Dragi Krstev and others v the former Yugoslav Republic of Macedonia - 30278/06 [2010] ECHR 2013 (16 November 2010)

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(Applications nos. 30278/06, 38130/06, 41358/06, 3747/07, 11762/07, 40639/07, 58926/08)

The European Court of Human Rights (Fifth Section), sitting on 16 November 2010 as a Chamber composed of:

Peer Lorenzen, President,
Karel Jungwiert,
Rait Maruste,
Mark Villiger,
Isabelle Berro-Lefèvre,
Mirjana Lazarova Trajkovska,
Ganna Yudkivska, judges,
and Claudia Westerdiek, Registrar,

Having regard to the above applications lodged on 18 July 2006, 5 and 28 September 2006, 6 January 2007, 5 March 2007, 31 August 2007 and 27 November 2008 respectively,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

The applicants, Mr Dragi Krstev (“the first applicant”), Mr Vidoje Ivanovski (“the second applicant”), Mrs Jadranka Ivanovska (“the third applicant”), Mrs Marijana Petruševska (“the fourth applicant”), Mr Arso Stojmanovski (“the fifth applicant”), Mr Trajče Mirčev (“the sixth applicant”), Mr Trajče Stojkov (“the seventh applicant”), Mr Dimče Pop Iliev (“the eighth applicant”), Mr Mile Trajkov (“the ninth applicant”), Mr Aca Janevski (“the tenth applicant”) and Mr Saša Stanojkovik (“the eleventh applicant”) are all Macedonian nationals (for personal details see the Annex). The first and ninth applicants are represented before the Court by Ms D. Veljanovska; the second, third and fourth applicants by Mr R. Aleksovski; the fifth, tenth and eleventh applicants by Mr S. Mladenovski and the sixth, seventh and eighth applicants by Mr V. Trajkovski, lawyers practising in Skopje, Kriva Palanka and Kumanovo respectively. 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.

The applicants were all members of the Government security forces either as police officers or reservists, with the exception of the second, third and fourth applicants, who are the next of kin of a deceased police officer.

Following the armed conflict that took place in the former Yugoslav Republic of Macedonia in 2001, the applicants brought civil proceedings against the State seeking compensation for injuries (or death, in case of the second, third and fourth applicants) sustained in the conflict. All the applicants were successful at first and second instance, receiving final decisions in which the courts ordered the State to pay damages under sections 166 and 189 of the Obligations Act (see “Relevant domestic law” below). Only the eleventh applicant had his claim dismissed at both levels.

These decisions were reviewed by the Supreme Court by way of an appeal on points of law (ревизија) in respect of the tenth and eleventh applicants or by way of a request by the public prosecutor for the protection of legality (барање за заштита на законитоста), in respect of the remaining applicants.

a) the Supreme Court accepted the public prosecutor’s request for the protection of legality, overturned the lower courts’ decisions and dismissed the compensation claims submitted by the following applicants:

i) the first applicant (Гзз.бр.15/2005 of 18 January 2006). The introductory part of this decision stated that it was taken after the court had heard oral evidence from the public prosecutor;

ii) the second, third and fourth applicants (Гзз.бр. 53/2005 and Рев.бр. 138/2005 of 26 April 2006). According to the introductory part of this decision, it was taken in the absence of the public prosecutor;

iii) the fifth applicant (Гзз.бр. 45/2005 of 29 March 2006).The decision was taken in the presence of the public prosecutor; and

b) In respect of the sixth, seventh and eighth applicants, the Supreme Court partly upheld the public prosecutor’s request for the protection of legality and significantly reduced the award (Гзз.бр. 203/2005 of 7 June 2006). The introductory part of this decision stated that it was taken after the public prosecutor had presented his arguments.

c) In respect of the tenth applicant, the court allowed the appeal on points of law by the State, overturned the lower courts’ decisions and dismissed his claim (Рев.бр. 61/2006 of 14 March 2007) and

d) dismissed the eleventh applicant’s appeal on points of law submitted against the first- and second-instance courts’ decisions of 30 June 2006 and 7 February 2007, respectively (Рев.бр. 532/2007 of 29 May 2008). In these latter decisions, the lower courts had ruled that no responsibility could be attributed to the State for the injuries sustained by the eleventh applicant.

