CASE OF SPASOVSKI v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"
Violation of Art. 6-1
Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Zdravka Kalaydjieva
5. The applicant was born in 1964 and lives in Skopje. 6. On 10 February 2002 the applicant was seriously injured in an explosion caused by a bomb placed in a house located in the municipality of Aracinovo (“the municipality”). The incident happened after the 2001 armed conflict in the former Yugoslav Republic of Macedonia. 7. On 30 January and 1 June 2004 respectively the applicant, represented by counsel, brought two separate actions seeking compensation from the municipality and the State. They were subsequently joined. 8. On 8 November 2004 the Skopje Court of First Instance (“the first-instance court”) accepted the applicant's claim in respect of the State and ordered the latter to pay 750,000 Macedonian denars (MKD) (approximately 12,230 euros) in respect of non-pecuniary damage, plus interest. It relied on section 166 of the Obligations Act (see paragraph 13 below), stating that it had been in force at the time of the incident and that it was still in force. It dismissed the claim in respect of the municipality, stating that it was not liable to be sued (поради немање на пасивна легитимација). It found that section 3 of the amended Obligations Act (see paragraph 14 below), under which it falls to local self-government units rather than the State to pay compensation for any damage caused by acts of violence, had been set aside by the Constitutional Court's decision of 17 July 2002. The court declared the State liable to pay compensation for the damage, because the applicant was the victim of a clear act of violence and no investigation had been carried out by State authorities. This decision was served on the applicant on 15 December 2004. 9. The State appealed arguing that the Constitutional Court's decision had not been retroactive and that the State accordingly, could not be held liable to be sued. The appeal was received by the first-instance court on 27 December 2004 and communicated to the applicant on 13 January 2005. The applicant did not submit any observations in reply. 10. On 21 April 2005 the Skopje Court of Appeal allowed the appeal and overturned the lower court's decision in part related to the State. It confirmed the remainder, because no appeal had been lodged in that respect. The court endorsed the facts established by the first-instance court but held that the substantive law had been incorrectly applied. It found that section 3 of the amended Obligations Act had already entered into force at the time of the incident and applied in the applicant's case given the non-retroactive legal effect of the Constitutional Court's decision. This decision was served on the applicant on 8 June 2005. 11. On 23 August 2005 the applicant asked the public prosecutor to institute legality review proceedings (барање за заштита на законитоста) before the Supreme Court. He argued that both courts had accepted that he had sustained a bodily injury as a result of acts of violence or terrorism. However, no compensation had been awarded owing to the contradictory decisions of the first and second-instance courts as to who had been the proper defendant to his action. 12. On 27 October 2005 the public prosecutor informed the applicant that there were no grounds for lodging such a request against the Court of Appeal's decision. 13. Section 166 (1) of the Obligations Act of 5 March 2001 provided for the State's responsibility for any damage caused, inter alia, by a bodily injury sustained as a result of acts of violence or terrorism. 14. On 25 January 2002 the Obligations Act was amended. Under section 3 of the amended Obligations Act, the term “the State” was replaced with “the local self-government units where damage occurred”. 15. Under section 334 of the Civil Proceedings Act (“the Act”), as valid at the time, parties can appeal the first-instance decision within fifteen days of the date of service of this latter decision. 16. Section 340 § 2 (13) prescribes the following as a substantial procedural flaw: if the impugned decision contains deficiencies which makes its review impossible, in particular if it is illegible, contradictory, lacks reasoning or does not provide reasons for the relevant findings of fact or if they are unclear or contradictory. 17. Under section 351 of the Act, the second-instance court examines the first-instance court's decision in the challenged part. Section 351 § 2 provides that the Court of Appeal examines the first-instance court's decision on the basis of the grounds set out in the appeal and having regard to its ex officio capacity to consider any substantial procedural flaw and the correct application of the law. 18. The Constitutional Court rejected (укинува) section 3 of the amended Obligations Act as unconstitutional. It found that it was the State's responsibility to protect citizens from acts of violence and, accordingly, to cover any damage thereof.