact that the first applicant had reported, on his own motion, the import of the goods to the customs authority in Bitola.
It also ordered the confiscation of the transported goods and the truck, which, as it found, was owned by the perpetrator of the offence.
On 8 July 2009 the first applicant lodged an administrative-dispute claim (тужба за управен спор) against the Commission’s decision.
He challenged the facts established by the Commission and argued that it had erred on the substantive law.
He also reiterated his arguments regarding the charging order over his apartment and the absence of any other source of income, besides the transportation of goods.
On 2 February 2010 the Administrative Court dismissed the first applicant’s claim finding that the Commission had correctly confiscated the truck.
It found that the second applicant, a limited liability company established by a single owner, was the owner of the truck.
The court held that the second applicant, as a transporter, was liable for the actions and omissions of the first applicant, who was its statutory representative.
On 22 November 2010 the Supreme Court dismissed the first applicant’s appeal and upheld the Administrative Court’s judgment.
This latter judgment was served on the applicants on 23 March 2011.
B.
Relevant domestic law 1.
Customs Act Under section 50 § 1, the goods which reach the custom authorities at the border crossing point or in another place which the custom authorities determined or approved, is submitted to the authorities for inspection by the person who entered the goods in the custom area or, if needed, by the person responsible for the transport of the goods which entered the custom area.
Section 51 provides that the provisions of section 50 do not exclude the application of the rules concerning goods which have been submitted for custom proceedings, but not for inspection to the custom authorities.
Under section 263 § 1 point 5, a fine in the range between EUR 5.000 and EUR 100.000 euros in Macedonian denars will be imposed to a legal person which fails to submit for inspection to the custom authorities the transported goods.
Under section 263 § 3 a fine of EUR 500 to 15.000 euros in Macedonian denars will be imposed to an individual who commits the same offence.
Under section 267 §§ 1 and 2, the goods which are subject to the minor offence of section 263 points 1-9 and section 265 of the Act will be confiscated, even if they are not owned by the perpetrator of the offence, if the owner of the goods knew or could have known that the goods were subject to the offence.
Under section 269 § 1, the means of transport that are used for transport or transfer across the State border or the customs area of the goods which are subject to a minor offence under section 263 of the Act will be confiscated, if the value of the goods exceeds 20% of the value of the means of transport, and the owner of the means of transport knew or ought to have known that it would be used for such a transport or transfer.
COMPLAINTS The applicants complain that the confiscation of the truck and commercial goods violated their rights under Article 1 of Protocol No.
1 of the Convention.

Judgment

FIRST SECTION
CASE OF JAKIMOVSKI AND KARI PREVOZ v. NORTH MACEDONIA
(Application no. 51599/11)

JUDGMENT(Revision)
STRASBOURG
1 June 2023

This judgment is final but it may be subject to editorial revision. In the case of Jakimovski and Kari Prevoz v. North Macedonia,
The European Court of Human Rights (First Section), sitting as a Committee composed of:
Péter Paczolay, President, Tim Eicke, Raffaele Sabato, judges,and Liv Tigerstedt, Deputy Section Registrar,
Having deliberated in private on 9 May 2023,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 51599/11) against the Republic of North Macedonia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 8 August 2011 by Mr Savcho Jakimovski, a Macedonian/citizen of the Republic of North Macedonia (“the first applicant”), and Kari Prevoz D.O.O. Sveti Nikole, a company incorporated in the respondent State (“the second applicant”). 2. In a judgment delivered on 14 November 2019, the Court found a violation, in respect of both applicants, of Article 1 of Protocol No. 1 to the Convention on account of the confiscation of the second applicant’s lorry in customs-related misdemeanour proceedings against the first applicant. The Court also held that the respondent State was to return to the applicants the confiscated lorry in the state that it had been in at the time of its confiscation; failing such restitution, it was to pay the applicants, jointly, 13,000 euros (EUR), plus any tax that might be chargeable, in respect of pecuniary damage. The Court further awarded the applicants, jointly, EUR 14,500 in pecuniary damage in respect of accrued statutory interest in respect of the value of the lorry, EUR 3,000 in respect of non-pecuniary damage and EUR 925 in respect of costs and expenses. 3. On 8 January 2020 the Government of North Macedonia (“the Government”) informed the Court that in December 2019 the applicant’s representative had informed them that on 23 March 2016 the second applicant had ceased to exist and had been removed from the Trade Register. They accordingly requested the revision of the judgment under Rule 80 of the Rules of Court. 4. On 3 March 2020 the Court considered the request for revision within the meaning of Rule 80 of the Rules of Court and decided to give the applicants’ representative three weeks in which to submit any observations. Those observations were received on 5 May 2020. THE LAW
THE REQUEST FOR REVISION
5. The Government argued that the first applicant had not informed the Court, in his observations (of 2015) regarding the admissibility and merits, of the second applicant’s forthcoming imminent removal from the Trade Register. He had also failed to inform the Court of the second applicant’s liquidation (i) once it had occurred and (ii) before the Court’s judgment had been adopted more than three and a half years later. The first applicant had thus abused his right of application. In addition, the Government argued that the Court’s judgment was non-enforceable. Given that the information concerning the second applicant’s removal from the Trade Register could have a significant bearing on the Court’s finding under Article 41 of the Convention, the Government requested the Court to reconsider the latter matter. 6. The first applicant, through his representative, argued, inter alia, that the Government had known that the second applicant had ceased to exist, which had been a direct result of the confiscation of the lorry in violation of Article 1 of Protocol No. 1. The second applicant had been established solely with the purpose of conducting activities in the field of transportation, using the lorry. Under domestic law, the property obtained by a spouse during marriage was considered to constitute the joint property of the spouses, and the award made by the Court to the second applicant was to be distributed between the spouses as its former owners. 7. The relevant part of Rule 80 of the Rules of Court provides as follows:
“A party may, in the event of the discovery of a fact which might by its nature have a decisive influence and which, when a judgment was delivered, was unknown to the Court and could not reasonably have been known to that party, request the Court ... to revise that judgment ...”
8. The Court accepts that the removal of the second applicant from the Trade Register constitutes a fact that had a “decisive influence” on the outcome of the judgment within the meaning of Rule 80 of the Rules of Court; that fact had not been known and could not reasonably have been known to the Government. 9. It reiterates that, as noted in the original judgment (see paragraph 31 of that judgment), the second applicant formally had title to the confiscated lorry; nevertheless, given that the applicants had close ties with each other, the Court found that the first applicant also had victim status in respect of the complaint lodged under Article 1 of Protocol No. 1 to the Convention. 10. An application may be seen as constituting an abuse of the right of application if, among other reasons, an applicant (or his or her representative) has misled the Court. This may occur, for example, when it is clear that an application is knowingly based on untrue facts with a view to deceiving the Court, or where it is deliberately grounded on a description of facts that omits events of central importance (see Mindek v. Croatia (revision), no. 6169/13, § 26, 11 September 2018). In the present case, the Court notes that in the contentious proceedings preceding the original judgment the first applicant failed to inform it of the second applicant’s liquidation and its consequent removal from the Trade Register. Although showing a lack of diligence, such a failure cannot be regarded – given the circumstances of the case (in particular the close interplay between the applicants) – sufficient to amount to an abuse by the first applicant of his right of application. 11. Turning to the second applicant, the Court observes that neither the first applicant nor his wife (who had – together with the first applicant – obtained joint ownership of the second applicant) expressed in a timely manner a wish to pursue the application in the name of the second applicant following its removal from the Trade Register. In such cases, it has been the Court’s practice to strike applications out of the list of cases in respect of non‐existent applicants (see, mutatis mutandis, SC Placebo Consult SRL v. Romania (revision), no. 28529/04, § 23, 21 June 2011, and Dzhabrailovy v. Russia (revision), no. 68860/10, § 10, 4 February 2016). It sees no reasons to decide otherwise in the present case. 12. Accordingly, the Court considers that the original judgment of 14 November 2019 should be revised and that the part of the application concerning the second applicant should be struck out of the Court’s list of cases, in accordance with Article 37 § 1 of the Convention. 13. In view of its findings in paragraphs 9-11 above, the Court further considers that the original judgment should be revised also as concerns the application of Article 41 of the Convention by granting the full amounts to the first applicant. It thus rejects the Government’s argument that the amount of award made in the original judgment should be reconsidered. 14. Accordingly, the Court decides that the respondent State should return the lorry, in the state that it was in at the time of its confiscation, to the first applicant; alternatively, if such return is impossible, it should pay him EUR 13,000 in respect of pecuniary damage, plus any tax that may be chargeable. It further awards to the first applicant EUR 14,500 in pecuniary damage in respect of accrued statutory interest in respect of the value of the lorry, EUR 3,000 in respect of non-pecuniary damage and EUR 925 in respect of costs and expenses. FOR THESE REASONS, THE COURT, UNANIMOUSLY,
and accordingly,
(a) that the respondent State is to return to the first applicant, within three months, the confiscated lorry in the state that it was in at the time of its confiscation;
(b) that, failing such restitution, the respondent State is to pay the first applicant, within the same three-month period, EUR 13,000 (thirteen thousand euros), plus any tax that may be chargeable, in respect of pecuniary damage;
(c) that in any event, the respondent State is to pay to the first applicant, within the same three-month period, the following amounts:
(i) EUR 14,500 (fourteen thousand five hundred euros), plus any tax that may be chargeable, in respect of pecuniary damage;
(ii) EUR 3,000 (three thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(iii) EUR 925 (nine hundred and twenty-five euros), plus any tax that may be chargeable to the first applicant, in respect of costs and expenses;
(d) that the amounts in question are to be converted into the currency of the respondent State at the rate applicable at the date of settlement;
(e) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts 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 1 June 2023, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Liv Tigerstedt Péter Paczolay Deputy Registrar President

FIRST SECTION
CASE OF JAKIMOVSKI AND KARI PREVOZ v. NORTH MACEDONIA
(Application no. 51599/11)

JUDGMENT(Revision)
STRASBOURG
1 June 2023

This judgment is final but it may be subject to editorial revision. In the case of Jakimovski and Kari Prevoz v. North Macedonia,
The European Court of Human Rights (First Section), sitting as a Committee composed of:
Péter Paczolay, President, Tim Eicke, Raffaele Sabato, judges,and Liv Tigerstedt, Deputy Section Registrar,
Having deliberated in private on 9 May 2023,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 51599/11) against the Republic of North Macedonia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 8 August 2011 by Mr Savcho Jakimovski, a Macedonian/citizen of the Republic of North Macedonia (“the first applicant”), and Kari Prevoz D.O.O. Sveti Nikole, a company incorporated in the respondent State (“the second applicant”). 2. In a judgment delivered on 14 November 2019, the Court found a violation, in respect of both applicants, of Article 1 of Protocol No. 1 to the Convention on account of the confiscation of the second applicant’s lorry in customs-related misdemeanour proceedings against the first applicant. The Court also held that the respondent State was to return to the applicants the confiscated lorry in the state that it had been in at the time of its confiscation; failing such restitution, it was to pay the applicants, jointly, 13,000 euros (EUR), plus any tax that might be chargeable, in respect of pecuniary damage. The Court further awarded the applicants, jointly, EUR 14,500 in pecuniary damage in respect of accrued statutory interest in respect of the value of the lorry, EUR 3,000 in respect of non-pecuniary damage and EUR 925 in respect of costs and expenses. 3. On 8 January 2020 the Government of North Macedonia (“the Government”) informed the Court that in December 2019 the applicant’s representative had informed them that on 23 March 2016 the second applicant had ceased to exist and had been removed from the Trade Register. They accordingly requested the revision of the judgment under Rule 80 of the Rules of Court. 4. On 3 March 2020 the Court considered the request for revision within the meaning of Rule 80 of the Rules of Court and decided to give the applicants’ representative three weeks in which to submit any observations. Those observations were received on 5 May 2020. THE LAW
THE REQUEST FOR REVISION
5. The Government argued that the first applicant had not informed the Court, in his observations (of 2015) regarding the admissibility and merits, of the second applicant’s forthcoming imminent removal from the Trade Register. He had also failed to inform the Court of the second applicant’s liquidation (i) once it had occurred and (ii) before the Court’s judgment had been adopted more than three and a half years later. The first applicant had thus abused his right of application. In addition, the Government argued that the Court’s judgment was non-enforceable. Given that the information concerning the second applicant’s removal from the Trade Register could have a significant bearing on the Court’s finding under Article 41 of the Convention, the Government requested the Court to reconsider the latter matter. 6. The first applicant, through his representative, argued, inter alia, that the Government had known that the second applicant had ceased to exist, which had been a direct result of the confiscation of the lorry in violation of Article 1 of Protocol No. 1. The second applicant had been established solely with the purpose of conducting activities in the field of transportation, using the lorry. Under domestic law, the property obtained by a spouse during marriage was considered to constitute the joint property of the spouses, and the award made by the Court to the second applicant was to be distributed between the spouses as its former owners. 7. The relevant part of Rule 80 of the Rules of Court provides as follows:
“A party may, in the event of the discovery of a fact which might by its nature have a decisive influence and which, when a judgment was delivered, was unknown to the Court and could not reasonably have been known to that party, request the Court ... to revise that judgment ...”
