SECOND SECTION
PARTIAL DECISION
AS TO THE ADMISSIBILITY OF
Application no. 59995/00
by Voislav DABIĆ
against the Former Yugoslav Republic of Macedonia
The European Court of Human Rights (Second Section), sitting on 23 October 2001 as a Chamber composed of
MrC.L. Rozakis, President,
MrA.B. Baka,
MrG. Bonello,
MrsM. Tsatsa-Nikolovska,
MrE. Levits,
MrA. Kovler,
MrV. Zagrebelsky, judges,
and Mr E. Fribergh, Section Registrar,
Having regard to the above application introduced on 29 November 1999 and registered on 17 August 2000,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Voislav Dabić, is a national of the Former Yugoslav Republic of Macedonia, born in 1938 and living in Gevgelija.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant has been a tenant in an allegedly communal apartment since 1970.
In 1990 the Parliament adopted the Law on the Sale of Communal Apartments (the Z.P.S.O.S.) which entitled the tenants of communal apartments to purchase them on credit and at a beneficial price.
On 14 September 1995 the applicant and the Government concluded a sale-purchase contract for the apartment under the Z.P.S.O.S..
On 4 June 1996 the Electricity Board brought a civil action for the annulment of the contract arguing that it had been concluded in breach of the Z.P.S.O.S., as the apartment had not been communal. In fact, it belonged to the Electricity Board where the applicant had been an employee.
On 4 November 1997 the applicant, albeit properly summoned, failed to attend the hearing before the Gevgelija Trial Court. The bench composed of Judge A. and two lay-judges granted the Electricity Board’s civil claim, rescinded the purchase-sale contract and ordered that the applicant be evicted from the apartment. It held that the Electricity Board was the owner of the apartment and that the applicant could not even be considered as a tenant under the Tenancy Rights Act, because he was unable to submit any document proving that he had rented the apartment. It followed that the sale-purchase contract had been concluded in breach of the Z.P.S.O.S.
On 21 May 1998 the Skopje Appellate Court, sitting in camera, found that the Gevgelija Trial Court had not taken into consideration the applicant’s written submissions. It quashed the lower court’s judgment on the account of breach of procedure and remitted the case for re-examination.
On 7 October 1998 the applicant was summoned to attend the hearing scheduled for 23 October 1998 before the Gevgelija Trial Court. However, the hearing was held one day earlier, that is, on 22 October 1998.
On 22 October 1998 the Gevglija Trial Court granted the Electricity Board’s civil claim and rescinded the sale-purchase contract. Moreover, it noted that the applicant, who was not represented by a lawyer, had failed to attend the hearing although he had been properly summoned.
On 26 November 1998 the applicant complained to the Appellate Court, inter alia, that he had been deprived of his right to attend the hearing of 22 October 1998, as the official notice of the hearing stated that it had been scheduled for 23 October 1998. He further complained that the lower court had assessed the evidence wrongly.
On 11 February 1999 the Skopje Appellate Court rejected the applicant’s appeal in a closed session. As regards the attendance at the hearing of 22 October 1998 the court, inter alia, held:
“...[the applicant] refused to be served with the summons for no valid reason and [it] had been established that he was served on 7 October 1998 at his home ... and in presence of Mr S.; as regards his legal representative no power of attorney had been submitted...”
On 2 July 1999 the applicant was served with the Skopje Appellate Court’s judgment.
On 7 September 1999 the applicant’s request to file an extraordinary legal remedy was dismissed by the Public Prosecutor.
B. Relevant domestic law
Code of Civil Procedure
Article 103, inter alia, provides that the court shall summon the parties to the hearing in good time. The summons shall contain the venue, the date and the hour of the hearing.
Article 133, inter alia, provides that when a person refuses to be summoned for no valid reason, the summons shall be left or hanged on the door of the apartment, or the business premises where the person works. The bailiff shall note down the day, the hour and the reason for the refusal as well as the place where he left the summons. Thereby, it shall be considered that the person has been properly summoned.
COMPLAINTS
1. The applicant complains under Article 6 § 1 of the Convention that his right to a fair trial was violated as the summons served by the Gevgelija Trial Court stated that the hearing would take place on 23 October 1998, whereas the hearing in fact took place on 22 October 1998. As a result he was deprived of his right to attend the hearing and put forward all his arguments.
2. The applicant complains under Article 1 of Protocol No. 1 to the Convention that he was deprived of his property as a result of the judicial decisions.
3. He further invokes Article 14 of the Convention.
THE LAW
1. The applicant complains under Article 6 § 1 of the Convention that he was deprived of his right to attend the hearing of 22 October 1998 before the Gevgelija Trial Court.
The Court considers that it cannot, on the basis of the case file, determine the admissibility of the complaint and that it is therefore necessary, in accordance with Rule 54 § 3 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.
2. The applicant complains under Article 1 of Protocol No. 1 to the Convention that he was deprived of his property as a result of judicial decisions.
Article 1 of Protocol No. 1 to the Convention, as far as relevant, provides as follows:
“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.”
The Court recalls that in all State Parties to the Convention the legislation governing private-law relations between individuals includes rules which determine the effects of these relations with respect to property and in some cases, compel a person to surrender a possession to another. In such cases, the passing of property, resulting from legal limitations inherent in private property can not be considered as constituting a deprivation of possessions for the purposes of the second sentence of Article 1 of Protocol No. 1 (S.Ö., A.K., Ar.K. and Y.S.P.E.H.V. v. Turkey (dec.) 31138/96, 14.9.99, unpublished, No. 10000/82, Dec. 4.7.1983, DR 33, p. 247[257]; and Nos. 8588/79 and 8589/79, Dec. 12.10.1982, D.R. 29, p. 64[82]).
The Electricity Board, which is a public utility company, acted as a private party in civil litigation. It instituted legal proceedings in the court against the applicant and the Government for the annulment of the sale-purchase contract claiming that the said apartment had been its property.
In the present case, the Court finds that the judicial decisions by which the courts rescinded the applicant’s sale-purchase agreement for having been concluded unlawfully and established that the Electricity Board had been the owner of the apartment in accordance to the rules of private law, cannot be seen as unjustified State interference with the property rights of the applicant.
Furthermore, the domestic judicial decisions were reasoned and were not arbitrary.
It follows that this complaint is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and, therefore, must be rejected in accordance with Article 35 § 4.
3. The applicant further invokes Article 14 of the Convention.
The Court notes that the applicant has not substantiated this complaint.
It follows that the complaint is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and, therefore, must be rejected in accordance with Article 35 § 4.
For these reasons, the Court, unanimously,
Decides to adjourn the examination of the applicant’s complaint under Article 6 § 1;
Declares inadmissible the remainder of the application.
Erik Fribergh Christos Rozakis
Registrar President
Full & Egal Universal Law Academy