FIRST SECTION<\/p>\n
DECISION<\/p>\n
Application no. 8787\/13
\nSpase SPASENOSKI
\nagainst the former Yugoslav Republic of Macedonia<\/p>\n
The European Court of Human Rights (First Section), sitting on 22 January 2019 as a Committee composed of:<\/p>\n
Tim Eicke, President,
\nJovan Ilievski,
\nGilberto Felici, judges,<\/p>\n
and Renata Degener, Deputy Section Registrar,<\/p>\n
Having regard to the above application lodged on 26 January 2013,<\/p>\n
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,<\/p>\n
Having deliberated, decides as follows:<\/p>\n
THE FACTS<\/strong><\/p>\n 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.<\/p>\n 2. The Macedonian Government (\u201cthe Government\u201d) were represented by their former Agent, Mr K. Bogdanov, and then by their current Agent, Ms D. Djonova.<\/p>\n A. The circumstances of the case<\/strong><\/p>\n 3. The facts of the case, as submitted by the parties, may be summarised as follows.<\/p>\n 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.<\/p>\n 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.<\/p>\n 6. On 19 April 2012 the Ohrid Court of First Instance (\u041e\u0441\u043d\u043e\u0432\u0435\u043d \u0441\u0443\u0434 \u041e\u0445\u0440\u0438\u0434), sitting as a single judge (\u0441\u0442\u0435\u0447\u0430\u0435\u043d \u0441\u0443\u0434\u0438\u0458\u0430 \u2013 \u201cthe bankruptcy judge\u201d), dismissed the applicant\u2019s 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 (\u0441\u0442\u0435\u0447\u0430\u0435\u043d \u0441\u043e\u0432\u0435\u0442 \u2013 \u201cthe bankruptcy panel\u201d) of the Ohrid Court of First Instance.<\/p>\n 7. The applicant lodged an appeal against this latter decision with the Bitola Court of Appeal (\u0410\u043f\u0435\u043b\u0430\u0446\u0438\u043e\u043d\u0435\u043d \u0441\u0443\u0434 \u0411\u0438\u0442\u043e\u043b\u0430 \u2013 \u201cthe Court of Appeal\u201d), complaining of errors of fact and law. In doing so he relied on section 12(5) of the Bankruptcy Act (\u0417\u0430\u043a\u043e\u043d \u0437\u0430 \u0441\u0442\u0435\u0447\u0430\u0458, 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.<\/p>\n 8. On 5 November 2012 the Court of Appeal rejected the applicant\u2019s appeal as inadmissible holding that the bankruptcy panel had already examined and decided the applicant\u2019s appeal against the bankruptcy judge\u2019s decision. In such circumstances, another appeal to the Court of Appeal was inadmissible.<\/p>\n B. Relevant domestic practice<\/strong><\/p>\n 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 (\u0422\u0421\u0416.\u0431\u0440.1104\/11; \u0422\u0421\u0416.\u0431\u0440.725\/12; \u0422\u0421\u0416.\u0431\u0440.1061\/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.<\/p>\n COMPLAINT<\/strong><\/p>\n 10. The applicant complained about the rejection of his appeal as inadmissible.<\/p>\n THE LAW<\/strong><\/p>\n 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<\/a>, \u00a7 124, 20 March 2018; Selami and Others v. the former Yugoslav Republic of Macedonia, no. 78241\/13, \u00a7 37, 1 March 2018; and Marku v. Albania, no. 54710\/12, \u00a7 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 \u00a7 1 of the Convention, which, in so far as relevant, reads as follows:<\/p>\n \u201cIn the determination of his civil rights and obligations … everyone is entitled to a fair … hearing … by [a] … tribunal …\u201d<\/p>\n 1. The parties\u2019 submissions<\/em><\/p>\n (a) The Government<\/p>\n 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\u2019s 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.<\/p>\n (b) The applicant<\/p>\n 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.<\/p>\n