SECRETARIAT GENERAL
SECRETARIAT OF THE COMMITTEE OF MINISTERS SECRETARIAT DU COMITE DES MINISTRES
Contact: Clare Ovey Tel: 03 88 41 36 45
Date: 28/09/2015 DH-DD(2015)977
Documents distributed at the request of a Representative shall be under the sole responsibility of the said Representative, without prejudice to the legal or political position of the Committee of Ministers.
Meeting: 1243 meeting (8-10 December 2015) (DH)
Item reference: Action report (11/09/2015)
Communication from "the former Yugoslav Republic of Macedonia" concerning the case of Bajaldžiev against "the former Yugoslav Republic of Macedonia" (Application No. 4650/06)
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Les documents distribués à la demande d’un/e Représentant/e le sont sous la seule responsabilité dudit/de ladite Représentant/e, sans préjuger de la position juridique ou politique du Comité des Ministres.
Réunion : 1243 réunion (8-10 décembre 2015)
Référence du point : Bilan d’action
Communication de « l’ex-République yougoslave de Macédoine » concernant l’affaire Bajaldžiev contre « l’ex-République yougoslave de Macédoine » (Requête n° 4650/06) (anglais uniquement)
ACTION REPORT
Bajaldžiev v. Macedonia Application no.4650/06, judgment of 25 October 2011, final on 25 January 2012
I CASE DESCRIPTION
The case concerns a violation of the applicant’s right to an impartial tribunal in that the bench of the Supreme Court included a judge, who had presided over the bench of the Court of Appeal, when it had dealt with his case. The case also concerns a violation of the applicant’s right to a fair trial within a reasonable time on account of excessive length of civil proceedings (double violation of Article 6§1).
The European Court in particular considered that there was objective justification for the applicant’s apprehension that judge concerned lacked the requisite impartiality to the extent necessary under Article 6 of the Convention (§38).
II INDIVIDUAL MEASURES
The authorities of the respondent State have taken measures to ensure that the violation at hand is brought to an end and that the applicant is redressed for the damage sustained.
Reopening of the impugned proceedings
The European Court considered that, in principle, the most appropriate form of relief would be to ensure that the applicant, if he so requests, was granted, under section 400 of the Civil Proceedings Act of 2005, a retrial by an independent and impartial tribunal (§53).
On 5 April 2012, the applicant filed a request for reopening of the impugned proceedings before the Gevgelija Court of First Instance. On 23 May 2012 the first-instance court refused this request as being lodged out of time. The applicant notably failed to meet the 30-day statutory time-limit for lodging such a request. This time-limit starts running from the date on which the Court’s judgment becomes final. On 29 November 2012 the Skopje Court of Appeal upheld the applicant’s appeal lodged against the decision of 23 May 2012, finding that the first-instance court had erroneously applied the relevant statutory provisions which regulate the proceedings upon request for reopening following a Court’s judgment. The Skopje Court of Appeal, therefore, remitted the case for fresh consideration. On 28 December 2012 the first-instance court refused the request for reopening as the applicant had failed to request reopening of the impugned criminal proceedings within the statutory deadline, i.e. until 24 February 2012. On 21 March 2013, the Skopje Court of Appeal confirmed this decision. On 15 April 2013, the decision of the Skopje Court of Appeal was served on the applicant’s legal representative.
Redress for the damage sustained
The European Court awarded the applicant just satisfaction in respect of non-pecuniary damage sustained. The Government would however like to highlight that the European Court rejected the applicant’s claim in respect of pecuniary damage sustained. The European Court notably did not discern any causal link between the violations found and the pecuniary damage alleged (§52).
In light of the fact that the applicant has failed to request the reopening of the impugned proceedings within the time limit set by the domestic legislation, the authorities consider that the just satisfaction awarded fully redressed the applicant in respect of the damage sustained and brought the violations to an end.
Individual measures in respect of the excessive length of proceedings
The Government would like to highlight that the European Court indicated that the impugned proceedings ended on 4 August 2005, when the Supreme Court’s decision dismissing the legality review request was served on the applicant (§42). The violation has therefore ended on 4 August 2005. No individual measures are therefore called for in this respect.
