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FIRST
SECTION
CASE OF
BAJALDZIEV v. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA
(Application
no. 4650/06)
JUDGMENT
STRASBOURG
25 October 2011
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of BajaldZiev
v. the former Yugoslav Republic of Macedonia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Nina Vajić,
President,
Elisabeth Steiner,
Khanlar
Hajiyev,
Mirjana Lazarova Trajkovska,
Julia
Laffranque,
Linos-Alexandre Sicilianos,
Erik
Møse, judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 4 October 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 4650/06)
against the former Yugoslav Republic of Macedonia lodged with the
Court under Article 34 of the Convention for the
Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Macedonian national, Mr Dimitar
Bajaldziev (“the applicant”), on 19 January 2006.
2. The
applicant was represented by Mr S. Todosievski, a lawyer practising
in Skopje. The Macedonian Government (“the
Government”) were represented by their Agent, Mrs R. Lazarevska
Gerovska.
3. The
applicant alleged that his case had not been heard by an impartial
tribunal and that the impugned proceedings had lasted too long.
- On
21 October 2010 the President of the Fifth Section
decided to give notice of the application to the Government.
- On 1 February 2011 the Court changed the composition of
its Sections (Rule 25 § 1). The case was assigned to the newly
composed First Section (Rule 52 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1944 and lives in Skopje.
- On
26 March 1996 the applicant brought a civil action before the then
Municipal Court of Gevgelija (“the first-instance court”)
seeking the annulment of a gift contract (“the contract”)
of 1994 on the basis of which Ms N.B. had transferred title to a plot
of land and a house to Mr J.B., her son. The applicant had a right of
way (нужна
службеност
на премин)
in respect of the plot in question. He claimed that the plot
in issue had been socially-owned and could not have been the subject
of the disputed contract. The claim was submitted against Mr J.B.
- On
24 May 1996 the first-instance court accepted the applicant’s
claim and declared the contract null and void. It found that the
contract was contrary to section 103 of the Obligations Act (see
paragraph 22 below) since the house had been demolished in 1972, that
is, before the contract had been concluded.
- On
19 June 1997 the adjudicating bench of the Skopje Court of Appeal,
presided over by judge V.K., quashed the lower court’s decision
and remitted the case for reconsideration. The court stated, inter
alia:
“... the transfer of the plot and house from the
defendant’s mother to the defendant is not contrary either to
the constitutional values or other binding regulations since the
defendant, as heir, is eligible to have the land, which cannot be
subject to any legal transaction, transferred to him ... the
first-instance court ignored the fact that the claim had not been
submitted against the other party to the contract ...”
- On
20 October 1998 the first-instance court stayed the proceedings on
account of the applicant’s failure to appear despite the fact
that he had been duly summoned. In the absence of a request that the
proceedings continue, on 6 April 1999 the court declared the
applicant’s claim to have been withdrawn (тужбата
се смета за
повлечена).
On 8 July 1999 the court rejected the applicant’s appeal as
belated, together with his request for reinstatement of the
proceedings. On 15 December 1999 the Skopje Court of Appeal, presided
over by judge V.K., accepted the applicant’s appeal and quashed
the first-instance court’s decisions of 6 April and 8 July 1999
respectively.
- On
30 October 2000 the first-instance court accepted the applicant’s
claim and declared the contract null and void. It found that the
contract had been contrary to the Building Land Act, as the lex
specialis under which undeveloped building land, as was the case
of the plot in question, was regarded as res extra commercium.
- On
14 March 2001 the Skopje Court of Appeal’s bench, presided over
by judge V.K., quashed that decision, arguing, inter alia:
“... a question arises as to whether the transfer
of the plot and house, under the contract, from the defendant’s
mother to the defendant was contrary to the constitutional values and
other binding regulations given the fact that the house had already
been demolished when the contract was signed. In order to answer this
question correctly, one should consider section 19 of the Building
Land Act under which rights specified in sections 15 (1) and 17 (1)
of that Act can be transferred from the former owner to ... heirs ...
Under section 15 (1) of the Building Land Act, the former owner has a
right to use undeveloped land. Section 17 (1) provides for the
pre-emptive right of the former owner to construct a family house on
building land. Section 19 of the Building Land Act, cited above,
provides for the right to transfer these rights only to the persons
enumerated therein. That means that undeveloped building land can be
transferred. The first-instance court established that the plot in
question was undeveloped given the fact that the house had been
demolished when the contract was concluded. Having regard to the
relevant provisions of the Building Land Act, cited above, the
transfer of the right of construction to the defendant, as heir, when
the gift contract was concluded between the defendant and his mother,
was allowed.”
