Decision U.no.185/2006

U.no.185/2006

On the basis of Articles 110 and 112 of the Constitution of the Republic of Macedonia and Article 70 of the Book of Procedures of the Constitutional Court of the Republic of Macedonia (»Official Gazette of the Republic of Macedonia«, no.70/1992), at its session held on 17 January 2007, the Constitutional Court of the Republic of Macedonia passed the following

DECISION

1. Article 77 paragraph 7 of the Law on Enforcement (“Official Gazette of the Republic of Macedonia”, nos. 35/2005, 50/2006, 50/2006, and 129/2006) IS REPEALED.

2. This decision shall generate legal effects from the date of its publication in the “Official Gazette of the Republic of Macedonia”.

3. Upon the initiative submitted by Jakim Iliev from Kocani, the Constitutional Court of the Republic of Macedonia with its Resolution U.no.185/2006 of 29 November 2006 instigated proceedings for appraising the constitutionality of the Article of the Law noted in item 1 of the present Decision, since there was a well-founded question as to its concordance with the Constitution.

4. At its session the Court found that pursuant to Article 77 paragraph 1 of the Law on Enforcement, the party or the participant considering that irregularities have been made in the enforcement may file a complaint to remove the irregularities with the president of the basic court on the territory of which the enforcement, or part of it, is executed. Under paragraph 2 of this article, the complaint for removal of the irregularities may be filed within three days from the fate of learning about the irregularities, but no later than 15 days from the date of concluding the enforcement. Under paragraph 3 of the same article, the president of the court decides upon the complaint within 72 hours following the receipt of the complaint. Under paragraph 4, if need be, the president of the court may decide to hear the parties and the participants and the enforcement agent. Under paragraph 5, the complaint is submitted to the parties, participants and the enforcement agent for an answer, along with the summons in which are defined the date and the time of the hearing of the parties and the participants before the court, if that is determined. Under paragraph 6, the president of the court makes a decision upon the complaint within the time limit set forth in paragraph 3 of this article, irrespective of whether the opposing party has timely given an answer to the complaint or has stated that it does not challenge the same. Under the contested paragraph 7 of this article, no appeal is allowed against the decision of the president of the court.

5. Under Article 8 paragraph 1 line 1 of the Constitution, the basic freedoms and rights of the individual and citizen, recognised in the international law and set down in the Constitution, are the fundamental values of the constitutional order of the Republic of Macedonia.

Pursuant Amendment XXI, which replaced Article 15 of the Constitution, the right to an appeal against decisions made in a procedure in the first instance before a court is guaranteed. The right to an appeal or another type of legal protection against individual legal acts adopted in a procedure in the first instance before a body of state administration or an organisation and another body carrying out public mandates is governed by law.

Under Article 1 of the Law on Enforcement, this Law regulates the rules under which the enforcement agent act with a view to forced execution of a court decision for fulfillment of an obligation. The provisions of this law also apply to the forced execution of a decision made in an administrative procedure which is made out for fulfillment of a pecuniary obligation, unless otherwise defined by another law, as well as to the enforcement on a ship and on an aircraft.

Pursuant to Article 3 of the Law, the enforcement agent carries out the enforcement.

The enforcement agent, his/hers deputy and his/hers assistant, pursuant to Article 11 paragraph 1 item 6 of the Law on Enforcement, are defined as persons performing public mandates defined by law, appointed in line with the provisions of this Law, who decide directly on the actions to be taken within the framework of their authorisations in order to enforce the decision and to undertake the enforcement actions.

Pursuant to Article 40 paragraph 1 of the Law on Enforcement, the enforcement agent undertakes the following actions: receives written and verbal requests for enforcement; makes delivery of court letters; delivers orders, minutes, conclusions and other documents that derive from the performance of his/her job; establishes the identity of the parties and the participants in the enforcement; collects data about the property status of the debtor in the function of the enforcement; makes orders, conclusions, writes minutes, requests and official notes; makes an inventory, appraisal, seizure, sale of movable items, rights and immovable property, accepts funds from the debtor, transfers into governance and allocates means; carries out eviction and other enforcement actions required for the execution of the enforcement defined by law and by-laws; makes announcements in the public media and carries out other actions envisaged by law.

Pursuant to Article 31 of the Law, the enforcement agent is appointed for the area of a basic court and carries out executive titles of the court or of the body the seat of which is on the territory for which he/she has been appointed, while in the carrying out of the enforcement undertakes actions on the entire territory of the Republic of Macedonia.

The carrying out of the enforcement is regulated by a separate Chapter IX of the Law. Thus, in line with Aricle 74, the enforcement, as a rule, is carried out every day from 06:00 a.m. to 09:00 p.m. With a permission of the president of the basic court on the territory of which the enforcement is carried out, the enforcement may be executed irrespective of the times defined in paragraph 1 of this article.

Pursuant to Article 75 paragraph 1 of the Law, while undertaking enforcement actions in the debtor’s apartment, while searching the clothes he/she is wearing and while undertaking other enforcement actions, the enforcement agent is obliged to act with due respect for the personality of the debtor and the members of his/her household. The enforcement agent provides written permission from the president of the basic court on the territory of which the enforcement is carried out in order to undertake enforcement actions in the debtor’s apartment.

Pursuant to paragraph 2 of this article in the Law, the enforcement actions in the debtor’s apartment which are not attended by the debtor, his/her legal representative, proxy or an adult member of his/her household, must be attended by the police and two adult witnesses.

Pursuant to paragraph 4 of this article, when the enforcement action is to be carried out in a room that is locked, and the debtor is not present or would not open the room, the enforcement agent shall open the room in the presence of the police and two adult witnesses.

Pursuant to Article 76 of the Law, the enforcement agent is empowered to remove the person obstructing the enforcement and according to the circumstance of the case also to request police assistance.

In the constitutional analysis of the contested provision of Article 77 paragraph 7 of the Law on Enforcement, before the Court was put as a disputable legal question the question as to the character of the decision of the president of the court with which he/she decided on the complaint against irregularities in the enforcement, that is, the question whether this decision has the character of a decision affecting the rights and obligations of the citizens, which as such falls within the scope of item 1 of Amendment XXI of the Constitution.

Taking into consideration the contents of Article 77 and the entire Law on Enforcement, the Court beyond any doubt found that the complaint against irregularities during the enforcement is the only means of protection of the parties in the case of irregularities and illegitimacies committed on the part of the enforcement agent when carrying out the enforcement. The irregularities that may be committed by the enforcement agent in the enforcement may be diverse and relate to, for instance, the scope of enforcement (Article 4 of the Law), violation of the principle of protection of the debtor (Article 5 paragraph 1 of the Law), disrespect for the dignity of the personality while carrying out the enforcement (Article 5 paragraph 2), violation of the principle of urgency and order in the handling (Article 6 of the Law), violation of the provisions of the law relating to the time when the enforcement may be carried out (Article 74), or the very execution of the enforcement (Article 75), etc. It is undisputed that the violation of the legal provisions for the enforcement, that is, the irregular and unlawful carrying out of the enforcement breaches the rights of the parties, that is, the creditor or the debtor, so that the court’s decision upon the complaint for irregularities in the enforcement, which is aimed at removing the irregularities and protecting the rights of the parties and the participants, has the character of a decision which affects the rights and obligations of the parties.

Such character of the decision also derives from the contents of paragraph 4 Article 77, according to which the president of the court, if need be, may hear the parties and the participants and the enforcement agent, and from paragraph 5 of the same article, pursuant to which the complaint is submitted to the parties, the enforcement agent, and the participants for an answer, which means that the court in a contradictory procedure debates about the dispute between the eforcement agent and the party, that is, the participant, that occurred in the course of the enforcement, determines the irregularities made and decides on the manner of their removal, and for the purposes of protecting the rights of the parties. Furthermore, also under Article 81 paragraph 4 of the Law, the president of the court deciding on the complaint for the removal of the irregularities in the enforcement of Article 77, may postpone the enforcement to a definite time, once at the most, upon the request of one of the parties or the participants.

