CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 3 juillet 2006

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Lorenzen , President ,   Mrs   S. Botoucharova ,   Mr   V. Butkevych ,   Mrs   M. Tsatsa-Nikolovska ,   Mr   R. Maruste ,   Mr   J. Borrego Borrego ,   Mrs   R. Jaeger, judges , and   Mrs C. Westerdiek , Section Registrar ,   Having regard to the above application lodged on 29 November 1999, 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   The applicant, Mr Voislav Dabich, is a Macedonian national who was born in 1938 and lives in Gevgelija. The Macedonian Government (“the Government”) were represented by their Agent, Mrs R. Lazarevska-Gerovska. A. The circumstances of the case The facts of the case, as submitted by the parties, may be summarised as follows: The applicant was a tenant in an allegedly communal apartment ( во опшстествена сопственост) 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, which owned the building containing the apartment, 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. They claimed that it belonged to the Electricity Board where the applicant had been an employee. The hearings of 7 and 29 October 1996 were rescheduled as some of the parties (including the applicant) were not properly summoned. The applicant refused to accept service of the court summons for the hearing scheduled for 26 March 1997. The court held the hearings of 17 September and 17 October 1997 in the absence of the applicant as he had been properly summoned. The hearing of 10 October 1997 was postponed upon the request of the applicant’s lawyer who attended the hearing. On 4 November 1997 the bench of the trial court composed of Judge A. and two lay-judges granted the Electricity Board’s civil claim, rescinded the purchase-sale contract and ordered that the applicant be evicted from the apartment.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 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. It reached its decision in the absence of the applicant, who was considered as being properly summoned despite his notification submitted to the court on 3 November 1997 that he could not appear because of illness. On 21 May 1998 the Skopje Court of Appeal, sitting in private, found that the Gevgelija Trial Court had not taken into consideration the applicant’s written submissions. It quashed the lower court’s judgment for breach of procedure and remitted the case for re-examination. The applicant, albeit properly summoned, did not attend the hearing of 26   June 1998. The court postponed it as the applicant challenged the entire bench of the court, including the trial judge. On 9 July 1998 the court held a hearing in the absence of the applicant who had been properly summoned. The applicant, albeit properly summoned did not attend the hearing scheduled for 23 September 1998. The same day he notified the court in writing that he could not attend due to illness. At the hearing, the plaintiff asked the court not to uphold the applicant’s request for postponement as he had failed to attend more then ten hearings and had thus delayed the proceedings. On 6 October 1998, in the presence of the plaintiff, the court rescheduled the hearing for 22 October 1998. There was no evidence that the applicant was properly summoned. On 7 October 1998 the bailiff attempted to serve the court summons on the applicant. As he refused to accept service, the bailiff noted that fact on the reverse side of the slip receipt which indicated 22 October 1998 as date of the hearing and hung it on the door of the applicant’s apartment in the presence of the applicant and of Mr S.P., as a witness. The applicant submitted a copy of the court summons certified by a notary public indicating 23 October 1998 as date of the hearing. On 22 October 1998 the court held the hearing in the absence of the applicant. The hearing was attended by a lawyer, who did not have an authority to represent the applicant in the instant case, but had authorisation for another case that was pending before the same trial court and for which a hearing was scheduled for that day. The Gevgelija Court of First Instance 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 Court of Appeal that he had been denied the opportunity to be present at the hearing of 22   October 1998, as the official notice of the hearing stated that it had been scheduled for 23 October 1998, in respect of which he provided a copy of the official court summons. He further complained that the lower court was not properly composed and that it misinterpreted the plaintiff’s claim. He did not provide any evidence that he had come to the court on 23 October 1998 and that he had undertaken some actions concerning the decisive hearing held the previous day. On 11 February 1999 the Skopje Court of Appeal dismissed the applicant’s appeal. As regards the attendance at the hearing of 22   October 1998 the court held: “... the complaints are ill-founded as it is evident from the