FIFTH SECTION
CASE OF MICKOVSKI v. NORTH MACEDONIA
(Applications nos. 39107/18 and 39726/18)
 
 
JUDGMENT
 
Art 1 P1 • Control of the use of property • Applicant’s failure to demonstrate that the temporary suspension of his bailiff’s practice in connection with a criminal investigation against him resulted in an individual and excessive burden on him
 
STRASBOURG
24 March 2022
FINAL
 
05/09/2022
 
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Mickovski v. North Macedonia,
The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:
 Síofra O’Leary, President,
 Mārtiņš Mits,
 Stéphanie Mourou-Vikström,
 Lətif Hüseynov,
 Jovan Ilievski,
 Ivana Jelić,
 Arnfinn Bårdsen, judges,
and Victor Soloveytchik, Section Registrar,
Having regard to:
the applications (nos. 39726/18 and 39107/18) 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”) by Mr Vlado Mickovski, a Macedonian/citizen of the Republic of North Macedonia, as a physical person and his registered bailiff practice as a legal person (for ease of reference, they will be designated hereinafter as “the applicant”), on 14 and 4 August 2018 respectively;
the decision to give notice to the Government of North Macedonia (“the Government”) of the complaint concerning Article 1 of Protocol No. 1 to the Convention and to declare the remainder of the applications inadmissible;
the parties’ observations;
Having deliberated in private on 14 December 2021 and 8 February 2022,
Delivers the following judgment, which was adopted on the latter date:
INTRODUCTION
1. The case concerns the alleged interference with the applicant’s rights under Article 1 of Protocol No. 1 to the Convention as a result of the temporary suspension of his bailiff practice’s activities (in connection with a criminal investigation launched in respect of him) and the judicial decisions rejecting the applicant’s ensuing claim for compensation. THE FACTS
2. The applicant was born in 1964 and lives in Vraneshtica. Following his registration with the Chamber of Bailiffs (“the Chamber”) in 2006, he established his bailiff practice in Kichevo. The applicant was represented before the Court by Ms M. Danilovska, a lawyer practising in Kichevo. 3. The Government were represented by their Agent, Ms D. Djonova. 4. The facts of the case, as submitted by the parties, may be summarised as follows. 5. On 3 February 2011 the Gostivar Court of First Instance decided to open a criminal investigation in respect of the applicant for negligence in the performance of his duties as bailiff on account of alleged double enforcement of a pecuniary claim (Official Gazette no. 59 of 20 April 2011). 6. On 11 April 2011 the Chamber ordered the suspension of his practice as a compulsory measure under section 60(2) of the Enforcement Act (see paragraph 17 below). The Minister of Justice appointed a certain M.D. from Struga as deputy bailiff to carry out necessary activities during the suspension. The income from the services provided by the deputy bailiff on behalf of the applicant was credited to the applicant’s bailiff practice except for certain fees charged by the deputy bailiff. 7. On 22 June 2011 the Constitutional Court rejected on grounds of res judicata a request by the applicant for an abstract constitutionality review of section 60(2) of the Enforcement Act. 8. On 21 November 2011, after the investigation against the applicant had been terminated for lack of evidence, the Chamber lifted the suspension measure. 9. Subsequently, the applicant brought a claim against the respondent State and the Chamber under the Obligations Act, seeking compensation for pecuniary damage (actual damage and loss of income) and non-pecuniary damage caused by the suspension, which had lasted from 11 April to 21 November 2011 (“the relevant period”). The applicant submitted that during the relevant period it had paid part of the employees’ salaries and had incurred other costs necessary to maintain the office, the total of which had amounted to approximately 10,418 euros (EUR). The applicant claimed approximately EUR 23,845 for loss of income and EUR 15,450 for harm to his reputation. 