CASE OF NIKOLOV v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"
Violation of Art. 6-1
Peer Lorenzen
5. The applicant was born in 1949 and lives in Štip. 6. On 11 November 1996 the applicant, a farmer who reared cows, concluded an insurance agreement (полиса за осигурување) (“the agreement”) with an insurance company (“the defendant”) against a risk of the cows' death under which the latter would be liable to pay the damage, irrespective of the time of the death, if it was caused by reasons other than illness. On 23 November 1996 one of the applicant's cows died. Since the defendant refused to pay for the loss, on 30 January 1997 the applicant brought a claim against the defendant before the Štip Court of First Instance (“the first-instance court”). 7. On 1 March 1997 the trial judge's wife was employed with the defendant as an assistant to the manager of its branch office. 8. On 30 January 1998 the first-instance court dismissed the applicant's claim. 9. The applicant appealed, arguing, amongst other things, that the first-instance court had arbitrarily given weight to evidence in favour of the defendant and that it had refused to examine witnesses as to the cause of death. 10. On 17 June 1998 the Štip Court of Appeal quashed the court of first instance's decision, instructing it to hear evidence from the vet who had examined the cow in order to determine the cause of the death. 11. On 28 March 2000 the first-instance court dismissed the applicant's claim, reiterating its earlier findings. 12. On 20 June 2000 the applicant appealed, arguing that he had never received a copy of the general terms of the contract, and that the cause of death had not been properly established. He also contended that that judge was biased since his wife had started working with the defendant just after the proceedings had started. He asked for the trial judge to be removed if the Court of Appeal were to quash the lower court's decision and remit the case 13. On 27 November 2000 the Court of Appeal dismissed the applicant's appeal, finding no grounds to depart from the established facts and the reasons given by the lower court. It did not make any comments on the applicant's allegations that the trial judge was biased. 14. The decision was served on the applicant on 24 April 2001. 15. The relevant provisions of the then Civil Proceedings Act (Закон за парничната постапка) provided as follows: “A judge or a lay-judge cannot perform his/ her judicial function if: he/ she is a party, a statutory representative or a counsel of a party...; he/ she is permanently or temporary employed by a party to the proceedings; the party or its counsel is his/ her relative...; he/ she is a custodian, an adoptive parent, an adoptive child ...of a party; he/ she participated in the rendering of any decision by a lower court or another body; and there are other grounds which cast doubts to his/her impartiality.” Section 66 § 2 “A judge who considers that there are other grounds which put his/her impartiality under doubt should give notice to the President of the court who will decide on his/her exclusion.” Section 67 §§ 1, 2, 4 “The parties may also challenge the participation of a judge. The party concerned is obliged to challenge (изземање) a trial judge or a lay-judge as soon as it learns about it, but not later than the end of the trial before the first-instance court i.e. until the adoption of the decision. The party concerned is obliged to provide the reasons for challenging a judge's ability to sit in a case.”