CASE OF BALAŽOSKI v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"

FIRST SECTION

CASE OF BALAŽOSKI v. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA

(Application no. 45117/08)

JUDGMENT

STRASBOURG 

25 April 2013

FINAL

25/07/2013

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Balažoski v. the former Yugoslav Republic of Macedonia,

The European Court of Human Rights (First Section), sitting as a Chamber composed of:

Isabelle Berro-Lefèvre, President,
Mirjana Lazarova Trajkovska,
Julia Laffranque,
Linos-Alexandre Sicilianos,
Erik Møse,
Ksenija Turković,
Dmitry Dedov, judges,
and Søren Nielsen, Section Registrar,

Having deliberated in private on 2 April 2013,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 45117/08) 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 Dževit Balažoski (“the applicant”), on 9 September 2008.

2. The applicant was represented by Ms T. Siljanoska, a lawyer practising in Kičevo. The Macedonian Government (“the Government”) were represented by their former Agent, Mrs R. Lazareska Gerovska, succeeded subsequently by their present Agent, Mr K. Bogdanov.

3. The applicant complained that the Supreme Court’s judgment to reject his appeal on points of law as inadmissible ratione valoris, contrary to its earlier judgments in the same proceedings upholding such appeals lodged by the plaintiff violated his rights under Article 6 of the Convention.

4. On 17 March 2011 the application was communicated to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1 of the Convention).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1956 and lives in Kičevo.

6. On 1 April 1998 the applicant’s ex-wife (“the plaintiff”) brought a civil action against him seeking a declaration that she owned a half share of a property acquired during their marriage or, as an alternative, monetary compensation equal to half of its value, which was not specified in the claim. The plaintiff set the claim value of the dispute (вредност на спорот) at 10,000 Macedonian denars (MKD) (approximately 160 euros (EUR), as a basis for calculation of the court fees. The case was heard in the Kičevo Court of First Instance (“the first-instance court”).

7. Both parties were legally represented in the proceedings. According to an expert report of 19 May 1998, the value of the property at issue was set at MKD 6,012,944 (approximately EUR 98,000).

8. On 9 October 1998 the first-instance court dismissed the plaintiff’s claim, which it summarised as follows:

“to recognise that the plaintiff holds title to a half share of the [property], it being joint matrimonial property ... and if the [applicant] wants to be released from this obligation, to pay the plaintiff the sum of MKD 3,006,472 (approximately EUR 49,000)”.

9. It established that the applicant, who had been living and working in Austria, had paid for the house that had been constructed on a land owned by his late father. The plaintiff had not contributed to the construction of the house. As specified in the introduction to the judgment, the court set the value of the dispute at MKD 3,006,472. On 14 April 1999 the Bitola Court of Appeal upheld the judgment.

10. The plaintiff challenged the lower courts’ judgments by lodging an appeal on points of law (ревизија) with the Supreme Court. She complained that the first-instance court had been assisted by an unqualified interpreter and that it had wrongly established the facts regarding her contribution to the construction of the house, which was a matrimonial property. The public prosecutor also requested a protection-of-legality review (барање за заштита на законитоста) arguing that the lower courts had wrongly established that the parties had lived together for ten years, instead of twenty-one years (their marriage had terminated de facto in 1997 when the plaintiff had left the house). The prosecutor further argued that the house in question, the value of which was German Marks 190,887, had been constructed between 1989 and 1996. The lower courts had failed to consider the plaintiff’s contribution to the construction of the house, as a property obtained in wedlock.

11. On 30 September 1999 the Supreme Court upheld both the legality review request and the plaintiff’s appeal on points of law and remitted the case to the first-instance court for fresh examination. It held that the lower courts had incorrectly established that the house in question had been constructed while the parties had no longer been married. In the court’s view, it had been in 1997 when the applicant had explicitly declared his intention to separate from the plaintiff. It was irrelevant that the parties had not lived together for many years before (while the applicant had been in Austria). Similarly, it was of no importance whether the plaintiff had contributed to the construction of the house. Had it been constructed during marriage, it had been a joint property. The introductory part of that judgment specified that the value of the dispute was MKD 3,006,472.

