U.no.35/2006

On the basis of Article 110 of the Constitution of the Republic of Macedonia and Article 71 of the Book of Procedures of the Constitutional Court of the Republic of Macedonia (»Official Gazette of the Republic of Macedonia«, no.70/1992), at its session held on 13 September 2006, the Constitutional Court of the Republic of Macedonia passed the following

1. NO procedure IS INITIATED to appraise the constitutionality of Article 320, paragraph 6; Article 372, paragraphs 2, 3 and 4; and Article 400 of the Law on Contentious Procedure (»Official Gazette of the Republic of Macedonia«, no.79/2005).

2. Gorgija Bosevski from Skopje submitted an initiative to the Constitutional Court of the Republic of Macedonia to instigate proceedings for appraising the constitutionality of the articles noted in item 1 of the present resolution.

According to the statements of the submitter of the initiative, Article 320 paragraph 6 of the Law which refers to inadmissibility of a special appeal against the court’s decision rejecting the plaintiff’s proposal to pass a judgment as a result of an absence is not in accordance with Article 15 and Article 51 paragraph 1 of the Constitution and with Article 13 of the Convention for the Protection of Human Rights and Fundamental Freedoms. This for reason that under the noted constitutional provisions and the provision of Article 13 of the Convention each person whose right and freedom has been violated shall have the right to an effective remedy before the domestic courts notwithstanding that the violation has been committed by persons acting in an official capacity.

According to the submitter of the initiative, paragraphs 2, 3 and 4 in Article 372 of the said Law are not in conformity with Article 51 of the Constitution since even if the new Law on Contentious Procedure is better than the previous one given that the value limit of the subject-matter of the dispute for admissibility of the right to file for a revision has been reduced from 1,000,000 denars to 500,000 denars (paragraph 1), with the envisagement of a possibility to allow filing for a revision irrespective of the value of the dispute depending on the type of the dispute, as well as a possibility for the second instance court in its enacting terms of the judgment that it passed to allow filing for a revision will be misused against “politically unsuitable” parties and they will not have the right to a third instance court protection although pursuant to Article 9 of the Constitution all citizens are equal before the Constitution and the laws. Therefore, the submitter believes that what should exist in the Law is only paragraph 1 in Article 372 under which all parties shall have the right to file for a revision against a second instance court judgment.

According to the statements of the submitter of the initiative, the challenged Article 400 is not in accordance with Article 9 paragraph 2 and Article 118 of the Constitution, as well as with Article 46 of the Convention for the Protection of Human Rights and Fundamental Freedoms. This for reason that all citizens are equal before the Constitution and laws, so there is no constitutional possibility for a different treatment of the citizens in the realisation of their rights as is the right to buy out socially-owned apartments, or more specifically some citizens to realise this right before competent administrative bodies, others through our courts, and third ones before the European Court for Human Rights in Strasbourg.

Thereby, according to the submitter of the initiative, those citizens who have realised the right before the European Court for Human Rights should request again that a court in the Republic of Macedonia decide again instead of the judgment of the Court in Strasbourg to be implemented directly and that judgment to be applied to all cases which request, on the same ground, exercise of the right to buy out a socially-owned apartment, which is unnecessary.

3. At its session the Court found that the question when the court shall pass a judgment as a result of an absence if certain conditions are met is regulated in Article 320 of the Law on Contentious Procedure in its Chapter XXII “Judgment”.

The disputed paragraph 6 in Article 320 of the Law regulates that “No special appeal is allowed against the court’s decision rejecting the plaintiff’s proposal to adopt a judgment due to an absence”.

Under Article 8 paragraph 1 lines 1 and 3 of the Constitution, the fundamental freedoms and rights of the individual and citizen recognised in international law and defined in the Constitution, and the rule of law, are stipulated as one of the fundamental values of the constitutional order of the Republic of Macedonia.

Amendment XXI with which Article 15 paragraph 1 of the Constitution was replaced, guarantees the right to appeal against decisions taken in first instance proceedings before a court.

Pursuant to Article 50 paragraph 1 of the Constitution, each citizen may invoke the protection of freedoms and rights defined by the Constitution before the courts, and before the Constitutional Court of the Republic of Macedonia, through a procedure based on the principles of priority and urgency.

In line with Article 51 of the Constitution, in the Republic of Macedonia laws must be in accordance with the Constitution, and all other regulations in accordance with the Constitution and law. Everyone is obliged to observe the Constitution and the laws.