10. On 2 March 2016 the Kichevo Court of First Instance granted the applicant’s claim against the State in the amount of EUR 10,418 in respect of the actual loss and found no need to examine its claim in respect of the Chamber. The judgment was based on an expert report and other supporting evidence provided by the applicants, such as decisions on the suspension of an employment contract (решенија за мирување на договор за вработување), bank statements, utility bills and a services agreement. It dismissed the claim for non-pecuniary loss, holding that he had been neither convicted nor fined. 11. On 10 November 2016 the Gostivar Court of Appeal accepted the facts as established by the trial court but overturned the judgment and dismissed the applicant’s claims, holding that, inter alia, the State could not be held responsible in the absence of wrongful conviction or imprisonment, as provided for in sections 549 and 553 of the Criminal Proceedings Act. On 17 May 2018 the Supreme Court upheld that judgment. 12. Between 23 April and 28 December 2011 and on 17 January 2018 the applicant made several applications to the State Judicial Council and the State Public Prosecutor to have disciplinary proceedings for professional misconduct initiated against the public prosecutor and the judge involved in the criminal investigation. No such proceedings were initiated. RELEVANT LEGAL FRAMEWORK
13. Section 141 of the Obligations Act sets out the general principles regarding compensation claims. Section 178 provides for the right of a victim to monetary compensation on account, inter alia, of loss of profit. Section 189 provides for the right of compensation in case of unjustified interference with personal rights. 14. The Government submitted an excerpt of a decision delivered in 2009 in which the Supreme Court had held that, pursuant to section 189 of the Obligations Act and the provisions of the Criminal Proceedings Act, the mere initiation of criminal proceedings did not entitle the plaintiffs to claim an award in respect of non-pecuniary damage. 15. Sections 549 and 553 of the Criminal Proceedings Act provide for the right of compensation in case of unjustified deprivation of liberty or conviction. 16. Under sections 7 and 16 of the Enforcement Act (Official Gazette no. 83 of 3 July 2009), as valid at the time, persons with an enforceable title in respect to which enforcement proceedings were pending before the domestic courts had six months (as from 1 July 2010) to designate a bailiff (appointed for a given jurisdictional area) to continue the enforcement of the title in question. The Act amending the Enforcement Act (Official Gazette no. 88 of 2 July 2010) set 1 July 2011 as the starting date for the calculation of the six-month time-limit for transferring the enforcement cases to bailiffs. 17. Section 31 of the Enforcement Act (Official Gazette no. 59 of 20 April 2011), as valid at the time, conferred public prerogatives on bailiffs. Section 60 (2) provided for suspension of bailiff’s practice after a criminal investigation was opened in relation to the performance of his or her official duty. Under sections 59-v and 60 the Chamber was responsible to decide issues pertaining to bailiffs’ disciplinary responsibility and suspension. Section 65 provided that the Chamber shall have a legal personality. 18. In accordance with amendments to the Enforcement Act (Official Gazette no. 72 of 12 April 2016) posterior to the facts in the present case, the operation of a bailiff practice could be suspended only if an indictment had been confirmed in criminal proceedings. THE LAW
JOINDER OF THE APPLICATIONS
19. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment. ALLEGED VIOLATION OF ARTICLE 1 of Protocol no. 1 to THE CONVENTION
20. The applicant complained under Article 1 of Protocol No.1 to the Convention that the seven-month suspension of the operation of the bailiff practice on account of the criminal investigation had been an unjustified interference with his business interests and that he was not compensated for the resulting loss. Article 1 of Protocol No.1 reads as follows:
“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.”
AdmissibilityThe parties’ submissions