12. By judgments of 26 May 2000 and 13 June 2001 the first-instance court again dismissed the plaintiff’s claim. Both judgments were set aside by the Bitola Court of Appeal on 29 January and 11 December 2001 respectively. All four judgments indicated the same value of the dispute (MKD 3,006,472) in their introductions. The case was again referred to the first-instance court for examination.

13. As submitted by the Government, at a hearing on 15 May 2002 the first-instance court established that the applicant had lodged a counterclaim requesting that the court award him ownership of the entire property at issue. It was decided that both claims would be dealt with in a single set of proceedings.

14. On 25 December 2002 the first-instance court ruled partly in favour of the plaintiff and awarded her ownership of a 5% share of the property. It further ordered that the applicant recognise the plaintiff’s rights of ownership or pay her 5% of the property’s value, previously calculated to be MKD 6,012,944. It dismissed the plaintiff’s claim to be recognised as the owner of a half share of the property or to receive monetary compensation of MKD 3,006,472. Furthermore, the applicant was awarded ownership of the remaining 95% share. His request to be recognised as the owner of the entire property was dismissed. The court also ruled on the trial costs. This judgment also indicated MKD 3,006,472 as the value of the dispute.

15. On 22 October 2003 the Bitola Court of Appeal dismissed an appeal by the plaintiff and upheld an appeal by the applicant. It ordered a re-examination of the case concerning the first-instance court’s judgment awarding the plaintiff ownership of a 5% share of the property or the equivalent monetary compensation and dismissing the applicant’s claim to be declared the sole owner of the entire property. It also quashed the first-instance court’s judgment regarding the trial costs.

16. Оn 20 November 2003 the plaintiff lodged, with the Supreme Court, an appeal of points of law challenging the lower courts’ judgments, namely the dismissal of her claim to be declared the owner of a half share of the property or to receive the equivalent monetary compensation, as well as the courts’ award of ownership to the applicant of 95% share. She alleged substantial procedural flaws and errors on the law. The applicant did not submit observations in reply.

17. By a judgment of 18 May 2005, the Supreme Court accepted the plaintiff’s appeal on points of law and set aside the lower courts’ judgments in the disputed parts. It found that the lower courts had provided conflicting and insufficient reasons for their judgments. They had given contradictory arguments concerning the time when the house had been constructed and whether the latter could be regarded as a joint property obtained during marriage. Since the first-instance court had not complied with its instructions outlined in the judgment of 30 September 1999 (see paragraph 11 above), the court ordered that the case is considered by a different panel of judges of the first-instance court. The introductory part of that judgment specified that the value of the dispute was MKD 3,006,472.

18. On 14 November 2005 the first-instance court allowed the plaintiff’s claim, awarding her ownership of half of the disputed property, as a joint property acquired during marriage. It also ordered the applicant to recognise the plaintiff’s rights of ownership to that part. It further dismissed the applicant’s claim to award him ownership of the entire property at issue. On 24 October 2006 the Court of Appeal dismissed an appeal by the applicant and upheld the lower court’s judgment. Neither judgment contained any information about the value of the dispute.

19. On 7 December 2006 the applicant lodged, with the Supreme Court, an appeal on points of law arguing that the lower courts had not followed the instructions of the Supreme Court’s judgment of 18 May 2005 (see paragraph 17 above). In this connection he complained that they had not established the relevant facts, namely when had the relations between the parties deteriorated and what had been the plaintiff’s contribution to the construction of the house. The plaintiff submitted observations in reply, in which she requested that the appeal be rejected as inadmissible.

