BACEV v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"

THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 13299/02
by Janko BAČEV
against the former Yugoslav Republic of Macedonia

The European Court of Human Rights (Third Section), sitting on 14 February 2006 as a Chamber composed of:

MrB.M. Zupančič, President,
MrJ. Hedigan,
MrC. Bîrsan,
MrsM. Tsatsa-Nikolovska,
MrV. Zagrebelsky,
MrE. Myjer,
MrsI. Ziemele, judges,
and Mr V. Berger, Section Registrar,

Having regard to the above application lodged on 24 December 2001,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Janko Bačev, is a Macedonian national who was born in 1966 and lives in Skopje, the former Yugoslav Republic of Macedonia.

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

In 1996, after two unsuccessful requests for rectification of the defects in his apartment and compensation for deficiency in its size (26 June and 22 September 1995), the applicant instituted civil proceedings against the construction company (“the company”) to restore or to pay for the damage caused. On 1 June 1999 the court rejected his claim, finding that it had been withdrawn due to his failure to attend two hearings. On 18 September 1999 this decision became final.

On 7 April 2000 the applicant instituted civil proceedings for damages against the company claiming that his apartment was of inadequate quality and smaller than was specified in the contract.

On 29 November 2000 the Basic Court Skopje I Skopje (Основен суд) dismissed the applicant’s claim. It found that on 23 September 1991 the applicant had entered into agreement with the company for construction of the apartment. On 6 June 1995 the company had transferred the apartment into the applicant’s possession. Minutes had been drawn up in which the defects had been noted and accepted by the applicant and the company.

The court referred to the Law on obligations (Зaкон за облигациони односи) according to which in case of defects, the buyer/acquirer’s rights expired one year after notifying the vendor i.e. the one responsible for the construction. It held that the applicant’s claim for damages was time barred as it was lodged before the court more than one year after he had first notified the company about the defects (June 1995). The court dismissed the applicant’s argument that the absolute time bar of five years for damage claims had not expired. It found it irrelevant that the claim was submitted within the absolute time bar as he failed to comply with the relative time bar of three years which ran from the moment when he became aware of the damage and that the company was responsible. The court also dismissed the applicant’s claim that the civil proceedings instituted in 1996 suspended the time bar as his claim had been rejected as being withdrawn.

The decision was served on the applicant on 6 March 2001.

On 21 March 2001 the applicant appealed this decision indicating the reasons in general terms. He stated:

“Being dissatisfied with the Basic Court decision ... I lodge this appeal in time on account of: substantive infringement of the civil procedure; erroneous and incomplete establishment of the facts and wrong application of the substantive law. I will submit the explanation of the grounds with a subsequent submission.”

In a submission lodged on 27 March 2001, the applicant inter alia contested the court’s findings that the agreement concluded with the company was of a commercial nature (contract for construction) and that consequently, the court had wrongly applied the national law concerning the time bar. He also referred to the minutes drawn on 3 July 1995 in which the company acknowledged the defects and committed itself to remedying them by 10 July 1995, as allegedly newly discovered evidence that could influence the time bar. He argued that the lower court had wrongly interpreted the law in respect of the relevance to the time bar of the civil proceedings terminated in 1996.

On 28 June 2001 the Appellate Court of Skopje dismissed the applicant’s appeal. It inter alia found that:

“the plaintiff [the applicant] filed his appeal in time, but he submitted the reasons and the rationale of his appeal after expiration of the time limit of 15 days...as the appeal does not provide any reasoning, the court considered the judgment on the basis contained in the appeal and within its ex officio capacity to determine substantial infringements of the procedure and the correct application of the law...”

It went further on to conclude that

“...the first instance court had properly established that the claim was time barred as the term of five years had expired...”

It also held that the trial court had correctly applied the substantive law as the facts had been properly and fully established. It also, inter alia, repeated the parts of the lower court’s decision concerning the agreement between the applicant and the company; the time when the apartment was transferred into the applicant’s possession and the dates when the applicant had notified the company about the shortcomings and asked for rectification or compensation.

On 2 November 2001 the Republic Public Prosecutor’s Office informed the applicant that there were no statutory grounds for submitting a request for the protection of legality (барање за заштита на законитоста) before the Supreme Court.

