European Court of Human Rights

 

 

FIRST SECTION

CASE OF JAKIMOVSKI AND KARI PREVOZ v. NORTH MACEDONIA

(Application no. 51599/11)

 

 

 

 

JUDGMENT
(Revision)

STRASBOURG

1 June 2023

 

 

 

 

 

This judgment is final but it may be subject to editorial revision.

In the case of Jakimovski and Kari Prevoz v. North Macedonia,

The European Court of Human Rights (First Section), sitting as a Committee composed of:

          Péter Paczolay, President,
          Tim Eicke,
          Raffaele Sabato, judges,
and Liv Tigerstedt, Deputy Section Registrar,

Having deliberated in private on 9 May 2023,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1.  The case originated in an application (no. 51599/11) against the Republic of North Macedonia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 8 August 2011 by Mr Savcho Jakimovski, a Macedonian/citizen of the Republic of North Macedonia (“the first applicant”), and Kari Prevoz D.O.O. Sveti Nikole, a company incorporated in the respondent State (“the second applicant”).

2.  In a judgment delivered on 14 November 2019, the Court found a violation, in respect of both applicants, of Article 1 of Protocol No. 1 to the Convention on account of the confiscation of the second applicant’s lorry in customs-related misdemeanour proceedings against the first applicant. The Court also held that the respondent State was to return to the applicants the confiscated lorry in the state that it had been in at the time of its confiscation; failing such restitution, it was to pay the applicants, jointly, 13,000 euros (EUR), plus any tax that might be chargeable, in respect of pecuniary damage. The Court further awarded the applicants, jointly, EUR 14,500 in pecuniary damage in respect of accrued statutory interest in respect of the value of the lorry, EUR 3,000 in respect of non-pecuniary damage and EUR 925 in respect of costs and expenses.

3.  On 8 January 2020 the Government of North Macedonia (“the Government”) informed the Court that in December 2019 the applicant’s representative had informed them that on 23 March 2016 the second applicant had ceased to exist and had been removed from the Trade Register. They accordingly requested the revision of the judgment under Rule 80 of the Rules of Court.

4.  On 3 March 2020 the Court considered the request for revision within the meaning of Rule 80 of the Rules of Court and decided to give the applicants’ representative three weeks in which to submit any observations. Those observations were received on 5 May 2020.

THE LAW

THE REQUEST FOR REVISION

5.  The Government argued that the first applicant had not informed the Court, in his observations (of 2015) regarding the admissibility and merits, of the second applicant’s forthcoming imminent removal from the Trade Register. He had also failed to inform the Court of the second applicant’s liquidation (i) once it had occurred and (ii) before the Court’s judgment had been adopted more than three and a half years later. The first applicant had thus abused his right of application. In addition, the Government argued that the Court’s judgment was non-enforceable. Given that the information concerning the second applicant’s removal from the Trade Register could have a significant bearing on the Court’s finding under Article 41 of the Convention, the Government requested the Court to reconsider the latter matter.

6.  The first applicant, through his representative, argued, inter alia, that the Government had known that the second applicant had ceased to exist, which had been a direct result of the confiscation of the lorry in violation of Article 1 of Protocol No. 1. The second applicant had been established solely with the purpose of conducting activities in the field of transportation, using the lorry. Under domestic law, the property obtained by a spouse during marriage was considered to constitute the joint property of the spouses, and the award made by the Court to the second applicant was to be distributed between the spouses as its former owners.

7.  The relevant part of Rule 80 of the Rules of Court provides as follows:

“A party may, in the event of the discovery of a fact which might by its nature have a decisive influence and which, when a judgment was delivered, was unknown to the Court and could not reasonably have been known to that party, request the Court ... to revise that judgment ...”

8.  The Court accepts that the removal of the second applicant from the Trade Register constitutes a fact that had a “decisive influence” on the outcome of the judgment within the meaning of Rule 80 of the Rules of Court; that fact had not been known and could not reasonably have been known to the Government.