20. On 20 March 2008 the Supreme Court, referring to sections 34 (2) and 368 (3) of the Civil Procedure Act 1998 (see paragraph 21 below), rejected (отфрла) the applicant’s appeal as inadmissible ratione valoris. The court stated:

“While assessing the admissibility of an appeal of points of law, values of the dispute regarding a claim and a counterclaim are not cumulative. The admissibility of an appeal on points of law is assessed on the basis of the value of the dispute of the claim and the counterclaim taken separately.

In the present case, the value of the dispute regarding the claim was set at MKD 10,000. The claim value regarding the counterclaim is neither specified nor there is evidence that court fees were paid. Having regard to the list of legal fees for the legal representation of the [applicant], it is clear that [his lawyer] requests the payment of MKD 2,000 for legal representation, which corresponds, as per the fee scale of the Macedonian Bar, to a claim value between MKD 25,000 and MKD 50,000 ... According to a list of court fees under the Court Fees Act, the plaintiff paid court fees in amount of MKD 1,500, which corresponds to a claim of MKD 40,000 in value. In view of the foregoing, the appeal on points of law is inadmissible. The Supreme Court accordingly rejects the appeal on points of law as inadmissible under section 378 of the Civil Proceedings Act. According to section 474 of the Civil Proceedings Act (“Official Gazette” no.79/2005) provisions of the old Civil Proceedings Act (“Official Gazette” no.33/98) apply in the present case”.

II. RELEVANT DOMESTIC LAW

A. Civil Procedure Act of 1998

21. The relevant provisions of the Civil Procedure Act 1998, as valid at the material time, read as follows:

Section 34

“When an action does not concern a sum of money, but the plaintiff specified in the lawsuit (тужба) that he or she would accept monetary compensation instead of the claim, the amount of that compensation would be regarded as the value of the dispute.

In other cases, when the action does not concern a sum of money, the relevant value shall be the value of the dispute indicated by the plaintiff in the lawsuit.

If, in the case referred to in paragraph 2 of this section, it is obvious that the value of the subject matter of the dispute indicated by the plaintiff is too high or too low, so that the question of ... the right to lodge an appeal on points of law arises, the court shall, at the latest at the preparatory hearing or, if no preparatory hearing was held, at the main hearing before the examination of the merits, quickly and in an appropriate manner verify the accuracy of the indicated value.”

Section 171(2)

“When the composition of the court or the right to lodge an appeal on points of law, depends on the value of the dispute, and the object of an action is not the sum of money, the plaintiff shall in the lawsuit indicate the value of the dispute.”

Section 320(1)

“The court is bound by its judgment as soon as it has been pronounced, and if the judgment has not been pronounced, as soon as it has been dispatched (испратена).”

Section 368(3)

“An appeal on points of law is inadmissible in property-related disputes in which the action does not concern a sum of money, transfer of movable property or any other activity, if the value of the dispute, as specified in the lawsuit by the plaintiff, does not exceed MKD 1,000,000.”

Section 374

“An appeal on points of law shall be lodged with the court which gave the first-instance judgment ...”

Section 375 (1)

“A belated, incomplete or [otherwise] inadmissible appeal on points of law, shall be declared inadmissible by a decision of the president of a panel of the first-instance court, without holding a hearing.”

Section 376 (1), (3) and (5)

“The president of a panel of the first-instance court shall forward a copy of a timely, complete and admissible appeal on points of law to the opposing party and the public prosecutor authorised to lodge a request for the protection of legality (барање за заштита на законитоста).

...

The opposing party can, within thirty days of the service of the appeal on points of law, submit a reply to the appeal on points of law to the [same] court.

...

On receipt of the reply ... the president of the panel of the first-instance court shall forward the appeal on points of law and the reply..., if any, together with the case file to the Supreme Court ...”

Section 378

“A belated, incomplete or [otherwise] inadmissible appeal on points of law shall be declared inadmissible by the [Supreme Court], if the first-instance court has not already rejected it, within its powers (section 375).”

