FIFTH SECTION
 
 
 
 
CASE OF FETAOVSKI v. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA
 
(Application no. 10649/03)
 
 
 
 
 
 
 
JUDGMENT
 
 
 
STRASBOURG
 
19 June 2008
 
 
FINAL
 
 
19/09/2008
 
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Fetaovski v. the former Yugoslav Republic of Macedonia,
The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:
 Peer Lorenzen, President,
 Rait Maruste,
 Karel Jungwiert,
 Volodymyr Butkevych,
 Renate Jaeger,
 Mirjana Lazarova Trajkovska,
 Zdravka Kalaydjieva, judges,
and Claudia Westerdiek, Section Registrar,
Having deliberated in private on 27 May 2008,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 10649/03) against the former Yugoslav Republic of Macedonia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Macedonian national, Mr Rami Fetaovski (“the applicant”), on 29 January 2003. 2. The applicant was represented by Mr R. Cesmadziski, a lawyer practising in Kumanovo. The Macedonian Government (“the Government”) were represented by their Agent, Mrs R. Lazareska Gerovska. 3. The applicant alleged, in particular, that his rights of access to a court and to have his case heard within a reasonable time had been violated in breach of the Convention. 4. On 16 June 2006 the Court decided to give notice of the application to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility. THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
5. The applicant was born in 1946 and lives in Kumanovo. 6. On 28 July 1992 the applicant, through his representative (who continues to represent him in the proceedings before the Court) brought a civil action against the State and the Kumanovo Veterinary Inspectorate (“the Inspectorate”) for damages in relation to the slaughter of sheep infected by a contagious disease (brucellosis). 7. Between 23 September 1992 and 2 November 1993 the first-instance court scheduled thirteen hearings. None of them was adjourned on account of the applicant. 8. On 2 November 1993 the then Kumanovo Municipal Court (“the first-instance court”) dismissed the applicant’s claim after it had heard statements from him and a veterinary inspector who had examined the sheep. On 1 April 1994 the then Skopje District Court upheld that decision. By a decision of 25 October 1994, given upon an appeal on points of law (ревизија) by the applicant dated 31 May 1994, the Supreme Court quashed the lower courts’ decisions and remitted the case for a fresh consideration. It instructed them to assess the value of the sheep slaughtered. 9. Four hearings listed for between 16 November 1995 and 17 January 1996 were adjourned due to the Inspectorate’s failure to provide information about the value of the sheep. The applicant attended all the hearings. 10. On an unspecified date, the first-instance court ruled partially in the applicant’s favour. On 9 January 1997 the Skopje Court of Appeal accepted an appeal by the defendants and ordered a retrial concerning the accepted part of the applicant’s claim. 11. On 11 April 1997 the applicant further specified his claim, requesting compensation for loss of income (“the new claim”). The new claim was dismissed by the first-instance court on 18 April 1997. 12. On 21 May 1997 the first-instance court accepted the applicant’s claim. On 18 February 1998 the Skopje Court of Appeal dismissed an appeal by the defendants and confirmed the lower court’s decision. On 21 April 1998 the State lodged an appeal on points of law. By a decision of 21 October 1999 the Supreme Court quashed the lower courts’ decisions and remitted the case for a renewed examination. 13. None of seven hearings listed between 15 March and 28 November 2000 was rescheduled at the applicant’s request. During that time, the first-instance court requested the Inspectorate to provide information about the marked value of the sheep three times. It further requested a copy of the applicant’s request for compensation that had allegedly been submitted before the relevant administrative authorities. In reply, the court was informed that there was no such request in the case file and that it should order the applicant to provide it. 14. On 28 November 2000 the first-instance court dismissed the applicant’s claim, having established that he had failed to lodge a request for compensation with the relevant administrative authorities in good time. It established the following facts: on 20 June 1991, the Inspectorate ordered the slaughter of twenty-one sheep. On 5 July 1991 only ten sheep were slaughtered (the others were allegedly slaughtered by the applicant). The report drawn up after the slaughter indicated that the applicant would not be compensated as he had not complied with the order. On a later date, other sheep belonging to the applicant were slaughtered. On 26 November 1991 the applicant was compensated for the sheep slaughtered on the later date, but not for those put down on 5 July 1991. The court further established that on 15 May 1992 the State Veterinary Office had dismissed a claim by the applicant for compensation for the sheep slaughtered on 5 July 1991. The decision was served on the applicant on 2 March 2001. 