MARTINOVSKA v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"
Inadmissible
Peer Lorenzen
The applicant, Ms Zaneta Martinovska, is a citizen of the former Yugoslav Republic of Macedonia who was born in 1956 and lives in Skopje. The Macedonian Government (“the Government”) were represented by their Agent, Mrs R. Lazareska-Gerovska. The facts of the case, as submitted by the parties, may be summarised as follows. On an unspecified date in 1994 the applicant, together with two other individuals, instituted civil proceedings against her employer, a company called G. (“the employer”) for payment of salary and other related allowances for the period of May 1993 to November 1994. On 28 April 1998 the Skopje Court of First Instance II granted her claim (and of the other claimants) together with interest. On 11 November 1998 the Court of Appeal upheld the lower court’s judgment. As stated by the applicant, the judgment was served on her seven months later, on an unspecified date. On an unspecified date, the applicant requested the Skopje Court of First Instance I to enforce the judgment (предлог за извршување). On 10 September 1999 it granted her request and ordered the Public Payment Bureau (“the Bureau”) (Завод за платен промет) to transfer from the employer’s account the amount due to her. On 7 October 1999 the applicant completed her application as requested by the court. However, the order was not enforced as there were no funds in the account. On 22 December 1999 the applicant requested the Skopje I Court of First Instance to enforce her claim proposing another means of enforcement: an inventory, valuation and public sale of an employer’s property (the same property which was the subject-matter of the second set of proceedings). She requested the court to complete the enforcement by the proposed means only if her claim could not have been discharged by transferring the amount due to her from the employer’s account. On 7 December 2000 the Skopje I Court of First Instance forwarded the case-file to the Skopje II Court of First Instance, as court competent ratione loci. In April 2006 the court requested the applicant to submit a certificate of title concerning the employer’s property. It appears that in May 2006 she obtained a certificate of title and submitted it to the court. On an unspecified date in 1998 the applicant brought against the employer a compensation claim for payment of salary and other related allowances for the period of 1994 to 1997, after she had successfully challenged the lawfulness of her dismissal. On 4 November 1998 the Skopje II Court of First Instance partially granted her claim. On 6 October 1999 the Skopje Court of Appeal dismissed the employer’s appeal and upheld the lower court’s judgment. On 7 October 1999 the applicant requested the Skopje I Court of First Instance to enforce the judgment by transferring the amount due to her from the employer’s account into her account. On 24 November 1999 the applicant completed her application submitting a copy of the judgment, as requested by the court. On 28 February 2000 the Skopje I Court of First Instance granted the applicant’s request and ordered the Bureau to transfer the amount due to her from the employer’s account. On 7 May 2001 the applicant proposed another means of enforcement, namely an inventory, valuation and public sale of an employer’s property. It was sent to the Skopje I Court of First Instance with a request for forwarding the file to the Skopje II Court of First Instance as court competent ratione loci. On 25 June 2001 the applicant submitted an addendum to the request. On 13 July 2001 Skopje II Court of First Instance refused the applicant’s request for a charging order over the employer’s property, as it had been the subject of other enforcement proceedings and sold to a third person on 3 June 1999. On 10 November 1999 the creditor in those proceedings had taken possession of the property (this decision became final on 4 December 1999). On 13 September 2001 the applicant appealed against the judgment before the Skopje Court of Appeal (Апелационен Суд Скопје). On 10 October 2001 the Skopje Court of Appeal dismissed the applicant’s appeal and upheld the lower court’s judgment. The applicant did not request the court to enforce her claim against other assets nor did she propose other means of enforcement as specified by law. The applicant’s cases concerning both sets of proceedings were set to archive in September, November and December 2003, respectively. On 15 November 2000 the applicant requested the Skopje II Court of First Instance to join the two sets of enforcement proceedings and to proceed only in respect to the employer’s property, as its account reportedly had no funds. On 27 March 2001 the applicant repeated her request for joining the two sets of enforcement proceedings. She also requested to have her enforcement proceedings joined with the proceedings of another creditor, Mrs N.M., instituted against the employer. On 28 March 2001 the applicant submitted a corrected version of her request. On 12 June 2001 the applicant repeated her request. On 3 and 15 October 2001, respectively, the applicant and Mrs N.M. requested the president of the Skopje II Court of First Instance and the Court of Appeal to join their proceedings. On 16 October 2001 the Skopje II Court of First Instance informed the applicant and Mrs N.M. that on 12 July 2001 the presiding judge had decided not to join the proceedings. Section 2 of the Enforcement Proceedings Act (“the Act”) (Закон за извршната постпка) provides that enforcement and security proceedings are launched on creditor’s request. Section 27 of the Act provides the following means for enforcing judgment debts: (i) sale of movable property, (ii) sale of immovable property, (iii) transfer of a pecuniary claim, (iv) encashment of other proprietary rights, and (v) transfer of funds from an account managed by the Public Payment Bureau, in accordance with the regulations. In accordance with section 29 of the Act, the courts are required to enforce judgment debts by the means and against the assets specified in the request for execution. Section 35 provides that a request for execution should specify: the creditor and debtor; the final order; the debtor’s duty; the means and assets for enforcement and other information necessary for completion of the enforcement. In accordance with section 39 § 1, the enforcement order is served on the creditor and the debtor. The dismissal of the request for execution is served only on the creditor. Section 141 of the Act provides that enforcement over immovable property is effected by recording the order in the register, obtaining a valuation of the property, selling it and settling the creditors’ claims from the proceeds of sale. Section 142 paragraph 1 of the Act provides, inter alia, that in support of a request for a charging order over immovable property, the creditor should submit an extract from the public records, as evidence that the property is owned by the debtor. Section 198 of the Act states that the court will not stay enforcement proceedings if there are no funds in the debtor’s account managed by the Public Payment Bureau. Instead, the Payment Bureau is required to keep a record of the order and to make the transfer when there are funds in the account.