B. Civil Procedure Act of 2005

22. Section 400 of the Civil Procedure Act of 2005 provides as follows:

“(1) When the European Court of Human Rights has found a violation of a human right or fundamental freedom guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms or additional protocols thereto ratified by the Republic of Macedonia, a party may, within thirty days of the judgment of the European Court of Human Rights becoming final, file a petition with the court in the Republic of Macedonia which adjudicated in the first instance in the proceedings in which the decision violating the human right or fundamental freedom was rendered, to set aside the decision by which the human right or fundamental freedom was violated.

(2) The proceedings referred to in paragraph 1 of this section shall be conducted by applying, mutatis mutandis, the provisions on the reopening of proceedings.

(3) In the reopened proceedings the courts are required to respect the legal opinions expressed in the final judgment of the European Court of Human Rights finding a violation of a fundamental human right or freedom.”

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION

23. The applicant alleged violation of his rights under Articles 6, 13 and 14 of the Convention since the Supreme Court had rejected as inadmissible ratione valoris his appeal on points of law unlike its earlier judgments in the same proceedings in which it had considered on the merits the plaintiff’s appeals on points of law. The Court considers that the applicant’s complaint should be analysed only under Article 6 of the Convention, which, in so far as relevant, reads as follows:

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

A. Admissibility

24. The Government did not raise any objection as regards the admissibility of the application.

25. 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. The parties’ submissions

26. The applicant submitted that the value of the dispute had been MKD 3,006,472. It had been determined by an expert and had remained the same throughout the proceedings. All judgments, except the judgment of 14 November 2005 (see paragraph 18 above), specified that amount in their introductions as the value of the dispute. He had been accordingly “denied the rights that the plaintiff had enjoyed”. Lastly, he stated that the value of a dispute was an important element of the proceedings, which courts were required to observe ex officio.

27. In the observations, the Government referred to submissions of the Supreme Court regarding the present case, in which that court stated that:

“The Supreme Court has never examined the admissibility of the appeal on points of law in the context of the value of the dispute before the plaintiff had raised that objection in her reply to [the applicant’s] appeal. It did it for the first time with its decision of 20 March 2008 when it rejected the [applicant’s] appeal on points of law as inadmissible ...”

28. The Government further stated that the claim value had not been specified in any of the judgments given after the Supreme Court’s judgment of 18 May 2005. Furthermore, the applicant had made no objections on that basis in his appeal against the first-instance court’s decision of 14 November 2005, despite having had legal representation. Lastly, they maintained that the courts had been under no obligation to determine the claim value, which had been the sole responsibility of the plaintiff. The value of the dispute could change during the proceedings. The Government concluded that the Supreme Court’s judgment of 20 March 2008 to assess the admissibility ratione valoris of the applicant’s appeal on points of law, especially since such objection had been raised by the plaintiff, had been lawful and correct.

2. The Court’s assessment

29. The Court reiterates that the right to a fair trial must be interpreted in the light of the Preamble to the Convention, which declares the rule of law to be part of the common heritage of the Contracting States. One of the fundamental aspects of the rule of law is the principle of legal certainty (see Brumărescu v. Romania [GC], no. 28342/95, § 61, ECHR 1999‑VII).

