NOVESKI AND OTHERS v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"
Inadmissible
Aleš Pejchal;Armen Harutyunyan;Kristina Pardalos;Ledi Bianku;Mirjana Lazarova Trajkovska;Pauliine Koskelo;Robert Spano
1. Details about the applicants are set out in the appendix. 2. The Macedonian Government (“the Government”) were represented by their Agent, Mr K. Bogdanov. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. Mr Venče Noveski (“the first applicant”) is the applicant in applications nos. 25163/08 and 2681/10 and is the second applicant in application no. 71872/13. He is the brother-in-law of Mr Bogoljub Stoleski (“the second applicant”), who is the first applicant in application no. 71872/13. The second applicant lives in Skopje in the first applicant’s house, while the first applicant lives in Germany. The first applicant stated that he stayed in his house in the respondent State “when needed”, in particular during the summer and winter holidays. The Government did not submit any evidence to refute that statement. 5. On 25 March 2005 the first applicant lodged a criminal complaint against H., his neighbour, for the misappropriation of a right (самовластие). He alleged that on 19 March 2005 H. and other people had unlawfully demolished a wall on his property in order to get access to a road. He argued that he had suffered damage as a result. In a submission on 28 September 2006 the first applicant laid out the specifics of his claim for compensation. 6. On 8 November 2007 the Skopje Court of First Instance (“the trial court”) convicted H. and sentenced him to six months’ imprisonment, suspended for two years. The court relied on the fact that no penalty had previously been issued against H. as a mitigating circumstance. It further instructed the first applicant to pursue his compensation claim by means of a separate action for damages in order to not prolong the criminal proceedings (за да не се одолговлекува кривичната постапка). 7. The first applicant lodged a complaint against that decision. He submitted, inter alia, that the penalty was too lenient and that the trial court had failed to decide on his compensation claim. 8. On 15 January 2008 the Skopje Court of Appeal (“the appellate court”) dismissed the applicant’s complaints and upheld the lower court’s judgment and the penalty it had imposed. It remitted the issue regarding costs for fresh examination. It did not comment on the arguments concerning the compensation claim. 9. According to the first applicant while the trial was pending, H. had repeatedly attacked his property by throwing stones and fruit at his walls and attempting to break into his house. 10. On 7 July 2006 the trial court upheld a claim by the first applicant for disturbance of possession (нарушено владеење). It ordered H. to reconstruct the part of the wall he had demolished and refrain from further disturbance of the first applicant’s enjoyment of his property. As stated in the judgment, H. neither appeared before the court nor contested the first applicant’s claim. The court found that the first applicant had reported the incident to the police on two occasions. On 16 February 2007 the judgment became final. 11. On 9 July 2007 in enforcement of the above judgment, H. reconstructed the wall. The wall was again demolished the same day by Sh.H. (H.’s brother). Sh.H. was convicted of violent behaviour (насилство, see paragraph 30 below) over the incident and sentenced to one year and six months’ imprisonment, suspended for four years (trial court judgment of 18 May 2011). 12. On 16 July 2007 the first applicant lodged a fresh application, seeking to have a private bailiff order H. to reconstruct the wall (see paragraph 37 below). On 2 September 2007 he asked the bailiff to issue a fine against H., arguing that H. had again come onto his land. It appears that those requests remained undecided. 13. On 3 April 2006 the first applicant initiated criminal proceedings against H. and two others for a breach of the inviolability of the home (нарушување на неповредливоста на домот). He complained that between 17 March 2005 and 2 April 2006 H. had trespassed on his property. On 3 October 2006 he made a claim for compensation for damage. 14. On several occasions during the trial the first applicant alerted the trial court to the fact that H. had again demolished the wall, had repeatedly trespassed on his property, sounded his car horn, instructed others to throw objects at the first applicant’s house, and had threatened and even fired at him with an automatic gun. 15. On 24 December 2008 the trial court found H. guilty and sentenced him to six months’ imprisonment, suspended for two years. The court noted that H. had no criminal record. The court held that he had repeatedly gone onto the first applicant’s land, which was part of his home. In establishing the facts, it relied, inter alia, on the judgment in the proceedings referred to above, П.