Application no. 8787/13
against the former Yugoslav Republic of Macedonia
The European Court of Human Rights (First Section), sitting on 22 January 2019 as a Committee composed of:
Tim Eicke, President,
Gilberto Felici, judges,
and Renata Degener, Deputy Section Registrar,
Having regard to the above application lodged on 26 January 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:
1. The applicant, Mr Spase Spasenoski, is a Macedonian national who was born in 1947 and lives in Ohrid. He was represented before the Court by Mr N. Merdjanoski, a lawyer practising in Struga.
2. The Macedonian Government (“the Government”) were represented by their former Agent, Mr K. Bogdanov, and then by their current Agent, 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. The applicant had a final judgment in his favour ordering company T. to pay him a certain amount of money. He registered his claim in the bankruptcy proceedings that had been subsequently opened in respect of company T. Later, the bankruptcy proceedings were suspended and a restructuring plan was adopted for the company.
5. The applicant, who was represented by a lawyer, sought reopening of the bankruptcy proceedings, alleging that the debtor had not fulfilled the restructuring plan.
6. On 19 April 2012 the Ohrid Court of First Instance (Основен суд Охрид), sitting as a single judge (стечаен судија – “the bankruptcy judge”), dismissed the applicant’s request, finding that the restructuring plan had been implemented and that the debtor had honoured its obligations regarding the creditors. That decision was upheld on appeal on 11 July 2012 by a three-judge panel (стечаен совет – “the bankruptcy panel”) of the Ohrid Court of First Instance.
7. The applicant lodged an appeal against this latter decision with the Bitola Court of Appeal (Апелационен суд Битола – “the Court of Appeal”), complaining of errors of fact and law. In doing so he relied on section 12(5) of the Bankruptcy Act (Закон за стечај, Official Gazette no. 34/2006, 126/2006, 84/2007, 47/2011), under which decisions of the bankruptcy panel may be appealed before the Court of Appeal.
8. On 5 November 2012 the Court of Appeal rejected the applicant’s appeal as inadmissible holding that the bankruptcy panel had already examined and decided the applicant’s appeal against the bankruptcy judge’s decision. In such circumstances, another appeal to the Court of Appeal was inadmissible.
B. Relevant domestic practice
9. The Government submitted copies of three decisions of the Bitola Court of Appeal in which appeals against decisions of a bankruptcy panel which had decided at second instance had been rejected as inadmissible (ТСЖ.бр.1104/11; ТСЖ.бр.725/12; ТСЖ.бр.1061/12). In those decisions the court had clarified that an appeal against a decision of the bankruptcy panel had been admissible only when the latter had decided at first instance.
10. The applicant complained about the rejection of his appeal as inadmissible.
11. The applicant complained under Article 13 of the Convention that his appeal had been rejected as inadmissible by the Court of Appeal. 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, § 124, 20 March 2018; Selami and Others v. the former Yugoslav Republic of Macedonia, no. 78241/13, § 37, 1 March 2018; and Marku v. Albania, no. 54710/12, § 38, 15 July 2014), considers that this complaint, which concerns essentially the right of access to a court, falls to be examined under Article 6 § 1 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 …”
1. The parties’ submissions
(a) The Government
12. Referring to the domestic case-law (see paragraph 9 above), the Government averred that the Court of Appeal had applied a consistent practice in the interpretation of section 12(5) of the Bankruptcy Act, both before and after the applicant’s case. The domestic legal system did not provide for a decision in third-instance in regular appeal proceedings. The applicant was represented by a lawyer in the domestic proceedings, who should have known the domestic practice.
(b) The applicant
13. The applicant submitted that the right of appeal included a right that a second-instance court decide an appeal against a first-instance decision. That had been provided in section 12(5) of the Bankruptcy Act as valid at the time. As to the domestic practice, he argued that the domestic courts were entitled to clarify certain issues of substantive law, in particular when there was a legislative gap, but they could not interpret statutory provisions so as modify the procedural rules.
2. The Court’s assessment
14. 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).
15. In the present case, the applicant’s appeal against the decision of the bankruptcy judge was dismissed by a three-judge panel of the first-instance court. The applicant’s appeal against that latter decision lodged under section 12(5) of the Bankruptcy Act was rejected as inadmissible by the Court of Appeal, which found that the bankruptcy panel was acting as a second-instance authority when examining the applicant’s appeal and that in such circumstances a further appeal against its decision was inadmissible.
16. The Court notes that section 12(5) of the Bankruptcy Act, as in force at the material time, provided that decisions of the bankruptcy panel could be appealed against to the Court of Appeal. In order to satisfy itself that the very essence of the applicant’s right of access to a court was not impaired by the Court of Appeal’s decision, the Court will examine whether the way in which the Court of Appeal interpreted and applied section 12(5) of the Bankruptcy Act was foreseeable from the point of view of a litigant and whether, therefore, the impugned measure in this case infringed the proportionality principle (see Lanschützer GmbH v. Austria (dec.), no. 17402/08, § 33, 18 March 2014, and Levages Prestations Services v. France, 23 October 1996, § 42, Reports of Judgments and Decisions 1996-V).
17. In this connection, the Court refers to the examples of domestic practice (see paragraph 9 above) showing that the Court of Appeal had dismissed appeals against decisions of the bankruptcy panel taken in second-instance, as in the present case. Having regard to its limited jurisdiction as to the interpretation of domestic law, which is primarily a matter for the national courts, the Court does not consider that the manner in which the Court of Appeal interpreted section 12(5) of the Bankruptcy Act was arbitrary and unreasonable. Those decisions indicate a coherent domestic practice applied consistently, which would normally satisfy the foreseeability criterion with respect to a restriction of access to a superior court (see Zubac, cited above, § 88). The applicant was represented by a lawyer, who was in a position to ascertain whether in the circumstances of the case an appeal to the Court of Appeal, which would have been decided at third-instance, would have been admissible.
18. The Court further notes that the applicant applied to the Court of Appeal after his claim and appeal had been previously examined and dismissed on the merits by the single judge and the three-judge panel of the first-instance court. He raised no issue as to the fairness of the proceedings before those bodies (see Zubac, cited above, § 84 and the authorities cited therein). Therefore, the fact that his appeal was rejected by the Court of Appeal, as a third-instance authority, cannot be regarded as a denial of his right of access to a court.
19. In light of the foregoing and having regard to the proceedings as a whole, the Court considers that the very essence of the applicant’s right guaranteed under Article 6 § 1 of the Convention was not impaired. 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.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 14 February 2019.
Renata Degener Tim Eicke
Deputy Registrar President