BAJRAMOVSKI v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"
Inadmissible
Aleš Pejchal;Krzysztof Wojtyczek;Linos-Alexandre Sicilianos;Pauliine Koskelo;Ksenija Turković
1. The applicant, Mr Ismet Bajramovski, is a Macedonian national who was born in 1955 and lives in Schötz, Switzerland. He was represented before the Court by Mr E. Glavinče, a lawyer practising in Bitola. 2. The Macedonian Government (“the Government”) were initially represented by their former Agent, Mr K. Bogdanov, later succeeded by Ms D. Djonova. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. In 2008 the applicant lodged a civil action against A.L. and H.L. with the Kičevo Court of First Instance (Основен суд Кичево, “the first-instance court”), claiming recognition of a title to a house and a courtyard that had been returned to the defendants in earlier restitution proceedings. 5. On an unspecified date thereafter Judge V.S., the presiding judge in the applicant’s case, notified the president of the first-instance court that A.L. was a judge of that court, and asked him to request that the next level of court up from the first-instance court assign the case to another firstinstance court. 6. On 23 May 2008, under section 60 of the Civil Proceedings Act (“the Act”) and for the reasons relied upon by Judge V.S., the president of the first-instance court requested that the Gostivar Court of Appeal (Апелационен суд Гостивар, “the Court of Appeal”) assign the case to another competent first-instance court. 7. On 29 May 2008 the Court of Appeal returned the case file to the first-instance court. The Government submitted that the Court of Appeal had found no grounds to assign the case to another competent court. No copy of a decision was provided. 8. On 3 December 2008 a three-judge panel of the first-instance court, presided over by Judge V.S. and two lay judges, dismissed the applicant’s claim. The panel established that the applicant’s father had bought the property from a third party whose legal predecessor had acquired it unlawfully and in bad faith. 9. The applicant appealed against that judgment, complaining of factual and legal errors and an incorrect assessment of the evidence. He also complained that the court had not provided sufficient reasons for its judgment. He did not voice any concerns about an alleged lack of impartiality on the part of the first-instance court. 10. On an unspecified date the applicant’s lawyer requested that the Supreme Court assign the case to another second-instance court under section 61 of the Act, given the fact that two judges of the first-instance court (former colleagues of Judge A.L.) had been appointed judges of the Gostivar Court of Appeal, the court which was to decide the applicant’s appeal. The relevant part of the application read as follows: “The defendant, A.L., is a judge of the Kičevo Court of First Instance. The claim was submitted to the Kičevo Court of First Instance in the belief that the court would deliver a correct judgment based on the facts of the case ...” 11. On 5 March 2009 the Supreme Court dismissed the applicant’s application, holding that the reasons given by the applicant were “irrelevant” and that a transfer of jurisdiction to another competent court was not warranted. 12. On 6 July 2010 a three-judge panel of the Court of Appeal not including the two judges in respect of whom the applicant had voiced concerns about impartiality dismissed the applicant’s appeal and upheld the first-instance court’s judgment. It found no reasons to depart from the established facts and reasons provided by that court. 13. The applicant lodged an appeal on points of law with the Supreme Court in which he reiterated the complaints described in paragraph 9 above. He also referred to the earlier requests (see paragraphs 5, 6 and 10 above) for his case to be assigned to different first and second-instance courts. 14. On 29 March 2012 the Supreme Court dismissed the applicant’s appeal on points of law. It did not address his submissions concerning the lower courts’ alleged lack of impartiality. 15. The relevant provisions of the Civil Proceedings Act provide as follows: “If the competent court is not able to act, owing to a judge being excluded, it shall notify the higher court. The higher court shall assign the case to another competent court in its territory.” “The Supreme Court may, following a proposal by a party or the competent court, assign a case to another court if this would obviously facilitate the proceedings, or for other important reasons.” “A judge or a lay judge cannot perform his/her judicial function if: 1. he/she is a party, a statutory representative, or a party’s counsel...; 2. he/she is permanently or temporarily employed by a party to the proceedings; 3. a party or a party’s counsel is his/her relative...; 4. he/she is a custodian, an adoptive parent, [or] an adoptive child ... of a party; 5. he/she participated in rendering any decision by a lower court or another body in the relevant proceedings; and 6. there are other grounds which cast doubt on his/her impartiality.” 16. The Supreme Court has previously granted applications for a transfer of jurisdiction based on section 61 of the Act in cases where: the court before which proceedings were conducted was itself a party to those proceedings, for example a defendant in employment disputes or a claimant in enforcement proceedings (Р.бр. 60/2015, Р.бр. 3/2014, Р.бр. 64/2014, Р.бр. 11/2014); a judge of the court was a party in a case which was to be decided by that court (Р.бр. 23/2009, Р.бр. 78/2009, Р.бр. 86/2009); a claimant’s mother was a judge of the trial court (Р.бр. 36/2010); a legal representative of defendants who were minors was a judge of the trial court (Р.бр. 79/2009); a claimant was the son of a judge of the trial court (Р.бр. 15/2010); some judges of the trial court had been excluded and against other judges the defendant had initiated criminal proceedings expressing doubts about their impartiality (Р.бр.10/2010). 17. In one case, the Supreme Court refused an application for a transfer of jurisdiction where the claimant in the case was a judge of the trial court (Р.бр. 56/2012). 18. The President of the Bitola Court of First Instance granted applications for exclusion from all of the judges of that court in a case between the Bitola Court of First Instance and one of its employees (СУИЗЗ-111/15).