бр. 1224/05 (see paragraphs 10-12). Lastly, it advised the first applicant, in accordance with section 102 of the Criminal Proceedings Act, to pursue his compensation claim by means of a separate civil action for damages as he had not provided enough evidence to substantiate it. 16. The first applicant appealed, arguing that H. had already been convicted in earlier proceedings (see paragraphs 5-9 above). He requested that the court accordingly impose a more severe penalty. On 17 June 2009 the appellate court upheld the trial court’s judgment, finding no grounds to depart from the established facts and reasons provided. 17. On 7 September 2009 the first and second applicants lodged a criminal complaint against H. for breach of the inviolability of the home, alleging that on 29 July 2009 and on other occasions H. had again unlawfully gone onto the first applicant’s land and trespassed in his yard. 18. At the trial, H. stated that the applicants had objected to him using the road, which in his opinion was a public thoroughfare, because they considered it part of their property. He further stated that there was another road to his house, which he did not use. The court admitted in evidence a decision of 23 October 2008 in which the competent administrative authorities had ordered the wall to be demolished because it had been constructed unlawfully. 19. On 5 September 2012 the trial court convicted H. and sentenced him to one year’s imprisonment, suspended for three years. It further reprimanded him (судска опомена) for using insulting language to the second applicant in reply to the criminal complaint. The court relied on the final judgments in the previous proceedings against H. (see paragraphs 5-9 and 13-16 above) and took his previous convictions into consideration in determining the penalty. Lastly, it instructed the applicants to pursue their compensation claim by means of a separate civil action for damages. 20. The applicants appealed, arguing, inter alia, that the penalty that had been imposed would not fulfil the aims of punishment. On 16 April 2013 the appellate court dismissed the appeal, finding that the penalty would deter H. from reoffending. 21. The first applicant lodged a criminal complaint against a police officer who had carried out an on-site inspection related to the incident of 19 March 2005, but it was rejected by the public prosecutor. The latter found, inter alia, that the incident concerned a dispute between neighbours over their land. 22. On 19 March 2007 the applicants informed the police that despite the judgment of 7 July 2006 (see paragraph 10 above), H. had repeatedly entered the first applicant’s property and had incited some children to throw stones at their house. 23. On several occasions between 26 February 2010 and 11 September 2013, the applicants reported H. to the police for uttering insults, entering and damaging their property or threatening to kill them. 24. In 2013 the applicants initiated another set of criminal proceedings against H. on account of a breach of the inviolability of the home. It appears that the proceedings are still pending. 25. Under Article 39 § 4 of the Criminal Code, in determining the sentence of a person with previous convictions, the court will specifically consider whether the previous conviction was related to a similar offence as the new one, whether the offences were committed with the same motive, and what period of time has elapsed from the previous conviction or sentence, whether served or pardoned. 26. Under Article 49, a suspended sentence (условна осуда) means the court will impose a sentence and decide that it will not be enforced if the convicted person does not reoffend within a period determined by the court, which cannot be less than one year or longer than five (“the control period”). A suspended sentence may also entail the court determining that the sentence will be enforced if the convicted person does not return the proceeds of a crime, does not pay compensation for damage, or does not fulfill other obligations. 27. Under Article 51 § 1 the court shall revoke a suspended sentence during the control period if the convicted person commits one or more offences for which he or she is sentenced to imprisonment of two years or longer. Under Article 51 § 2, in cases of a less serious offence, the court assesses all the circumstances concerning the offences and the offender, especially the relation between the offences, their significance and the motives for them, and decides whether or not to revoke the suspended sentence. The court cannot impose a suspended prison sentence if the offender is to be sentenced to more than two years’ imprisonment for the initial and the new offences. Under Article 51 § 4 if the court does not revoke the suspended sentence it can pass another suspended sentence for the new offence. If the court finds that it should issue a suspended sentence for