DIMOVSKI v. NORTH MACEDONIA (European Court of Human Rights)

FIRST SECTION
DECISION
Application no. 66007/13
Duško DIMOVSKI
against North Macedonia

The European Court of Human Rights (First Section), sitting on 17 September 2019 as a Committee composed of:

Tim Eicke, President,
Jovan Ilievski,
Raffaele Sabato, judges,
and Renata Degener, Deputy Section Registrar,

Having regard to the above application lodged on 14 October 2013,

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 DuškoDimovski, is a Macedonian/citizen of the Republic of North Macedonia, who was born in 1950 and lives in Gostivar. He was represented before the Court by Mr B. Pandovski, a lawyer practising in Skopje.

2. The Government of North Macedonia (“the Government”) were initially represented by their former Agent, Mr K. Bogdanov, 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. By a final judgment of 23 December 2011, the domestic courts granted the applicant’s claim and annulled a decision by his former employer by which he had been dismissed from his post. He was reinstated at work.

5. On 13 March 2012 the applicant, represented by a lawyer, filed a civil claim against his employer seeking payment of unpaid salary and social insurance contributions for the period between his dismissal and reinstatement. He indicated 100,000 denars (MKD) as the value of the dispute. However, in his statement of claim, the applicant asked the court to award him compensation in an amount to be determined either on the basis of a settlement between the parties (спогодбен износ) or a financial expert report.

6. On 7 June 2012, during a preparatory hearing before the Gostivar Court of First Instance (Основен суд Гостивар – “the first-instance court”), the applicant’s lawyer requested that the court commission a financial expert report. That request was made as his private financial expert had been unable to obtain the relevant documents from the employer’s records without a court order, because the employer’s central office was in Skopje and its branch in Gostivar. In support, he submitted a written notification from his expert in this respect. The employer objected, arguing that the expert would have been given access to its records. Accordingly, it asked the court to reject the applicant’s claim as incomplete. The presiding judge decided to join the objection to the merits of the case and granted the applicant’s request in the meantime. It appointed a financial expert to draw up a report. The applicant was ordered to advance the expert’s costs.

7. At a preparatory hearing held on 17 October 2012, the applicant specified the amount of his claim on the basis of the expert report prepared by the court-appointed expert. At the same hearing, the presiding judge commissioned an additional financial expert report, upon the request of the employer, for which the employer was ordered to advance the costs.

8. At the main hearing held on 30 January 2013, the employer reiterated its objection regarding the financial expert reports arguing that the applicant’s allegations that he had been unable to obtain a financial report without a court order had been unsubstantiated. The same presiding judge accepted the employer’s objection and decided, relying on section 235(2) of the Civil Procedure Act (“the Act” – see paragraph 11 below), not to admit the expert reports into evidence and not to examine the expert, finding that the applicant had failed to substantiate his contention that he had been unable to obtain a private expert report.

9. On the same day, the first-instance court dismissed the applicant’s compensation claim. The court stated that the applicant had been entitled to compensation for unpaid salary and social insurance contributions for the period in which he had been unlawfully dismissed from his post. However, the amount of compensation due had been in dispute between the parties and the applicant had failed to substantiate his claim with a financial expert report as required by section 235(1) of the Act. The court considered that in the absence of evidence either proving that the applicant’s private expert had contacted the employer or that access to the employer’s records had been denied, the written notification from the applicant’s private expert had been insufficient to find that the requirements of section 235(2) of the Act had been met. For those reasons, the court retracted its decision of 7 June 2012, finding that the court-commissioned expert reports could not be admitted into evidence because to do so would amount to a substantial procedural flaw (see paragraphs 12 and 13 below).

10. On 2 July 2013 the Gostivar Court of Appeal (Апелационен суд Гостивар – “the Court of Appeal”) dismissed the applicant’s appeal and upheld the first-instance judgment and its reasoning.

B. Relevant domestic law

11. Section 235(1) of the Civil Procedure Act (Закон за парничната постапка, Official Gazette nos. 79/2005, 110/2008, 83/2009, 116/2010, which entered into force on 9 September 2010 and became applicable as of 9 September 2011) stipulated that the court would admit an expert report into evidence if the party either submitted the report with the claim or in the reply to the claim. Section 235(2) provided that the court would deliver a written order commissioning an expert report if the party that had proposed the expert report as evidence showed that it was probable (сториверојатно) that there were circumstances or facts that prevented it from obtaining such a report itself. The court would indicate the subject of the expert report and, on the request of the party, would choose the expert.

12. Under section 332(3) of the Act, the court was not able to change its decisions, unless they were procedural in nature (се однесуваат на управувањето со постапката) or the law provided otherwise.

13. Section 343(2)(13) stipulated that a substantial procedural flaw existed if the court had ordered an expert report in the absence of the requirements provided for in section 235 of the Act being met.

COMPLAINTS

14. The applicant complained that the manner in which the domestic courts had dismissed his claim had not been in compliance with Article 6 § 1 of the Convention. He also relied on Article 1 of Protocol No. 1 to the Convention.

