FIRST SECTION
\nCASE OF ADILOVSKA v. NORTH MACEDONIA
\n(Application no. 42895\/14)
\nJUDGMENT<\/p>\n
Art 6 \u00a7 1 (civil) \u2022 Access to court \u2022 Examination of applicant\u2019s property claim on the merits made conditional on participation of all numerous potential heirs of his late father \u2022 Disproportionate burden<\/p>\n
STRASBOURG
\n23 January 2020<\/p>\n
This judgment will become final in the circumstances set out in Article 44 \u00a7 2 of the Convention. It may be subject to editorial revision.<\/p>\n
In the case of Adilovska v. North Macedonia,<\/strong><\/p>\n The European Court of Human Rights (First Section), sitting as a Chamber composed of:<\/p>\n Ksenija Turkovi\u0107, President, Having deliberated in private on 17 December 2019,<\/p>\n Delivers the following judgment, which was adopted on that date:<\/p>\n PROCEDURE<\/strong><\/p>\n 1. The case originated in an application (no. 42895\/14) against the Republic of North Macedonia lodged with the Court under Article\u00a034 of the Convention for the Protection of Human Rights and Fundamental Freedoms (\u201cthe Convention\u201d) by a Macedonian\/citizen of the Republic of North Macedonia, Ms Aj\u0161e Adilovska (\u201cthe applicant\u201d), on 3 June 2014.<\/p>\n 2. The applicant was represented by Ms N. Dimitrova, a lawyer practising in Skopje. The Government of North Macedonia (\u201cthe Government\u201d) were represented by their former Agent, Mr K. Bogdanov, and then by their current Agent, Ms\u00a0D.\u00a0Djonova.<\/p>\n 3. The applicant complained that her civil claim had not been examined on the merits owing to the domestic courts\u2019 finding that she had lacked standing to sue. She relied on Article 6 \u00a7 1 of the Convention and Article 1 of Protocol No. 1 to the Convention.<\/p>\n 4. On 24\u00a0August 2016 notice of the application was given to the Government.<\/p>\n 5. On 1 June 2018 the President of the Section decided, in accordance with Rule 38 \u00a7 1 of the Rules of Court, to admit the applicant\u2019s belated observations of 4 April 2018 to the file.<\/p>\n THE FACTS<\/strong><\/p>\n I. THE CIRCUMSTANCES OF THE CASE<\/strong><\/p>\n 6. The applicant was born in 1963 and lives in Skopje.<\/p>\n 7. On 27 May 2004 the applicant, through her lawyer, lodged a claim against N.S. for establishment of title to a plot of land that the applicant\u2019s late father (Ib.O., who died in 1994) had allegedly bought from his brother (the opponent\u2019s late father-in-law) in about 1965. Soon thereafter, the applicant\u2019s two sisters joined the proceedings as co-claimants.<\/p>\n 8. After one remittal, on 22 March 2011 the applicant amended her claim, seeking in addition the annulment of a sale contract for the plot of land in issue, concluded in 2010 between N.S., as the seller, and I.O. and B.O., as the buyers. She also sought an injunction preventing any disposal of the property in dispute.<\/p>\n 9. On 19 March 2012 the Skopje Court of First Instance (\u041e\u0441\u043d\u043e\u0432\u0435\u043d \u0441\u0443\u0434 \u0421\u043a\u043e\u043f\u0458\u0435 \u2013 \u201cthe first-instance court\u201d)granted the applicant\u2019s claim, declared the sale contract null and void, and established title to the plot of land in favour of the applicant and her sisters. No decision was made on the applicant\u2019s application for an injunction.<\/p>\n 10. At a public hearing held on 4 October 2013, the Skopje Court of Appeal (\u0410\u043f\u0435\u043b\u0430\u0446\u0438\u043e\u043d\u0435\u043d \u0441\u0443\u0434 \u0421\u043a\u043e\u043f\u0458\u0435 \u2013 \u201cthe Court of Appeal\u201d) overturned the first-instance judgment and dismissed the applicant\u2019s claim. It established that Ib.O. had eight children from his two marriages; they included the three claimants, but also the father of the second and third defendants (I.O. and B.O.) in the proceedings, and four other heirs who were not among the claimants. Since the civil action lodged by the applicant and her two sisters had only three of Ib.O.\u2019s legal heirs (\u0437\u0430\u043a\u043e\u043d\u0441\u043a\u0438 \u043d\u0430\u0441\u043b\u0435\u0434\u043d\u0438\u0446\u0438) on the side of the claimants, the court considered that the applicant and her sisters did not have full legal standing in the proceedings (\u043d\u0435\u043c\u0430 \u0446\u0435\u043b\u043e\u0441\u043d\u0430 \u0430\u043a\u0442\u0438\u0432\u043d\u0430 \u043b\u0435\u0433\u0438\u0442\u0438\u043c\u0430\u0446\u0438\u0458\u0430) to claim recognition of title to the entire plot of land, and that they consequently had no legal interest (\u043d\u0435\u043c\u0430\u0430\u0442 \u043f\u0440\u0430\u0432\u0435\u043d \u0438\u043d\u0442\u0435\u0440\u0435\u0441) to seek that the impugned sale contract be declared null and void. The court did not take into consideration the arguments raised by the applicant\u2019s lawyer at the hearing to the effect that the other heirs, although aware of the proceedings, had expressed no intention to join the proceedings. That was also corroborated by B.O., Ib.O.\u2019s son, who gave an oral statement on that account before the first-instance court.<\/p>\n 11. The applicant received a copy of that judgment on 16\u00a0December 2013.<\/p>\n II. RELEVANT DOMESTIC LAW AND PRACTICE<\/strong><\/p>\n Relevant domestic law<\/p>\n 1. Ownership and Other Property Rights Act of 2001 (\u0417\u0430\u043a\u043e\u043d \u0437\u0430 \u0441\u043e\u043f\u0441\u0442\u0432\u0435\u043d\u043e\u0441\u0442 \u0438 \u0434\u0440\u0443\u0433\u0438 \u0441\u0442\u0432\u0430\u0440\u043d\u0438 \u043f\u0440\u0430\u0432\u0430, Official Gazette nos. 18\/2001, 92\/2008, 139\/2009, 35\/2010)<\/p>\n 12. Under section 31(3) of this Act, there is a presumption of equal individual shares for the co-owners (\u0441\u043e\u0441\u043e\u043f\u0441\u0442\u0432\u0435\u043d\u0438\u0447\u043a\u0438 \u0434\u0435\u043b\u043e\u0432\u0438) when their individual shares of an undivided object have not been determined.<\/p>\n 2. Inheritance Act of 1996 (\u0417\u0430\u043a\u043e\u043d \u0437\u0430 \u043d\u0430\u0441\u043b\u0435\u0434\u0443\u0432\u0430\u045a\u0435\u0442\u043e, Official Gazette no. 47\/1996)<\/p>\n 13. Section 13 of this Act provides that the deceased\u2019s children and spouse, forming the first line of succession (\u043f\u0440\u0432 \u043d\u0430\u0441\u043b\u0435\u0434\u0435\u043d \u0440\u0435\u0434), are to inherit equal portions of his or her estate (\u043e\u0441\u0442\u0430\u0432\u0438\u043d\u0430).<\/p>\n 3. Civil Proceedings Act of 1998 (with subsequent amendments)<\/p>\n 14. According to section 2 of this Act the domestic courts shall decide within the limit of the claims as put forward by the parties. Sections 143, 314, 380, 381and 422 stipulate various procedural rules which apply in cases when domestic courts partially uphold a claim.<\/p>\n THE LAW<\/strong><\/p>\n I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION<\/p>\n 15. The applicant complained that her civil action had been dismissed by the domestic courts, without examination on the merits,for lack of standing in the proceedings, contrary to the relevant domestic law and practice. She relied on Article 6\u00a0\u00a7\u00a01 of the Convention and Article 1 of Protocol No. 1 to the Convention. These Articles, in so far as relevant, read as follows:<\/p>\n Article 6<\/p>\n \u201cIn the determination of his civil rights and obligations … everyone is entitled to a fair … hearing … by an independent and impartial tribunal …\u201d<\/p>\n Article 1 of Protocol No. 1<\/p>\n \u201cEvery 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.<\/p>\n 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.\u201d<\/p>\n A. Admissibility<\/strong><\/p>\n 1. Alleged lack of interest of the applicant in pursuing her case<\/em><\/p>\n 16. The Government asked the Court to strike the application out of the list of cases, arguing that the applicant had lost interest in her case in view of the fact that she had refused to settle the case and had failed to submit her observations within the set time-limit.<\/p>\n 17. The Court notes that accepting the terms of a friendly settlement is the applicant\u2019s right rather than an obligation, and a refusal of such a proposal cannot, by itself, be construed as a lack of intention to pursue the application (see Fedotova v. Russia, no. 73225\/01, \u00a7 26, 13 April 2006). It further notes the President\u2019s decision admitting the applicant\u2019s belated observations to the file (see paragraph 5above).<\/p>\n 18. In view of the above, the Court is of the opinion that the Government\u2019s request must be rejected since the applicant clearly indicated her wish to pursue her application before the Court (see, by contrast, Skerlevska v. the former Yugoslav Republic of Macedonia (dec.), no.\u00a054372\/15, 25 September 2018).<\/p>\n 2. Incompatibility ratione personae<\/em><\/p>\n 19. The Government objected that the application was incompatible ratione personae with the provisions of the Convention owing to the finding in the domestic proceedings that the applicant had lacked standing to sue.<\/p>\n 20. The applicant contested that objection.<\/p>\n 21. The Court considers that the Government\u2019s objection is closely linked to the substance of the applicant\u2019s complaints and that it should therefore be joined to the merits.<\/p>\n 3. Non-exhaustion of domestic remedies<\/em><\/p>\n 22. The Government submitted that the applicant\u2019s complaint under Article 1 of Protocol No. 1 was inadmissible for failure to exhaust domestic remedies because she had failed to seek an injunction in 2004, when she had lodged her civil action, but had only availed herself of that opportunity in 2011 (see paragraph 8 above). By applying only belatedly for an injunction, the applicant had deprived herself of an effective legal remedy for the protection of her property rights.