B. Relevant domestic law

According to section 106 of the Law on Civil Proceedings (Закон за парничната постапка), if a party concerned fails to attend a hearing or to take another action in the proceedings and consequently loses the right to do so, the court shall uphold that party’s request to perform that action subsequently (restoration to previous state of affairs) if it finds a reasonable explanation for the failure.

When the restoration in the previous state of affairs is granted, the proceedings are restored to the state before the failure had occurred and all other decisions in that respect are considered void.

Section 334 provides that, inter alia, parties can appeal the first instance decision within 15 days from the date of service of the trial court decision, if not otherwise regulated by law.

According to section 337, the trial court shall by decision summon the appellant to correct or supplement the appeal if on the basis of the information provided, it cannot be determined which judgment is complained of or if the appeal was not signed. It the appellant does not comply with the court’s instruction within the time-limit given, the latter shall reject the appeal as incomplete. In case of other deficiencies, the trial court shall transmit the appeal to the Appellate Court without summoning the appellant to correct or to complete it.

Section 340 § 2 prescribes inter alia, the following substantial infringements of procedure: if the court was improperly composed or the judgment was adopted by a judge or a lay-judge who had not participated at the trial hearing; if the judgment was adopted by a judge or a lay-judge who had to be removed by virtue of law, i.e. who was removed by a court decision; if the court decided a case which fell outside its competence ratione materiae; if the court wrongly ruled as to its competence ratione loci; if contrary to the law, the court decided in absentia, on the basis of a confession or a denial; if the party concerned was deprived of the opportunity to participate in the proceedings by unlawful conduct, in particular due to a lack of service; if contrary to the law, the court rejected the party’s request for an interpreter; if the court decided without a public hearing which was compulsory; if a person, lacking capacity to stand as a litigant, participated in the proceedings, or the legal entity acting as litigant was not represented by an authorised person, or if a legally incapable person was not represented by the statutory representative, or if the legal or statutory representative did not have the adequate authorisation; if the court decided on a case in which another proceedings were pending, or if it was res judicata, or if a court settlement had been concluded; if the public was excluded contrary to the law; if the impugned decision contained deficiencies which made its review impossible, in particular if it was illegible, contradictory, lacked reasoning or did not provide reasons for the relevant findings of fact or if they were unclear or contradictory.

Section 342 prescribes that the substantive law is wrongly applied if the court did not apply the relevant statutory provision or if it failed to apply it properly.

Section 351 § 2 provides that the Appellate Court assesses the trial court decision on the basis of the grounds set out in the appeal and having regard to its ex officio capacity to consider any substantial infringement of the civil procedure and the correct application of the law.

COMPLAINTS

The applicant complains under Article 6 § 1 of the Convention that he was deprived of the right to an effective access to court as the Appellate Court did not take into consideration his subsequent submission as an integral part of his appeal nor did it provide any reasons thereof. He alleges unfairness of the proceedings as he was not allowed to put forward the grounds of his appeal.

He also complains under Article 13 of the Convention about the lack of an effective remedy.

THE LAW

1. The applicant complains under Article 6 of the Convention that he was not afforded effective access to court as the Appellate Court did not consider, nor did it reply to, the details of his appeal. He also alleges unfairness of the proceedings as he was not allowed to put forward the arguments for his appeal. Article 6, insofar as relevant, provides as follows:

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”

As established in the Court’s case-law, Article 6 § 1 does not guarantee a right of appeal. Nevertheless, a Contracting State which sets up an appeal system is required to ensure that persons within its jurisdiction enjoy before appellate courts the fundamental guarantees of Article 6 (see Delcourt v. Belgium, judgment of 17 January 1970, Series A no. 11, p. 14-15, § 25).

The Court recalls that the right to a court, of which the right of access is one aspect (see Golder v. the United Kingdom, judgment of 21 February 1975, Series A no. 18, p. 18, § 36), is not absolute; it may be subject to limitations permitted by implication, particularly regarding the conditions of admissibility of an appeal (see Ashingdane v. the United Kingdom, judgment of 28 May 1985, Series A no. 93, p. 24–25, § 57). However, these limitations must not restrict the exercise of the right in such a way or to such an extent that the very essence of the right is impaired (F.E. v. France, judgment of 30 October 1998, Reports of Judgments and Decisions 1998‑VIII, § 44). The degree of access afforded by the national legislation must also be sufficient to secure the individual’s “right to a court”, having regard to the principle of the rule of law in a democratic society. For the right of access to be effective, an individual must have a clear, practical opportunity to challenge an act that is an interference with his rights (see Bellet v. France, judgment of 4 December 1995, Series A no. 333‑B, p. 42, § 36).

