FIRST SECTION

DECISION

Application no . 48320/09 Krsto DEJANOVIK against the former Yugoslav Republic of Macedonia

The European Court of Human Rig hts (First Section), sitting on 23 May 2017 as a Committee composed of:

Aleš Pejchal, President, Krzysztof Wojtyczek, Armen Harutyunyan, judges, and Renata Degener, Deputy Section Registrar ,

Having regard to the above application lodged on 1 September 2009,

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

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr Krsto Dejanovik, is a Macedonian national, who was born in 1948 and lives in Kumanovo. He is represented before the Court by Mr Z. Arsovski, a lawyer practising in Kumanovo.

2. The Macedonian Government (“the Government”) are 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.

1. Civil proceedings for annulment of sales contract

4. In May 2002 K.K., a single-member limited liability company owned and managed by the applicant, concluded a sales contract with P., a limited liability company managed by G.C. K.K. then sought termination ( раскинување ) of the contract and reimbursement of 1,199,744 Macedonian Denars (MKD) (equivalent to approximately 20,000 euros (EUR)) which it had paid for faulty goods purchased from company P.

5. By a judgment of 7 February 2005, the Skopje Court of First Instance (“the first-instance court”) terminated the contract and ordered company P. to reimburse company K.K. MKD 1,199,744. It also ordered company K.K. to return the faulty goods to company P. ( IX PSS.br.2573/02 ). On 25 June 2005 the Skopje Court of Appeal upheld that judgment, which accordingly became final and enforceable. The enforcement of the judgment has never been sought.

2. Criminal proceedings against G.C. and the applicant ’ s claim for compensation

6. On 13 September 2003 the applicant submitted a criminal complaint to the public prosecutor, accusing G.C. of fraud related to the above-mentioned sales contract.

7. On 18 January 2005 the public prosecutor filed an indictment against G.C. On 7 June 2005 the first-instance court found G.C. guilty and imposed a fine on him. It also granted a compensation claim ( имотно-правно барање ) which the applicant had lodged in the meantime, ordering G.C. to pay the applicant MKD 1,199,744. On 23 November 2005 the Skopje Court of Appeal upheld G.C. ’ s conviction and quashed the part of the judgment regarding the applicant ’ s compensation claim. In so doing, it instructed the lower court to assess the relevance of the judgment rendered in the above civil proceedings for the applicant ’ s compensation claim.

8. On 28 December 2005 the applicant quantified his compensation claim in terms identical to those leading to the award made in favour of company K.K. ( IX PSS.br.2573/02 ). He further alleged that bankruptcy proceedings had been opened against company P.

9. On 16 January 2006 the first-instance court, without holding a hearing ( вон претрес ) , ordered that G.C. reimburse the amount claimed by the applicant. On 24 May 2006 the Court of Appeal set that judgment aside, instructing the lower court to hold a hearing at which relevant evidence would be admitted in the presence of the parties.

10. On 15 December 2006 the first-instance court ordered G.C. to reimburse the applicant MKD 1,199,744. It held that such an order would have no bearing on company P. ’ s right, under judgment no. IX PSS.br.2573/ 02, to insist that company K.K. return the faulty goods. The court noted that on 28 July 2005 G.C. had set up a new company to which, as recorded in the Official Gazette of 23 September 2005, it had transferred all the assets of company P. The latter had not been deleted from the companies register.

11. G.C. appealed against that judgment. In his written submissions of 8 May 2007, he informed the Skopje Court of Appeal that company P. was still operational. He submitted in support a document dated 4 May 2007 in which the competent court confirmed that no bankruptcy proceedings had been launched in respect of company P. On 16 May 2007 the Skopje Court of Appeal dismissed G.C. ’ s argument concerning the double payment of the amount already awarded in the civil proceedings ( IX PSS.br.2573/ 02) and upheld the lower court ’ s judgment. It found that that judgment concerned different subjects and did not exclude G.C. ’ s liability for damages.

12. On 25 December 2008 the public prosecutor lodged a request for judicial review ( барање за заштита на законитоста ), challenging the judgments rendered in the criminal proceedings.

