FIRST MUNICIPAL COURT IN BELGRADE XXI-P 2389/99
Belgrade
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Plaintiff: Business association »ASSOCIATION OF INDEPENDENT ELECTRONIC MEDIA«, 22/XI Makedonska street, Belgrade
Represented by Branislav Zivkovic and Nebojsa Samardzic,
Attorneys at law from Belgrade, 37 Kralja Milutina streetAgainst: ALEKSANDAR NIKACEVIC, Belgrade Youth Council, 22/IV Makedonska street,
BelgradeOver usurpation of property.
In two copies.
PLAINTIFF'S APPEAL
Against the Decision of the First Municipal Court in Belgrade, registry no. 2389/99 of April 14, 1999; filed within the legal deadline; challenging the legality of the decision in its entirety on the grounds of the reasons cited in Article 353 of the Code on Civil Procedure.
The plaintiff motions the second-instance court upon this appeal to change the above decision inasmuch as to sustain the plaintiff's motion to pass the provisional measure, or to cancel the appealed decision and return the case to the first-instance court for renewed hearing.
This appeal is grounded on the following
JUSTIFICATION
The plaintiff believes that the justification the first-instance court provided for the above decision to be unclear and in good will contradictory to the true factual situation as in the documentation of this case, whereby a significant breach of Article 353, Paragraph 2, Point 13 of the Code on Civil Procedure has been perpetrated.
The first-instance court has established the relevant factual situation in an entirely wrong way, which renders its decision untenable.
The first-instance court made an incorrect judgement of the importance and reach of the ruling of the Commercial Court in Belgrade no. Fi 2790/99 of April 1, 1999. As that ruling shows, it entered the defendant Aleksandar Nikacevic into the Court Register of the Commercial Court in Belgrade as the general manager of the social radio-diffusion company »Radio B92«, 22/V Makedonska street, Belgrade. In the execution procedure of that ruling, on April 2, 1999, the accused was introduced in his duties as general manager in a manner as recorded in the minutes of the executive agency of the Commercial Court in Belgrade no. Fi 2790/99 of April 2, 1999. The minutes establish that the accused was actually introduced in his duties as the general manager of the social radio-diffusion company »Radio B92« and that he was handed three rubberstamps on that occasion. Apart from that, no other action was taken in the execution procedure.
The plaintiff states that the executive agency on the above occasion handed the plaintiff's rubberstamp to the accused, which was clearly the mistake of the executive agency as the plaintiff's rubberstamp could on no condition be handed to the accused as part of the execution of the ruling since the rubberstamp belongs to a separate legal entity.
The plaintiff stresses that during the execution procedure, the executive agency did not hand any keys to any premises to the accused, which is clear from the minutes of April 2, 1999.
On the grounds of these facts, the first-instance court was obliged to establish clearly only that the accused was legally introduced into the duties of the general manager of the radio-diffusion company »Radio B92« according to the ruling of the Commercial Court in Belgrade, i.e. that he was let into the premises of this legal entity, whose rubberstamp was also handed to him, while the plaintiff's rubberstamp was handed to him without any legal ground (as with the rubberstamp of the company »KVS« ltd., Belgrade, which is also a separate legal entity).
In its justification, the first-instance court rightly put the contended question: "Who was in possession of the premises on 10th and 11th floor of the said building – the plaintiff or the accused?" The first-instance court, however, gave the wrong answer to that question.
The plaintiff has provided full proofs that he was in possession of the premises on 10th and 11th floor of the said building. From the accused's records from the Court Registry it is obvious that the seat of the plaintiff was and is in the business premises on 11th floor of the building. Therefore, there can be no doubt about the plaintiff's legal and factual possession over this part of the building. It is also clear from the filed contract on the lease on the business premises on 10th floor of the building that the plaintiff was in possession of these business premises also. Regardless of the fact that these proofs in themselves are adequate to establish the facts above, the same facts were corroborated in witnesses' testimonies, especially in the testimony of Dusan Masic, who is familiar with these facts by nature of his job. Witness Zorka Bera, as the tea lady, is not entirely familiar with these facts, as is natural.
With such evidence, the position of the first-instance court that the plaintiff had failed to prove that he was in undisturbed possession of the disputed premises is incomprehensible.
Furthermore, apart from the sheer fact that he holds the key to the plaintiff's premises, the accused has not provided a single proof that the social radio-diffusion company »Radio B92« was in factual possession of the disputed premises, from where it would follow that he, as the new general manger, has the right to the keys and the possession of them. The accused's statement that Radio B92 »had always been« in the premises is irrelevant and fully contradictory to the proofs filed by the plaintiff.
