Analysis of the judgement Prodonov v. North Macedonia

INTRODUCTION

 

In the case of Prodanov v. Republic of North Macedonia (RNM), the applicant  complained that he did not have access to the Supreme Court of RNM, due to the way the Court applied the  provisions of the Law on Civil Procedure and rejected the submitted revision as inadmissible  ratione valoris.
The case refers to the limitation of the right of access to court due to the value of the dispute and the formalistic approach of the Supreme Court in the procedure, which contributes to the legal uncertainty and the unpredictability of the application of laws in procedures that affect civil rights.
The applicant requested the European Court of Human Rights to determine that with the rejection of the revision  by the Supreme Court, there was a violation of 6 of ECHR in the section “In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal established by law ...” because of the manner the Supreme Court interpreted and applied the provisions of the Law on Civil Procedure regarding the value of the dispute.

 

 

SUMMARY OF THE JUDGMENT

 

 

The European Court of Human Rights (ECHR) found a violation of Article 6 of the Convention related to with the restriction of the applicant’s right  for access to court   because of rejection of the submitted revision by the Supreme Court as inadmissible.
According to the ECHR  the most appropriate form of redress in cases where it finds that an applicant has not had access to court in breach of Article 6 paragraph 1 of the Convention would, as a rule, be to reopen the proceedings in due course and to re-examine the case in keeping with all the requirements of a fair hearing
The court determined  that according to Article  400 of the Law on civil procedure, the applicant may request the reopening of the proceedings. The ECtHR found  that RSM as a respondent state in this case should award the sum of EUR 1,500 for costs and expenses incurred in the proceedings before the Court, plus any tax that may be chargeable to the applicant

 

 

FACTS OF THE CASE AND RELEVANT LAW

 

The relevant legislation in this case is the Law on Civil Procedure, which entered into force in December 2005. Pursuant to Article 33 of the Law if the value of  the subject on the dispute has obviously been determined by the plaintiff as very high or very low, thus questioning the composition of the court, or the right to announce revision, the court shall fast and in a suitable manner determine the value of the dispute, before scheduling the pre-trial hearing at the latest. According to article 372 paragraph 2 the parties can announce revision against the verdict of second instance, if the value of the subject of the case of the abnegated part of the verdict exceeds 500.000 denars.
In the transitional and final provisions of the LCP  article 474 paragraph 1 stipulates: „ If before the day this Law is applied, a verdict in first instance is reached or a determination by which the procedure in the court of first instance is completed is adopted, the further procedure shall be conducted according to the existing regulations“ According to Article 400 of the law, a possibility is foreseen for repetition on the procedure in cases where European Court of Human Rights determined a violation of the Convention
In November 2005, the applicant filed a counterclaim following a previously conducted civil dispute against him, whereby the two cases were merged and the value of the dispute was determined at  40,000, based on the previous dispute. The applicant's case was in the first instance procedure during the disputed period and no pre-trial hearing was held at the time.
In December 2005 the new law on Civil procedure entered into force[1]and became applicable for all  cases in first instance procedure. According to the 2005 Law revision before The Supreme Court may be submitted only in cases where the value on the dispute exceeds the amount of 500,000 denars. In January 2016, the civil department of the  Appellate Court Skopje adopted a conclusion concerning all pending cases to which the 2005 Law applied. The conclusion stated that the parties to all pending cases at first instance would be given an opportunity to prepare their submissions in accordance with the 2005 Act. In the specific case, after notification of the first instance court regarding the conclusion of theAppellate Court, during the preparatory hearing , the applicant requested the value on the dispute  to  be increased to 500,100 denars, for what he paid and additional judicial fees, corresponding to the increased value.
In January 2009, the first-instance court issued a verdict rejecting the counterclaim of the applicant, and in the introductory part of the verdict, the value was stated in the amount of 40,000 denars. At the applicant's request, the first-instance court corrected the introductory part of its judgment and increased the value to 501,000 denars, stating that the amount was wrong. The Appellate Court rejected the applicant's appeal with a verdict from September 2010 and in the introductory part determined the value at 40,000 denars and like the first-instance court. Upon the applicant request the Appellate Court corrected its judgement and increased the value to the higher amount.
The applicant submitted a revision to the Supreme Court of RSM. In MAY 2012, THE Supreme Court rejected the revision as inadmissible ratione valoris and concluded that the value on the dispute in the judgments on the lower Courts was established at 40,000 denars, was under the legal threshold of 500,000 denars established with the 2005 Law on Civil Procedure.
The Supreme Court in its decision, referring to Article 33 ofthe LCP held that the value of the dispute, which had been set in the civil lawsuits cannot be  amended in the wrong phase of the procedure, after scheduling the pre-trial hearing, or when pre-trail hearing was not held, at the main hearing before examining the merits of the case. The supreme Court explained that the relevant value of the dispute was amended with the decision of the Appellate Court in December, 2010.


ANALYSIS OF THE JUDGMENT

 

The European Court of Human Rights, in the explanation of the judgment by which it found a violation of the applicant's right to access to the Supreme Court, noted that a statutory threshold for the value of a claim for revision  to the Supreme Court is a legitimate and reasonable procedural requirement. However, the refusal of the Supreme Court, on the basis of the statutory provisions regulating its competence, to examine the admissibility of the applicant’s appeal on points of law ratione valoris constituted an interference with the applicant’s right of access to a court.
To determinwhether a restriction of the right of access to a court was proportionate, the following should be considered: (i) the foreseeability of the restriction; (ii) which party should bear the adverse consequences of the errors made during the proceedings; and (iii) whether the restriction could be said to involve “excessive formalism”
Relaying on conclusion of the Appellate Court, first instance court held pre-trial hearing on which the applicant increased the value on the dispute to 500,100 denars, which was above the statutory threshold established with 2005 Law. The first instance and the second instance court accepted the increased value on the dispute requested by the applicant and corrected the decisions. According to the ECHR, such an increase does not appear to have been an unreasonable procedural step on the part of the applicant. The finding of the Supreme Court that the value of the claim  was amended  by the Decision of the from 2010 is contrary to the facts of the case, considering that the change of  the value of the case  happened at a pre-trial  hearing before the first instance court,  which as a fact the Supreme Court the court did not mention it in its decision. The Supreme Court, it did not state its position on whether such a change at that stage of the proceedings had been in compliance with the law or its established practice. . According to the ECHR the applicant and his lawyer should have been able to ascertain that the amendment of the value of the claim at the pre-trial hearing would not be taken into account for the purposes of access to the Supreme Court.
The limitation of the right to access to   court was not proportionate, because the applicant could not foresee that the change in the value of the dispute, which he carried out in a timely manner, at a preliminary hearing before the first instance court and based on the conclusion of the civil department of theAppellate Court , would be incorrectly stated in the introductory part of the first-instance judgment, as well as in the judgment of theAppellate Court. . The Supreme Court did not l take into consideration that the applicant made the change  on time, at the pre-trial hearing, but arbitrarily interpreted that the relevant value of the dispute was changed with  thedecision of the Appellate Court  for  correction of the value in 2010.
The parties to the dispute, in this case the applicant, cannot bear negative consequences of the mistakes made in the introductory parts of the judgments of the first and second instance courts, which were additionally corrected. The limitation of the right to  submit a revision is an excessive formalism, due to the fact that the Supreme Court referred exclusively to the legal provisions that went in favor of rejecting the revision, without fully reviewing the circumstances of the case.

In the case of Blazoski v. Republic of Macedonia, [3]ECHR considered that the contradictory  judgments  reached by the Supreme Court in the same case regarding   its  jurisdiction ratione valoris are incompatible with the principle on legal certainty. . By adopting a different decision on the same issue in the same proceedings and thereby effectively overruling its previous decisions, without any reference to them or reasoning to the contrary, the Supreme Court in the instant case itself became the source of uncertainty. In this way it infringed the principle of legal certainty, inherent in Article 6 § 1 of the Convention
The ECHR criticizes  the inconsistent approach  of  the Supreme Court of RSM, finding that his contradictory decisions in same case concerning its jurisdiction ratione valoris are incompatible with the principle on legal certainty.

CONCLUSION

 

The Supreme Court, which is the highest instance of judicial power, should contribute, like the rest of the courts, to the promotion of human rights and legal certainty. This manner of proceeding by the Supreme Court affects the legal uncertainty of citizens, and leads to  unpredictable  and arbitrary application of laws.
The Supreme Court, acting on extraordinary legal remedies, should ensure unimpeded access to citizens to practice  legally granted  rights, within the framework of existing legal threshold for the value of disputes In the event of the existence of an ambiguity regarding the application of a certain legal provision related with  the right to submit revision or  other legal remedy, the Supreme Court  court should be the  corrector of  possible inconsistency in the application of the laws by the lower courts.
One of the main responsibilities  of the Supreme Court is to ensure uniformed application of laws  and equality of all before the courts, especially in circumstances when  there is unequal treatment of citizens before the courts, legal uncertainty and general mistrust in the judiciary in the country.
The judgment of the ECHR  that determines  violation of Article 6 and interference in the right of  the applicant on access to court due to rejection of the revision from The Supreme Court as inadmissible, is significant because it indicates on the importance of the role  the Supreme Court has  in establishing legal certainty. The judgment also states that when adopting decisions, the court must consider  all the facts of the case especially when its decision  favors a restrictive and formalistic interpretation of the legal provisions. With this ruling, the ECHR emphasizes once again that the courts, specifically the Supreme Court in the country, should not be a source of legal uncertainty.