30. Furthermore, conflicting decisions in similar cases heard in the same court which, in addition, is the court of last resort in the matter may, in the absence of a mechanism which ensures consistency, breach that principle and thereby undermine public confidence in the judiciary (see Beian v. Romania (no. 1), no. 30658/05, §§ 36-39, ECHR 2007‑XIII; Tudor Tudor v. Romania, no. 21911/03, § 29, 24 March 2009; and Spaseski and others v. the former Yugoslav Republic of Macedonia (dec.), no. 15905/07, 27 September 2011), such confidence being one of the essential components of a State based on the rule of law. In the Iordan Iordanov and Others case, the Court identified the issues that need to be assessed when analysing whether conflicting decisions in similar cases stemming from the same court violate the principle of legal certainty under Article 6 of the Convention: 1) the existence of "profound and long-lasting divergences” in the relevant case-law; 2) whether the domestic law provides for a mechanism capable of removing the judicial inconsistency; and 3) whether this mechanism was applied and, if so, what were the effects (see Iordan Iordanov and Others v. Bulgaria, no. 23530/02, § 49, 2 July 2009). Consequently, the Contracting States have the obligation to organise their legal system so as to avoid the adoption of discordant judgments (see Nejdet Şahin and Perihan Şahin v. Turkey [GC], no. 13279/05, § 55, 20 October 2011).

31. The Court notes that the present case concerns civil proceedings in which the plaintiff lodged two alternative claims against the applicant, namely to be declared the owner of a half share of the property allegedly acquired during marriage or to receive the monetary equivalent of half its value. While the amount of that compensation was not specified in the claim, the plaintiff set the value of the dispute at MKD 10,000. On the basis of an expert report ordered soon after the introduction of the plaintiff’s action, the first-instance court determined that the value of the property at issue was MKD 6,012,944 (see paragraph 7 above). The first-instance court apparently relied on that amount for calculating the value of the dispute since it set the claim value at MKD 3,006,472, which corresponded to half the property’s value as determined by the expert and as claimed by the plaintiff (see paragraphs 8 and 9 above). That appears to be in compliance with section 34(1) of the Civil Procedure Act 1998 (see paragraph 21 above). Until 14 November 2005, the date when the first-instance court recognised the plaintiff as equal joint owner of the property in question, the same value of the dispute (MKD 3,006,472) was indicated in almost all court judgments (see paragraphs 8-17 above). During that time, there were four first and second-instance court judgments, as well as two judgments by the Supreme Court. In those judgments given upon an appeal on points of law by the plaintiff, the Supreme Court accepted the value of the dispute specified by the lower courts. That is evident from the introductory parts of its judgments dated 30 September 1999 and 18 May 2005 (see paragraphs 11 and 17 above). The Supreme Court, in those judgments, did not assess the admissibility of the plaintiff’s appeals (see paragraph 27 above). The applicant also did not contest, in reply to the plaintiff’s appeals, the Supreme Court’s jurisdiction in this respect (see paragraph 16 above). However, nothing suggests nor has the Court been presented with any evidence, that the Supreme Court was not vested with a jurisdiction to review, under section 378 of the Civil Proceedings Act 1998 (see paragraph 21 above), the admissibility ratione valoris of the plaintiff’s appeals on its own motion. The Supreme Court, in those judgments, accepted jurisdiction ratione valoris and examined on the merits the plaintiff’s appeals on points of law. In result, it ordered a reconsideration of the case.

32. On 7 December 2006 the applicant lodged with the Supreme Court an appeal on points of law against the judgments of 14 November 2005 and 24 October 2006 (see paragraphs 18 and 19 above) legitimately expecting that it would be entertained on the merits. In this connection the Court notes that the same rules on admissibility ratione valoris applied throughout the entire proceedings. Furthermore, no information or evidence has been provided that the plaintiff’s claim or the applicant’s counter claim were amended after the Supreme Court’s judgment of 18 May 2005. With a judgment of 20 March 2008 the Supreme Court, however, rejected the applicant’s appeal on points of law as inadmissible ratione valoris thus departing from its point of view on this issue in its earlier judgments. The Supreme Court, having regard to the value of the dispute specified in the plaintiff’s action (MKD 10,000), evidence of the court fees paid by the plaintiff and legal fees paid by the applicant, ruled that the claim value was below the statutory threshold specified in section 368 (3) of the Civil Proceedings Act 1998. In the absence of any explanation, it remains unclear why it had not taken into consideration those elements in its preceding judgments of 30 September 1999 and 18 May 2005. The Supreme Court’s judgment of 20 March 2008 contained no reference to either judgment and provided no explanation as to why different case-law was applied to deal with the same issue in the same case. Furthermore, the Supreme Court was bound, under domestic law, in particular section 320(1) of the Civil Procedure Act 1998 (see paragraph 21 above), by its earlier judgments, which had already resolved the issue of the admissibility ratione valoris of the appeal on points of law in the present case. Those judgments were binding for the same court in the later stages of the same proceedings (see Vusić v. Croatia, no. 48101/07, § 43, 1 July 2010).