9.  It reiterates that, as noted in the original judgment (see paragraph 31 of that judgment), the second applicant formally had title to the confiscated lorry; nevertheless, given that the applicants had close ties with each other, the Court found that the first applicant also had victim status in respect of the complaint lodged under Article 1 of Protocol No. 1 to the Convention.

10.  An application may be seen as constituting an abuse of the right of application if, among other reasons, an applicant (or his or her representative) has misled the Court. This may occur, for example, when it is clear that an application is knowingly based on untrue facts with a view to deceiving the Court, or where it is deliberately grounded on a description of facts that omits events of central importance (see Mindek v. Croatia (revision), no. 6169/13, § 26, 11 September 2018). In the present case, the Court notes that in the contentious proceedings preceding the original judgment the first applicant failed to inform it of the second applicant’s liquidation and its consequent removal from the Trade Register. Although showing a lack of diligence, such a failure cannot be regarded - given the circumstances of the case (in particular the close interplay between the applicants) - sufficient to amount to an abuse by the first applicant of his right of application.

11.  Turning to the second applicant, the Court observes that neither the first applicant nor his wife (who had - together with the first applicant - obtained joint ownership of the second applicant) expressed in a timely manner a wish to pursue the application in the name of the second applicant following its removal from the Trade Register. In such cases, it has been the Court’s practice to strike applications out of the list of cases in respect of non‑existent applicants (see, mutatis mutandis, SC Placebo Consult SRL v. Romania (revision), no. 28529/04, § 23, 21 June 2011, and Dzhabrailovy v. Russia (revision), no. 68860/10, § 10, 4 February 2016). It sees no reasons to decide otherwise in the present case.

12.  Accordingly, the Court considers that the original judgment of 14 November 2019 should be revised and that the part of the application concerning the second applicant should be struck out of the Court’s list of cases, in accordance with Article 37 § 1 of the Convention.

13.  In view of its findings in paragraphs 9-11 above, the Court further considers that the original judgment should be revised also as concerns the application of Article 41 of the Convention by granting the full amounts to the first applicant. It thus rejects the Government’s argument that the amount of award made in the original judgment should be reconsidered.

14.  Accordingly, the Court decides that the respondent State should return the lorry, in the state that it was in at the time of its confiscation, to the first applicant; alternatively, if such return is impossible, it should pay him EUR 13,000 in respect of pecuniary damage, plus any tax that may be chargeable. It further awards to the first applicant EUR 14,500 in pecuniary damage in respect of accrued statutory interest in respect of the value of the lorry, EUR 3,000 in respect of non-pecuniary damage and EUR 925 in respect of costs and expenses.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1.      Decides to revise its judgment of 14 November 2019 in relation to the second applicant as well as in so far as it concerns the application of Article 41 of the Convention;

and accordingly,

2.      Decides to strike the application out of the list of cases in respect of the second applicant;

3.      Holds,

(a)  that the respondent State is to return to the first applicant, within three months, the confiscated lorry in the state that it was in at the time of its confiscation;

(b)  that, failing such restitution, the respondent State is to pay the first applicant, within the same three-month period, EUR 13,000 (thirteen thousand euros), plus any tax that may be chargeable, in respect of pecuniary damage;

(c)  that in any event, the respondent State is to pay to the first applicant, within the same three-month period, the following amounts:

(i) EUR 14,500 (fourteen thousand five hundred euros), plus any tax that may be chargeable, in respect of pecuniary damage;

(ii) EUR 3,000 (three thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(iii) EUR 925 (nine hundred and twenty-five euros), plus any tax that may be chargeable to the first applicant, in respect of costs and expenses;

(d)  that the amounts in question are to be converted into the currency of the respondent State at the rate applicable at the date of settlement;

(e)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period, plus three percentage points.

Done in English, and notified in writing on 1 June 2023, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

                       

             Liv Tigerstedt                                                    Péter Paczolay
          Deputy Registrar                                                      President