MILOŠEVSKI v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"
Inadmissible
Armen Harutyunyan;Kristina Pardalos;Ledi Bianku;Mirjana Lazarova Trajkovska;Pauliine Koskelo;Robert Spano
1. The applicant, Mr Blage Miloševski, is a Macedonian national who was born in 1960 and lives in Skopje. He was represented before the Court by Mr S. Janev, a lawyer practising in Skopje. 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. On 14 August 2001 J.G. (a Czech national with two office addresses, in the United Kingdom and in the Czech Republic) issued a “payment order” to Bank T., a bank incorporated in the respondent State, for payment of 1,450,000 United States dollars (USD) to the applicant, conditional upon the availability of funds in J.G.’s bank accounts in Bank T. The payment order also specified that if no funds were available in those bank accounts, J.G. would be liable to pay the applicant the pledged sum of money in cash. The relevant part of the payment order, co-signed both by J.G. and the applicant, reads as follows: “I, Dr J.G., Trustee and Attorney with this, hereby inform and give an irrevocable order to Fiduciary bank: T. a.d. Skopje to unconditionally pay out in my name to Mr Milosevski Blage ... the amount of USD 1,450,000.00 USD (in words: USD one million four hundred and fifty thousand) in cash from either of my accounts [opened with Bank T.] immediately after the arrival of USD 4,500,000.00 in those accounts. This payment order shall constitute a firm obligation on the part of Bank T. and it shall pay out the amount stated hereunder to Mr. Milosevski Blage immediately, whenever this payment order is presented to T. a.d. Skopje. In the event that such resources ... have not arrived in either of my accounts [specified] above in due time, I am fully legally responsible to fully pay the amount of USD 1,450,000.00 in cash to Mr Milosevski Blage at his first call and demand.” 5. On 29 June 2004 the applicant, through his representative, submitted the payment order to the Skopje Court of First Instance (“the first-instance court”) and requested its enforcement. In his “enforcement request” (предлог за извршување), amended on 3 November 2004, the applicant stated that both Bank T. and J.G. had failed to fulfil the provisions of the payment order. He proposed that enforcement be allowed in the following terms: “Enforcement is allowed of the payment of USD 1,450,000.00, plus interest ... and costs ... from the debtor’s [J.G.’s] funds (парични средства), that is to say (односно) from his assets in company D., incorporated in Ireland as capital of 51% in company T.T. incorporated in the Czech Republic ... by the transmission of the [first-instance court’s] enforcement order from the Ministry of Justice [of the respondent State] to the Ministry of Justice of the Czech Republic so that the competent court in the Czech Republic might proceed further with the enforcement and transfer the above-mentioned amount to the [applicant’s] personal bank account ... in Bank T. in Skopje. Alternatively, if no assets of company T.T. are available in the Czech Republic, enforcement is proposed in respect of those of the debtor’s funds that are available in company T.T.’s bank accounts at Bank M. in Frankfurt, Germany, or at any other institution where the debtor holds personal capital or stake in his other companies in the Czech Republic, or movable or immovable property or capital to be found at any other place. This decision will be delivered to the [respondent State’s] Ministry of Justice, so that it can be transmitted for enforcement, via the competent [Czech] ministry, to the competent authorities in the Czech Republic. The applicant and his representative will be notified in the event of any problems with the enforcement.” 6. On 9 November 2004, by affixing the standard stamp to the applicant’s enforcement proposal, the first-instance court allowed the enforcement, as proposed by the applicant (the “enforcement order”). According to the instruction contained in the text of the stamp, the debtor could object (приговор) to the enforcement order within eight days of receiving it. The enforcement order was signed by Judge V.B. 7. The enforcement order was transmitted in the Czech Republic, through the Ministries of Justice of the respondent State and the Czech Republic, to J.G.. On 28 February 2005 J.G. signed the delivery slip, which together with the complete file was returned to the respondent State. The fact that the file was returned was the reason for the first-instance court’s seeking further information from the relevant Ministries as to whether J.G. had indeed received the enforcement order translated into Czech. The relevant Ministry did not clarify the matter. 8. On 29 June 2005 the first-instance court, relying on “the general provisions and principles of the Enforcement Proceedings Act” (hereafter “the Act”), terminated the enforcement (се запира извршувањето) and quashed the enforcement measures (спроведените извршни дејствија се укинуваат). The first-instance court stated that the payment order could not be regarded as suitable for enforcement (извршна или веродостојна исправа), that the enforcement order had been issued in error (превид), and that it was in both parties’ interests that the enforcement be terminated. This decision was made by Judge Z.C., who had in the meantime been appointed to sit in the case. 9. On 31 May 2006 the Skopje Court of Appeal (“the second-instance court”) upheld the applicant’s appeal and remitted the case for fresh consideration. It found that the first-instance court was bound by its enforcement order of 9 November 2004 and that it was unclear why it had concluded that it was in the parties’ interests for enforcement to be terminated. In this connection it noted that the enforcement order had been served on both parties, that neither party had appealed against it, and that the first-instance court could not assess the “substantive legality” (материјалната законитост) of the enforcement order. The second-instance court