- The
court further accepted the defendant’s arguments that it was
not possible to sue Ms N.B., who had died in 1995, and that her
heirs should, therefore, take her place. On an unspecified date the
applicant specified his claim, introducing Ms B.G.B., Ms N.B.’s
daughter, as a co-defendant.
- On
12 November 2001 the first-instance court ruled, for the third time,
in favour of the applicant, finding that the contract had contained
false information. Furthermore, undeveloped land, like the plot in
question, was not transferable under the Building Land Act. This
decision was served on the parties in May 2002.
- The
defendant appealed on 30 May 2002.
- On
5 February 2004 the Skopje Court of Appeal overturned the decision
and dismissed the applicant’s claim. It found that the
first-instance court had erred on the law, namely that it had not
relied on sections 15, 17 and 19 of the Building Land Act under which
the right to construct on undeveloped land could have been
transferred to the defendant when the contract was concluded. Judge
V.K. was not a member of the sitting bench.
- On
15 June 2004 the public prosecutor lodged a legality review request
(барање за
заштита на
законитоста)
seeking that the Court of Appeal’s decision of 5
February 2004 be quashed or overturned and the first-instance court’s
decision confirmed.
- On
18 May 2005 a five-member bench of the Supreme Court, which included
judge V.K., dismissed the public prosecutor’s request.
Referring to the reasons given in the impugned decision of the Court
of Appeal, the court stated, inter alia:
“On the basis of the established facts, the Court
of Appeal found that the first-instance court had erred on the law,
namely that the gift contract was not contrary to the constitutional
values and binding regulations, despite the fact that the house did
not exist when the contract was concluded. Under section 19 of the
Building Land Act of 1991, the former owner could transfer the rights
set forth in sections 15 (1) and 17 (1) of that Act only to ... heirs
..., who could no longer transfer it to other persons. Under section
15 (1) of the Building Land Act, the former owner has the right to
use undeveloped land. Section 17 (1) provides for the pre-emptive
right of the former owner to construct a family house on building
land. Since the defendant is among the persons enumerated in section
19 of the Building Land Act, the court considers that transferring
the right of construction to the defendant, as heir, when the gift
contract was concluded between the defendant and his mother, was
allowed.”
- The
court therefore found that the Court of Appeal had correctly applied
the substantive law, in particular sections 15 (1), 17 (1) and 19 of
the Building Land Act. It held that the defendant was among the
persons enumerated in section 19 of the Building Land Act and that it
was allowed, accordingly, to transfer the right of construction to
him, as heir. It therefore concluded that the contract was not
contrary to the constitutional values and binding regulations. This
decision was served on the applicant’s representative on 4
August 2005.
II. RELEVANT DOMESTIC LAW
1. Civil Proceedings Act of 1998
- Section
65 § 1 (5) of the 1998 Act, in force at the time, provided,
inter alia, that a judge could not sit in a case if he or she
had participated in the rendering of any decision by a lower court or
another body in respect of the same case.
- Under
section 66 § 1 of the 1998 Act, a judge must cease dealing with
a case and ask the president of the court to appoint another judge
instead as soon as he or she discovers any ground for his or her
exclusion.
- The provisions concerning the legality review request
relevant to the present case were described in the Bočvarska
judgment (see Bočvarska v. the former Yugoslav Republic
of Macedonia, no. 27865/02, §§ 54-58, 17 September
2009).
2. Civil Proceedings Act of 2005
- Section 400 of the Civil Proceedings Act of 2005
provides that a case may be reopened if the European Court of Human
Rights has given a final judgment finding a violation of the
Convention or its Protocols ratified by the respondent State.
3. Obligations Act of 1978
- Section
103 of the Obligations Act of 1978, in force at the time, specified
the conditions under which a contract was regarded as null and void.
THE LAW
I. ALLEGED VIOLATIONS OF ARTICLE 6 OF THE CONVENTION
- The
applicant complained under Article 6 of the
Convention that the proceedings had been unfair since the same judge,
namely V.K., had participated in the adjudication of his case at
second and third instance. He also complained about the length of
proceedings. Article 6 § 1, in so far as relevant, reads as
follows:
“In the determination of his civil rights and
obligations ... everyone is entitled to a fair ... hearing within a
reasonable time by an independent and impartial tribunal established
by law.”