As established by the domestic courts, the first, fifth, ninth, tenth and eleventh applicants were injured, under different circumstances, in a fight while on duty as members of the Government security forces. The second, third and fourth applicants’ next of kin was killed in the fight.

The Supreme Court found that under section 16 of the Obligations Act (see “Relevant domestic law” below) the Act on special rights of the members of security forces and their families (“the 2002 Act”, see “Relevant domestic law” below), as the lex specialis, applied to the relations between the State and the applicants. The 2002 Act therefore suspended the application of the Obligations Act. However, since section 7 of the 2002 Act did not provide for a right to compensation, the general rules of compensation set forth in the Obligations Act should have applied to the applicants’ cases. The court ruled that the State could not, under those rules, be held responsible for the injuries which the applicants had sustained in a fight, unless it could be proved that this was not the case. Furthermore, no objective responsibility could be attributed to the State for the injuries which the applicants had sustained while on duty. Consequently, section 166 of the Obligations Act could not apply to the applicants, as members of the security forces.

As regards the sixth, seventh and eighth applicants, the courts established that they had been injured while being transported in a military helicopter that had crashed after it had hit flagpoles while landing. The Supreme Court found the State responsible, under section 189 of the Obligations Act, for the injuries that these applicants sustained in “the accident”.

Under Article 101 of the Constitution, the Supreme Court is the highest court that provides for the uniform application of laws by courts.

2. Obligations Act of 2001 (Закон за облигационите односи)

Section 16 of the Obligations Act of 2001 states that it applies to relations regulated by other laws in respect of issues not covered by those laws.

Section 141 of the Obligations Act defines the different grounds for claiming civil compensation.

Section 166 provides for the State’s responsibility for any damage caused, inter alia, by a bodily injury sustained as a result of acts of violence or terror.

Under section 189, in the event, inter alia, of physical pain, mental anguish, disability, disfigurement or death of next of kin or fear, the court may award monetary compensation.

3. The Act on special rights of the members of security forces and their families of January 2002 (“the 2002 Act”, Закон за посебните права на припадниците на безбедносните сили на Република Македонија и на членовите на нивните семејства)

The 2002 Act defines the persons concerned, the special rights they are entitled to and procedures under which those rights may be attained. Section 7 of the 2002 Act provides the following special rights: the right to be employed; the right to rent an apartment; special rights regarding education; the right to be exempted from paying medical services; the right to a one-off pecuniary allowance; and the right to obtain a family pension.

The applicants submitted copies of final decisions in which the domestic courts, at two levels of jurisdiction, had granted identical claims brought by colleagues of the applicants for injuries (or death) sustained in the armed conflict in 2001. According to the applicants, these decisions were not challenged by the public prosecutor and accordingly were not reviewed by the Supreme Court. They pre-dated the applicants’ cases (Гж.бр.3548/02; Гж.бр.6122/02; Гж.бр.1849/03; Гж.бр.4515/03; Гж.бр.284/04; Гж.бр.2939/04; Гж.бр.6066/04 and Гж.бр.4572/05).

They further submitted two separate decisions by which the Supreme Court had dismissed the request of the public prosecutor for the protection of legality and ruled in favour of the applicants’ colleagues. In these cases, the Supreme Court held that an award should be made under the Obligations Act and not under the 2002 Act, given that the latter did not provide for a right to compensation. The first decision concerned colleagues of the sixth, seventh and eighth applicants who had been injured in the same helicopter accident (Гзз.бр.118/2005 of 2 November 2005). The second decision concerned a compensation claim by Army reservists who, while being transported in civilian vehicles, had been attacked in 2001. Relying on the facts established by the lower courts, namely, that the convoy had not been properly guarded, the Supreme Court upheld the lower courts’ decisions awarding them compensation (Гзз.бр.106/05 and Рев.бр.282/2005 of 7 September 2005). In this latter decision, the Supreme Court excluded section 166 of the Obligations Act from the list of provisions under which it established the State’s responsibility.

