CASE OF NIKOLOV v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"
Violation of Article 6 - Right to a fair trial;Violation of Article 13 - Right to an effective remedy
Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Volodymyr Butkevych;Zdravka Kalaydjieva
4. By a judgment of the Štip Municipal Court (“the first-instance court”) of 14 June 1989 (“the 1989 judgment”), confirmed by the Štip Court of Appeal on 30 October 1989, the applicant and his neighbour (“the defendant”) were ordered to build a concrete supporting wall between their adjacent plots of land to protect the applicant’s house from damage. The civil courts found that the applicant should bear 31.4% of the costs, and the defendant 68.6%. The defendant was ordered to reimburse the applicant for the trial costs. Finally, an injunction was issued authorising the applicant to build the wall at the defendant’s expense if the latter had failed to do so as required. The injunction was valid until the 1989 judgment became final. 5. On 12 July 1989 the first-instance court accepted the applicant’s request for enforcement of the 1989 judgment by way of seizure of the defendant’s immovable and immovable assets. The court also ordered the defendant to deposit his part of the costs for the construction of the wall (court deposit). 6. On 10 September 1990 the first-instance court decided that offers should be collected for construction of the wall. On 1 October 1991 company B. (“the construction company”) was chosen to build the wall. On 22 October 1991 an on-site inspection was carried out. 7. On 30 October 1991 the first-instance court ordered the parties to deposit with it money as established by the 1989 judgment. It further ordered the defendant to deposit an amount to secure the applicant’s trial and enforcement costs. It was also stated that in case of non-compliance, the payment would be enforced by an inventory and public sale of assets. The applicant deposited his part not with the court, as ordered, but with the construction company. 8. Four hearings fixed between 29 May 1992 and 29 April 1993 were attended by the applicant. As the defendant failed to deposit the amount required, the enforcement proceedings continued with the drawing up an inventory of his belongings. Despite the court’s orders of 20 July and 13 September 1993 requesting the defendant to surrender certain movable assets to bailiffs, it appears that no items were seized or sold by the enforcement authorities. In the meantime, the defendant had constructed a wall. On 30 June 1997 the court made a further on-site inspection to examine the wall. At a hearing of 23 September 1998, the applicant requested the construction company to use his deposit to complete the wall so as to comply with the 1989 judgment. 9. The applicant attended the four hearings which were scheduled between 30 April 1999 and 7 June 2001. On 7 December 2001 the first-instance court ordered the applicant to pay the costs of an on-site examination under threat of suspension of the proceedings. The applicant has submitted to the Court a payment slip of 26 December 2001. 10. On 27 February 2003 the first-instance court fixed an on-site examination to be carried out on 25 March 2003 at the defendant’s home with a view to seizing the latter’s movable assets. The court also requested the presence of two policemen in case assistance was needed. According to the minutes of the on-site examination, the first-instance court examined the wall again. 11. A hearing listed on 3 October 2003 was adjourned because of the absence of the sitting judge. 12. At a hearing of 16 March 2004, the first-instance court scheduled another on-site examination of the wall constructed by the defendant. The inspection took place on 13 April 2004. The next day, the applicant paid the expert fees. 13. On 15 May 2004 the first-instance court found that the wall constructed by the defendant in 1993 had not met the criteria established by the 1989 judgment. It further determined that the wall, as constructed, corresponded to 53.64% of the value of the wall as the court had ordered, and that the defendant should cover 14.96% of the expenses for the improvement works. With reference to the 1989 judgment, it ordered the applicant to cover 31.4% of the expenses for the improvement works. It established, inter alia, that the applicant had not deposited, as ordered, his part of the expenses with the court, but with the construction company, which had not released him from the obligation established by the 1989 judgment. It further stated that the applicant, after having realised that the defendant had constructed part of the wall, should have withdrawn his deposit from the construction company. Finally, it concluded that the applicant should have deposited the money with the court and that he should have required the court to order the construction company to build the wall. The part of expenses to be borne by the defendant was to be secured by an inventory and sale of the latter’s belongings. On 14 December 2004 the Štip Court of Appeal confirmed that decision. 14. On 5 July 2007 the first-instance court ordered the applicant to deposit money equivalent to 31.4% of the cost of improving the wall under threat of suspension of the proceedings. It appears that no such order was issued against the defendant given the latter’s statement that he would deposit the remaining part after the applicant had done so. On 23 July 2007 the applicant objected to that order arguing that he had already made his deposit with the construction company on the basis of the court decision of 30 October 1991. 15. No further information has been provided as regards the subsequent enforcement proceedings.