Communicated on 24 August 2016
FIRST SECTION
Application no. 42895/14
Ajše ADILOVSKA
against the former Yugoslav Republic of Macedonia
lodged on 3 June 2014
STATEMENT OF FACTS
The applicant, Ms Ajše Adilovska, is a Macedonian national, who was born in 1963 and lives in Skopje. She is represented before the Court by Ms N. Dimitrova, a lawyer practising in Skopje.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 27 May 2004 the applicant lodged a claim against N.S. for establishment of title to a plot of land that the applicant’s father had allegedly bought from his brother (the opponent’s father-in-law) around 1965.
On 1 December 2004 the applicant’s two sisters joined the proceedings on the side of the claimant.
On 30 January 2009 the Skopje Court of First Instance (Основен суд Скопје) dismissed the applicant’s claim as ill-founded. It held that the applicant failed to prove that the sale contract had been executed and that the land had been in possession of her father, as her legal predecessor.
The applicant lodged an appeal against the first-instance judgment.
On 12 November 2009 the Skopje Court of Appeal (Апелационен суд Скопје) granted the applicant’s appeal and remitted the case for reconsideration with instructions concerning additional evidence that needed to be adduced in order for the trial court to be able to determine the factual circumstances of the case.
On 22 March 2011 the applicant amended her claim, seeking in addition the annulment of a sale contract for the impugned plot of land, concluded between N.S. and third parties on 7 July 2010.
In the resumed proceedings, the Skopje Court of First Instance granted the applicant’s claim by a judgment of 19 March 2012. It annulled the impugned sale contract and established the property title to the plot of land in favour of the applicant and her sisters, as claimants.
On 4 October 2013 the Skopje Court of Appeal, after holding a public hearing, overturned the first-instance judgment and dismissed the applicant’s claim. It held that the applicant and her sisters had no full legal standing in the proceedings (нема целосна активна легитимација) as they were not the sole legal heirs (законски наследници) of their father who had eight children.
B. Relevant domestic practice
The applicant relies on a Supreme Court’s judgment of 22 June 1993 (Рев.бр.544/93) in which the Supreme Court held that the trial court should not dismiss a compensation claim for lack of standing when the claimant is only one potential heir because any member of a legal community is entitled to lodge a claim against third parties in order to protect their rights.
COMPLAINTS
The applicant complains, under Article 6 § 1 of the Convention and Article 1 of Protocol No.1, of a lack of access to a court concerning her property claim. She alleges in particular that owing to the Skopje Court of Appeal’s findings regarding her lack of legal standing in the proceedings, which were in contradiction to the Supreme Court’s interpretation of the relevant domestic law, her claim was not decided on the merits.
QUESTIONS TO THE PARTIES
1. Was the applicant denied the right of access to a court in breach of Article 6 § 1 of the Convention, given that her claim was not examined on the merits due to the findings of the domestic courts that she, as potential heir of her father, had no standing in the impugned proceedings unless all of the potential heirs have joined the civil action?
2. Did the domestic courts’ dismissal of the applicant’s claim without an examination on the merits, amount to a breach of Article 1 of Protocol No.1?
Full & Egal Universal Law Academy