Relying on Articles 6, 14 and 18 of the Convention, the applicants complained that the domestic courts had applied different case-law to the same issues of fact and law. The Court considers that this complaint should be analysed under Article 6 of the Convention. The second, third and fourth applicants further alleged under this Article that they, unlike the public prosecutor, had been deprived of the opportunity to be present at the Supreme Court’s session of 26 April 2006. They also complained that by rejecting their compensation claim, the State had violated their rights under Article 2 of the Convention. The first and ninth applicants complained under Article 14 of the Convention that the Supreme Court, by the way in which it had interpreted section 166 of the Obligations Act, had discriminated against them in respect of “ordinary” citizens, who could seek compensation under that provision.

In a letter of 4 December 2009 submitted in reply to the Government’s observations, the sixth, seventh and eighth applicants complained that the Supreme Court had exceeded the limits of its jurisdiction when deciding their case since it had reassessed the facts established by the lower courts despite the fact that the public prosecutor, in the request for the protection of legality, had not made such a request. As a result, the Supreme Court’s decision had violated the principle of legal certainty under Article 6 and their rights under Article 1 of Protocol No. 1, since it had quashed a final decision in their favour on the initiative of the public prosecutor, who had not been a party to the proceedings.

The applicants complained under Article 6 of the Convention that the domestic jurisprudence on the matter had been inconsistent. The second, third and fourth applicants further alleged a violation of the principle of equality of arms since they, unlike the public prosecutor, had been deprived of the opportunity to be present at the Supreme Court’s session when it had rendered its decision. The first and ninth applicants complained under Article 14 of the Convention that the Supreme Court had applied section 166 of the Obligations Act in a way that had put them in a disadvantageous position compared with “ordinary” citizens, who could seek compensation under that provision.

In submissions of 4 December 2009 the sixth, seventh and eighth applicants complained under Article 6 that the Supreme Court had exceeded the limits of its jurisdiction. Furthermore, they alleged a violation of the principle of legal certainty in that the quashing of the final decision in their favour had been on the initiative of the public prosecutor, who had not been a party to the proceedings. That had also violated their rights under Article 1 of Protocol No. 1. Articles 6 and 14 and Article 1 of Protocol No. 1, in so far as relevant, read as follows:

“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

The Government submitted that there had been no inconsistency in the Supreme Court’s case-law on the matter or in the way in which it had interpreted the relevant legislation. The Supreme Court had had a consistent approach, though with different wording, concerning the applicability of the Obligations Act to the applicants’ cases (see “The Facts” and “Relevant domestic law and practice” above). That it had awarded compensation in some cases (Гзз.бр.118/2005; Гзз.бр.106/05 and Рев.бр.282/2005, as well as Гзз.бр. 203/2005, the case of the sixth, seventh and eighth applicants) and dismissed the compensation claims of the remaining applicants was due to the different factual circumstances of each case. The Supreme Court had awarded damages in the cases in which it found the State responsible. In the other cases, where no such responsibility could be attributed to the State, it dismissed the compensation claims.

The applicants contested the Government’s arguments. According to them, in the cases in which the Supreme Court had awarded damages, it had relied only on the fact that the claimants had sustained injuries while on duty, without establishing whether the State had been responsible due to an action or failure to act. The sixth, seventh and eighth applicants further argued that the Supreme Court, by significantly reducing the award in their case, unlike in the cases of their colleagues who had been injured in the same accident, had demonstrated that it applied different case-law to identical issues of fact and law.