13. On 4 February 2009 the Supreme Court accepted the judicial review request, quashed the lower courts ’ judgments and remitted the case for fresh examination. It held that the courts had not established the relevant facts in order to prove G.C. ’ s guilt. As to the applicant ’ s compensation claim, the court stated:

“the courts took into consideration judgment IX PSS.br.2573/ 02 in which the sales contract between company K.K. and company P. had been terminated, but in the (impugned) proceedings they did not resolve who was the victim of the crime: (the applicant, physical person) as the owner of the legal entity or the legal entity itself. This failure resulted in two judgments being rendered concerning the same damage, one (judgment rendered) in the commercial dispute between the companies and, the other, in the criminal proceedings ... (the court considers) well-founded the arguments set out in the judicial review request that the dilemma as to who was the victim, namely the physical or the legal person, had not been resolved ...”

14. On 25 March 2009 the Supreme Court ’ s judgment was served on the applicant.

15. On 11 June 2009 the first-instance court terminated ( запира ) the criminal proceedings, since the prosecution had become time-barred. It further advised the applicant, under section 102 of the Code of Criminal Procedure (see paragraph 17 below), to pursue his compensation claim by means of a separate civil action for damages. No appeal was lodged against that decision.

16. The applicant did not initiate separate compensation proceedings as advised by the first-instance court.

B. Relevant domestic law

1. Criminal Proceedings Act of 2005, consolidated version (Official Gazette no. 15/2005)

17. Relevant provisions of the 2005 Criminal Proceedings Act read as follows:

“ Article 97

(1) A compensation claim related to a criminal offence shall be decided in criminal proceedings in response to a request by an authorised person, unless it would cause significant delay to those proceedings ...

Article 99

(1) A compensation claim may be lodged with the body to which the criminal complaint was submitted or with the competent court ...

(2) A compensation claim may be submitted at the latest before the criminal proceedings are concluded at first instance .

(3) The claimant should specify his or her claim and provide supporting evidence.

(4) If the authorised person did not formulate his or her compensation claim before the indictment was filed, he or she shall be informed that such a claim can be lodged until the conclusion of the criminal proceedings at first instance .

Article 102

(1) The court shall decide on the compensation claim.

(2) If the court finds the accused guilty, the victim may be awarded full or partial compensation ...

(3) If the accused is acquitted, or the indictment is rejected, or the proceedings are terminated, or the indictment is dismissed, the court shall instruct the victim to pursue his or her compensation claim by means of a civil action ...”

2. Obligations Act of 2001 (Закон за облигационите односи)

18. The relevant provisions of the 2001 Obligations Act read as follows:

“Section 365(1) and (2)

(1) A compensation claim becomes time-barred three years after the victim has become aware of the damage caused and the person responsible.

(2) In any event, the claim becomes time-barred five years after the occurrence of the damage.

Section 366(1)

(1) If the damage occurred as a result of a criminal offence, a claim for compensation becomes time-barred after expiration of the time bar for criminal prosecution, whichever is the later date.

Section 377

The running of the time bar is interrupted if a plaintiff brings an action before a court or competent authority with a view to determining or securing his or her claim.

Section 379

(1) If a court rejects an action for lack of jurisdiction or on other grounds unrelated to the merits of the claim and if the plaintiff resubmits that claim within 3 months of that decision becoming final, it will be deemed that the time bar was interrupted with the first action.

(2) Subsection (1) above applies if a court or competent authority advises the person concerned to pursue his or her claim by means of a separate civil action.

Section 381(3)

(3) If the time bar has been interrupted by a ... claim having been submitted in other proceedings, it starts running after the settlement of the dispute.”

COMPLAINTS

19. The applicant complained under Article 6 of the Convention of the lack of a decision in the criminal proceedings in respect of his compensation claim. The Court, being the master of the characterisation to be given in law to the facts of the case (see Söderman v. Sweden [GC], no. 5786/08, § 57, ECHR 2013 and Moretti and Benedetti v. Italy , no. 16318/07, § 27, 27 April 2010), considers that this complaint should be analysed as an “access to a court” complaint (see Boris Stojanovski v. the former Yugoslav Republic of Macedonia , no. 41196/06, 6 May 2010). The applicant also alleged that the impugned proceedings had been too long, that the principle of the equality of arms had been violated and that his case had not been examined by an impartial tribunal. Lastly, he invoked Article 13.

Articles 6 and 13, in so far as relevant, read as follows:

“Article 6 § 1

In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing within a reasonable time ... by [a] ... tribunal ...”

“Article 13

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

THE LAW

A. The “access to a court” complaint

1. The parties ’ submissions

20. The Government submitted that the applicant had brought two parallel sets of proceedings (civil and criminal) in which he had made an identical compensation claim related to the same event. They argued that the applicant had been the sole owner and manager of company K.K. Despite the fact that company P. had been operational until at least April 2007 (see paragraph 11 above), the applicant had never sought enforcement of the judgment given in the civil proceedings. He had also failed to lodge a new civil action as advised by the first-instance court on 11 June 2009.

21. The applicant argued that he had been deprived of access to court, since the civil claim he had lodged in the criminal proceedings against G.C. had remained undecided. He alleged that the judgment in favour of his company, K.K., had not been enforced because the assets of company P. had been transferred to a new company established by G.C. in 2005. The applicant concluded that the outcome of the civil proceedings between the two companies had been of no relevance to the claim for compensation he had lodged in the course of the criminal proceedings against G.C.

2. The Court ’ s assessment

22. The Court reiterates that Article 6 § 1 secures to everyone the right to have any claim relating to his or her civil rights and obligations brought before a court or tribunal. The right of access to the courts 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, regulation which may vary in time and in place according to the needs and resources of the community and of individuals”. In laying down such regulation, the Contracting States enjoy a certain margin of appreciation. Whilst the final decision as to observance of the Convention ’ s requirements rests with the Court, it is no part of the Court ’ s function to substitute for the assessment of the national authorities any other assessment of what might be the best policy in this field. Nonetheless, the limitations applied must not restrict the access left to the individual in such a way or to such an extent that the very essence of the right is impaired (see Stanev v. Bulgaria [GC], no. 36760/06, §§ 229 and 230, ECHR 2012). Lastly, the right of access to a court includes not only the right to institute proceedings but also the right to obtain a “determination” of the dispute by a court (see Kutić v. Croatia , no. 48778/99, § 25, ECHR 2002 ‑ II) .

23. Turning to the present case, the Court notes that both proceedings described above were brought in relation to the sales contract between the applicant ’ s company K.K. and the company P., which was managed by G.C.

24. In the civil proceedings, which were instituted by the applicant, as the sole owner and manager of company K.K., the domestic courts found for his company and ordered that it was reimbursed MKD 1,199,744, namely the amount which his company had paid to the company P. on the basis of the sales contract .

25. The criminal proceedings, which the public prosecutor brought on the applicant ’ s request, concerned allegations of fraud on the part of G.C. in relation to the sales contract. The applicant joined those proceedings as a civil-party claiming compensation for damages sustained, the amount of which was identical to the sum awarded to his company in the civil proceedings. His civil claim was remitted for reconsideration on three occasions (see paragraphs 7, 9 and 13 above). Consequently, the applicant ’ s compensation claim was examined in the light of the reimbursement order made in favour of his company in the civil proceedings. The Supreme Court held that two identical monetary awards had been made in the civil and criminal proceedings in relation to the sales contract. After the remittal, the first-instance court terminated the criminal proceedings because the prosecution had become time-barred. It also advised the applicant to pursue his claim by means of a separate civil action for damages. That was in compliance with section 102(3) of the 2005 Criminal Proceedings Act (see paragraph 17 above).

26. Against this background, the Court notes that both proceedings were based on similar facts and were conducted at the same time. The applicant brought those proceedings with the principal aim of obtaining compensation of MKD 1,199,744 (see Forum Maritime S.A. v. Romania , nos. 63610/00 and 38692/05, § 92, 4 October 2007) . Accordingly, he had the right to bring that claim before the domestic courts. Whereas the civil proceedings were completed to the advantage of the applicant ’ s company, no decision on the merits was made in relation to the applicant ’ s separate but identical compensation claim in the criminal proceedings. Even assuming that this latter claim concerned his “civil rights and obligations” within the meaning of Article 6 § 1 of the Convention, the Court notes that he could have pursued the matter before the civil courts. The applicant did not do so despite the explicit direction by the first-instance court in this respect. There is nothing to suggest that he was prevented from access to the civil courts for them to decide on the merits his compensation claim.

27. In view of the foregoing, the Court considers that the applicant was not denied access to a court with respect to compensation claim related to the sales contract.

28. Accordingly, this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

B. Remaining complaints

29. The applicant further complained under Article 6 of a violation of the principle of equality of arms, a lack of impartiality, and of length of the criminal proceedings. He also relied on Article 13 of the Convention.

30. The Court has examined these complaints. Having regard to all the material in its possession, and in so far as they are within its competence, the Court finds that they do not disclose any appearance of a violation of the Convention as alleged by the applicant.

31. It follows that this part of the application must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 15 June 2017 .

             Renata Degener AleÅ¡ Pejchal              Deputy Registrar President