FIRST SECTION
DECISION
Application no. 14466/11
Ismet BAJRAMOVSKI
against the former Yugoslav Republic of Macedonia
The European Court of Human Rights (First Section), sitting on 26 June 2018 as a Chamber composed of:
Linos-Alexandre Sicilianos, President,
Aleš Pejchal,
Krzysztof Wojtyczek,
Ksenija Turković,
Pauliine Koskelo,
Tim Eicke,
Jovan Ilievski, judges,
and Abel Campos, Section Registrar,
Having regard to the above application lodged on 25 February 2011,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Ismet Bajramovski, is a Macedonian national who was born in 1955 and lives in Schötz, Switzerland. He was represented before the Court by Mr E. Glavinče, a lawyer practising in Bitola.
2. The Macedonian Government (“the Government”) were initially represented by their former Agent, Mr K. Bogdanov, later succeeded by Ms D. Djonova.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. In 2008 the applicant lodged a civil action against A.L. and H.L. with the Kičevo Court of First Instance (Основен суд Кичево, “the first-instance court”), claiming recognition of a title to a house and a courtyard that had been returned to the defendants in earlier restitution proceedings.
5. On an unspecified date thereafter Judge V.S., the presiding judge in the applicant’s case, notified the president of the first-instance court that A.L. was a judge of that court, and asked him to request that the next level of court up from the first-instance court assign the case to another first‑instance court.
6. On 23 May 2008, under section 60 of the Civil Proceedings Act (“the Act”) and for the reasons relied upon by Judge V.S., the president of the first-instance court requested that the Gostivar Court of Appeal (Апелационен суд Гостивар, “the Court of Appeal”) assign the case to another competent first-instance court.
7. On 29 May 2008 the Court of Appeal returned the case file to the first-instance court. The Government submitted that the Court of Appeal had found no grounds to assign the case to another competent court. No copy of a decision was provided.
8. On 3 December 2008 a three-judge panel of the first-instance court, presided over by Judge V.S. and two lay judges, dismissed the applicant’s claim. The panel established that the applicant’s father had bought the property from a third party whose legal predecessor had acquired it unlawfully and in bad faith.
9. The applicant appealed against that judgment, complaining of factual and legal errors and an incorrect assessment of the evidence. He also complained that the court had not provided sufficient reasons for its judgment. He did not voice any concerns about an alleged lack of impartiality on the part of the first-instance court.
10. On an unspecified date the applicant’s lawyer requested that the Supreme Court assign the case to another second-instance court under section 61 of the Act, given the fact that two judges of the first-instance court (former colleagues of Judge A.L.) had been appointed judges of the Gostivar Court of Appeal, the court which was to decide the applicant’s appeal. The relevant part of the application read as follows:
“The defendant, A.L., is a judge of the Kičevo Court of First Instance. The claim was submitted to the Kičevo Court of First Instance in the belief that the court would deliver a correct judgment based on the facts of the case ...”
11. On 5 March 2009 the Supreme Court dismissed the applicant’s application, holding that the reasons given by the applicant were “irrelevant” and that a transfer of jurisdiction to another competent court was not warranted.
12. On 6 July 2010 a three-judge panel of the Court of Appeal not including the two judges in respect of whom the applicant had voiced concerns about impartiality dismissed the applicant’s appeal and upheld the first-instance court’s judgment. It found no reasons to depart from the established facts and reasons provided by that court.
13. The applicant lodged an appeal on points of law with the Supreme Court in which he reiterated the complaints described in paragraph 9 above. He also referred to the earlier requests (see paragraphs 5, 6 and 10 above) for his case to be assigned to different first and second-instance courts.
14. On 29 March 2012 the Supreme Court dismissed the applicant’s appeal on points of law. It did not address his submissions concerning the lower courts’ alleged lack of impartiality.