slip receipt of the court summons for the hearing scheduled for 22 October 1998 that [the applicant] refused to be served with the summons without valid reason and [it] had been established that he was served on 7 October 1998 and that the summons was fixed on the front of his apartment in his presence and in the presence of Mr S.P.; as regards his legal representative, no power of attorney had been submitted ...” On 2 July 1999 the applicant was served with the Appeal Court’s judgment. On 7 September 1999 the public prosecutor informed the applicant that there had been no statutory grounds for lodging with the Supreme Court a request for the protection of legality ( барање за заштита на законитоста) . On 22 August 2001 the applicant submitted a request for re-opening of the procedure on the basis of new evidence ( барање за повторување на постапката) . He also complained that he had not been properly summoned for and had been thus prevented from attending the hearing of   22 October 1998 when the trial court’s judgment was adopted. The Court of First Instance scheduled a hearing for 4 December 2001. After four unsuccessful attempts to find the applicant, on 30 November 2001 the bailiff noted on the reverse side of the slip receipt that the notice had been given to the applicant’s wife who refused to sign it. The court postponed the hearing at the request of the applicant who had submitted that the notice had been served on 3 December and he had not had enough time to prepare for the hearing. At the hearing of 29 May 2002 the Gevgelija Court of First Instance dismissed the applicant’s request for re-opening of the proceedings as ill-founded. In the presence of the applicant’s representative, the court inter alia stated: “... [The applicant’s] arguments that because of improper service of the court summons he was denied the possibility to argue before the court cannot be considered as a proper ground for re-opening of the proceedings as it was already submitted in the applicant’s appeal before the Court of Appeal and was accordingly dismissed as ill-founded ...” On 13 February 2003 the Skopje Court of Appeal dismissed the applicant’s appeal as ill-founded. It inter alia upheld the lower court’s judgment restating the grounds for dismissing the applicant’s argument of being prevented from attending the hearing scheduled for 22 October 1998. On 27 April 2004 the Supreme Court rejected the applicant’s appeal on points of law ( ревизија) as inadmissible . B.     Relevant domestic law Civil Proceedings Act (Закон за парничната постапка) Section 103 of the Act, inter alia , requires that the court shall summon the parties for the hearing in good time. The summons shall contain the venue, the date and the hour of the hearing. Section 106 provides that if a party fails to attend a hearing or misses a deadline for undertaking certain actions due to which he/ she loses the right to undertake them, the court shall allow the party, upon its request, subsequently to take the corresponding actions (reinstatement of the proceedings) if it finds that there are reasonable grounds for the failure/ omission. When the reinstatement of the proceedings is permitted, the proceedings return to the state prior to the failure/ omission and all court’s decisions based on that failure/ omission shall be abrogated. Pursuant to Section 107, the request for reinstatement of the proceedings is filed with the court where the omitted action should have been taken. The reinstatement cannot be asked after three months elapse from the failure/ omission. Section 109 provides that as a rule, the request for reinstatement does not influence the course of the proceedings, but the court may decide to suspend them until the ruling upon the request becomes final. If the court suspends the proceedings and there is a pending procedure before the higher court upon an appeal, the latter shall be notified about the suspension. Section 133, inter alia , provides that when a person refuses to accept service of a summons for no valid reason, the summons shall be left or hung 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. It is then considered that the person has been properly summoned. Pursuant to Section 138, inter alia , the slip receipt shall be signed by the addressee and the bailiff. The addressee shall put down in his own handwriting the day of receipt. If he/ she refuses to sign the slip receipt, the bailiff shall note that fact and shall write down in letters the date. It is then considered that the person has been properly summoned. COMPLAINT   The applicant complained under Article 6 § 1 of the Convention that his right to a fair trial was violated as the summons served by the Gevgelija Court of First Instance 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. THE LAW The applicant complained that he was denied a fair trial as he had not been afforded the opportunity to attend the hearing. He alleged that the Court of First Instance served him with a court summons which wrongly stated 23 October, instead of 22 October 1998 as date when the hearing was held, invoking Article 6 of the Convention which provides: “In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” A. The Government’s preliminary objection 1.     