BACEV v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"
Inadmissible
The applicant, Mr Janko Bačev, is a Macedonian national who was born in 1966 and lives in Skopje, the former Yugoslav Republic of Macedonia. In 1996, after two unsuccessful requests for rectification of the defects in his apartment and compensation for deficiency in its size (26 June and 22 September 1995), the applicant instituted civil proceedings against the construction company (“the company”) to restore or to pay for the damage caused. On 1 June 1999 the court rejected his claim, finding that it had been withdrawn due to his failure to attend two hearings. On 18 September 1999 this decision became final. On 7 April 2000 the applicant instituted civil proceedings for damages against the company claiming that his apartment was of inadequate quality and smaller than was specified in the contract. On 29 November 2000 the Basic Court Skopje I Skopje (Основен суд) dismissed the applicant’s claim. It found that on 23 September 1991 the applicant had entered into agreement with the company for construction of the apartment. On 6 June 1995 the company had transferred the apartment into the applicant’s possession. Minutes had been drawn up in which the defects had been noted and accepted by the applicant and the company. The court referred to the Law on obligations (Зaкон за облигациони односи) according to which in case of defects, the buyer/acquirer’s rights expired one year after notifying the vendor i.e. the one responsible for the construction. It held that the applicant’s claim for damages was time barred as it was lodged before the court more than one year after he had first notified the company about the defects (June 1995). The court dismissed the applicant’s argument that the absolute time bar of five years for damage claims had not expired. It found it irrelevant that the claim was submitted within the absolute time bar as he failed to comply with the relative time bar of three years which ran from the moment when he became aware of the damage and that the company was responsible. The court also dismissed the applicant’s claim that the civil proceedings instituted in 1996 suspended the time bar as his claim had been rejected as being withdrawn. The decision was served on the applicant on 6 March 2001. On 21 March 2001 the applicant appealed this decision indicating the reasons in general terms. He stated: “Being dissatisfied with the Basic Court decision ... I lodge this appeal in time on account of: substantive infringement of the civil procedure; erroneous and incomplete establishment of the facts and wrong application of the substantive law. I will submit the explanation of the grounds with a subsequent submission.” In a submission lodged on 27 March 2001, the applicant inter alia contested the court’s findings that the agreement concluded with the company was of a commercial nature (contract for construction) and that consequently, the court had wrongly applied the national law concerning the time bar. He also referred to the minutes drawn on 3 July 1995 in which the company acknowledged the defects and committed itself to remedying them by 10 July 1995, as allegedly newly discovered evidence that could influence the time bar. He argued that the lower court had wrongly interpreted the law in respect of the relevance to the time bar of the civil proceedings terminated in 1996. On 28 June 2001 the Appellate Court of Skopje dismissed the applicant’s appeal. It inter alia found that: “the plaintiff [the applicant] filed his appeal in time, but he submitted the reasons and the rationale of his appeal after expiration of the time limit of 15 days...as the appeal does not provide any reasoning, the court considered the judgment on the basis contained in the appeal and within its ex officio capacity to determine substantial infringements of the procedure and the correct application of the law...” It went further on to conclude that “...the first instance court had properly established that the claim was time barred as the term of five years had expired...” It also held that the trial court had correctly applied the substantive law as the facts had been properly and fully established. It also, inter alia, repeated the parts of the lower court’s decision concerning the agreement between the applicant and the company; the time when the apartment was transferred into the applicant’s possession and the dates when the applicant had notified the company about the shortcomings and asked for rectification or compensation. On 2 November 2001 the Republic Public Prosecutor’s Office informed the applicant that there were no statutory grounds for submitting a request for the protection of legality (барање за заштита на законитоста) before the Supreme Court. According to section 106 of the Law on Civil Proceedings (Закон за парничната постапка), if a party concerned fails to attend a hearing or to take another action in the proceedings and consequently loses the right to do so, the court shall uphold that party’s request to perform that action subsequently (restoration to previous state of affairs) if it finds a reasonable explanation for the failure. When the restoration in the previous state of affairs is granted, the proceedings are restored to the state before the failure had occurred and all other decisions in that respect are considered void. Section 334 provides that, inter alia, parties can appeal the first instance decision within 15 days from the date of service of the trial court decision, if not otherwise regulated by law. According to section 337, the trial court shall by decision summon the appellant to correct or supplement the appeal if on the basis of the information provided, it cannot be determined which judgment is complained of or if the appeal was not signed. It the appellant does not comply with the court’s instruction within the time-limit given, the latter shall reject the appeal as incomplete. In case of other deficiencies, the trial court shall transmit the appeal to the Appellate Court without summoning the appellant to correct or to complete it. Section 340 § 2 prescribes inter alia, the following substantial infringements of procedure: if the court was improperly composed or the judgment was adopted by a judge or a lay-judge who had not participated at the trial hearing; if the judgment was adopted by a judge or a lay-judge who had to be removed by virtue of law, i.e. who was removed by a court decision; if the court decided a case which fell outside its competence ratione materiae; if the court wrongly ruled as to its competence ratione loci; if contrary to the law, the court decided in absentia, on the basis of a confession or a denial; if the party concerned was deprived of the opportunity to participate in the proceedings by unlawful conduct, in particular due to a lack of service; if contrary to the law, the court rejected the party’s request for an interpreter; if the court decided without a public hearing which was compulsory; if a person, lacking capacity to stand as a litigant, participated in the proceedings, or the legal entity acting as litigant was not represented by an authorised person, or if a legally incapable person was not represented by the statutory representative, or if the legal or statutory representative did not have the adequate authorisation; if the court decided on a case in which another proceedings were pending, or if it was res judicata, or if a court settlement had been concluded; if the public was excluded contrary to the law; if the impugned decision contained deficiencies which made its review impossible, in particular if it was illegible, contradictory, lacked reasoning or did not provide reasons for the relevant findings of fact or if they were unclear or contradictory. Section 342 prescribes that the substantive law is wrongly applied if the court did not apply the relevant statutory provision or if it failed to apply it properly. Section 351 § 2 provides that the Appellate Court assesses the trial court decision on the basis of the grounds set out in the appeal and having regard to its ex officio capacity to consider any substantial infringement of the civil procedure and the correct application of the law.