Article 54 paragraph 1 of the Constitution sets forth that the freedoms and rights of the individual and citizen can be restricted only in cases defined by the Constitution, and paragraph 2 of the same article defines that the freedoms and rights of the individual and citizen can be restricted during states of war or emergency, in accordance with the provisions of the Constitution.

Under Amendment XXV with which Article 98 of the Constitution was replaced, the types, sphere of competence, establishment, abrogation, organisation and composition of the courts, as well as the procedure before them, are regulated by a law adopted by a majority vote of two-thirds of the total number of Representatives.

From the noted constitutional provisions it arises that a special guarantee for the realisation of personal civil and political freedoms and rights defined by the Constitution is the right of the individual to an appeal against individual legal acts adopted in a first instance proceedings before the courts. Making use of this right citizens have both a possibility to protect their rights and interests, and through the right to an appeal to have the illegalities in the work of the courts removed, which contributes to the reinforcement of legality. Hence, the right to an appeal has its basis in the justified supposition that the first instance decision does not necessarily always have to be legal and just, so it is the higher court to decide upon the appeal with which what is proclaimed is two instances in the decision-making as one of the guarantees for the exercise of the rights and legally based interests.

The Law on Contentious Procedure defines the rules of the procedure on the basis of which the court debates and decides on the fundamental rights and obligations of the individual and citizen in the disputes concerning personal and family relations, working relations, as well as property and other civil-legal relations of natural and legal persons, unless a special laws envisages that the court decide on some of the noted disputes under the rules of another procedure.

Under Article 121 of the Law, the court makes decisions in the form of a judgment or resolution. The court decides with a judgment on the principal matter and on the secondary requests. The resolution is a type of a court decision with which the court decides in adjective matters on the foundation of the lawsuit request. The court decides with a resolution only as an exception, in the proceedings for obstruction of governance and in the proceedings for issuing a payment order.

A number of provisions in the Law on Contentious Procedure envisage cases when the court in the course of the procedure passes resolutions, whether a special appeal is allowed or is not allowed against those resolutions, and a resolution that may not be appealed.

In this specific case, with the disputed Article 320, paragraph 6 of the Law, in situations when the court rejects the plaintiff’s request for it to pass a judgment due to absence, no special appeal is allowed.

Article 368, paragraph 2 of this Law in the part “An appeal against a resolution” envisages that if this Law expressly defines that a special appeal is not allowed, the resolution of the first instance court may be challenged only in an appeal against the final decision.

From the noted constitutional provisions guaranteeing the right to an appeal, the analysis of the Law on Contentious Procedure, as well as the contents of the disputed provision under which no special appeal is allowed against the resolution rejecting the plaintiff’s request for the court to pass a judgment due to absence, the Court considers that the statements noted in the initiative that the disputed provision violates one of the fundamental rights — the right to an appeal — are not founded. The exercise of the right to an appeal is postponed until the moment the court makes the final decision with a view to conducting the entire proceedings without any delay, within a reasonable time, with as less costs as possible, and to disabling misuse of the rights of the parties in the proceedings.

Given the above-noted, the Court appraised that there can be no question as to the accordance of the challenged provision in Articles 15 and 50 with the Constitution.

4. Furthermore, the Court found that revision is stated as an extraordinary legal remedy in Article 372 of the Law in Chapter XXV “Extraordinary legal remedies”.

Pursuant to the article noted, the parties may file for a revision against an effective judgment passed in a second instance, within 30 days from the date the copy of the judgment was delivered (paragraph 1).

The challenged paragraph 2 of this article envisages that “the parties may file for a revision against a second instance judgment if the value of the subject-matter of the dispute of the challenged part of the judgment exceeds 500,000 denars.

The disputed paragraph 3 of this article stipulates that “As an exception from paragraph 2 of this article, irrespective of the value of the dispute revision is always allowed: 1) in disputes for support; 2) in disputes for compensation of damage for lost support as a result of demise of the provider of the support; 3) in labour disputes because of termination of employment; 4) in copyright disputes; and 5) in disputes relating to the protection and use of inventions and technical advancements, patterns, models and marks and of the rights to use a label or name, as well as in disputes regarding disloyal competition and monopolistic conducts.

The disputed paragraph 4 in Article 372 of the Law regulates that:

Revision, as an exception, is allowed also against a second instance judgment against which no revision may be filed under paragraph 2 of this article, if the second instance court allows that in the enacting terms of the judgment that it passed.

