CEDH · CASELAW;COMMUNICATEDCASES;ENG — 2 mars 2017

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .sA6BC7FA7 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:right } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s68C46B95 { margin-top:36pt; margin-bottom:12pt; text-align:center } .s3F59B822 { font-family:Arial; font-weight:bold; text-transform:uppercase } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } .s72C8F48C { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; page-break-inside:avoid; page-break-after:avoid } .s34D46E87 { margin-top:12pt; margin-bottom:6pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .s76CF415B { page-break-before:always; clear:both }   Communicated on 2 March 2017   FIRST SECTION Application no. 33874/14 Sašo NIKOLOSKI against the former Yugoslav Republic of Macedonia lodged on 25 April 2014 STATEMENT OF FACTS The applicant, Mr Sašo Nikoloski, is a Macedonian national who was born in 1948 and lives in Skopje. A.     The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows. On 23 March 1999 the Skopje Court of First Instance (hereinafter “the first-instance court”, Основен Суд Скопје ) partly granted a debt claim by the applicant against T.P. and ordered the debtor to pay a certain amount of money to the applicant. The judgment became final on 11 November 1999. On 7 February 2000 the applicant applied to the first-instance court for an order to enforce the judgment ( предлог за извршување ). The applicant asked the court to order the transfer of funds from the bank account of a company, P., allegedly owned by the debtor, as well as for an inventory, seizure and sale of the debtor’s movable and immovable property. The applicant specified in his application that the immovable property included an apartment and a holiday home. On 14 February 2000 the first-instance court initiated the enforcement and ordered an inventory, seizure and sale of the debtor’s moveable and immovable property and placed a ban on the transfer of funds from P.’s bank account. On 10 March 2000 the applicant asked the first-instance court to allow additional enforcement measures: the seizure and sale of a car that the debtor had bought for the company P. and the sale of goods and materials which it owned. On 11 December 2000 the debtor challenged the court decision of 14   February 2000, arguing that the company had no standing in the proceedings and that the immovable property was not owned by him. On 8 March 2001 the applicant replied to the debtor’s objection and rejected his claims. On 26 April 2001 the applicant once again requested that the court allow additional enforcement measures and that it order the transfer of funds from the debtor’s salary to the applicant’s bank account. On 20 November 2001 the first-instance court partly granted the debtor’s objection and upheld the enforcement order in so far as it concerned the sale of his moveable property. It dismissed the applicant’s application for additional enforcement measures. The first-instance court stated that the applicant had failed to provide evidence that the immoveable property was owned by the debtor. It also stated that as the sale of the debtor’s moveable property was still pending, allowing other means of enforcement appeared to be premature. On 5 December 2001 the applicant lodged an appeal against that decision complaining about the length of the enforcement proceedings and seeking to have additional enforcement measures ordered against the debtor. On 31 January 2002 the Skopje Court of Appeal ( Апелационен суд Скопје ) dismissed the applicant’s appeal and upheld the first-instance decision. On 3 November 2011 the applicant requested that the first-instance court transfer the enforcement of the final judgment to a bailiff. On 6 December 2012 the first-instance court granted the applicant’s request and transferred the enforcement proceedings to the bailiff. On 8 May 2013 the bailiff issued an order to transfer funds from the debtor’s bank account. On 27 May 2013 the debtor objected to the enforcement order, arguing that enforcement had become time-barred as ten years had gone by since the judgment had become final. The applicant did not respond to the debtor’s objection. However, on 5   June 2013, the bailiff responded and argued that the running of the limitation period has been interrupted by the initiation of enforcement proceedings by the creditor and by the court’s decision of 14 February 2000. The President of the Skopje Court of First Instance dismissed the debtor’s objection on 7 June 2013. The court relied on section 243 of the Enforcement Act, which provided for interruption of the running of the limitation period when enforcement proceedings were transferred from a court to a bailiff. The debtor appealed against the first-instance decision, reiterating his arguments that enforcement had become time-barred. The applicant did not respond to the opponent’s appeal. On 12 September 2013 the Skopje Court of Appeal granted the debtor’s objection and overturned the first-instance decision, finding that enforcement had become time-barred. It held that the time-limit had expired before the case file had been transferred to the bailiff. The applicant received a copy of the decision on 5 November 2013. Subsequently, the applicant lodged a complaint ( претставка ) with the Judicial Council, saying that the appeal court’s decision had been unfair. The Judicial Council replied on 5 May 2014 that the Skopje Court of Appeal’s findings had been contrary to section 377 of the Obligations Act and that his complaint would be taken into account when assessing the judges’ performance. B.     