The first-instance court is wrong in its judgement that this is a case of a legal take-over of the property from the plaintiff. When passing the judgement, the court relied on the said ruling of the Commercial Court in Belgrade although it could not have relied on it in any way since that ruling is restricted to the introduction of the accused into the duties of the general manger of the social radio-diffusion company »Radio B92«. In a similar manner, the first-instance court attached special importance to the fact that during the investigation, the accused unlocked the disputed premises on the 10th and 11th floor of the building, judging that the accused appeared to be in legal possession of the keys. However, bearing in mind that the court executive of the Commercial Court did not hand the keys to the premises to the accused, it must be concluded that the accused had obtained these keys in an illegal way. Furthermore, given that the plaintiff was in possession of the premises (which he leased and used as his seat), it is impossible but to conclude that the accused must have perpetrated usurpation of the plaintiff's property, preventing him from performing his work in the manner as before April 2, 1999. The introduction of the accused into duties as the new general manager of the social radio-diffusion company »Radio B92« should not have affected the performance of plaintiff's operations in the premises on 10th and 11th floor of the building in any manner, since the plaintiff, as a separate legal entity, has nothing to do whatsoever with the introduction of the new general manager of »Radio B92«. The plaintiff has subsequently learned that during the introduction of the accused into duties of the general manager, there a number of unidentified persons (short-haired, wearing black leather jackets) accompanied the executive of the Commercial Court in Belgrade. These persons acted violently, most probably expecting some resistance of the plaintiff's employees. The atmosphere in which the execution was carried out was difficult and tense, even confusing. That may explain why the accused was given the rubberstamps of third parties – the plaintiff and the »KVS« ltd. company – which had nothing to with the execution of the court ruling. In the commotion that occurred, there was not much consideration of who has what right, so there were obviously possibilities to do ungrounded and wrong things. In most likelihood, in such a situation and atmosphere, the accused in some way got hold of the keys to the plaintiff's premises, given that the unofficial, shortly-cropped persons in black leather jackets had forcefully entered the plaintiff's premises and forcefully expelled all individuals to happened to be there at the time from the premises.
The wrongful enforcement of material law resulted from the above factual mistakes of the first-instance court.
The plaintiff believes that it is absolutely evident that this is a case of usurpation of property to his detriment. It is absolutely incomprehensible that the plaintiff should have any relation with the appointment of a new general manager of the social radio-diffusion company »Radio B92« and his introduction into his duties. How at all was it possible that the plaintiff was deprived of his business premises and of the possibility to continue his operation as a result of the execution of the appointment of the new general manager of a separate legal entity? The execution agency of the Commercial Court in Belgrade did not seize the premises from the plaintiff nor did it prevent his operation. The plaintiff's business premises were usurped by the accused in person. The most evident proof thereof is the fact that he had and still has the keys to the plaintiff's premises and that the accused in person has prevented the plaintiff from using these premises. Such actions at the hands of the accused do not have grounds either in the ruling on his appointment as general manager of the social radio-diffusion company »Radio B92« nor in the actions by the executive agency of the Commercial Court in Belgrade.
Although it ruled only on the motion to pass a provisional measure, the first-instance court should have borne these facts in mind if it compiled evidence related to that issue.
The plaintiff's motion to pass a provisional measure was and remains grounded. Needless to say, each day the plaintiff suffers vast damage that will be difficult to repair by the mere fact that he is prevented from performing any of the operations he was registered for. The plaintiff believes that there were all reasons cited in Article 267 of the Execution Procedure Act to pass the provisional measure the plaintiff had motioned. The plaintiff therefore believes that the court had drastically erred in enforcing the regulations of the material law it cited – Article 442 of the Code on Civil Procedure and Article 70 of the Basic Proprietary Relations Act.
This case is so factually and legally clear that the court could not but sustain the motion to pass the provisional measure. The first-instance court's refusal to adopt the provisional measure, with the justification offered, brings the objectivity and unbiasedness of the court in judging on this case into question and gives rise to suspicion that certain extra-judicial circumstances and current situation in the country had some influence on the outcome of the first-instance procedure. The plaintiff hopes that the second-instance court will pass the right and legal judgement as there are truly no reasons or circumstances that could justify any other judgement.
On the grounds of all this, the plaintiff maintains the appeal proposal he filed.
Belgrade, April 20, 1999
Plaintiff's attorney,
Branislav Zivkovic
Attorney at law
Belgrade, 37 Kralja Milutina street