The second instance court may decide so if it judges that the decision on the dispute depends on the resolution of some material or adjective law matter relevant for the ensuring of a single implementation of the law and harmonisation of the case law. In the explanation of the judgment, the second instance court is required to note because of which legal matter it allows revision and to note the reasons because of which it deems that this is important for the ensuring of a single implementation of the law and harmonisation of the case law.

Under Amendment XXV paragraph 4 with which Article 98 of the Constitution was replaced, the types, sphere of competence, establishment, abrogation, organisation, and composition of the courts, as well as the procedure before them, are regulated by a law adopted by a majority vote of two-thirds of the total number of Representatives.

Under the Law on Courts (“Official Gazette of the Republic of Macedonia” nos. 36/1995 and 64/2003) and the Law on Courts (“Official Gazette of the Republic of Macedonia” no.58/2006) which begins to be implemented as of 1 January 2007, in the Republic of Macedonia the judicial power is exercised by the courts and they are autonomous and independent state bodies.

According to the laws noted, the courts adjudicate and base their decisions on the Constitution and the laws and international agreements ratified in accordance with the Constitution. In the implementation of the law the courts protect human freedoms and rights.

The procedure before the court is regulated by law and is based on the principles of legality and legitimacy, legal equity of the parties, trial within a reasonable time, equity, publicity, contradiction, two instances, sitting in a panel, freedom of speech, directness, right to a defence, that is, representation, and economy.

The laws on separate procedures more closely regulate the principles of the procedure, the manner of their realisation and the possible exception with certain principles.

In the court system, the judicial power is exercised by the basic courts, court of appeal, and the Supreme Court of the Republic of Macedonia, while the Law on Courts (“Official Gazette of the Republic of Macedonia” no.58/2006) establishes an Administrative Court in addition to the types of the courts noted.

Under Article 101 of the Constitution of the Republic of Macedonia, the Supreme Court of the Republic of Macedonia is the highest court in the Republic, providing uniformity in the implementation of the laws by the courts.

Under Article 34, that is 35 of the noted laws on courts, the Supreme Court of the Republic of Macedonia is competent, inter alia, to decide on extraordinary legal remedies against effective judgments passed by the courts and the decisions by its councils when that is defined by law, and under Article 35, that is 37 of the aforementioned laws, the Supreme Court at a general session defines stances of principle and legal opinions of principle on issues important for ensuring the uniformity in the implementation of the law by the courts upon its own initiative, or upon the initiative of the session of the court, or court departments from the courts.

The Law on Contentious Procedure defines the rules of procedure on the basis of which the court debates and decides on the fundamental rights and obligations of the individual and citizen in the disputes concerning personal and family relations, working relations, as well as property and other civil-legal relations of natural and legal persons, unless a special law envisages that the court decide on some of the noted disputes under the rules of another procedure.

The Law on Contentious Procedure in addition to the right to an appeal as a regular legal remedy with which the two instances in the decision-making are proclaimed and realised, as a guarantee for the exercise of the right and the legally based interests envisages also extraordinary legal remedies, such as revision and repeated procedure.

Pursuant to the Law, revision is an extraordinary legal remedy that the parties may file against the effective judgment passed in the second instance within 30 days from the date the copy of the judgment was delivered. The right to file for a revision is limited by the value of the subject-matter of the dispute whereby the value of the dispute for challenging the judgment should exceed 500,000 denars (Article 372 paragraphs 1 and 2).

However, despite the noted general rule, the Law makes exceptions whereby the right of the parties to file for a revision is not conditioned upon the value of the dispute, but it always allows to file for a revision for concretely specified disputes, irrespective of the value of the dispute (support disputes, labour disputes and others) (Article 372 paragraphs 3 and 4).

Furthermore, the Law on Contentious Procedure makes another exception to the general rule for filing for a revision as an extraordinary legal remedy.

Namely, under paragraph 4 in Article 372 of the Law, a revision may be filed even against a second instance judgment although the value of the disputed part does not exceed 500,000 denars if the second instance court allows it in the enacting terms taking into consideration that the decision on the dispute depends on the resolution of some material-legal or adjective law matter, and with a view to ensuring a uniform implementation of the law and harmonisation of the case law.

From the noted constitutional provisions, the Law on Courts, and the Law on Contentious Procedure in view of the disputed provision from Article 372 paragraphs 2 and 3, the Court judges that it is the right of the legislator in addition to the appeal as a regular legal remedy to envisage extraordinary legal remedies, that is, to envisage revision as an extraordinary remedy that the parties may file for if certain preconditions have been met, such as the value of the dispute or the type of the dispute, as a result of which there may be no question as to their harmony with the constitutional provisions which the submitter of the initiative invokes.