Relevant domestic law and practice 1.     Relevant legislation The relevant provisions of the Enforcement Proceedings Act of 1997 ( Закон за извршната постапка , Official Gazette nos. 53/1997, 59/2000 and 64/2003), read as follows: Section 2 “Enforcement and security proceedings shall be instituted after an application by a creditor. ...” Section 3 “Enforcement and security proceedings shall be allowed and conducted by the courts.” The relevant provisions of the Enforcement Act enacted in 2005 (consolidated version, Закон за извршување – пречистен текст , Official Gazette, no.59/2011), read as follows: Section 3 “(1) Enforcement shall be carried out by a bailiff ( извршител ). ...” Section 77 “(1) The party or participant who considers that there have been irregularities during enforcement may file an objection to the President of the first-instance court ... ...   (3) The President of the court shall decide on the objection within seventy-two hours of receipt. ... (5) The objection shall be served on the parties, participants and bailiff for observations ... (6) The President of the court shall decide on the objection within the deadline provided in paragraph (3), regardless of whether the opposing party filed timely observations in response to the objection or stated that he does not dispute the objection. ... . ” Section 77-a “(1) A party or participant has the right to lodge an appeal against the decision of the President of the court to the court of appeal ... ... (3) A copy of the appeal shall be served on the opposing party and the participant, who may submit observations in reply within three days. ...” Section 238 “(1) Enforcement proceedings instituted before the Act entered into force are to continue under the Enforcement Proceedings Act of 1997. ...” Section 240 “Where a final enforcement decision has been enacted by the court, creditors who initiated court enforcement proceedings before 26 May 2006 are required to submit within six months ... a statement to the competent court specifying the bailiff to whom enforcement should be transferred ... so that the bailiff may continue with enforcement.” Section 243 “The transfer of enforcement proceedings from the courts to the bailiffs shall result in the statutory time-limits for considering a claim time-barred being interrupted.” The relevant provisions of the Obligations Act of 2001 ( Закон за облигационите односи , Official Gazette, no.18/2001), read as follows: Section 368 “(1) All claims established by a final court judgment or by a decision of a competent body ... become time-barred ( застаруваат ) after ten years ...” Section 377 “The time-limit for considering a claim time-barred ( застарување ) will be interrupted ( се прекинува ) by the lodging of a claim or by any other action by the creditor against the debtor before a court or other competent body, for the purpose of establishing, securing or enforcing his claim.” 2.     Relevant practice On 5 February 2014 the Supreme Court made several conclusions in order to clarify issues that had arisen in the practice of the courts concerning the transfer of enforcement proceedings to bailiffs. It stated in one of those conclusions that section 377 of the Obligations Act concerning the interruption of the running of the limitation period is applicable in cases concerning enforcement, where an enforcement request on the basis of a credible document had been submitted on time, enforcement had been allowed and enforcement proceedings had been initiated but not completed. COMPLAINTS The applicant complains under Article 6   §   1 of the Convention about the lengthy non-enforcement of the final judgment in his favour and that the second-instance court’s decision declaring the enforcement time-barred was unfair. QUESTION TO THE PARTIES In view of the length of the enforcement proceedings in the applicant’s case and the decision of the Skopje Court of Appeal of 12 September 2013 declaring the enforcement of the final judgment in the applicant’s favour time-barred, was the applicant’s right of access to a court under Article   6   §   1 of the Convention respected?   The Government are required to provide copies of all relevant documents concerning the applicant’s case.