8. The Court accepts that the removal of the second applicant from the Trade Register constitutes a fact that had a “decisive influence” on the outcome of the judgment within the meaning of Rule 80 of the Rules of Court; that fact had not been known and could not reasonably have been known to the Government. 9. It reiterates that, as noted in the original judgment (see paragraph 31 of that judgment), the second applicant formally had title to the confiscated lorry; nevertheless, given that the applicants had close ties with each other, the Court found that the first applicant also had victim status in respect of the complaint lodged under Article 1 of Protocol No. 1 to the Convention. 10. An application may be seen as constituting an abuse of the right of application if, among other reasons, an applicant (or his or her representative) has misled the Court. This may occur, for example, when it is clear that an application is knowingly based on untrue facts with a view to deceiving the Court, or where it is deliberately grounded on a description of facts that omits events of central importance (see Mindek v. Croatia (revision), no. 6169/13, § 26, 11 September 2018). In the present case, the Court notes that in the contentious proceedings preceding the original judgment the first applicant failed to inform it of the second applicant’s liquidation and its consequent removal from the Trade Register. Although showing a lack of diligence, such a failure cannot be regarded – given the circumstances of the case (in particular the close interplay between the applicants) – sufficient to amount to an abuse by the first applicant of his right of application. 11. Turning to the second applicant, the Court observes that neither the first applicant nor his wife (who had – together with the first applicant – obtained joint ownership of the second applicant) expressed in a timely manner a wish to pursue the application in the name of the second applicant following its removal from the Trade Register. In such cases, it has been the Court’s practice to strike applications out of the list of cases in respect of non‐existent applicants (see, mutatis mutandis, SC Placebo Consult SRL v. Romania (revision), no. 28529/04, § 23, 21 June 2011, and Dzhabrailovy v. Russia (revision), no. 68860/10, § 10, 4 February 2016). It sees no reasons to decide otherwise in the present case. 12. Accordingly, the Court considers that the original judgment of 14 November 2019 should be revised and that the part of the application concerning the second applicant should be struck out of the Court’s list of cases, in accordance with Article 37 § 1 of the Convention. 13. In view of its findings in paragraphs 9-11 above, the Court further considers that the original judgment should be revised also as concerns the application of Article 41 of the Convention by granting the full amounts to the first applicant. It thus rejects the Government’s argument that the amount of award made in the original judgment should be reconsidered. 14. Accordingly, the Court decides that the respondent State should return the lorry, in the state that it was in at the time of its confiscation, to the first applicant; alternatively, if such return is impossible, it should pay him EUR 13,000 in respect of pecuniary damage, plus any tax that may be chargeable. It further awards to the first applicant EUR 14,500 in pecuniary damage in respect of accrued statutory interest in respect of the value of the lorry, EUR 3,000 in respect of non-pecuniary damage and EUR 925 in respect of costs and expenses. FOR THESE REASONS, THE COURT, UNANIMOUSLY,
and accordingly,
(a) that the respondent State is to return to the first applicant, within three months, the confiscated lorry in the state that it was in at the time of its confiscation;
(b) that, failing such restitution, the respondent State is to pay the first applicant, within the same three-month period, EUR 13,000 (thirteen thousand euros), plus any tax that may be chargeable, in respect of pecuniary damage;
(c) that in any event, the respondent State is to pay to the first applicant, within the same three-month period, the following amounts:
(i) EUR 14,500 (fourteen thousand five hundred euros), plus any tax that may be chargeable, in respect of pecuniary damage;
(ii) EUR 3,000 (three thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(iii) EUR 925 (nine hundred and twenty-five euros), plus any tax that may be chargeable to the first applicant, in respect of costs and expenses;
(d) that the amounts in question are to be converted into the currency of the respondent State at the rate applicable at the date of settlement;
(e) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts 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 1 June 2023, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Liv Tigerstedt Péter Paczolay Deputy Registrar President