From the analysis of other provisions of the Law it also derives that the decision of the court upon the complaint against irregularities in the enforcement affects the subjective rights and interests. Namely, under Article 43 paragraph 3 of the Law on Enforcement, the unlawful carrying out or failure to fulfil the duties defined by this law are provided for by a decision of the president of the court made in line with the provisions of Article 77 of this law. The violation of official duty in the carrying out of the enforcement actions or the unlawful performance of the official actions, on its part, pursuant to Article 54, is a ground for disciplinary responsibility of the enforcement agent.

From this analysis it derives that the decision of the court upon the complaint for removal of irregularities in the enforcement has a character of a court decision in the sense of Amendment XXI item 1 of the Constitution, which guarantees the right to an appeal against decisions made in a procedure in the first instance before a court.

The constitutional guarantee of the right to an appeal has as its ground the justified presupposition that the first instance decision of the courts does not necessarily have to be correct and legal as well as the protection of the rights and freedoms of citizens against irregularities and illegalities in the work of these bodies. Hence, the right to an appeal beyond any doubt relates to all cases when the courts decide on the exercise of the rights and freedoms of citizens, that is, on the basis of a legally founded interest and in such cases a higher body always decides on the appeal, whereby what is proclaimed is the two instances in the decision-making as one of the guarantees for ensuring and reinforcing the legality in the exercise of the rights and freedoms of citizens.

From the analysis of the provisions in the Law on the Courts (“Official Gazette of the Republic of Macedonia”, no.58/2006) it derives that this concrete case concerns a decision of a court made in the first instance. Under Article 30 paragraph 2 of this Law, basic courts with basic competence are competent to decide on civil disputes in the first instance, among which in a procedure for securing and enforcement. Pursuant to Article 31 of the Law on the Courts, basic courts with expanded competence, in addition to the competence set forth in Article 30 of this Law, for the areas for which they are set up, are competent to decide on civil disputes, among which also in disputes for forced enforcement. From these provisions of the Law on the Courts, it derives that the basic courts may decide in the first instance only. For these reasons, the Court did not accept the opinion of the drafter of the Law on Enforcement that the contested provision ensures two instances in the procedure, as a result of which the enforcement agent was the first instance body, and the legal remedy, in this specific case the complaint, was considered in a court instance, which implies that the decision of the president of the basic court is actually a decision in the second instance.

In the constitutional analysis of the contested provision, the Court took consideration of the novelties in the system of enforcement of court decisions introduced by the Law on Enforcement and the intention of the legislator to provide with them a faster and more efficient execution of court decisions. The sphere of execution of court decisions is beyond any doubt an integral part of the basic human right to a fair trial within a reasonable time. However, according to the Court, the efficient enforcement of justice may not be to the detriment of the protection of human freedoms and rights, among which is the right to an appeal. The right to an appeal is not against the principle of a fair trial, that is, the right to a trial within a reasonable time. On the contrary, it is in the function of securing these very principles and rights. Hence, although the legislator has introduced a completely new concept of execution of court decisions, which is carried out by enforcement agents, and not by the courts, the very inclusion of the court, that is, the envisagement of court competence for decision-making upon an appeal against irregularities in the enforcement necessarily also imposes the envisagement of the right to an appeal against the court decision made upon the complaint.

Hence, on the basis of the analysis made from which it derived that the decision of the president of the court of the contested Article 77 paragraph 7 of the Law has the character of a first instance court decision pursuant to Amendment XXI of the Constitution, the Court found that the inadmissibility of an appeal against such a decision is not in accordance with Amendment XXI of the Constitution.

6. On the basis of the aforementioned, the Court decided as in item 1 of the present Decision.

7. The Court passed the present decision in the following composition: the President of the Court Mr Mahmut Jusufi, and the judges: Dr. Trendafil Ivanovski, Mrs. Mirjana Lazarova Trajkovska, Mrs. Vera Markova, Mr. Branko Naumoski, Dr. Bajram Polozani, Mr. Igor Spirovski, and Dr. Zoran Sulejmanov.

U.no.185/2006
17 January 2007
S k o p j e

PRESIDENT
of the Constitutional Court of the Republic of Macedonia
Mahmut Jusufi

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