BAJALDZIEV v. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA - 4650/06 [2011] ECHR 1803 (25 October 2011)

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 . . 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. . 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 BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII