NAKOV v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"
Inadmissible
Georg Ress
The applicant, Mr Dimitar Nakov, is a national of the Former Yugoslav Republic of Macedonia, who was born in 1942 and lives in Štip. He is represented before the Court by Mrs Lenče Sofronievska and Ms Ana Sofronievska, lawyers practising in Skopje. The facts of the case, as submitted by the applicant, may be summarised as follows. On 21 October 1983 the Štip Municipal Public Prosecutor (Општинскиот јавен обвинител од Штип) filed a request with the Štip Municipal Court (Општински суд во Штип) to open an investigation procedure against the applicant on the basis of serious and well-reasoned suspicions that the applicant had abused his official duty as a Deputy General Manger of “MK Astibo” company and had thus committed the criminal offence proscribed in Section 177 § 4 in conjunction with § 1 of the Criminal Code (Кривичен закон на Социјалистичка Република Македонија). In addition, the prosecutor proposed to the court to issue an order for the detention of the applicant on remand because there were reasonable suspicions that he might impede the investigation by influencing witnesses and destroying material evidence. On 26 October 1983 the Štip Municipal Court rendered a decision for opening investigation proceedings against the applicant and ordered his detention on remand for 30 days, effective on the same date. On 24 November 1983 that court quashed the detention order, finding that the grounds for maintaining the applicant in detention had ceased to exist. On 9 December 1996 the Štip Basic Court (Основен суд во Штип) rendered a decision closing the investigation proceedings against the applicant because, as indicated in the statement of the Štip Higher Public Prosecutors Office (Вишо јавно обвинтелство во Штип) supplied to the court on 6 December 1996, the statutory time-limit for prosecution had expired. The applicant submits that subsequently, on 6 May 1997, he filed a civil action against the State before the Štip Basic Court (Основен суд во Штип) for the compensation of pecuniary and non-pecuniary damages suffered during investigation and for deprivation of liberty. He further maintains that he instituted the court proceedings following a request filed with the Ministry of Justice (Министерство за правда) to which there was no reply within the statutory time-limit. The total amount of the applicant’s claim for just compensation was 1,224,000 denars. On 15 September 1998 the Štip Basic Court rendered a judgment by which it partially accepted the applicant’s claim and awarded him compensation of a total amount of 950,440 denars. The amount of 50,440 denars was awarded as compensation for the pecuniary damages related to defence expenses incurred in the investigation proceedings, whereas the remaining portion of 900,000 denars was awarded in compensation for the mental sufferings and pain caused by the impairment of the applicant’s honour, reputation, and fundamental rights and freedoms experienced during the investigation proceedings, which lasted for almost 13 years. The court also imposed an obligation on the defendant State to pay to the applicant a statutory default interest computed as of 7 May 1997, the date when the applicant lodged his complaint with the court. In addition, it awarded the applicant costs and expenditures incurred in these proceedings amounting to 89,620 denars. On 14 December 1998 the Štip Appellate Court (Апелационен суд Штип) partially accepted the appeal lodged by the defendant State, finding that the lower court erred in the application of the law. It reversed the judgment of the first-instance court and substantially reduced the amount of compensation awarded to the applicant, by holding that the applicant was to receive compensation only for non-pecuniary damage suffered on account of his deprivation of liberty during the 30-day detention on remand, of an amount of 100,000 denars, coupled with statutory default interest which was to be computed from the date of delivery of the first-instance judgment. It also reduced the procedural costs awarded to the applicant to 38,500 denars. On 15 March 2000 the Supreme Court (Врховен суд на Република Македонија) refused to entertain the applicant’s appeal on points of law and refrained from examining the merits of the applicant’s case on the basis of Article 368 § 2 of the Code of Civil Procedure (Закон за парничната постапка), which provides that such an extraordinary judicial remedy may be used only in disputes whose value, as set out in the impugned part of the final judicial decision, exceeds a certain value prescribed by law. The court found that the value of the applicant’s dispute as set out in the impugned Appellate Court’s decision was lower than that set by law, which according to the new procedural rule amounted to 1,000,000 denars. The applicant alleges that he was served with that decision on 30 May 2000. Article 13 § 2 of the Constitution of the Republic of Macedonia (Устав на Република Македонија), published in the Official Gazette no.52/91, provides, inter alia, that a person unlawfully detained, apprehended or convicted has a right to legal redress and other rights determined by law. The provision contained in Section 530 § 1, item 1, of the Code of Criminal Procedure (Закон за кривичнатa постапка), which, in accordance with the Law on the Implementation of the Constitution of the Republic of Macedonia (Закон за спроведување на Уставот на Република Македонија), published in the Official Gazette no.52/91, has continued to be applied after the independence of the FYR of Macedonia, presribes that the person entitled to compensation for damages shall be the person who was detained on remand and gainst whom no criminal proceedings were instituted or were terminated by a final court decision, or the person who was acquited by a final judgment or the criminal charges against whom were rejected. The relevant parts of Section 382 of the Code of Civil Procedure (Закон за процесната постапка) which, in accordance with the Law on the Implementation of the Constitution has continued to be applied after the independence of the FYR of Macedonia, and which has governed the procedural rules concerning appeals on points of law (hereinafter referred as revision) prior to the enactment of the new law by which the financial threshold for its admissibility was increased, read as follows: “The parties may lodge a request for revision against a final judgment rendered at second instance within 30 days from the date when the party was served with a certified copy of the judgment. The revision shall be inadmissible in disputes where the claim pertains to money, the delivery of objects or the undertaking of certain activities, provided that the value of the dispute as set out in the impugned part of the final judgment does not exceed 8,000 dinars.” Section 368 of the Code of Civil Procedure (Закон за парничната постапка), published in the Official Gazette no.33/98, applicable as of 19 July 1998, provides inter alia that revision shall be inadmissible in disputes where the claim pertains to money, the delivery of objects or the undertaking of certain activities, provided that the value of the dispute as set out in the impugned part of the final judgment does not exceed 1,000,000 denars. The transitional and final provisions contained in Section 475 of the Code of Civil Procedure inter alia state that if the first-instance judgment was brought after the date of entry into force of the new Code, the proceedings shall continue to be conducted according to its provisions.