15. The applicant’s representative appealed, arguing that the lower court, inter alia, had erred in the facts, namely that it wrongly concluded that he had claimed compensation from the relevant authorities out of time even though no such claim had ever been lodged. The applicant has submitted a copy of the appeal which has been date-stamped as having been received by the first-instance court on 15 March 2001. The Government have provided a different copy of the appeal, with a receipt-stamp dated 23 March 2001. The applicant’s version is on plain paper and has been date-stamped on the front page, while the Government’s version is written on the applicant’s representative’s office paper, and bears some handwritten marks. The receipt stamp for the Government’s version is not on one of the typed pages of the document. 16. On 20 June 2001 the Skopje Court of Appeal returned the case file to the first-instance court, in order for it to examine the court’s register of incoming applications (“the register”) to determine when the applicant’s appeal had been received by that court. It decided to do so because the appeal had been drawn up on 14 March and, according to the court’s stamp, submitted on 23 March 2001. It stated that the first-instance court should establish the date of submission of the appeal. 17. On 11 July 2001 the first-instance court rejected the applicant’s appeal as out of time. It found that that court’s decision had been served on the applicant on 2 March 2001 and, relying on the court’s stamp acknowledging receipt and the register, that the appeal had been lodged on 23 March 2001. 18. On 11 September 2001 the applicant appealed. He produced his copy of the appeal with the court’s stamp indicating that it had been lodged on 15 March 2001. He also argued that an error in entering the introduction date of the appeal in the register should be attributed to the court and should not prejudice his case. 19. On 20 December 2001 the Skopje Court of Appeal returned the case file to the first-instance court. It did so because the appeal bearing the court’s stamp of 15 March 2001 had been submitted as a copy only, and its validity needed to be verified. In that connection, it referred to the copy of the appeal of 23 March 2001. It therefore instructed the first-instance court to order the applicant to submit the original version of his appeal for verification. 20. On 28 February 2002 the applicant, in response to the first-instance court’s order, submitted the original of his appeal of 15 March 2001. The court noted that that appeal’s contents and nature were the same as that bearing the court’s stamp of 23 March 2001. It also stated that it could not establish the reasons for the discrepancy between the register (indicating 23 March 2001 as the date of receipt) and the original of the applicant’s appeal which bore the court’s stamp attesting that it had been received on 15 March 2001. 21. On 20 March 2002 the Skopje Court of Appeal returned the case file to the first-instance court for the third time. It ordered that court to hear a statement from the court’s administrative officer as to when the applicant’s appeal had been recorded in the register and what the reasons for having recorded different dates of receipt had been. 22. In its reply of 23 April 2002, the first-instance court informed the Court of Appeal that, according to that officer’s statement, submissions filed with the court in person had to be recorded in the register on the date of receipt or the next day, and the date noted constituted the official date of submission. No copy of that letter or the court officer’s statement was produced. 23. On 15 May 2002 the Skopje Court of Appeal dismissed the applicant’s appeal. It found that the lower court had correctly rejected his appeal as out of time, relying on the court’s stamp acknowledging receipt of the appeal and the register indicating 23 March 2001 as the introduction date. The decision was served on the applicant on 6 September 2002. 24. On 22 October 2002 the applicant requested the public prosecutor to lodge a request for the protection of legality with the Supreme Court. That request was refused on 6 December 2002. 25. On 23 January 2002 the applicant brought criminal charges for abuse of office against the court’s administrative officer who had allegedly put different receipt dates on the copies of the appeal and entered the wrong date in the register. 26. On 25 February 2003 the public prosecutor rejected the applicant’s criminal complaint as the offence complained of was not prosecutable ex officio. 27. On 11 April 2003 the first-instance court refused a request by the applicant to open an investigation in respect of that officer. That decision was upheld on 11 June 2003 by the Skopje Court of Appeal. II. RELEVANT DOMESTIC LAW
28. Section 102 § 1 of the then Civil Proceedings Act (“the then Act”) provided that a submission would be considered as submitted in good time if it was handed over to the competent court within the prescribed time-limit. 29. Section 334 of the then Act provided that, inter alia, parties concerned could appeal against the first-instance court’s decision within fifteen days from the date of service of that latter decision, if not otherwise regulated by law. 30. Under section 343, an appeal was to be filed with the first-instance court with a sufficient number of copies for the court and the parties concerned. 31. According to section 344 §§ 1 and 2, an appeal that was incomplete, inadmissible or submitted out of time would be rejected by the presiding judge of the first-instance court’s panel without a hearing. An appeal would be considered as submitted out of time if it was not filed within the statutory time-limit. THE LAW
I. ALLEGED VIOLATIONS OF ARTICLE 6 § 1 OF THE CONVENTION
 