B. Relevant domestic law and practice
1. The Civil Proceedings Act (Закон за граѓанската постапка, Official Gazette no. 79/2005)
15. The relevant provisions of the Civil Proceedings Act provide as follows:
Section 60
“If the competent court is not able to act, owing to a judge being excluded, it shall notify the higher court. The higher court shall assign the case to another competent court in its territory.”
Section 61
“The Supreme Court may, following a proposal by a party or the competent court, assign a case to another court if this would obviously facilitate the proceedings, or for other important reasons.”
Section 64
“A judge or a lay judge cannot perform his/her judicial function if:
1. he/she is a party, a statutory representative, or a party’s counsel...;
2. he/she is permanently or temporarily employed by a party to the proceedings;
3. a party or a party’s counsel is his/her relative...;
4. he/she is a custodian, an adoptive parent, [or] an adoptive child ... of a party;
5. he/she participated in rendering any decision by a lower court or another body in the relevant proceedings; and
6. there are other grounds which cast doubt on his/her impartiality.”
2. Relevant domestic case-law
16. The Supreme Court has previously granted applications for a transfer of jurisdiction based on section 61 of the Act in cases where: the court before which proceedings were conducted was itself a party to those proceedings, for example a defendant in employment disputes or a claimant in enforcement proceedings (Р.бр. 60/2015, Р.бр. 3/2014, Р.бр. 64/2014, Р.бр. 11/2014); a judge of the court was a party in a case which was to be decided by that court (Р.бр. 23/2009, Р.бр. 78/2009, Р.бр. 86/2009); a claimant’s mother was a judge of the trial court (Р.бр. 36/2010); a legal representative of defendants who were minors was a judge of the trial court (Р.бр. 79/2009); a claimant was the son of a judge of the trial court (Р.бр. 15/2010); some judges of the trial court had been excluded and against other judges the defendant had initiated criminal proceedings expressing doubts about their impartiality (Р.бр.10/2010).
17. In one case, the Supreme Court refused an application for a transfer of jurisdiction where the claimant in the case was a judge of the trial court (Р.бр. 56/2012).
18. The President of the Bitola Court of First Instance granted applications for exclusion from all of the judges of that court in a case between the Bitola Court of First Instance and one of its employees (СУ‑ИЗЗ-111/15).
COMPLAINTS
19. The applicant complained under Article 6 § 1 of the Convention that his case had not been decided by an impartial tribunal. He also complained under Article 1 of Protocol No.1 to the Convention.
THE LAW
20. The applicant complained under Article 6 § 1 of the Convention of a lack of impartiality on the part of the Kičevo Court of First Instance because Judge A.L., the defendant in the case, had been a judge of that court at the material time. He also complained that the Gostivar Court of Appeal had not been impartial because two judges of the first-instance court, former colleagues of Judge A.L., had in the meantime become judges of the Court of Appeal that had decided his appeal. He further complained of a violation of his property rights under Article 1 of Protocol No.1 to the Convention. The relevant provisions of the Convention, in so far as relevant, read as follows:
Article 6
“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal...”
Article 1 of Protocol No. 1
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
A. Alleged lack of impartiality of the first-instance court
1. The parties’ submissions
(a) The Government
21. The Government submitted that the applicant had failed to exhaust the domestic remedies in respect of his complaint under this head. In particular, he had not sought, under section 61 of the Act, that the Supreme Court assign the case to a different first-instance court. That remedy had been directly accessible, effective and had offered a reasonable prospect of success (paragraph 16 above). The applicant, although aware that A.L. had been a judge of the first-instance court, had not expressed any concerns about the court’s impartiality until the proceedings before the first-instance court had been completed. He had also failed to raise any such complaints in the appeal. As to the application submitted by the president of the first-instance court under section 60 of the Act, the Government argued that it had been correctly dismissed by the Court of Appeal because there had been no sufficient reasons to assign the case to a different court, and not all of the judges of the court had asked to be excluded from the case. Section 60 of the Act required the exclusion of all the judges of a court for the Court of Appeal to assign a case to a different court.