THE LAW

15. Relying on Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention, the applicant complained that owing to the manner in which his civil claim had been examined by the domestic courts, particularly with regard to the refusal to admit the expert reports into evidence, he had been prevented from obtaining a determination of his civil rights. The Court, being the master of the characterisation to be given in law to the facts of the case (see Radomilja and Others v. Croatia [GC], no. 37685/10 and 22768/12, § 124, 20 March 2018), considers that the complaint under Article 6 § 1 of the Convention should be examined as an “access to a court” complaint (see Spasovski v. the former Yugoslav Republic of Macedonia, no. 45150/05, § 19, 10 June 2010). 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 [a]… 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. Article 6 § 1 of the Convention

1. The parties’ submissions

16. The Government argued that the procedural errors had been mainly attributable to the applicant, who had been represented by a lawyer and should have been aware of the relevant domestic law. He had submitted an incomplete claim and had failed to abide by the clear procedural rules. It was required of the claimant to substantiate his claim by supplying an expert report at the time of lodging the claim with the court. Alternatively, the claimant was required to show that he had been prevented from obtaining such expert evidence on his own motion, in order to justify the court’s intervention (see paragraph 11 above). The domestic courts had acted in accordance with the clear rules on civil procedure. If the first‑instance court had admitted the expert reports into evidence, it would have committed a substantial procedural flaw (see paragraph 13 above).

17. The applicant argued that in the absence of a financial expert report, the value of his claim had been undetermined and accordingly, the domestic courts ought to have rejected it as incomplete. However, the domestic courts had proceeded to adjudicate his claim, even though it had lacked all the required elements. They had then dismissed his claim as unfounded. It had been a decision on the merits of the case, which had prevented him from lodging a fresh claim in which he could have obtained a determination of his civil rights.

2. The Court’s assessment

18. The applicable general principles concerning the right of access to a court have been summarised in Zubac v. Croatia ([GC], no. 40160/12, §§ 76-79, 5 April 2018).

19. The Court observes that the applicant had access to the domestic courts at two levels of jurisdiction, but that his claim was dismissed as ill‑founded on the grounds that it had not been supported by relevant expert evidence. The first-instance court refused to admit the expert reports that it had ordered into evidence, finding that the applicant had failed to show that the requirements of section 235(2) of the Civil Procedure Act had been met (see paragraphs 8 and 9 above).

20. The Court has previously held that a particularly strict interpretation of a procedural rule may deprive an applicant of the right of access to a court (see Zubac, cited above, § 97, and Běleš and others v. the Czech Republic, no. 47273/99, §§ 50-51, ECHR 2002-IX). Therefore, the main issue in the case is whether the manner in which the domestic courts applied the procedural rules regarding the admissibility of the expert evidence resulted in a disproportionate limitation on the applicant’s right of access to a court.

21. At the outset, the Court reiterates that it falls in the first place on the national authorities, and notably the courts, to interpret and apply the domestic law (see Kamenova v. Bulgaria, no. 62784/09, § 45, 12 July 2018). This applies in particular to the interpretation of rules of procedural nature by courts. The Court’s own task is to assess whether the effects of such an interpretation are compatible with the Convention (seeBaničević v. Croatia (dec.), no. 44252/10, § 30, 2 October 2012).

22. In the Court’s view, a legitimate aim of a procedural rule by which the admissibility of expert evidence is conditional on its submission at a certain stage of the proceedings is to secure the proper administration of justice. The observance of formalised rules of civil procedure, through which parties secure the determination of a civil dispute, is valuable and important for securing its effective determination, adjudication within a reasonable time, and ensuring legal certainty and respect for the court (seeZubac, cited above, § 96).

23. The Court observes that under the relevant provisions of the Civil Procedure Act the applicant was required to submit any relevant expert report at the time of lodging the civil action (see paragraph 11 above). The strict rule in relation to the admissibility of expert evidence had been brought in with the 2010 amendments to the Civil Procedure Act (which entered into force on 9 September 2010 and became applicable one year later) and thus was foreseeable and accessible (see, mutatis mutandis, Nakov v. the former Yugoslav Republic of Macedonia (dec.), no. 68286/01, 24 October 2002). The applicant was represented throughout the proceedings by a lawyer who should have been aware of that rule and should have displayed the requisite diligence in taking the necessary procedural steps. He nevertheless took the risk and brought the action without it being supported by an expert report, relying insteadon the possibility, provided for by section 235(2) of the Act, of a court-ordered expert report. At the preparatory hearing the trial judge accepted the applicant’s arguments as valid grounds and appointed a financial expert. However, at the trial, the same judge renounced his earlier decision, finding that the alleged inability to obtain a private expert report had been unsubstantiated. In the Court’s view, a requirement that the applicant substantiates his claim with relevant proof does not appear to be arbitrary, manifestly unreasonable, or to impose an excessive burden on the applicant. The Court further observes that this decision appears to have been compatible with the relevant domestic law, under which the court was able to change decisions of procedural nature (see paragraph 12 above). Whereas it is true that such a finding could have been reached at the preparatory hearing, it is primarily the applicant who placed himself in a position where he risked having his claim dismissed as ill‑founded. There is nothing to suggest that his claim should simply have been rejected as incomplete, as argued by the applicant. In the circumstances, the procedural errors are mainly and objectively attributable to the applicant, and the adverse consequences of those errors rest on him (see Zubac, cited above, §§ 90-95). Therefore, it cannot be said that the manner in which the domestic courts applied the relevant procedural rules amounted to a disproportionate hindrance of the applicant’s right of access to a court guaranteed under Article 6 § 1 of the Convention.

24. 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.

B. Article 1 of Protocol No. 1 to the Convention

25. The Government argued that the domestic proceedings were fair and that the domestic courts correctly applied the relevant domestic law.

26. The applicant complained about the unjustified dismissal of his claim in the domestic proceedings.

27. In view of the above findings regarding the alleged violation of Article 6 § 1 of the Convention and its limited power to interpret domestic rules of procedure, the Court finds that the complaint under Article 1 of Protocol No. 1 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 on10 October 2019.

Renata Degener                                Tim Eicke
Deputy Registrar                               President

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