33. In the light of the above-mentioned considerations, the Court considers the contradictory judgments made by the Supreme Court in the same case regarding its jurisdiction ratione valoris incompatible with the principle of legal certainty. By adopting a different decision on the same issue in the same proceedings and thereby effectively overruling its previous decisions, without any reference to them or reasoning to the contrary, the Supreme Court in the instant case itself became the source of uncertainty. In this way it infringed the principle of legal certainty, inherent in Article 6 § 1 of the Convention (ibid, § 45).

34. There has accordingly been a violation of Article 6 § 1 of the Convention.

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

35. 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

36. The applicant claimed 20,000 euros (EUR), of which EUR 10,000 concerned the excessive length of the proceedings.

37. The Government contested these claims as unsubstantiated and partly unrelated to the alleged violation.

38. The Court considers that the basis for an award of just satisfaction in the present case must be the violation of the principle of legal certainty under Article 6 of the Convention in relation to the Supreme Court’s conflicting case-law, in the same proceedings, regarding its jurisdiction ratione valoris. It further observes that the applicant’s just satisfaction claims partly are not related to the violation found, but they concern the length of the proceedings, an issue which was not raised in the application. Furthermore, the Court cannot speculate as to what the outcome of the impugned proceedings would have been had the violation not been found (see, mutatis mutandis, Schmautzer v. Austria, 23 October 1995, § 44, Series A no. 328‑A, and Demerdžieva and Others v. the former Yugoslav Republic of Macedonia, no. 19315/06, § 33, 10 June 2010). It therefore finds no causal link between the damage claimed and its finding of a violation of Article 6. Accordingly, the Court makes no award under this head.

39. The Court considers however that, in principle, the most appropriate form of relief would be to ensure that the applicant, if he so requests, is granted a retrial under section 400 of the Civil Procedure Act 2005 (see paragraph 22 above), in keeping with all the requirements of a fair hearing (see Vusić, cited above, § 58 and Demerdžieva and Others, cited above, § 34).

B. Costs and expenses

40. The applicant also claimed EUR 5,000 for the costs and expenses incurred before the domestic courts and EUR 700 for those incurred before the Court. No evidence was submitted in support of these claims. He further claimed EUR 4,100 corresponding to costs of the trial and enforcement incurred by the plaintiff, for which he was made liable by the domestic courts in the impugned proceedings.

41. The Government contested these claims as unsubstantiated.

42. The Court points out that under Rule 60 of the Rules of Court “the applicant must submit itemised particulars of all claims, together with any relevant supporting documents, failing which the Chamber may reject the claim in whole or in part” (see Parizov v. the former Yugoslav Republic of Macedonia, no. 14258/03, § 71, 7 February 2008). The Court notes that the applicant did not submit any supporting documents in respect of his claim for reimbursement of costs and expenses incurred before the domestic courts and before the Court. Furthermore, it observes that the claim for reimbursement of the trial and enforcement costs incurred by the plaintiff in the impugned proceedings is closely linked to the outcome of those proceedings for which the Court has already stated that it cannot speculate as to what it would have been had the violation not been found. Accordingly, it does not award any sum under this head.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Declares the application admissible;

2. Holds that there has been a violation of Article 6 of the Convention;

3. Dismisses the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 25 April 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Søren NielsenIsabelle Berro-Lefèvre
RegistrarPresident

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