III JUST SATISFACTION
On 8 March 2012, the authorities ensured that the just satisfaction awarded to the applicant has been disbursed. The just satisfaction has therefore been paid within the deadline set by the European Court.
IV GENERAL MEASURES
The authorities have taken a number of measures capable of preventing similar violations, notably introducing a binding Opinion of the Supreme Court and publication and dissemination-measures.
A. Violation of the right to a hearing before an impartial tribunal
a) Binding Opinion of the Supreme Court
On 2 April 2013, the Civil Department of the Supreme Court adopted an Opinion concerning the impartiality of judges. This Opinion is binding on the Supreme Court. It introduces a requirements to apply Article 6 §1 of the Convention within the context of the impartiality of judges in whenever judges are called to apply Article 64 §1of the Civil Proceedings Act of 2005. The latter envisages that a judge or a lay judge is deemed unable to attend his or her judicial duty if there are other circumstances which raise doubts as regards his or her impartiality. In particular, this Opinion is applicable where a judge who is a member of the adjudicating panel of the Supreme Court has also decided in the case as a member of a panel of the lower courts. This Opinion was forwarded to the presidents of the four appellate courts as well as to the presidents of the first- instance courts throughout the country.
On 13 August 2015 the Supreme Court furthermore informed the Government Agent’s Office that it has been consistently applying the above-mentioned Opinion of 2 April 2013. In particular, in furtherance the above-mentioned Opinion, in 2013 and 2014 the Supreme Court upheld 24 and 36 requests for exclusion of its judges respectively. Until the end of July 2015 the Supreme Court granted 12 requests for exclusion of its judges from further examination of cases before that Court given that they had previously dealt with the same case at a lower instance.
The Government would therefore like to highlight that the binding Opinion introduced an effective mechanism for preventing judges who previously deal with a given case to examine such a case at the level of the Supreme Court. Its effectiveness has been proved in practice as demonstrated by the fact that no similar application has been lodged before the European Court in respect of Republic of Macedonia.
b) Publication and dissemination
The judgment was made publicly available in Macedonian and English language on the website of the Ministry of Justice (www.pravda.gov.mk).
On 13 December 2011 the judgment was also published on the website of the Macedonian Association of Judges.1 In the explanatory note attached to it, the Association of Judges indicated that whenever the statutory requirements for exclusion of a judge have been met, any judge who participated in taking a decision or who undertook any procedural action in a lower court has an obligation to request his or her own exclusion from the case. The aim is to prevent violation of the right to a fair trial which may result from a party’s perception that the same judge appears in several instances of adjudication.
The Government Agent forwarded the Court’s judgment accompanied with an explanatory note on the violations found in this case to the Supreme Court, the Courts of Appeal in Skopje, Bitola, Gostivar and Štip, the Gevgelija Court of First Instance, the Higher Administrative Court; the Administrative Court; the Judicial Council of the Republic of Macedonia; the State Attorney Office, the Office of the Ombudsman, the Academy for Training of Judges and Public Prosecutors, the Constitutional Court of the Republic of Macedonia, the Macedonian Judges’ Association, the Bar Association and the Association of Public prosecutors.
B. Violation on account of excessive length of proceedings
The measures aimed at increasing efficiency of the judicial proceedings are examined within the context of the Atanasoviċ group of cases.
V CONCLUSION
The Government considers that the individual measures adopted put an end to the violations established and erased their consequences for the applicant. The Government furthermore considers that the general measures adopted are capable of preventing similar violations concerning impartiality of judges. Information on the measures aimed at accelerating judicial proceedings will be submitted in the context of the Atanasoviċ group of cases.
The Government would therefore like to invite the Committee of Ministers to close the examination of this case and adopt a final resolution in its respect.
1http://www.mja.org.mk/Default.aspx?news=9bce5ad9-b822-4c4a-b2ce- bd9fc144affb&ln=3&type=17ad81e0-4f67-4746-8b0a-575d73e699b6 Kostadin Bogdanov Agent of the Republic of Macedonia before the European Court of Human Rights