BAJRAKTAROV v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"
Inadmissible
Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Volodymyr Butkevych
The applicant, Mr Risto Bajraktarov, is a Macedonian national who was born in 1937 and lives in Štip. He was represented before the Court by Mr T. Torov, a lawyer practising in Štip. The Macedonian Government (“the Government”) were represented by their Agent, Mrs R. Lazareska Gerovska. The facts of the case, as submitted by the parties, may be summarised as follows. On 11 April 1984 the Štip Municipal Court convicted the applicant of several offences and sentenced him to seven years and one month’s imprisonment. The court also ordered confiscation of the proceeds gained by the applicant from the offences (“the confiscation order”). On 20 December 1988 the then Federal Court of Yugoslavia partly quashed the lower court’s decision since the statutory rules on time-barred prosecutions had been wrongly applied. On 5 October 1989 the Štip Municipal Court stayed the criminal proceedings against the applicant. It did so because the public prosecutor had withdrawn the charges as the prosecution had become time-barred. It also ordered restoration of the confiscated funds to the applicant (“the restoration order”). This decision became final on 24 October 1989. On 17 December 1990 the Štip Municipal Court partly upheld a request by the applicant for enforcement of the restoration order. It ordered restoration of the confiscated funds, but refused to award interest because no provision for interest had been stipulated in the restoration order. The court also found that the confiscated funds had been transferred to the Municipality of Štip (“the Municipality”) and ultimately to the then Štip Secretariat of the Interior. An appeal by the Municipality was finally dismissed by a court decision of 20 February 1991. The confiscated funds were actually restored to the applicant on 12 April 1993. On 21 October 1991 the applicant brought a civil action against the Municipality and the State claiming interest on the funds. He claimed interest for the period between the actual confiscation of the funds and their restoration. On 8 April 1993 the Štip Municipal Court rejected the applicant’s claim as premature. It established that on 17 May 1990 the applicant had sought compensation for wrongful conviction before the then Skopje Secretariat for Justice and Administration (“the Secretariat”) only in respect of his earnings and other rights deriving from his employment, but that he had not claimed interest on the confiscated funds. On 19 August 1993 the Štip District Court upheld that decision. On 8 February 1994 the Supreme Court allowed an appeal by the applicant on points of law and quashed the lower courts’ decisions. It found that his claim should not be regarded as a request for compensation for wrongful conviction and that, accordingly, he had not been required to apply to the relevant Ministry. On 12 May 1994 the Štip Municipal Court ruled partly in favour of the applicant, allowing his claim only in respect of unpaid interest on the national-currency funds. It dismissed his claim for statutory interest on the foreign-currency funds. It further established that the foreign currency funds had actually been restored to the applicant on 12 April 1993. On 30 November 1994 the Štip District Court partly upheld the lower court’s decision and remitted the dismissed part for reconsideration. On 26 September 1995 the Supreme Court granted a request by the public prosecutor for the protection of legality (барање за заштита на законитоста) and quashed the lower courts’ decisions. It found that they had wrongly applied the national law by awarding double interest on the foreign currency funds. On 15 December 1995 the Štip Municipal Court, after having obtained an expert report, upheld the applicant’s claim and ordered the Municipality and the State to pay him interest on the confiscated funds. On 7 March 1996 the applicant requested the Štip Court of First Instance to enforce that decision. On 8 July 1996 the latter ordered the Public Payment Office (Завод за Платен Промет) to transfer the award to the applicant’s account. On 14 May 1997 the Supreme Court quashed the lower courts’ decisions and ordered a retrial. It found that they had incorrectly applied the civil-law rules on compensation instead of the provisions of the Criminal Proceedings Act concerning wrongful convictions. On 23 June 1998 the Štip Court of First Instance dismissed the applicant’s claim in respect of the Municipality and declared it inadmissible in respect of the State. The court found that the applicant had failed to submit his claim to the Secretariat and that, accordingly, he had not been entitled to claim compensation on that ground in the civil proceedings. On 24 November 1998 the Štip Court of Appeal allowed an appeal by the applicant and remitted the case for re-examination. On 30 June 1999 the Štip Court of First Instance dismissed the applicant’s claim. It found that the Federal Court of Yugoslavia had not pardoned the applicant or overturned his conviction on the merits, but had quashed it solely because of the time bar. The court therefore concluded that the applicant had not been wrongly convicted and that, consequently, the State had not been liable to pay any damages. On 14 February 2000 the Štip Appeal Court allowed an appeal by the applicant and ordered a retrial. It held that his claim should not be considered under the rules for wrongful conviction, but as a civil compensation claim. On 18 April 2000 the President of the Štip Court of First Instance refused a request by the applicant for exclusion of the judge sitting in his case. On 23 May 2000 the Štip Court of First Instance dismissed the applicant’s claim. It established that the applicant’s compensation claim for interest in respect of his wrongful conviction had been submitted to the Secretariat out of time. It held, inter alia, as follows: “... the court finds that the applicant’s compensation claim concerns unpaid interest on confiscated funds ... since the legal ground of that claim is the confiscation of the funds, as a security measure issued within the criminal proceedings, the case is to be analysed under the rules on compensation for wrongful conviction and detention ... Under section 542(1) of the Criminal Proceedings Act, a plaintiff [the applicant] can claim compensation before the authorised State body and is entitled to receive compensation within three years of the date on which a decision staying the proceedings becomes final. In the instant case the decision of 5 October 1989, by which the criminal proceedings ... were stayed, was served on the applicant on 20 October 1989 and became final on 24 October 1989. On 7 September 1993 the plaintiff submitted his claim for unpaid interest on the confiscated funds to the Secretariat for Justice and Administration. On 30 September 1993 the latter instructed the plaintiff to submit his claim to the court of competent jurisdiction. It transpires that the deadline for the plaintiff’s claim was 24 October 1992. The application lodged on 7 September 1993 was therefore time-barred ...” The court further found that the funds had been confiscated in lawful judicial proceedings. The Federal Court of Yugoslavia had neither pardoned the applicant nor found substantial procedural deficiencies. It had quashed the applicant’s conviction merely because of the time bar. The court therefore went on to conclude that the State could not be held liable for damage sustained by the applicant. On 13 November 2000 the Štip Court of Appeal dismissed an appeal by the applicant in which he had, inter alia, expressed doubts about the impartiality of the first-instance court judge. In December 2000 the applicant lodged an appeal with the Supreme Court in which he restated his arguments that his claim should be considered under the civil-law rules on compensation. On 6 March 2001 the public prosecutor submitted observations to the Supreme Court supporting in part the applicant’s appeal related to his claim against the State. It stated that interest should be calculated as of the day when the restoration order had become final until restoration actually occurred. On 29 November 2001 the Supreme Court dismissed the appeal by the applicant on points of law and upheld the lower courts’ findings that the damage had derived from the criminal proceedings and that, accordingly, compensation should have been sought under the rules related to wrongful conviction. This decision was served on the applicant on 27 February 2002.