BUNGUROV proti Severní Makedonii

SECOND SECTION

DECISION

Application no. 68005/17
Angel BUNGUROV
against North Macedonia

The European Court of Human Rights (Second Section), sitting on 7 February 2023 as a Committee composed of:

Lorraine Schembri Orland, President,
Jovan Ilievski,
Diana Sârcu, judges,
and Dorothee von Arnim, Deputy Section Registrar,

Having regard to:

the application (no. 68005/17) against the Republic of North Macedonia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 7 September 2017 by a Macedonian/citizen of the Republic of North Macedonia, Mr Angel Bungurov (“the applicant”), who was born in 1965 and lives in Kavadarci and who was represented by Ms M. Markovska Andrevski, a lawyer practising in Skopje;

the decision to give notice of the complaint concerning the right of access to a court under Article 6 of the Convention to the Government of North Macedonia (“the Government”), represented by their Agent, Ms D. Djonova, and to declare the remainder of the application inadmissible;

the parties’ observations;

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASE

1. The case concerns the applicant’s complaint under Article 6 § 1 of the Convention that he was refused access to a court in civil proceedings relating to his claim for the annulment of his dismissal from the National Football Federation.

2. On 5 December 2014 the trial judge of the Skopje Court of First Instance rejected the applicant’s civil claim as incomplete because he had failed to submit a copy of an extract from the central companies register in relation to the defendant company as required under section 98(3) of the Civil Procedure Code. The applicant, who had been represented by a lawyer, challenged this decision, claiming that the required document had been attached to the second copy of his civil action. This had been confirmed by Ms D.G., a court clerk, who inspected the case file in the presence of the applicant’s lawyer after the decision of 5 December 2014 had been published and made an official note in the case file.

3. Subsequently, the trial judge drew up an official note in which she stated that the document in question had not been in the case file. Ms M.I., a court clerk who had inspected the case file at the request of the judge following the lodging of the civil action, gave a statement in which she asserted that the document in question had not been in the case file.

4. On 9 December 2015 the Skopje Court of Appeal (“the Court of Appeal”) dismissed an appeal by the applicant, finding that no copy of the extract had been appended to the civil action. In a final decision of 9 February 2017 the Supreme Court, after inspecting the case file, upheld the decisions of the lower courts and dismissed an appeal on points of law by the applicant, reiterating the findings of the Court of Appeal. The higher courts did not comment on the remarks made by Ms D.G. and the trial judge. On 7 March 2017 the applicant’s lawyer received a copy of this decision.

5. The Government submitted copies of thirteen final decisions, pre- and post-dating the decision of 5 December 2014, in which the domestic courts had rejected civil actions as incomplete on account of the plaintiffs’ failure to submit a copy of an extract from the central companies register in relation to the defendant, a legal person. The Government submitted excerpts from two decisions of the Supreme Court (Рев3.бр.20/2014 and Рев3.бр.120/2016) of 27 November 2014 and 1 November 2017 respectively, in which that court had held that where the defendant was a legal person, the provision of an extract from the central companies register was indispensable for the fulfilment of the conditions of admissibility.

6. For his part, the applicant submitted a copy of a decision of 9 March 2012 in which the Court of Appeal had found that it had not been necessary to provide the defendant, a legal person, with an extract from the central register in relation to its own company.

7. The applicant complained under Article 6 § 1 of the Convention that the dismissal of his civil action at all court levels had deprived him of access to a court.

THE COURT’S ASSESSMENT

Alleged violation of Article 6 of the Convention

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

9. In the present case the factual circumstances of the case are disputed by the parties. The applicant alleged that a copy of an extract from the central register in relation to the defendant had been included in the case file and this had been confirmed by Ms D.G.’s official note. The Government submitted that the document in question had never been part of the case file, a fact confirmed by the courts’ judgments, the trial judge’s official note and Ms M.I.’s statement.

10. The Court notes in this regard that the higher courts with full jurisdiction as to the facts and the law dismissed the applicant’s contention. Although in the Court’s opinion the Court of Appeal and the Supreme Court could have undertaken an assessment of the contradictory content in the official notes of the trial judge and Ms D.G., the fact remains that those courts inspected the case file and found no such document. Bearing in mind that it is primarily for the domestic courts to scrutinise the evidence before them and interpret the relevant domestic law and that the decisions of the higher courts in the present case, based on the full knowledge of the relevant facts, do not appear arbitrary or manifestly unreasonable, the Court sees no ground to call their findings into question.

11. As for the question whether the dismissal of the applicant’s civil action complied with his right of access to court under Article 6 § 1 of the Convention, where individual access is limited either by operation of law or in fact, the Court will examine whether the limitation imposed impaired the essence of the right and, in particular, whether it pursued a legitimate aim and whether there was a reasonable relationship of proportionality between the means employed and the aim sought to be achieved (see Momčilović v. Croatia, no. 11239/11, § 43, 26 March 2015, and Oorzhak v. Russia, no. 4830/18, § 17, 30 March 2021).

12. The Court considers that the refusal of the Skopje Court of First Instance to examine the merits of the applicant’s claim concerning his dismissal from work, on the basis of the statutory provision – section 98(3) of the Civil Procedure Code – regulating the submission of documents in support of a civil action, constituted an interference with his right of access to a court; the only salient point is the proportionality of the interference.

13. The domestic courts’ case-law, including the practice of the Supreme Court (see paragraph 5 above), is consistent and clear to the extent that omitting to submit a copy of an extract from the central companies register when the defendant is a legal person, contrary to the procedural requirements of section 98(3) of the Civil Procedure Code, will render a civil action inadmissible. As regards the decision of 9 March 2012 relied on by the applicant (see paragraph 6 above), the Court considers that one isolated decision of a court lower than the Supreme Court cannot in any way be said to give rise to judicial uncertainty. Therefore, the applicant and his lawyer were clearly in a position to ascertain, by acting with the necessary diligence on the basis of section 98(3) of the Civil Procedure Code and the Supreme Court’s case-law, that in the absence of the document in question the civil action would not be admissible.

14. When lodging the civil action (as can be seen from the last page of the lawsuit), the applicant indicated in the list of annexes a power of attorney and evidence of payment of the court fees. He did not indicate in any way that a copy of the extract from the central companies register had been lodged on the case file. The Government argued that he was mainly responsible for the procedural error, given his failure to submit a list of the documents accompanying the civil action as required by the courts’ Rules of Procedure. Although he argued before the Court that he had not been required to indicate every accompanying document, it appears that the applicant, who was legally represented in the domestic proceedings, failed to act with the necessary diligence in lodging his civil action in a manner not consistent with the legal requirements. Accordingly, the adverse consequences of that procedural error rest on the applicant. It follows that the interference with his right of access to a court cannot be considered as disproportionate.

15. Therefore, in the circumstances of the present case, the Court finds that the application 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 9 March 2023.

Dorothee von Arnim Lorraine Schembri Orland
Deputy Registrar President