(b) The applicant
22. The applicant reiterated that the first-instance court had lacked the requisite impartiality because Judge A.L., the defendant in the impugned proceedings, had been a judge of that court. He submitted that the examples of domestic practice submitted by the Government were not relevant to his case. The applicant further noted that the practice of the Supreme Court had not been consistent. Referring to a decision of the President of the Bitola Court of First Instance (paragraph 18 above), the applicant argued that it had since become established domestic practice for all the judges of a court to ask to be excluded from a case where one of the parties was a person employed at the court where the proceedings were conducted. After all the judges had been excluded, it was expected that a higher court would assign the case to another competent court. The applicant argued that there were statements from judges of the first-instance court in the domestic case file expressing concerns about the appearance of impartiality in view of the fact that the defendant was their colleague and seeking their exclusion from the case.
2. The Court’s assessment
(a) General principles
23. Article 35 § 1 reads as follows:
“The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken.”
24. The relevant Convention principles have been summarised in the Court’s judgment in the case of Vučković and Others (see Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, §§ 69-77, 25 March 2014). In particular, “the obligation to exhaust” domestic remedies requires an applicant to make normal use of remedies which are available and sufficient in respect of his or her Convention grievances. The existence of the remedies in question must be sufficiently certain not only in theory but in practice, failing which they will lack the requisite accessibility and effectiveness. Article 35 § 1 also requires that complaints intended to be made subsequently in Strasbourg should have been made to the appropriate domestic body, at least in substance, and in compliance with the formal requirements and time-limits laid down in domestic law and, further, that any procedural means that might prevent a breach of the Convention should have been used. Where an applicant has failed to comply with these requirements, his or her application should, in principle, be declared inadmissible for failure to exhaust domestic remedies (ibid., §§ 71 and 72).
25. It is incumbent on the Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one and was available in theory and in practice at the relevant time – that is to say that it was accessible and was capable of providing redress in respect of the applicant’s complaints, and offered reasonable prospects of success (ibid., § 77). However, once this burden of proof has been satisfied, it falls to the applicant to establish that the remedy advanced by the Government was in fact exhausted or was for some reason inadequate and ineffective in the particular circumstances of the case, or that special circumstances existed absolving him or her from the requirement (ibid.).
(b) Application of those principles to the present case
26. The Court notes that the applicant lodged a civil action for recognition of a property title against A.L. and H.L. with the first-instance court where A.L. had been appointed as a judge. The applicant did not raise any concerns about the impartiality of the judges of that court in the course of either the first-instance proceedings or his appeal (see Zahirović v. Croatia, no. 58590/11, § 36, 25 April 2013; and conversely, Mitrov v. the former Yugoslav Republic of Macedonia, no. 45959/09, §§ 41‑43, 2 June 2016). The applicant did not argue that he had been unaware that A.L. had been a judge of that court at that time (see, conversely, Nikolov v. the former Yugoslav Republic of Macedonia (dec.), no. 41195/02, 9 October 2006; Pescador Valero v. Spain, no. 62435/00, §§ 25-26, ECHR 2003‑VII; and Nicholas v. Cyprus, no. 63246/10, § 36, 9 January 2018). In fact, in his application to the Supreme Court, the applicant implicitly acknowledged that he had been aware that A.L. was a judge of the first-instance court (see paragraph 10 above). The trial judge sitting in the applicant’s case notified the president of the first-instance court that Judge A.L. was a party in the proceedings and asked for the case to be assigned to another court. The president of the first-instance court submitted such an application to the Court of Appeal, which, under section 60 of the Act, was competent to assign the case to another court in its territory if the competent court was not able to act, owing to a judge being excluded (see paragraphs 5 and 6 above). The Government stated that the Court of Appeal was correct to refuse that application (see paragraph 7 above), because that provision applied to situations where all the judges of a court had requested their exclusion from a case, which was not the case in the applicant’s case. The applicant did not present any relevant argument or an example of domestic practice to disprove this assertion. Furthermore, he failed to support his allegation that there were statements in the domestic case file from other judges of the first-instance court expressing concerns about the court’s impartiality in view of the fact that the defendant was their colleague and seeking their exclusion from the case.