Concomitantly, the Court believes that the disputed paragraph 4 in Article 372 of the Law on Contentious Procedure may not be brought into question with respect to the constitutional provisions invoked by the submitter of the initiative. The reason being that taking into consideration the constitutional set-up of the Supreme Court of the Republic of Macedonia as the highest court in the Republic which ensures a uniform implementation of the laws, the envisagement of the possibility for the parties to file for a revision against the judgment of the second instance court irrespective of the value of the dispute is in the interest of the party with a view to a uniform implementation of the law and resolution of an adjective law or material law matter, and which is relevant for the decision-making in the dispute. In that way what is ensured is a maximum possible protection of the freedoms and rights of the individual and citizen as the fundamental values of the constitutional order.

5. The Court also found that the disputed Article 400 of the Law on Contentious Procedure in the subtitle “Repetition of the procedure following a final decision of the European Court for Human Rights in Strasbourg” regulates that:

“When the European Court for Human Rights establishes a violation of some human right or of the fundamental freedoms set forth in the European Convention for the Protection of Human Rights and Fundamental Freedoms and in the Additional Protocols to the Convention, which the Republic of Macedonia has ratified, the party may, within 30 days from the date the judgment of the European Court for Human Rights became final, file a request with the court in the Republic of Macedonia that adjudicated in the procedure in the first instance in which the decision violating a human right or fundamental freedom was taken, to change the decision that violated that right or fundamental freedom.

The provisions for repetition of the procedure are applied accordingly in the procedure in paragraph 1 of this article.

In the repeated procedure the courts are obliged to observe the legal stances expressed in the final judgment of the European Court for Human Rights finding a violation of the fundamental human rights and freedoms”.

Under Article 8 lines 1 and 11 of the Constitution of the Republic of Macedonia, in addition to the other fundamental values of the constitutional order of the Republic of Macedonia are the basic freedoms and rights of the individual and citizen recognised in international law and set down in the Constitution and the respect for the generally accepted norms of international law.

Under Article 50 paragraph 1 of the Constitution, each citizen may invoke the protection of freedoms and rights defined by the Constitution before the courts, and before the Constitutional Court of the Republic of Macedonia, through a procedure based on the principles of priority and urgency.

Amendment XXV paragraph 2 with which Article 98 of the Constitution was replaced, defines that the courts are autonomous and independent. The courts adjudicate on the basis of the Constitution and the laws and international agreements ratified in accordance with the Constitution, and under paragraph 4 the types, sphere of competence, establishment, abrogation, organisation and composition of the courts, as well as the procedure before them, are regulated by a law adopted by a majority vote of two-thirds of the total number of Representatives.

Under Article 118 of the Constitution, the international agreements ratified in accordance with the Constitution are part of the legal order and cannot be changed by law.

Under Article 13 of the Convention for the Protection of Human Rights and Fundamental Freedoms changed with Protocol 11 together with protocols 1, 4, 6 and 7 (“Official Gazette of the Republic of Macedonia”, no.11/1997) everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.

Under Article 19 of the Convention noted, in Chapter II – “European Court of Human Rights”, a European Court of Human Rights is set up to ensure the observance of the engagements undertaken by the High Contracting Parties in the Convention and the Protocols thereto.

Under Article 32 of the Convention, the Court is competent for all matters concerning the interpretation and application of the Convention and the protocols thereto which are referred to it as provided in Articles 33, 34 and 47.

Under Article 34 of the Convention, the Court receives applications from natural persons, non-governmental organisations or group of individuals claiming to be the victim of a violation of the rights set forth in the Convention.

The High Contracting Parties undertake not to hinder in any way the effective exercise of this right, whereby pursuant to Article 35 the Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of 6 months from the date on which the final decision was taken.

Under Article 46 of the Convention, the High Contracting Parties undertake to abide by the final judgment of the Court in the cases to which they are parties.

The final judgment of the Court is transmitted to the Committee of Ministers, which supervises its execution.

From what has been noted it follows that for the exercise of the guaranteed freedoms and rights set forth in the Convention that the Republic of Macedonia ratified and it became a part of the internal legal order, the Republic of Macedonia undertook the obligation to observe the final decisions of the European Court for Human Rights as an international institution competent to act upon the application of persons complaining to have some right guaranteed in the Convention violated.

In the judgment sustaining the application, the Court declares that the responsible state has violated certain right guaranteed in the Convention, and at the same time in certain cases may render a pecuniary compensation for the applicant (Article 41).