the new crime, it must determine a single sentence for the initial and new offence and a new control period. That period cannot be less than one year or longer than five. 28. Under Article 54 § 1, a suspended sentence may be revoked during the control period. If the convicted person commits an offence during that period which calls for the suspended sentence to be revoked and which was imposed by a final judgment after the expiry of the control period, the suspended sentence may be revoked within one year of the day of expiry of the control period. Under Article 54 § 2 if the convicted person does not fulfill some of the obligations referred to in Article 49, the court may decide, within a year of the expiry of the control period, that the suspended sentence should be enforced. 29. Under Article 145 § 1, any person who enters without authorisation another person’s home, a closed or fenced area belonging to that home, or private business premises designated as such, or does not leave such an area at the request of an authorised person, can be fined or imprisoned for one year. 30. Under Article 386 § 1, anyone who ill-treats or grossly insults another person, or threatens his safety or performs an act of gross violence against him and thereby causes a feeling of insecurity, threat or fear in the rest of the general public, can be imprisoned for between three months to three years. 31. Under Article 392 § 1, anyone who wilfully (самовласно) appropriates for himself a right or a right that he considers to be his own, can be fined or imprisoned for six months. 32. Chapter 10 of the Criminal Proceedings Act 1997 regulated pecuniary claims (имотно-правни барања) lodged in criminal proceedings. Under section 96 (renumbered to section 97 with the 2005 consolidated text of the Act, Official Gazette no. 15/2005) a compensation claim relating to a criminal offence was to be decided in criminal proceedings, unless it significantly delayed those proceedings. 33. Under section 100 (section 101 of the consolidated text), the court could question the accused about the grounds of the compensation claim. If a decision on the compensation claim would significantly delay the proceedings, the court confined itself to gathering evidence which would be impossible or very difficult to gather at a later stage. 34. Section 101 (section 102 of the consolidated text) provided that if the court found the accused guilty, it could fully or partially decide the compensation claim. If the evidence in the criminal proceedings did not provide a sufficient basis for a decision on the compensation claim, and there was a danger that the criminal proceedings would be prolonged unjustifiably in order to obtain such evidence, the court could decide solely on the existence of the grounds for compensation, or on the grounds and partially on the compensation claim, and adopt a supplementary judgment (дополнителна пресуда) for the rest of the claim. If the amount of compensation could not be determined on the basis of other evidence or if obtaining such evidence would lead to significant delays in the proceedings, the court could decide on the compensation claim by awarding just satisfaction (правичен надоместок). 35. If the accused was acquitted, the indictment was rejected, or the proceedings were discontinued, the court was to instruct the victim to pursue his or her compensation claim in civil proceedings (section 101(3)). 36. Under section 494(1) (section 543(1) of the consolidated text), if a suspended prison sentence required the convicted person to return the proceeds of the crime, provide damages or fulfill other duties but which he failed to do, the trial court could revoke the suspended prison sentence on the proposal of an authorised plaintiff (овластен тужител) or of its own motion. If the court found that the obligations had not been fulfilled, it could issue a judgment prolonging the period for fulfilment, releasing the convicted person from fulfilment or replacing that duty with another one. It could also revoke the suspended sentence or decide that the suspended prison sentence be executed (section 494(4)). 37. Section 225 of the Enforcement Act provides that if after an enforcement title (извршна исправа) concerning disturbance of possession (смеќавање на посед) has been enforced the respondent again disturbs the possession in the same manner, a private bailiff can order a return to the status quo ante on the basis of the same enforcement title. 38. Under section 11(3) a court in civil proceedings is bound by a criminal court’s final decision in respect of the existence of the offence and the criminal liability of the offender. 39. The Government submitted a copy of three judgments in which the courts granted a request by victims of a crime for the revocation of a suspended prison term after the offender failed to pay compensation or fulfil other obligations (the payment of maintenance).