added that the first-instance court, when considering the case anew, should assess whether any of the statutory conditions for the termination of the enforcement (запирање на извршувањето) had been met. 10. On 26 June 2006 the president of the first-instance court granted a request by the applicant for the withdrawal of Judge Z.C. and appointed Judge M.N. to sit in the case. On 12 July 2006 the first-instance court again terminated the enforcement. It noted that it had received, on two occasions, a notification from Bank T. that no funds had been available on J.G.’s bank accounts to cover the applicant’s claim. By citing provisions of the Act relevant to the courts’ territorial competence for enforcement over funds, movable property and stakes in companies (see paragraph 14 below) and by taking into account the provisions of the Trade Companies’ Act regarding companies’ seats and legal status, the first-instance court concluded that the enforcement, as allowed by the enforcement order, was impossible. In this connection, it stated: “... the enforcement sought concerned moveable property outside (the respondent State) ... It is absolutely impossible for a court in (the respondent State) to carry out enforcement against property in a foreign State in which different rules apply. It is true that the enforcement in the present case was allowed and that the (enforcement order) became final ... the court has no jurisdiction to proceed with the enforcement against shares in a foreign company in a foreign State ... the enforcement concerns shares of a foreign company from the Czech Republic, which is absolutely impossible to carry out under the Enforcement Act of the Republic of Macedonia. The Trade Companies’ Act clearly provides that the competent court ratione loci is the court in the place where the foreign company is registered.” 11. On 20 July 2006 the applicant appealed, arguing, inter alia, that there was no legal ground in the Act for the termination of the enforcement in the instant case. He further submitted that under the bilateral agreement applicable between the respondent State and the Czech Republic (hereafter “the Bilateral Agreement”) (see paragraphs 16 to 18 below), the enforcement order should have been transmitted through the respondent State’s Ministry of Justice to the competent Czech authorities, so that the latter could proceed further with the enforcement. 12. On 28 March 2007 the Skopje Court of Appeal dismissed the applicant’s appeal and confirmed the lower court’s decision. It held that the first-instance court had not terminated the enforcement proceedings, but had only terminated the enforcement. In this connection it observed that a distinction should be made between (i) the termination of enforcement proceedings (запирање на извршната постапка) as a final completion of enforcement proceedings and (ii) the termination of enforcement (запирање на извршувањето) as completion of only a stage of the enforcement proceedings, completely or regarding a particular object of enforcement. The court referred to the lack of funds in J.G.’s accounts in Bank T. and reiterated the reasons of the lower court that the Macedonian courts had no jurisdiction to proceed with the enforcement against funds and moveable property in foreign companies for which the power of enforcement was vested with the courts of the jurisdiction within which such assets were located. The applicant was served with this decision on 4 October 2007. 13. Subsequently, the applicant asked the first-instance court to attest to the finality and enforceability of the enforcement order (издавање на правосилност и извршност на решение). On 7 April 2008 the applicant’s request was dismissed. The first-instance court held that no such measure could be taken, since there existed a final decision on the termination of the enforcement. It further pointed out that no further enforcement measures could be taken on the basis of the enforcement order. On 3 July 2008 the second-instance court dismissed the applicant’s appeal and confirmed the first-instance court’s decision. 14. This Act regulated the enforcement of court decisions. Section 13 provided for the subsidiary application of the Civil Proceedings Act. Section 69 contained a general provision that an enforcement proposal concerning moveable assets should be decided by a court with jurisdiction in the territory in which such assets are located. Sections 91 and 206 specified that an enforcement proposal concerning funds or the transfer of moveable assets should be decided, respectively, by a court with jurisdiction in the territory in which the debtor in question lives or in which such moveable assets are located. Section 137-a prescribed that enforcement proposals concerning shares and stakes in companies should be decided by a court with jurisdiction in the territory in which the company concerned is registered. 15. Section 15 of this Act stipulated that a court should regularly and of its own motion verify that a pending case was within its competency. 16. Article 53 of the Bilateral Agreement, which is binding on the respondent State, stipulates that the competent court for recognition and enforcement of a court judgment delivered by courts of a Contracting State shall be the court of the State in which the judgment is to be enforced. 17. Article 54 provides that a request for recognition or enforcement can be submitted to the directly competent court in the State in which the judgment is to be recognised or enforced, or to the court which decided the matter at the first instance which shall, in such a case, transmit that request to the other State. Any such request shall be accompanied by a certified copy of the enforcement decision, together with an attestation that the decision has become final and enforceable (unless this stems from the decision itself). 18. Under Article 55, the court of the State in which the enforcement should take place shall decide and proceed with the enforcement in line with its national legislation.