A. Admissibility
- The
Government did not raise any objection as to the admissibility of the
application. However, the Court would like to make a preliminary
observation on the issue of applicability of Article 6 of the
Convention to the legality review proceedings in the present case.
Under the Court’s case-law, the legality review request is not
an effective remedy within the meaning of Article 35 § 1 of the
Convention that applicants are required to exhaust (see Trajče
Stojanovski v. the <<former
Yugoslav Republic of Macedonia>>
(dec.), no. 1431/03, 16 September 2008 and Dimitrovska v.
the <<former
Yugoslav Republic of Macedonia>>
(dec.), no. 21466/03, 30 September
2008, in which the public prosecutor rejected the applicants’
applications that the legality review request be submitted to the
Supreme Court). In the Bočvarska judgment the Court
considered Article 6 applicable in a situation when the legality
review request was accepted to the applicant’s significant
disadvantage. In that case the Court found a violation of the
“reasonable time” requirement in respect of proceedings
in which the legality review request had been used successfully on
four occasions (see Bočvarska, cited above).
In the Gorou judgment (see Gorou v. <<Greece>>
(no. 2) [GC], no. 12686/03, §§ 27-36, ECHR 2009 ...)
the Court found Article 6 applicable to similar proceedings, which
ended with a refusal of the public prosecutor to submit an appeal on
points of law to the Court of Cassation. In the present case, the
public prosecutor submitted the legality review request to the
Supreme Court which the latter dismissed on the merits. Given
the fact that the outcome of the legality review proceedings was
directly decisive for the applicant’s “civil right in
question”, there is no obstacle to the applicability of Article
6 to these proceedings after they were launched by the public
prosecutor.
- The Court notes that the application is not manifestly
ill-founded within the meaning of Article 35 § 3 (a) of the
Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
B. Merits
1. Alleged violation of the right to a hearing by an
impartial tribunal
(a) The parties’ submissions
- The
Government submitted that the Supreme Court had not been biased since
judge V.K. had not sat on the bench of the Court of Appeal that had
taken the decision challenged by the legality review request.
Furthermore, the bench of the Court of Appeal, when presided over by
judge V.K., had not decided the merits of the applicant’s case,
but had ordered remittal on procedural grounds. Lastly, the bench of
the Supreme Court had been composed of five judges. An opinion of the
Supreme Court of January 2011 was submitted in support of these
arguments.
- The
applicant reiterated his allegations that the
Supreme Court had not been impartial since its bench had included
judge V.K., who had presided over the bench of the Court of Appeal,
when it had dealt with his case.
(b) The Court’s assessment
- According
to the Court’s constant jurisprudence, the existence of
impartiality must be determined according to a subjective test, that
is, on the basis of the personal conviction of a particular judge in
a given case, and also according to an objective test, namely by
ascertaining whether the judge offered guarantees sufficient to
exclude any legitimate doubt in this respect (see Nikolov v. the
former Yugoslav Republic of Macedonia, no. 41195/02, § 19,
20 December 2007).
- As
to the subjective test, the personal impartiality of a judge must be
presumed until there is proof to the contrary (see Padovani v.
Italy, 26 February 1993, § 26, Series A no. 257-B, and
Morel v. France, no. 34130/96, § 41, ECHR 2000-VI).
In the present case, there is no evidence that judge V.K. acted with
any personal prejudice. This is not disputed by the parties.
- As
to the second test, when applied to a body sitting as a bench it
means determining whether, quite apart from the personal conduct of
any of the members of that body, there are ascertainable facts which
may raise doubts as to its impartiality. In this respect even
appearances may be of some importance or, in other words, “justice
must not only be done, it must also be seen to be done”. What
is at stake is the confidence which the courts in a democratic
society must inspire in the public. Thus, any judge in respect of
whom there is a legitimate reason to fear a lack of impartiality must
withdraw (see Micallef v. Malta [GC], no. 17056/06, §§
96 and 98, ECHR 2009 ...).
- It
follows that when it is being decided whether in a given case there
is a legitimate reason to fear that a particular body lacks
impartiality, the standpoint of those claiming that it is not
impartial is important, but not decisive. What is decisive is whether
the fear can be held to be objectively justified (see San Leonard
Band Club v. Malta, no. 77562/01, § 60, ECHR 2004 IX).
