JUSUFOSKI v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"
Inadmissible
Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
The applicant, Mr Abdula Jusufoski, is a Macedonian national who lives in Ohrid. He was represented before the Court by Mr M. Popeski, a lawyer practising in Ohrid. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant was a manager and co-owner of ZZ Monter (“the company”). On 7 March 2003 Mr P. (“the defendant”) took heavy construction machinery through property (“the property”) which the company used for its own purposes (it had constructed a hard standing for car parking and a waste container). The defendant caused damage to the fence and the concrete hard standing. On 17 March 2003 the applicant, represented by Mr Popeski, brought, in his own name, an action for disturbance of possessions (смеќавање на владение). He claimed to have had the last peaceful enjoyment of the property and fence, which had been disturbed by the defendant. He requested the Ohrid Court of First Instance to prevent the defendant from creating further disturbance and to order him to reinstate the property to its previous state. The applicant based his claim on sections 181-184 of the Ownership and other Property Rights Act (“the Act”, see “Relevant domestic law” below). On 5 December 2003 the Ohrid Court of First Instance dismissed the applicant’s claim for lack of standing to bring such an action. It based its decision, inter alia, on his statement that the property had been adjacent to the company’s main building and that the company had constructed the fence and the concrete hard standing nine years before. The applicant further stated that the company had actually possessed and used the property ever since. Lastly, he maintained that he had title to the property, even though it was irrelevant to the subject matter of the case. The court ruled that the company, as a distinct legal entity, had been in possession (владение) of the property and that accordingly it had been the only person entitled to seek its protection. It held that the applicant had not had possession of the property and accordingly lacked the requisite standing to seek protection under section 184 of the Act. On 21 February 2004 the applicant appealed, claiming that the first-instance court’s approach had been too formalistic and that it should instead have taken into consideration the fact that he had title to the property. In this later context, he presented a non-certified copy of a sales contract of 1998 under which he had allegedly obtained the title, and a receipt slip for the price. On 27 April 2004 the Bitola Court of Appeal dismissed the applicant’s appeal and confirmed the lower court’s decision. Relying on sections 167 (direct possession) and 184 of the Act, it reiterated that the applicant lacked the requisite standing to bring the proceedings. In this connection, it observed that the company had the actual possession of the property. It also dismissed the applicant’s argument that he had title to the property, since the dispute concerned enjoyment of possessions (владение). Under section 161 of the Act, an owner or a purported owner is entitled to request that disturbance, which does not concern seizure of a property, of his of her ownership is brought to an end. The owner is also entitled to claim damage under the general compensation rules. Section 167 §§ 1 and 2 of the Act provides that every person who has control of a property, directly or through a representative, can claim to have possession (владение) of it (direct possession). A person who has control of a property through another person who enjoys direct possession on the basis of a contract or another legal act can also claim to have possession of that property (indirect possession). Section 182 § 1 of the Act provides that a possessor (владетелот) or a holder of a proprietary right is entitled to protect his or her possession from disturbance or deprivation. Section 184 of the Act provides that a possessor whose possession has been unlawfully disturbed or seized is entitled to request the court to establish that the disturbance or seizure has taken place, to order reinstatement and to proscribe any such further or similar actions. Court protection is offered in special proceedings according to the last peaceful possession, regardless of the conduct of the possessor and whether the disturbance was lawful and in the public interest. Under section 185 § 1 of the Act, a person in indirect possession of a property can seek judicial protection of possession if the person in direct possession has not availed him or herself of it. Under section 2 of the 1998 Act, a court decides upon a claim as submitted before it.