KRSTEV v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"
Inadmissible
Ganna Yudkivska;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste
The applicants, Mr Dragi Krstev (“the first applicant”), Mr Vidoje Ivanovski (“the second applicant”), Mrs Jadranka Ivanovska (“the third applicant”), Mrs Marijana Petruševska (“the fourth applicant”), Mr Arso Stojmanovski (“the fifth applicant”), Mr Trajče Mirčev (“the sixth applicant”), Mr Trajče Stojkov (“the seventh applicant”), Mr Dimče Pop Iliev (“the eighth applicant”), Mr Mile Trajkov (“the ninth applicant”), Mr Aca Janevski (“the tenth applicant”) and Mr Saša Stanojkovik (“the eleventh applicant”) are all Macedonian nationals (for personal details see the Annex). The first and ninth applicants are represented before the Court by Ms D. Veljanovska; the second, third and fourth applicants by Mr R. Aleksovski; the fifth, tenth and eleventh applicants by Mr S. Mladenovski and the sixth, seventh and eighth applicants by Mr V. Trajkovski, lawyers practising in Skopje, Kriva Palanka and Kumanovo respectively. 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. The applicants were all members of the Government security forces either as police officers or reservists, with the exception of the second, third and fourth applicants, who are the next of kin of a deceased police officer. Following the armed conflict that took place in the former Yugoslav Republic of Macedonia in 2001, the applicants brought civil proceedings against the State seeking compensation for injuries (or death, in case of the second, third and fourth applicants) sustained in the conflict. All the applicants were successful at first and second instance, receiving final decisions in which the courts ordered the State to pay damages under sections 166 and 189 of the Obligations Act (see “Relevant domestic law” below). Only the eleventh applicant had his claim dismissed at both levels. These decisions were reviewed by the Supreme Court by way of an appeal on points of law (ревизија) in respect of the tenth and eleventh applicants or by way of a request by the public prosecutor for the protection of legality (барање за заштита на законитоста), in respect of the remaining applicants. As to the outcome of the proceedings before the Supreme Court: a) the Supreme Court accepted the public prosecutor’s request for the protection of legality, overturned the lower courts’ decisions and dismissed the compensation claims submitted by the following applicants: i) the first applicant (Гзз.бр.15/2005 of 18 January 2006). The introductory part of this decision stated that it was taken after the court had heard oral evidence from the public prosecutor; ii) the second, third and fourth applicants (Гзз.бр. 53/2005 and Рев.бр. 138/2005 of 26 April 2006). According to the introductory part of this decision, it was taken in the absence of the public prosecutor; iii) the fifth applicant (Гзз.бр. 45/2005 of 29 March 2006).The decision was taken in the presence of the public prosecutor; and iv) the ninth applicant (Гзз.бр.89/2005 of 21 June 2006). b) In respect of the sixth, seventh and eighth applicants, the Supreme Court partly upheld the public prosecutor’s request for the protection of legality and significantly reduced the award (Гзз.бр. 203/2005 of 7 June 2006). The introductory part of this decision stated that it was taken after the public prosecutor had presented his arguments. c) In respect of the tenth applicant, the court allowed the appeal on points of law by the State, overturned the lower courts’ decisions and dismissed his claim (Рев.бр. 61/2006 of 14 March 2007) and d) dismissed the eleventh applicant’s appeal on points of law submitted against the first- and second-instance courts’ decisions of 30 June 2006 and 7 February 2007, respectively (Рев.бр. 532/2007 of 29 May 2008). In these latter decisions, the lower courts had ruled that no responsibility could be attributed to the State for the injuries sustained by the eleventh applicant. As established by the domestic courts, the first, fifth, ninth, tenth and eleventh applicants were injured, under different circumstances, in a fight while on duty as members of the Government security forces. The second, third and fourth applicants’ next of kin was killed in the fight. The Supreme Court found that under section 16 of the Obligations Act (see “Relevant domestic law” below) the Act on special rights of the members of security forces and their families (“the 2002 Act”, see “Relevant domestic law” below), as the lex specialis, applied to the relations between the State and the applicants. The 2002 Act therefore suspended the application of the Obligations Act. However, since section 7 of the 2002 Act did not provide for a right to compensation, the general rules of compensation set forth in the Obligations Act should have applied to the applicants’ cases. The court ruled that the State could not, under those rules, be held responsible for the injuries which the applicants had sustained in a fight, unless it could be proved that this was not the case. Furthermore, no objective responsibility could be attributed to the State for the injuries which the applicants had sustained while on duty. Consequently, section 166 of the Obligations Act could not apply to the applicants, as members of the security forces. As regards the sixth, seventh and eighth applicants, the courts established that they had been injured while being transported in a military helicopter that had crashed after it had hit flagpoles while landing. The Supreme Court found the State responsible, under section 189 of the Obligations Act, for the injuries that these applicants sustained in “the accident”. Under Article 101 of the Constitution, the Supreme Court is the highest court that provides for the uniform application of laws by courts. Section 16 of the Obligations Act of 2001 states that it applies to relations regulated by other laws in respect of issues not covered by those laws. Section 141 of the Obligations Act defines the different grounds for claiming civil compensation. Section 166 provides for the State’s responsibility for any damage caused, inter alia, by a bodily injury sustained as a result of acts of violence or terror. Under section 189, in the event, inter alia, of physical pain, mental anguish, disability, disfigurement or death of next of kin or fear, the court may award monetary compensation. The 2002 Act defines the persons concerned, the special rights they are entitled to and procedures under which those rights may be attained. Section 7 of the 2002 Act provides the following special rights: the right to be employed; the right to rent an apartment; special rights regarding education; the right to be exempted from paying medical services; the right to a one-off pecuniary allowance; and the right to obtain a family pension. The applicants submitted copies of final decisions in which the domestic courts, at two levels of jurisdiction, had granted identical claims brought by colleagues of the applicants for injuries (or death) sustained in the armed conflict in 2001. According to the applicants, these decisions were not challenged by the public prosecutor and accordingly were not reviewed by the Supreme Court. They pre-dated the applicants’ cases (Гж.бр.3548/02; Гж.бр.6122/02; Гж.бр.1849/03; Гж.бр.4515/03; Гж.бр.284/04; Гж.бр.2939/04; Гж.бр.6066/04 and Гж.бр.4572/05). They further submitted two separate decisions by which the Supreme Court had dismissed the request of the public prosecutor for the protection of legality and ruled in favour of the applicants’ colleagues. In these cases, the Supreme Court held that an award should be made under the Obligations Act and not under the 2002 Act, given that the latter did not provide for a right to compensation. The first decision concerned colleagues of the sixth, seventh and eighth applicants who had been injured in the same helicopter accident (Гзз.бр.118/2005 of 2 November 2005). The second decision concerned a compensation claim by Army reservists who, while being transported in civilian vehicles, had been attacked in 2001. Relying on the facts established by the lower courts, namely, that the convoy had not been properly guarded, the Supreme Court upheld the lower courts’ decisions awarding them compensation (Гзз.бр.106/05 and Рев.бр.282/2005 of 7 September 2005). In this latter decision, the Supreme Court excluded section 166 of the Obligations Act from the list of provisions under which it established the State’s responsibility.