Exhaustion of domestic remedies a. The parties’ submissions The Government submitted that the applicant had failed to exhaust domestic remedies in respect of his complaint for lack of fairness in the trial. They pointed out that he had not filed a request for reinstatement of the proceedings. According to the Government, even assuming that the applicant was wrongly notified about the hearing, he should have availed himself of this remedy when he learnt about the alleged mistake. Although they considered as somewhat doubtful that only the court summons sent to the applicant (not those sent to other parties) indicated 23 October as date of the hearing, they did not deny that a pure technical error might have occurred. Moreover, they submitted that the applicant had contributed to the situation since if he had not refused to accept the summons (as he had done several times before) which was hung on the door of his apartment in presence of a witness, the mistake could have been corrected in time. Furthermore, they referred to the proceedings instituted upon the applicant’s request for re-opening of the proceedings as an extraordinary remedy. They emphasized that the applicant had been intentionally delaying these proceedings by refusing to accept the service of the court summonses. The applicant submitted that he had not asked for reinstatement of the proceedings as it was not an ordinary nor an extraordinary remedy to be exhausted and it was only available if the party failed to appear at the hearing, which was not the case. He had appeared to attend the hearing at the time and place indicated in the court summons. As concerns the extraordinary remedy, the applicant argued that the request for re-opening of the procedure was lodged on 6 July 2001 on the basis of new evidence that the applicant had learnt about on 6 June 2001. b. The Court’s assessment The Court reiterates that the rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention obliges applicants to use first the remedies that are normally available and sufficient in the domestic legal system to enable them to obtain redress for the breaches alleged. The existence of the remedies must be sufficiently certain, in practice as well as in theory, failing which they will lack the requisite accessibility and effectiveness. Article 35 § 1 also requires that the complaints intended to be brought subsequently before the Court should have been made to the appropriate domestic body, at least in substance and in compliance with the formal requirements laid down in domestic law, but not that recourse should be had to remedies which are inadequate or ineffective (see Aksoy v. Turkey , judgment of 18 December 1996, ECHR 1996-VI, §§ 51-52, and Akdivar and Others v. Turkey, judgment of 16 September 1996, ECHR 1996-IV, §§   65-67). The Court emphasises that the application of the exhaustion rule must make due allowance for the fact that it is being applied in the context of machinery for the protection of human rights and that it must be applied with some degree of flexibility and without excessive formalism. It has further recognised that the rule of exhaustion is neither absolute nor capable of being applied automatically; for the purposes of reviewing whether it has been observed, it is essential to have regard to the circumstances of the individual case. This means, in particular, that the Court must take realistic account not only of the existence of formal remedies in the legal system of the Contracting State concerned, but also of the general context in which they operate, as well as the personal circumstances of the applicant. It must then examine whether, in all the circumstances of the case, the applicant did everything that could reasonably be expected of him or her to exhaust domestic remedies (see Akdivar and Others, cited above, § 69, and Aksoy, cited above, §§ 53 and 54). Concerning an application for reinstatement of the proceedings, the Court observes that its aim is to provide the parties concerned with a remedy to cure a situation caused by non-attendance of a hearing or non-observance of a statutory time-limit for undertaking a certain action. If granted, this remedy could also have a suspensive effect to the proceedings. As the applicant’s complaint related to a failure to attend the hearing of 22   October 1998, the Court notes that in principle, a request for reinstatement of the proceedings could reasonably be considered to be an effective remedy. If the applicant had appeared in the court on 23 October 1998, he could have been informed that the hearing had taken place the day before. He could have availed himself of this remedy on that day or after he had been served with