<\/p>\n 23. The applicant contested that objection.<\/p>\n 24. The Court recalls the relevant Convention principles as summarised in the case of Vu\u010dkovi\u0107 and Others v. Serbia ((preliminary objection) [GC], nos.\u00a017153\/11 and 29 others, \u00a7\u00a7 69-77, 25 March 2014).<\/p>\n 25. In the circumstances of the present case, the Court is of the opinion that the application for an injunction was not determinative for the applicant\u2019s civil action. In the absence of any arguments to the contrary, there is nothing to suggest that the civil proceedings in question were not an adequate avenue for the protection of any rights the applicant claimed to have. Furthermore, the Court reiterates that when a remedy has been attempted, use of another remedy which has essentially the same objective is not required (see, among others, Moreira Barbosa v. Portugal (dec.), no.\u00a065681\/01, ECHR 2004\u2011V (extracts) and Syngelidis v. Greece, no.\u00a024895\/07, \u00a7 32, 11 February 2010).<\/p>\n 26. It follows that the Government\u2019s objection of non-exhaustion of domestic remedies should be dismissed.<\/p>\n 4. Conclusion<\/em><\/p>\n 27. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35\u00a0\u00a7\u00a03\u00a0(a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.<\/p>\n B. Merits<\/strong><\/p>\n 1. Complaint under Article 6 \u00a7 1<\/em><\/p>\n 28. The applicant argued that she had been entitled to initiate court proceedings and that it had been unreasonable to make her standing before the domestic courts conditional on the participation of all her late father\u2019s potential heirs since no one could be compelled to join a civil action as a claimant. Moreover, under the relevant domestic law, each co-owner could have recourse to court proceedings for protection of the entire property in respect of third parties. The domestic courts should have established the relevant facts and decided on the merits of her claim by granting the claim either in its entirety or only in part, depending on the assessment of the individual shares of the parties forming the legal community. Other legal heirs who had not participated in the proceedings were entitled to assert their rights against her and the other claimants in separate proceedings.<\/p>\n 29. The Government submitted that the participation of all the legal heirs had been necessary in the proceedings, considering the statutory presumption of equal shares for the co-owners (see paragraph 12 above). They further argued that the issue of a party\u2019s standing was a matter of substantive law arising from the established relationship between the parties and the subject matter of the dispute and should be judged on the basis of the individual facts of the case. Since the Court of Appeal had established that not all the potential legal heirs of the applicant\u2019s late father had joined the proceedings on the claimants\u2019 side, the applicant\u2019s civil action could not be examined on the merits. This interpretation of the procedural rules had sought to protect the heirs who had not taken part in the proceedings and whose rights could be affected. It would have been too burdensome and contrary to the principle of procedural efficiency to expect the other potential heirs to initiate separate proceedings against the applicant and her sisters.<\/p>\n 30. The applicable general principles concerning the right of access to a court have been summarised in Zubac v. Croatia ([GC], no. 40160\/12, \u00a7\u00a7\u00a076-79, 5 April 2018).<\/p>\n 31. In the instant case the applicant\u2019s civil action was granted by the first-instance court. However, that judgment was overturned by the Court of Appeal and the applicant\u2019s claim was dismissed for lack of standing to sue since she and her two sisters had not been the only legal heirs of their late father, who also had other children (see paragraph 10 above). As a result, the applicant\u2019s civil action was dismissed on purely procedural grounds.<\/p>\n 32. The Court considers that what is at stake in the present case is a procedural obstacle relating to the applicant\u2019s legal standing that prevented the domestic courts from examining the merits of her claim, and not a substantive limitation on a right existing under domestic law (see, by contrast, Lupeni Greek Catholic Parish and Others v. Romania [GC], no.\u00a076943\/11, \u00a7 99, 29 November 2016). Accordingly, the Court will examine whether the Court of Appeal\u2019s refusal to determine the substance of the applicant\u2019s civil claim unjustifiably restricted her right of access to a court (see, mutatis mutandis, Centre for the Development of Analytical Psychology v. the former Yugoslav Republic of Macedonia, nos. 29545\/10 and 32961\/10, \u00a7 45, 15 June 2017).