The Court notes that the present case reflects the development of the domestic jurisprudence as to whether members of the Government security forces are entitled to receive compensation for injuries sustained in the 2001 conflict. In this connection it observes that the initial case-law on the matter developed by first- and second-instance courts was in favour of such claimants. In those cases, monetary compensation was awarded under sections 166 and 189 of the Obligations Act (see “Relevant domestic law and practice” above). It is noteworthy however, that those cases were not subject to review by the Supreme Court. It was only in 2005 that the Supreme Court became involved in this category of cases on the basis of a request by the public prosecutor for the protection of legality or an appeal on points of law (see Гзз.бр.106/05 and Рев.бр.282/2005 of 7 September 2005 and Гзз.бр.118/2005 of 2 November 2005, “Relevant domestic law and practice” above). In its decisions, as is evident from the material submitted by the applicants, the Supreme Court consistently held that the 2002 Act, as the lex specialis, had precedence over the Obligations Act, but that in the absence of an explicit provision in the 2002 Act for the right to compensation, the general rules of compensation set forth in the Obligations Act were to be applied to this category of cases. In this connection the Supreme Court ruled that the State’s responsibility should be assessed on a case-by-case basis, depending on the factual circumstances of each. In line with that reasoning, it awarded compensation to the sixth, seventh and eighth applicants. That decision was consistent with its earlier decision concerning the same “accident” (Гзз.бр.118/2005). On the other hand, the Supreme Court dismissed compensation claims in the cases in which it found that no responsibility could be attributed to the State or where no such allegation had been made. Such was the case with the remaining applicants’ claims. In all the cases that were brought to its attention, the Supreme Court concluded that, as a matter of principle, compensation could not be awarded under section 166 of the Obligations Act. The courts of general competence followed this approach, which is evident from the first- and second-instance courts’ decisions taken in respect of the eleventh applicant, which post-dated the Supreme Court’s decisions (see “The facts” above). No evidence has been produced to show that the courts, including the Supreme Court, have deviated from this practice since the applicants’ cases.

In such circumstances, the Court does not consider that this jurisprudential development has created a state of judicial uncertainty capable of depriving the applicants of a fair hearing. On the contrary, the Supreme Court, after it had become involved in this category of cases, developed a practice which has been consistently applied since then. In this connection the Court reiterates that the requirement of judicial certainty and the protection of legitimate expectations do not involve the right to an established jurisprudence (see Unédic v. France, no. 20153/04, § 74, 18 December 2008). As to whether the Supreme Court’s decision reducing the award in respect of the sixth, seventh and eighth applicants was wrong, the Court reiterates that it has a limited role regarding the interpretation and application of the domestic law, which is primarily within the jurisdiction of the domestic courts (see, mutatis mutandis, García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999 I).

It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

The Court notes that the introductory part of the Supreme Court’s decision in respect of these applicants (Гзз.бр. 53/2005 and Рев.бр. 138/2005 of 26 April 2006), as opposed to the decisions rendered in the cases of the first, fifth, sixth, seventh and eighth applicants (see “the Facts” above), explicitly stated that it had been taken in the absence of the public prosecutor. In such circumstances, the Court considers that this complaint is unsubstantiated. The same concerns the alleged violation of Article 2 of the Convention raised by these applicants. The Court does not see how the Supreme Court’s decision could engage the responsibility of the respondent State under this Article.

It follows that these complaints are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

The Court notes that these applicants failed to raise the issue of discrimination before the Constitutional Court, which has jurisdiction to decide such issues (see Šijakova v. the former Yugoslav Republic of Macedonia (dec.), no.67914/01, 6 March 2003).

It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

The Court notes that these complaints were not included in the application form submitted to the Court on 6 January 2007. They were therefore submitted more than six months after the Supreme Court’s decision of 7 June 2006 (Гзз.бр. 203/2005).

It follows that these complaints have been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

Application number	Applicant(s)	Date of Birth	Place of Residence
30278/06	Mr Dragi Krstev	/	Negotino
38130/06	Mr Vidoje Ivanovski Mrs Jadranka Ivanovska Mrs Marijana Petruševska	1953 1962 1981	Kumanovo
41358/06	Mr Arso Stojmanovski	1964	Kumanovo
3747/07	Mr Trajče Mircev Mr Trajče Stojkov Mr Dimče Pop Iliev	1974 1962 1971	Negotino
11762/07	Mr Mile Trajkov	1970	Kavadarci
40639/07	Mr Aca Janevski	1958	Kumanovo
58926/08	Mr Saša Stanojkovik	1967	Kumanovo

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You are here: BAILII >> Databases >> European Court of Human Rights >> Dragi Krstev and others v the former Yugoslav Republic of Macedonia - 30278/06 [2010] ECHR 2013 (16 November 2010) URL: http://www.bailii.org/eu/cases/ECHR/2010/2013.html Cite as: [2010] ECHR 2013