CASE OF MITREVSKI v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"
Violation of Art. 6-1
Peer Lorenzen
5. The applicant was born in the village of Zović and lives in Bitola. 6. On 13 September 2000 his brother (“the plaintiff”) brought a civil action against him for a declaration that he owned one half of a plot of land and a house (“the property”). 7. A hearing on 9 April 2001 was adjourned because the applicant had not been duly summoned. 8. At a hearing on 20 April 2001 the court ordered the plaintiff to provide further particulars of his claim. It further sought to obtain a deed of gift dating from 1984. 9. According to the Government, at a hearing on 24 May 2001 the court granted the plaintiff's request to carry out an on-site inspection (увид) and to examine witnesses. The applicant arrived late at the hearing, but was informed of the place and time of the next hearing. The Government submitted a barely legible copy of the record, which had been signed by the applicant. 10. At the on-site inspection on 5 June 2001, the trial court heard evidence from two witnesses concerning the history of the property. The record indicates that the applicant was absent, even though he had been duly summoned. 11. A hearing fixed for 12 July 2001 was adjourned at the applicant's request. 12. At a hearing on 14 September 2001 the plaintiff's counsel stated that his client had suffered a stroke and was not medically fit to give a statement. The court ordered him to submit a medical report and on a later date in September 2001, the plaintiff's counsel submitted a medical report certifying that his client was not medically fit to give a statement. 13. On 8 November 2001 the composition of the bench changed and the hearing restarted. 14. At a hearing on 22 November 2001 the applicant disputed the plaintiff's legal capacity to bring the proceedings. He stated, inter alia: “... [A]fter reviewing the file, I have concerns as to the validity of the plaintiff's letters of authority... We propose that the court assess his capacity...” 15. According to the court record, the court ruled that the next hearing would be held on 29 November 2001 on-site in order to assess the plaintiff's health and the validity of his signature on the letter of authority. It further noted that those present should consider the announcement of the next hearing as equivalent to service of a court summons. The applicant and his counsel both attended the hearing. 16. On 29 November 2001 the court held a hearing at the scheduled time, but in the court room instead of on-site. The court heard evidence from the plaintiff and established the validity of the letter of authority. It further read the record of the on-site inspection of 5 June 2001 and the witnesses' statements. It noted that the applicant was absent, even though he had been duly summoned. Following the hearing, the trial court gave a decision declaring the plaintiff to be the owner of the property and ordered the applicant to recognise his title. It based its findings on a court decision of 1962 by which the plaintiff had been declared heir of the property. It further established that he had lived in the house and had had actual possession (владение) of the property since. The trial court based its decision on considerable evidence: an expert opinion; a record of the on-site inspection; statements of witnesses; and other physical evidence. 17. On 8 January 2001 the applicant appealed, arguing, inter alia, that he had been deprived of the opportunity to participate in the proceedings. He said that he had been prevented from attending the hearing on 29 November 2001 as it was held in the court room, instead of on-site as scheduled. He submitted that that failure could be regarded as a substantial defect in the proceedings, contrary to section 340(2)(7) of the Civil Proceedings Act (see “Relevant domestic law” below). He further complained that the trial court had taken into consideration the statements of the witnesses from the on-site hearing of 5 June 2001 which had been held in his absence. 18. On 25 February 2002 the Bitola Court of Appeal dismissed the applicant's appeal and upheld the lower court's decision finding no grounds to depart from the reasons given. Concerning the applicant's complaints about the hearing of 29 November 2001, it stated: “... [The applicant] was duly summoned as he attended the hearing of 22 November 2001 when the date and time for the hearing were fixed. Therefore, he was obliged to appear in court and depending on whether the plaintiff was also present, it was for the court to decide whether it would visit the plaintiff in his home or hold the hearing in the court room. As the plaintiff appeared in the court ... it was not necessary to go on-site... [The applicant] was properly summoned and has failed to justify his absence...” 19. As regards the applicant's complaints concerning the examination of the witnesses at the on-site hearing on 5 June 2001, the court stated, inter alia: “... [The applicant's] complaints that the court examined the witnesses at the hearing on 5 June 2001 in his absence are ill-founded, as he failed to attend, despite having been duly summoned... If [the applicant] had attended the hearing, he would have been able to discuss and challenge their statements, as well as to call other witnesses for examination...” 20. At the material time section 103(2) of the Civil Proceedings Act (Закон за парничната постапка) (“the Act”) provided that the court should summon the parties and any other persons whose presence was required in due time. 21. Section 104 of the Act provided that hearings were normally to take place in the court. The court could decide to hold a hearing outside the court premises if it was considered necessary and/or would save time or reduce costs. 22. Section 105(2) of the Act laid down that if a hearing was adjourned, the court was required where possible to inform those present immediately of the time and venue of the next hearing. 23. Section 340(1) of the Act provided that civil proceedings were substantially defective if the court did not apply or incorrectly applied a statutory provision or failed to take into account a circumstance which would or could have influenced the adoption of a lawful and just decision. 24. Section 340(2)(7) of the Act provided that proceedings were substantially defective if a party was deprived of the opportunity to participate in them by unlawful conduct, such as the absence of a proper summons.