<\/p>\n 33. In so doing, it will examine whether by requiring the participation of all potential heirs of the applicant\u2019s late father, the courts imposed a disproportionate burden on the applicant, upsetting the fair balance between the legitimate concern to protect the rights of all the potential heirs (see Lupa\u015f and Others v. Romania, nos. 1434\/02 and 2 others, \u00a7 69, ECHR\u00a02006\u2011XV (extracts)) and the applicant\u2019s right of access to a court.<\/p>\n 34. The Court observes that the issue concerning the applicant\u2019s standing first arose during the hearing held before the Court of Appeal, which was when the applicant\u2019s lawyer stated that the other potential legal heirs to her late father had expressed no intention to join the proceedings. These arguments, which were corroborated by witness testimony, were not considered by the Court of Appeal (see paragraph 10 above).<\/p>\n 35. In the Court\u2019s opinion, by making the examination of the applicant\u2019s action on the merits conditional on the participation of all potential legal heirs, who were numerous and involved close relatives (father and sons) who should have appeared on opposite sides, the Court of Appeal imposed a disproportionate burden on the applicant in her attempt to secure the determination of her civil claim. Moreover, it was not brought to the Court\u2019s attention that this interpretation was the subject of a well-established domestic practice (see, by contrast, Lupa\u015f and Others, cited above, \u00a7 69). On the contrary, according to domestic law a possibility for a court to uphold a claim only in part, and dismiss the remainder clearly existed (see paragraph 14 above).<\/p>\n 36. The Court further notes that both parties argued that it had been open to any of the heirs who had not participated in the proceedings to assert their property claims in separate proceedings, should the applicant and her sisters have been successful in their civil action.In such circumstances, any arguments of procedural efficiency cannot outweigh the applicant\u2019s right to have the courts determine her civil claim. In this respect the Court would lastly note that this finding is without prejudice to the outcome of the domestic proceedings on the merits.<\/p>\n 37. Consequently, the Court dismisses the Government\u2019s preliminary objection of incompatibility ratione personae with the provisions of the Convention and finds a violation of Article 6 \u00a7 1 of the Convention.<\/p>\n 2. Complaint under Article 1 of Protocol No. 1<\/em><\/p>\n 38. The Court considers that the applicant\u2019s complaint under Article 1 of Protocol No. 1 is directly connected with that examined under Article 6\u00a0\u00a7\u00a01 of the Convention (see paragraphs 30-37 above) and that it cannot speculate on the outcome of the proceedings had it not been for the violation it has found. Having regard to its conclusion under Article 6 that the applicant was unduly prevented from securing the determination of her civil claim, and without prejudice to the question whether the applicant had a possession within the meaning of Article of Protocol No. 1, the Court considers that it is not necessary to rule on her complaint under this Article (see Petko Petkov v. Bulgaria, no. 2834\/06, \u00a7 38, 19 February 2013, and Fetaovski v.\u00a0the former Yugoslav Republic of Macedonia, no. 10649\/03, \u00a7 60, 19\u00a0June 2008).<\/p>\n II. APPLICATION OF ARTICLE\u00a041 OF THE CONVENTION<\/p>\n 39. Article\u00a041 of the Convention provides:<\/p>\n \u201cIf 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.\u201d<\/p>\n 40. The applicant did not submit a valid claim for just satisfaction. In the absence of any exceptional circumstances (see Nagmetov v. Russia [GC], no. 35589\/08, \u00a7 92, 30 March 2017), the Court makes no award under this head.<\/p>\n FOR THESE REASONS, THE COURT, UNANIMOUSLY,<\/strong><\/p>\n 1. Declaresthe application admissible;<\/p>\n 2. Holdsthat there has been a violation of Article 6 \u00a7 1 of the Convention in respect of the applicant\u2019s right of access to a court;<\/p>\n 3. Holdsthat it is not necessary to rule on the alleged violation of Article 1 of Protocol No. 1 to the Convention;<\/p>\n Done in English, and notified in writing on 23 January 2020, pursuant to Rule\u00a077\u00a0\u00a7\u00a7\u00a02 and 3 of the Rules of Court.<\/p>\n Abel Campos \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0Ksenija Turkovi\u0107
\nKrzysztof Wojtyczek,
\nAle\u0161 Pejchal,
\nPauliine Koskelo,
\nTim Eicke,
\nJovan Ilievski,
\nRaffaele Sabato, judges,
\nand Abel Campos, Section Registrar,<\/p>\n
\nSection Registrar \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 President<\/p>\n