The judgment of the European Court for Human Rights does not modify the domestic judgment, does not impose the obligation for a reopening of the case, nor can it impose an obligation of the state that has violated certain right to stop with the violations in the future.

Given the declarative character of the judgment of the European Court for Human Rights, and with a view to efficient protection of the freedoms and rights as defined in the Convention, and which in certain cases are violated by the States Signatories to the Convention, on 19 January 2000 the Committee of Ministers made Recommendation R (2000) 2 for member states in connection with the repeated consideration or reopening of certain cases at national level following the judgments of the European Court for Human Rights.

Namely, considering the practical realisations in connection with the enforcement of the judgment of the European Court for Human Rights, the Committee of Ministers: 1) calls upon the Parties Signatories at national level to provide the existence of an adequate possibility for achieving as much as possible restitutio in integrum; 2) calls upon the Parties Signatories to particularly consider their national legal systems with a view to ensuring the existence of adequate possibilities for repeated consideration of the case, including reopening of the procedure in the case when the court found violation of the Convention, and especially when the damaged party continues to suffer serious negative consequences as a result of the outcome of the national level decision on the concrete matter, which have not been accordingly corrected through just remuneration and cannot be corrected except through a repeated consideration or opening of the case and the judgment of the Court leads to a conclusion that the disputed decision at national level is in its essence contrary to the Convention or a violation has been established on the basis of procedural irregularity or defects with such gravity that casts a serious shadow of suspicion in the outcome of the procedure at national level for which the petition has been filed.

On 12 May 2004, the Committee of Ministers with its Recommendation REC (2004) 6 for improvement of domestic remedies, inter alia, invoking the subsidiary character of the supervision mechanism established by the Convention, which implies in line with Article 1 that the rights and freedoms guaranteed in the Convention are protected in the first place at national level and are applied by government authorities, recommends that member states: 1) establish by repeated examination, in the light of the precedent right of the Court, that there are domestic remedies for everyone who has a substantiated appeal for a violation of the Convention and that these remedies are effective so that may result in a decision on the basis of the legal foundation of the appeal and in an appropriate compensation for each violation found; 2) to reconsider, following the judgments of the Court pointing to structural or general faults in national law or practically the effectiveness of the existing domestic remedies, and if necessary to establish efficient remedies with a view to avoiding the cases that repeat themselves to be submitted before the Court.

Given what has been noted, and in the spirit of observing the Convention for the Protection of Human Rights and Fundamental Freedoms, as well as the recommendations of the Committee of Ministers, the Republic of Macedonia, being the signatory to the said Convention, in the Law on Contentious Procedure has envisaged the institute of repetition of the procedure following a final judgment of the European Court for Human Rights in Strasbourg. The aim of the introduction of this extraordinary remedy is for the party to the dispute not to suffer consequences as a result of a violation of the provisions from the Convention. Consequently, the Court judges that the challenged Article 400 of the Law on Contentious Procedure may not be questioned in view of the provisions in the Constitution that are invoked by the submitter of the initiative, and notably in view of Article 9 of the Constitution.

This for a reason that the contested provision refers to the citizens who are in an equal legal position, that is who have applied before the European Court for Human Rights which with a judgment has found that any of the human rights or fundamental freedoms has been violated, which is a ground to repeat the procedure, and not to all citizens notwithstanding if they have addressed the Court in Strasbourg. More specifically, in this concrete case, the submitter of the initiative essentially requests not only direct implementation of the judgment of the Court in Strasbourg without repeating the procedure before a domestic court but such judgment to be the source of law, that is, the “pilot decision” of the Court in Strasbourg to be applied to all cases that may be ranked on the same ground, which in the opinion of the Constitutional Court is unacceptable. The reason being that under the Constitution the courts adjudicate on the basis of the Constitution, laws, and international agreements ratified in accordance with the Constitution. Consequently, also from this aspect the contested provision may not be questioned with regard to the Constitution.

6. On the basis of what has been stated, the Court has decided as in item 1 of this Resolution.

7. The Court has passed this resolution in the following composition: the President of the Court Mr Mahmut Jusufi, and the judges: Dr Trendafil Ivanovski, Mrs Mirjana Lazarova Trajkovska, Mrs Vera Markova, Mr Branko Naumoski, Dr Bajram Polozani, Mr Igor Spirovski, and Dr Zoran Sulejmanov, and in view of Article 372 paragraph 4 the Court passed the resolution with majority votes.

U.no.35/2006
13 September 2006
S k o p j e
lk

PRESIDENT
of the Constitutional Court of
the Republic of Macedonia
Mahmut Jusufi