The imposition of time-limits by courts for the lodging of applications, appeals or other pleadings has, in general, been found compatible with the requirements of Article 6, as serving the legitimate purpose of ensuring the proper administration of justice and compliance with, in particular, the principle of legal certainty. Those concerned must expect those rules to be applied although the rules in question, or the application of them, should not prevent litigants from making use of an available remedy (see Pérez de Rada Cavanilles v. Spain, judgment of 28 October 1998, Reports 1998‑VIII, § 45).

Turning to the present case, the Court observes that the applicant filed an appeal within the statutory time-limit of 15 days from the date of service of the trial court decision, without however providing detailed grounds. On the last day of this time-limit, the applicant filed his appeal by merely setting out its general basis in a succinct manner without providing any factual and legal elaboration. He did not provide any reasonable explanation for failing to submit the details of his appeal within the time-limit nor did he specify when they would be subsequently submitted.

Moreover, it does not appear that the applicant applied for restoration of the proceedings to the previous state of affairs, which remedy may cure a failure to comply with procedural requirements such as time-limits where reasonable excuse for the failure exists (see section 106 of the Law on Civil Proceedings, “Relevant domestic law” above). His later submission of 27 March 2001 which explained the alleged defects in the lower court’s findings was outside the time-limit for lodging an appeal. The trial court transmitted both documents to the Appellate Court for consideration. However, the Appellate Court did not take into account the subsequent submission and made no reference to it in its assessment of the case as it considered it out of time.

While a time-limit of fifteen days applicable is not long, the Court does not consider that it can be regarded in the circumstances of this case as so short as to deprive the applicant of a real or effective opportunity to make use of the appeal procedure. Short time-limits are indeed a standard feature of appeal systems throughout Contracting States. Nor is the Court persuaded that the exclusion of the applicant’s elaborated grounds of appeal as being submitted outside the time-limit discloses any arbitrariness or unreasonable application of a procedural rule. It would note in this regard its own practice in finding a general reference to a provision of the Convention, without indicating the factual basis and the nature of the alleged violations, as insufficient to constitute valid introduction of specific complaints submitted later out of time (Allan v. the United Kingdom, no. 48539/99, ECHR 2002‑IX; Zervakis v. Greece, no. 64321/01, 17 October 2002). The Court recalls that the Appellate Court explained why it did not take into consideration the applicant’s arguments: they were filed outside the statutory time-limit. The applicant’s allegation that the Appellate Court did not give sufficient reasons for its decision for not taking into consideration the subsequent elaboration of his appeal is thus misconceived. Furthermore the Court observes that notwithstanding the exclusion of his grounds, the Appellate Court did review the lower court’s decision within its ex officio capacity to consider any substantial infringement of civil procedure and the correct application of the law (see “Relevant domestic law” above). The Appellate Court examined the facts as established by the trial court for the purposes of assessing whether the substantive law had been properly interpreted and applied. Thus, it appears that the Appellate Court reviewed the trial court’s decision on all grounds put forward by the applicant in his initial petition submitted within the time-limit for lodging the appeal. Therefore, the Court observes that the applicant was not deprived of a fair consideration of his case or an assessment of the trial court’s decision on the merits by the Appellate Court, despite his failure to submit the detailed grounds of his appeal within the statutory time-limits.

The Court finds accordingly no indication that the applicant was deprived of the right to effective access to court or that the proceedings were unfair.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

2. The applicant complains under Article 13 of the Convention that he did not have an effective remedy in respect of the alleged lack of an effective access to court and the unfairness of the proceedings. Article 13 provides:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

According to the Court’s case-law, this provision applies only where an individual has an “arguable claim” to have been the victim of a violation of a Convention right (see Boyle and Rice v. the United Kingdom, judgment of 27 April 1988, Series A no. 131, § 52).

The Court has found above that the substantive complaints are manifestly ill-founded. Therefore, the applicant did not have an “arguable claim” and Article 13 is inapplicable to his case.

It follows that this part of the application is also manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4.

For these reasons, the Court by a majority

Declares the application inadmissible.

Vincent BergerBoštjan M. Zupančič
RegistrarPresident

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