- In
the instant case, the applicant’s concerns regarding the
Supreme Court’s impartiality stemmed from the fact that its
bench had included judge V.K., who had previously sat in this case,
as president of the bench of the Court of Appeal that had adopted the
decisions of 19 June 1997 and 14 March 2001 (see paragraphs 9
and 12 above).
- The
Court notes that section 65 § 1 (5) of the 1998 Act (see
paragraph 20 above) manifested the national legislature’s
concern to remove all reasonable doubts as to the impartiality of any
court in question and constituted an attempt to remove any appearance
of partiality (see Oberschlick v. Austria (no. 1), 23 May
1991, § 50, Series A no. 204, and MeZnarić v. Croatia,
no. 71615/01, § 27, 15 July 2005). In the Government’s
view, a judge only had to be excluded from deciding on a remedy
lodged against a decision in whose adoption he or she had already
participated. Since judge V.K. had not sat on the bench of the Court
of Appeal that rendered the decision of 5 February 2004 which was
challenged by the legality review request, there was no problem,
according to the Government, with the Supreme Court’s
impartiality. No evidence was provided that such an interpretation
was the result of an established practice.
- The
Court accepts that the present situation could raise doubts in the
applicant’s mind about the impartiality of the Supreme Court.
It has to decide whether those doubts were objectively justified. The
answer to this question depends on the circumstances of the case.
- In
this connection, the Court observes that the domestic courts were
called upon to decide the same issue throughout the proceedings,
namely the applicant’s claim for the annulment of a gift
contract concluded between Ms N.B. and Mr J.B. It is true that
one and the same judge sat twice in the same capacity, first as
president of the adjudicating bench of the Court of Appeal, then as a
member of the adjudicating bench of the Supreme Court. The bench of
the Court of Appeal, when presided over by judge V.K., rendered both
the decision of 19 June 1997 and that of 14 March 2001 quashing the
first-instance court’s decisions in the applicant’s
favour. The Court cannot accept the Government’s argument that
the quashing of those decisions was based only on procedural grounds,
as was the case with the Court of Appeal’s decision of 15
December 1999, in which adoption judge V.K. has also participated
(see paragraph 10 above). Both decisions were given after a
comprehensive consideration of the case following the submission of
written pleadings by the defendant. The Court of Appeal, on both
occasions, gave concrete instructions as to the correct application
of the substantive law (see paragraphs 9 and 12 above). The decision
of the Supreme Court of 18 May 2005 dismissing the legality review
request and confirming the decision that was to the applicant’s
disadvantage, cited relevant extracts from the Court of Appeal’s
decision of 14 March 2001 (see paragraphs 12 and 18 above). That
judge V.K. did not participate in the adoption of the decision that
was challenged by the legality review request is of no relevance,
since she had already formed a view as to the merits of the
applicant’s claim before his case was brought before the
Supreme Court.
- In
such circumstances, the Court considers that there was objective
justification for the applicant’s apprehension that judge V.K.
lacked the requisite impartiality to the extent necessary under
Article 6 of the Convention.
- There
has accordingly been a violation of Article 6 § 1 of the
Convention.
2. Length-of-proceedings complaint
(a) The parties’ submissions
40. The Government submitted that there had been complex
circumstances related to the case, including the fact that the
applicant had specified his claim on two occasions. They further
stated that the parties had contributed to the length of the
proceedings by requesting several adjournments. Furthermore, the
suspension of the proceedings had been attributable to the applicant.
As to the conduct of the domestic courts, the Government argued that
they had decided the applicant’s case with due diligence
despite the fact that there had been eight decisions taken on the
merits. In this connection, they stated that the number of remittals
had affected the length of the proceedings, but that appropriate
legislative amendments had been introduced in 2006 so as to remedy
that deficiency.
- The
applicant contested the Government’s arguments.
(b) The Court’s assessment
- The
Court notes that the proceedings started on 26 March 1996 when the
applicant introduced his claim. They ended on 4 August 2005 when the
Supreme Court’s decision dismissing the legality review request
was served on the applicant (see Bočvarska, cited above,
§ 66). They therefore lasted over nine years and four months, of
which nearly eight years and four months fall within the Court’s
temporal jurisdiction (since the respondent State ratified the
Convention on 10 April 1997), at three levels of jurisdiction.
- With
reference to its settled case-law on this matter, the Court will
assess the reasonableness of the length of the proceedings in the
light of the particular circumstances of the case, having regard to
its complexity, to the conduct of the applicant and to that of the
authorities dealing with the case (see Veljanoska v. the
former Yugoslav Republic of Macedonia, no. 35640/04, §
27, 23 July 2009).