27. Furthermore, the Court notes that section 61 of the Act provided for the possibility for the applicant, as a party to the proceedings, to ask the Supreme Court to assign the case to another competent court. That remedy was directly accessible to him (see, conversely, Mitrov, cited above, § 42) and, in view of the prevailing domestic practice around the time when the applicant’s case was examined by the first-instance court, offered reasonable prospects of success (see paragraph 16 above). The applicant neither advanced any reasons to cast doubt on the effectiveness of the remedy provided for under section 61 of the Act, nor offered any reasons to justify his failure to use it. Thus, he failed to establish that the remedy had for some reason been inadequate and ineffective in the particular circumstances of the case, or that special circumstances had existed absolving him from this requirement (see Vučković and Others, cited above, § 77).
28. In these circumstances, the Court considers that the applicant failed to exhaust domestic remedies with regard to his complaint under this head. It follows that this complaint must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
B. Alleged lack of impartiality of the Court of Appeal
1. The parties’ submissions
29. The Government argued that there were no grounds for casting doubt on the impartiality of the three-judge panel of the Court of Appeal or that court. The fact that two judges from the Kičevo Court of First Instance who were former colleagues of Judge A.L. had been appointed to the Court of Appeal could not objectively justify the applicant’s fears regarding that court’s impartiality. The three-judge panel that had decided the applicant’s appeal had not included the two judges who were former colleagues of Judge A.L. It had included judges with no previous experience of working at the Kičevo Court of First Instance. In such circumstances, the Supreme Court’s refusal to assign the applicant’s case to a different second-instance court had been justified.
30. The applicant maintained that the Court of Appeal had not been impartial because two judges, former colleagues of A.L. at the first-instance court, had become judges in the second-instance court which had decided his appeal. He argued that Judge A.L. had used his personal and professional contacts and influence to obtain judgments in his favour.
2. The Court’s assessment
31. In the instant case, the applicant’s concerns regarding the Court of Appeal’s impartiality stemmed from the fact that two judges from the Kičevo Court of First Instance, former colleagues of the applicant’s opponent, A.L., had been elected to the Court of Appeal. His application under section 61 of the Act, based on allegations in that regard, was dismissed by the Supreme Court as unsubstantiated (see paragraph 11 above).
32. The Court observes that the relevant Convention principles have been summarised in its judgment in the case of Morice (see Morice v. France [GC], no. 29369/10, §§ 73-78, 23 April 2015, with further references).
33. Under the subjective test, the Court notes that the personal impartiality of a judge must be presumed until there is proof to the contrary (see Kyprianou v. Cyprus [GC], no. 73797/01, § 119, ECHR 2005‑XIII, and Micallef v. Malta [GC], no. 17056/06, § 94, ECHR 2009). In the present case, the Court considers that the applicant did not adduce any evidence as to the personal bias of the three-judge panel of the Court of Appeal.
34. The case must therefore be examined from the perspective of the objective impartiality test. More specifically, the Court must address the question of whether the applicant’s doubts stemming from the specific circumstances may be regarded as objectively justified in the circumstances of the case.
35. The Court observes that the applicant did not dispute the Government’s assertion that neither of the two judges who were former colleagues of Judge A.L. sat on the three-judge panel that decided his appeal. In view of this, and having regard to the remoteness of any possible link between the three-judge panel and the defendant in the proceedings, namely Judge A.L., the Court does not consider that the applicant’s fears about the Court of Appeal’s impartiality were objectively justified in the present case.
36. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
C. Other complaints
37. The applicant complained under Article 1 of Protocol No. 1 to the Convention of a violation of his property rights.
38. The Court has examined this complaint. However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, it finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.
39. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 19 July 2018.
Abel CamposLinos-Alexandre Sicilianos
RegistrarPresident
Full & Egal Universal Law Academy