32. The applicant complained that his appeal had not been examined on the merits, given that the Court of Appeal had wrongly considered it as submitted out of time. He also complained that his case had not been heard within a reasonable time. The Court considers that these complaints fall to be examined under Article 6 of the Convention which, in so far as relevant, reads as follows:
 “In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing within a reasonable time by [a] ... tribunal ...”. A. Admissibility
33. The Government have not raised any objections as to the admissibility of these complaints. 34. The Court notes that the complaints under this head are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible. B. Merits
1. The “right of access to a court” complaint
 (a) The parties’ submissions
35. The Government maintained that the applicant’s representative had submitted his appeal in person to the first instance court, and that the date stamp on the appeal showed that the appeal had been submitted on 23 March 2001. The courts had therefore rejected the appeal as having not been submitted within the time-limit, as provided under the then Act. They further stated that the Court of Appeal had made efforts to establish the truth as to the date of receipt of the appeal. Acting upon its instructions, the first-instance court had established that 23 March 2001 had been recorded in the register as date of introduction. That date had been indicated on the copy of the appeal which had been communicated to the defendants for consideration. In addition, the applicant had had the right to challenge that decision before the Court of Appeal. They therefore concluded that the State could not be held responsible for errors made by the applicant’s lawyer, namely having failed to submit the appeal in good time. Finally, they stated that the applicant had been afforded the guarantees embodied in Article 6 of the Convention. 36. The applicant avowed that he had submitted his appeal on 15 March 2001. The first-instance court had acknowledged receipt on that date by affixing its stamp on his appeal. The applicant stated that he could not speculate as to what had happened with the remaining two copies of his appeal which had been stamped on 23 March 2001, as that had been in the court’s area of competence and, accordingly, beyond his control. The courts should have established, but not to his detriment, the reasons for having stamped them on 23 March 2001 and having recorded that date in the register. The Court of Appeal had dismissed his arguments although he had produced a copy of his appeal with the court’s stamp indicating that it had been lodged by him on 15 March 2001 (see paragraph 18 above). He maintained that the domestic courts’ decisions had been unlawful and subjective given that they had been based on the information obtained from their registers. Relying on section 102 § 1 of the then Act, he maintained that he had submitted his appeal within the fifteen-day time-limit and that when the court had recorded other copies in its register was irrelevant. He concluded that the courts, ignoring the evidence that his appeal had been submitted in good time, had infringed his right of access to a court as provided under this head. (b) The Court’s assessment
37. The Court reiterates at the outset that it is not its task to take the place of the domestic courts. It is primarily for the national authorities, notably the courts, to resolve problems of interpretation of domestic legislation (see, mutatis mutandis, the Brualla Gómez de la Torre v. Spain, judgment of 19 December 1997, Reports of Judgments and Decisions 1997-VIII, p. 2955, § 31, and the Edificaciones March Gallego S.A. v. Spain, judgment of 19 February 1998, Reports 1998-I, p. 290, § 33), and the question of whether a litigant has complied with the time-limits set out in domestic law is a prime example of such a case. Further, the “right to a court”, of which the right of access is one aspect, is not absolute; it is subject to limitations permitted by implication, in particular where the conditions of admissibility of an appeal are concerned, since by its very nature it calls for regulation by the State, which enjoys a certain margin of appreciation in this regard. However, these limitations must not restrict or reduce a person’s access in such a way or to such an extent that the very essence of the right is impaired; lastly, such limitations will not be compatible with Article 6 § 1 if they do not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim pursued (see, among other authorities, the Edificaciones March Gallego S.A., judgment cited above, p. 290, § 34). 38. In the instant case, the applicant’s appeal was declared inadmissible because the applicant had failed to submit his appeal against the judgment of 28 November 2000 (served on 2 March 2001) within the time-limit which expired on 17 March 2001. 39. The Court considers the aim pursued by the 15-day time-limit prescribed in Section 334 of the Civil Proceedings Act as it was then in force was legitimate in the interests of the good administration of justice (see Bacev v. the former Yugoslav Republic of Macedonia (dec.), no. 13299/02, 14 February 2006). However, the rules setting time-limits for bringing appeals must not be applied in a way which prevents litigants from using an available remedy. The issue is one of legal certainty. The problem is not simply one of interpretation of substantive rules, but that a procedural rule has been interpreted in such a way as to prevent the applicant’s appeal being examined on the merits, with the attendant risk that his right to the effective protection of the courts would be infringed (see Zvolský and Zvolská v. the Czech Republic, no. 46129/99, § 51, ECHR 2002‑IX).
40.The domestic courts in the present case ultimately dealt with the applicant’s appeal solely on the basis of the entry in the registry of the first-instance court. Although a number of attempts were made to determine the actual date of lodging, no answer was given to the question (posed at least implicitly by the Skopje Court of Appeal in its judgment of 20 March 2002) of why the copy of the appeal stamped 15 March 2001 – of which the courts knew - had not been accepted as the date of lodging the appeal. 41. In the circumstances of the case, the Court considers that the failure by the domestic courts to accept the appeal of 15 March 2001 or, in the alternative, to provide a tenable reason for not accepting it, amounted to a construction of the procedural rule at issue which deprived the applicant of his right of access to a court (see, mutatis mutandis, Miragall Escolano and Others v. Spain, nos. 38366/97, 38688/97, 40777/98, 40843/98, 41015/98, 41400/98, 41446/98, 41484/98, 41787/98 and 41509/98, §§ 37, 38 ECHR 2000-I, and Zvolský and Zvolská, cited above, § 51 - 55).
42.

Article of the Convention at issue: Article 6
Outcome: violation