(a)   The Government
21. The Government argued that the State could not be held responsible for any negative consequences arising from a dispute between two private parties – the applicant and the Chamber. Furthermore, the suspension had only concerned the bailiff practice as a legal person and not Mr Mickovski as a physical person who had no legal standing in the proceedings before the Court. In any event the applications had been lodged more than six months after the Constitutional Court’s decision of 22 June 2011 (see paragraph 7 above). The subsequent civil proceedings had not been an effective remedy. The applicant should have instead instituted disciplinary or criminal proceedings against the public prosecutor or the criminal court judge. 22. Lastly, they argued that in the present case there had been no “possessions” within the meaning of Article 1 of Protocol No. 1. The applicant’s claim for loss of income fell outside the scope of that provision. The applicant’s clientele had been recoverable, as it had been dependent on geographical location (in respect of the bailiff’s territorial jurisdiction, as provided for by law, rather than on goodwill). (b)   The applicants
23. The applicant contested all the Government’s arguments. In particular, he submitted that he had been unable to make any business arrangements during the suspension, of which his clients had been informed, resulting in a loss of future income. The Court
(a) Incompatibility ratione personae
(i)      Responsibility of the respondent State
24. The Court observes that, while the Chamber is not a State body, but rather a professional body, it is established under the Enforcement Act (see paragraph 17 above). Furthermore, it pursues an aim of general interest and powers regarding, in particular, disciplinary proceedings and decisions on suspension, are conferred on it by law (see paragraph 17 above) (see, mutatis mutandis, Beg S.p.a. v. Italy, no. 5312/11, § 64, 20 May 2021). Section 60(2) of the Enforcement Act required the Chamber to order the compulsory suspension of the operation of a bailiff’s practice in the event that a criminal investigation was initiated. Accordingly, the State’s responsibility is engaged as a result of the administrative, as well as the regulatory powers of the Chamber (see National Notary Chamber v. Albania (dec.), no. 17029/05, 6 May 2008). 25. In addition, the Court reiterates the criteria for State responsibility for judicial decisions concerning disputes between private bodies and individuals set out in its case-law (see, for instance, Zhidov and Others v. Russia, nos. 54490/10 and 3 others, § 71, 16 October 2018) and observes that the present case also concerns the refusal of the higher courts to award the applicant compensation following the compulsory suspension ordered by the Chamber. It considers that, in the present case, the State responsibility is also engaged as a result of the decisions taken by the higher courts to dismiss the applicant’s claim for damages (see paragraph 8 above), resulting from the compulsory suspension of the operation of his bailiff’s practice ordered by the Chamber pursuant to section 60(2) of the Enforcement Act. (ii)     Locus standi
26. The relevant general principles are set out in Sérvulo & Associados -‑Sociedade de Advogados, RL and Others v. Portugal (no. 27013/10, § 79, 3 September 2015). 27. The Court observes at the outset that the Government considered that there are two applicants and that the physical person has no legal standing (see paragraph 21 above). However, in the present case, Mr Mickovski is the sole proprietor of the bailiff practice. Consequently, he has been directly affected by the restrictions imposed on his established business. Furthermore, both Mr Mickovski as a physical person and his registered practice as a legal person were parties to the domestic proceedings (see paragraph 9 above). In such circumstances, and having regard to the particular nature of a bailiff’s office under the relevant domestic law, according to which the legal person is closely linked to a sole individual qualified to practise the profession (see paragraph 17 above), the Court considers that both are so closely identified with each other that it would be artificial to distinguish between them in this context (see, mutatis mutandis, Eugenia Michaelidou Developments Ltd and Michael Tymvios v. Turkey, no. 16163/90, § 21, 31 July 2003; Kin-Stib and Majkić v. Serbia, no. 12312/05, § 74, 20 April 2010; Vujović and Lipa D.O.O. v. Montenegro, no. 18912/15, § 30, 20 February 2018; and Albert and Others v. Hungary [GC], no. 5294/14, §§ 157-58, 7 July 2020). (b)  Objections of non-exhaustion and non-compliance with the six-month rule
28. The general principles relevant to the Government’s objections under this head are set out in Vučković and Others v. Serbia ((preliminary objection) [GC], nos. 17153/11 and 29 others, §§ 69-77, 25 March 2014) and Alekseyev and Others v. Russia (nos. 14988/09 and 50 others, § 12, 27 November 2018). Moreover, an applicant who has pursued a remedy that is apparently effective and sufficient cannot be required also to have tried others that were available but probably no more likely to be successful (see Aquilina v. Malta [GC], no. 25642/94, § 39, ECHR 1999‑III). 29. Given the facts of the case (see paragraph 9 above) and in the absence of any supporting documents submitted by the Government, the Court does not consider that disciplinary or criminal proceedings against the public prosecutor or the judge responsible for opening the criminal investigation were appropriate remedies for the applicant’s grievances. Furthermore, the Court notes that the compensation proceedings in question concerned the applicant’s claim for monetary compensation for the pecuniary and non‑pecuniary loss sustained during the seven-month suspension of his practice (see paragraph 9 above). He raised arguments regarding the same issues, falling to be examined under Article 1 of Protocol No. 1 to the Convention, which he now brings before the Court. Those proceedings were capable of establishing the relevant facts and were not fully devoid of any prospect of success, as it can be seen from the first instance court judgment granting the applicant’s claim. Domestic courts at three levels of jurisdiction examined the applicant’s claim on the merits (see paragraphs 8-10 above). In such circumstances, the Court cannot accept the Government’s argument that the Constitutional Court’s decision rejecting the applicant’s request for an abstract constitutional review on grounds of res judicata was to be taken into consideration, instead of the compensation proceedings, for the calculation of the six-month time-limit (see paragraph 7 above). (c) Compatibility ratione materiae
30. The relevant general principles are set out in Könyv-Tár Kft and Others v. Hungary (no. 21623/13, § 31, 16 October 2018). 31. Turning to the present case, it is not disputed that the applicant had run his bailiff practice as a sole practitioner since 2006 (see paragraph 2 above). The bailiff practice was the vehicle through which he earned his income, which was directly linked to the number of his clients. By the time the suspension was ordered in 2011, he had built up his clientele over a five-year period. Whereas the Court agrees with the Government that the clientele may have been recoverable in part on the basis of geographical location (see paragraph 21 above) and that the person who replaced the applicant during the suspension, the deputy bailiff, generated certain income for him (see paragraph 6 above), it is clear that the applicant had a vested interest of an economic nature in continuing to run his bailiff practice and ensuring that the number of clients increase. 32. Furthermore, the Court considers that the applicant enjoyed “goodwill”, namely the advantage which had arisen over five years of practice from his own reputation and connections. The goodwill he had established was relevant to the decision of clients to choose his services (see, mutatis mutandis, Malik v. the United Kingdom, no. 23780/08, § 99, 13 March 2012, and O’Sullivan McCarthy Mussel Development Ltd v. Ireland, no. 44460/16, § 89, 7 June 2018, in which the Court has also found that Article 1 of Protocol No. 1 applied where there was a temporary prohibition on a permit connected to the usual conduct of a business).
33.

Outcome for Article P1-1: no_violation