- The
Court considers that the case was of some complexity, but that that
cannot in itself explain the length of the proceedings.
- It
further finds that the proceedings were stayed through the fault of
the applicant (see paragraph 10 above). No evidence was submitted
that any other adjournment was attributable to him. His submissions
specifying his claim did not add much to the proceedings and were
made on the Court of Appeal’s instructions (see paragraphs 9
and 13 above).
- As
regards the conduct of the domestic courts, the Court considers that
they cannot be said to have been inactive. Furthermore, the intervals
between the decisions at the different levels of jurisdiction were
not unacceptably lengthy. Despite that, the length of the proceedings
cannot be considered reasonable, mainly owing to the repeated
re-examination of the case. The Court notes that the case was
reconsidered on three occasions. In this context it reiterates that,
since the remittal of cases for re-examination is usually ordered as
a result of errors committed by lower courts, the repetition of such
orders within one set of proceedings discloses a serious deficiency
in the judicial system. The legislative amendments to which the
Government referred in their submissions did not concern the impugned
proceedings, but were intended to prevent procedural deficiencies of
this kind in future (see Nasteska v. the former Yugoslav Republic
of Macedonia, no. 23152/05, § 36, 27 May 2010).
- Against
this background, the Court considers that the proceedings in the
present case were not conducted within a reasonable time.
- There
has accordingly been a breach of Article 6 § 1 of the
Convention.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed 12,230 euros (EUR) in respect
of pecuniary damage. This figure included EUR 5,230, the amount that
he had paid to the defendant on the basis of an enforcement order of
9 May 2006 requesting him to reimburse the defendant’s
litigation costs relating to several sets of proceedings, including
the present one. It also included EUR 7,000 as compensation for the
applicant’s inability, allegedly due to the impugned
proceedings, to obtain a building permit to construct a house on his
land. He further claimed EUR 10,000 in respect of non-pecuniary
damage for mental suffering related to the excessive length of the
proceedings.
- The Government contested the claims as unsubstantiated
and excessive. They further maintained that there was no causal link
between the damages claimed and the alleged violations.
- The
Court does not discern any causal link between the violations found
and the pecuniary damage alleged; it therefore rejects this claim
(see MeZnarić, cited above, § 43). On the other
hand, it awards the applicant EUR 1,200 in
respect of non-pecuniary damage, plus any tax that may be chargeable
to him.
- Furthermore,
where the Court finds that an applicant’s case has been decided
by a tribunal which is not independent and impartial within the
meaning of Article 6 § 1 of the Convention, it considers that,
in principle, the most appropriate form of relief would be to ensure
that the applicant, if he so requests, is granted, under section 400
of the Civil Proceedings Act of 2005 (see paragraph 23 above), a
retrial by an independent and impartial tribunal (see San Leonard
Band Club, cited above, § 70).
B. Costs and expenses
- The
applicant also claimed 478,450 Macedonian denars
(equivalent to EUR 7,800) for the costs and expenses incurred before
the domestic courts, and EUR 400 for those incurred before this
Court. The latter included EUR 370 for legal fees and EUR 30 for the
translation of documents. No evidence was submitted in support of the
claims under this head.
- The
Government contested the claims as unsubstantiated.
- The Court notes that the applicant did not submit any
supporting documents or particulars to substantiate his claims.
Accordingly, the Court does not award any sum under this head (see
Parizov v. the former Yugoslav Republic
of Macedonia, no. 14258/03, § 72, 7 February
2008, and Savov and Others v. the former Yugoslav Republic of
Macedonia, no. 12582/03, § 69, 25 September 2008).
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the application
admissible;
- Holds that there has been a violation of Article
6 of the Convention on account of the lack of impartiality of the
Supreme Court;
- Holds that there has been a violation of Article
6 of the Convention on account of the excessive length of the
proceedings;
4. Holds
(a) that
the respondent State is to pay the applicant,
within three months of the date on which the judgment
becomes final in accordance with Article 44 § 2
of the Convention, EUR 1,200 (one thousand two hundred euros),
plus any tax that may be chargeable, in respect of non-pecuniary
damage, to be converted into the national currency of the respondent
State at the rate applicable on the date of settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
5. Dismisses the remainder of the
applicant’s claim for just satisfaction.
Done in English, and notified in writing on 25 October 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Nina
Vajić
Registrar President