the trial court’s decision (as it was within the statutory time-limit of three months). Turning to the present case, as to whether the applicant should have applied for reinstatement of the proceedings, the Court notes that the circumstances under which such a request could have been made are an important aspect in assessing the effective nature of such action. The complaint concerned the procedure at the final hearing held before the trial court at which the first-instance decision was adopted. If successful, the request could have possibly led to the decision being annulled and the case being restored. Instead, the applicant chose to appeal the decision that was adopted in his absence before the higher court seeking for redress for the alleged lack of proper notification about the hearing. He thus effectively sought to have his complaint considered within the appeal proceedings and not as a ground for reinstatement of the proceedings. As stated in the Court’s case-law, an applicant who has exhausted a remedy that is apparently effective and sufficient cannot be required also to have tried others that were available, but probably no more likely to be successful (see Aquilina v. Malta [GC], no. 25642/94, §   39, ECHR 1999 ‑ III). In the instant case, the applicant complained to the Court of Appeal, engaging the procedure which could lead to abrogation of the first-instance decision if a violation was found. He therefore brought to the attention of the authorities the alleged procedural defect, engaging their duty to establish the facts and award appropriate redress. The Court does not consider that in the circumstances of this case it has been shown that a request for reinstatement of the proceedings was the remedy which the applicant should have used in preference to others or that he was unreasonable in choosing to appeal the first-instance decision. In the circumstances of the instant case, concerning the proceedings related to the applicant’s request for re-opening of the proceedings, the Court would note that such an action cannot be regarded as an effective remedy that the applicant should have exhausted. Insofar as it is of extraordinary nature and could not have involved review of the final decision on the basis of the improper service of the court summons about the hearing, as he had already raised that issue in the appeal proceedings (as stated in the Court of First Instance’s decision of 29 May 2002), the Court observes that it is not an effective remedy which falls within the ambit of Article 35 of the Convention. The application cannot, therefore, be declared inadmissible for non-exhaustion of domestic remedies within the meaning of Article 35 of the Convention. Accordingly, the Government’s objections must be rejected. B. The substance of the case 1. The parties’ submissions The Government submitted that, throughout the proceedings before the trial court, the applicant had failed to attend any (except for one when his lawyer asked for postponement) of the 13 hearings (eight in the trial and five during the retrial) scheduled and/ or held. As concerns the retrial, they argued that the applicant had accepted service of the court summons for only two hearings. They considered that in light of the circumstances, the applicant had been afforded sufficient opportunity to participate effectively in the proceedings and to present his case. On the contrary, he decided to attend none of the thirteen hearings scheduled and to delay the proceedings as much as possible. As to the last and decisive hearing, they emphasized that all the parties to the proceedings had been properly summoned to attend the hearing that was scheduled for 22 October 1998. In support they provided a copy of the court summons indicating 22 October as date of the hearing. Such was the case with the court summons served on the applicant, whose refusal was noted at the reverse side of the slip receipt, which indicated 22 October as date of the hearing. They expressed doubts as to the date indicated on the summons, but the appearance at the hearing (on 22 October) of a person who introduced himself as the applicant’s counsel, without proper letter of authority, indicated the lack of credibility of the applicant’s allegations. Moreover, the Court of Appeal’s decision dismissing his complaints confirmed such findings. They considered that the applicant’s manipulative conduct concerning the court summons and continuous postponement of the proceedings should not attract the protection of the Convention. The applicant submitted that, contrary to the Government’s allegations, his behaviour had not been of manipulative nature. He denied that he had been properly summoned for the hearings scheduled for 7 and 29 October 1996 and for 26 June 1998. The applicant argued that he had not been properly summoned for the decisive hearing on 22 October 1998 and that he could not therefore be present. In support, he provided a copy of the court summons, certified by a notary public, which indicated 23 October 1998 as date of the hearing. He pointed out that the person who had appeared in the courtroom during the hearing held on 22 October was his lawyer representing him in another case run by the same trial judge. He came to represent the applicant as the latter was summoned for the hearing scheduled for that other case at that particular time. He also disagreed with the Government’s allegations that he had intentionally caused delays in the re-opening proceedings. 2. The Court’s assessment As established in the Court’s case-law, Article 6 guarantees the right to adversarial proceedings. That right means in principle the opportunity for the parties to a criminal or civil trial to have knowledge of and comment on all evidence adduced or observations filed (see Lobo Machado v. Portugal , judgment of 20 February 1996, Reports of Judgments and Decisions 1996 ‑ I, §   31). In includes also not only a right to be present, but also to hear and follow the proceedings (see, inter alia , Ziliberberg v. Moldova , no. 61821/00, § 40, 1 February 2005, Stanford v. the United Kingdom , judgment of 23 February 1994, Series A no. 282 ‑ A, § 26; Barberà, Messegué and Jabardo v.   Spain judgment of 6 December 1988,   Series A     no. 146, § 78). The Court further recalls that the Convention is intended to guarantee not rights that are theoretical or illusory, but rights that are practical and effective (see Perez v. France [GC], no. 47287/99, §   80, ECHR 2004 ‑ I; Yakovlev v. Russia , no. 72701/01, §   21, 15 March 2005; Multiplex v. Croatia , no. 58112/00, § 44, 10 July 2003). It considers that the right to a public hearing would be devoid of substance if a party to the case was not apprised of the hearing in such a way so as to have an opportunity to attend it, should he or she decide to exercise the right to appear established in the domestic law ( Yakovlev, ibidem ) . Turning to the present case, the Court notes that there is a divergence between the parties over the date of the hearing indicated on the official court summons served with the applicant. The Government asserted that the summons properly indicated the date of the hearing, but did not exclude the possibility that a pure technical mistake might have been made. The applicant averred that he was not properly summoned as the official court notice erroneously indicated 23 October as date of the hearing. From the evidence submitted, the Court observes that the summons indicated 23 October as date of the hearing. It also notes that on the slip receipt which the applicant refused to sign it also clearly indicated that the applicant was summoned for the hearing to be held on 22 October. As to whether this inconsistency in fact deprived the applicant of the opportunity to attend the last court hearing, it considers that it is essential to have regard to the other circumstances of the case. The Court considers noteworthy the fact that the applicant did not attend any of the 12 hearings for which minutes were provided in support (except one on which his lawyer asked for postponement), with or without valid reasons which gives strong grounds for concluding that his failure to appear before the trial court was mainly attributable to his own lack of diligence. As to the decisive final hearing, even assuming that the date was not correctly indicated, the applicant refused to receive the summons and sign the slip receipt without any valid reason, which casts doubt on the applicant’s intention of appearing at the hearing, whatever the date. That refusal was noted by the bailiff on the reverse side of the slip receipt and the summons hung on the door of his apartment. As the national law considered this as a proper notification, the court held the hearing in absence of the applicant. Moreover, the applicant failed to provide any evidence that he had appeared court on 23 October 1998 (the date on which he allegedly believed that the hearing would be held) and that at that date he had reacted or made any protest in respect of the alleged improper notification about the hearing. The Court notes that he did not provide any evidence in his appeal lodged with the Court of Appeal that he had shown up in court on 23   October 1998. The Court observes also that, after a detailed consideration of the facts of the case, the Court of Appeal found in a reasoned decision that the applicant had due notification about the hearing, such that his failure to appear before the trial court was attributable to his own negligence. In light of the above mentioned, it is not apparent that the confusion in dates on the court summons prevented the applicant from either appearing in court or obtaining a fair and effective hearing. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article   35 §§   3 and   4 of the Convention. For these reasons, the Court unanimously Declares the application inadmissible.   Claudia Westerdiek   Peer Lorenzen   Registrar   President