The formal interpretation of the legal provisions limits the right of access to the court

Analysis of Borjanka Monevska to the Decision GZ-1215/18 from Appellate court Bitola. 

1. Facts about the case

With Decision P1-20/17 of the Primary court Bitola dated 23.04.2018, the appeal of the defendant submitted by its attorney against Verdict of the Primary court Bitola P1-20/17 dated 13.03.2018 is rejected in accordance with Article 98 par. 4 in connection to Article 101 of the Law on litigation procedure (“LLP”). With the Decision of Appellation court Bitola GZ-1215/18 dated 18.10.2018, the appeal of the defendant is rejected, while the Decision of the Primary court Bitola P1-20/17 dated 23.04.2018 is confirmed.
Namely, the reason for the Primary court to reject the Appeal of the defendant submitted by its attorney, as per the court findings, is the fact that the Appeal did not contain information about the electronic mailbox of the defendant’s attorney, as it was prescribed in the provision from Article 98 par. 4 from LLP, as well as the fact that the provided e-mail address in the Appeal did not contain an information for the electronic mailbox for delivering letters registered in accordance with the law.
In the Appeal against this Decision of the Primary court, the defendant through its attorney pointed out that the position of the Primary court is wrong because the memorandum of the submitted appeal contains the information vip_advokat@t-home.mk which presents electronic mailbox and e-mail at the same time because it is the same as the other synonyms used for this term (electronic post, electronic address, e-mail, i-meil, electronic mailbox, etc.). Additionally in the Appeal it was stated that the electronic system for court delivery of the defendant’s attorney did not function at all for longer period of time, which occasion was reported to the information center of the Court and the information center of the Supreme court, since the defendant’s attorney was disconnected from this system and the electronic delivery did not function for him.
In the explanations given by the Judge of the Primary court in front of the Appellation court in accordance with Article 349 par. 2 of LLP, it is additionally stipulated that in Article 126-a of LLP was regulated how the electronic delivery is done, as well as that upon a check in the “AKMIS” application it was established that the attorney did not have functional electronic mailbox for receiving letters, but however, he was obliged to specify data about the electronic mailbox in the Appeal.      
The position of the Primary court was fully confirmed by the Appellation court, which found that there was no violations of the provisions of the litigation procedure made by the Primary court and dismissed the appeal of the defendant as ungrounded.
In the explanation of the Decision, the Appellation court stated that the lawmaker used different terms in the provisions from Article 98 par. 3 and par. 4 of LLP in order to clearly differentiate e-mail and electronic mailbox, thus in the Appeal it was mandatory to be provided not only the e-mail address, but the data for electronic mailbox for delivery of letters registered in accordance with the law as well, and this information was not stated by the defendant in any previous written submission.

2. Meaning and application of the provision from Article 98 par. 4 of LLP

Namely, in the provision of Article 98 of the LLP referred to as "Submissions", the basic elements that each submission should contain are regulated in order the submission to be treated accordingly. The provisions of paragraphs 3, 4, 5 and 8 of Article 98 of the LLP were adopted by the Law on amending the Law on litigation procedure dated 01.09.2010, published in the Official Gazette No. 116/2010, which amendments were adopted as a result of the life reality in connection with the use of the Internet between physical and legal entities, which Internet proved to be the main economic driver in many areas, and with the adoption of many laws in the area of information society and communication between state bodies and citizens as well as the communication between the citizens themselves became legislatively regulated.
In fact, the amendments made to this provision are in terms of the principle of cost-effectiveness of the proceedings and a trial within a reasonable time, in order to overcome the problem of prolonging the procedure and the inability to handle the submission due to insufficient number of copies, incomplete data in the submission, as well as to provide a more serious approach by the parties and their attorneys when filing the submissions to the courts.
The provision in paragraph 3 provides that submissions must be comprehensible and must contain all that is necessary to be able to act upon them, and in addition to other data it is stated that they should contain an email address.
The provision in paragraph 4 of Article 98 of the LLP, it is provided that the submissions of certain participants in the procedure (lawyers, state bodies, or local self-government bodies, legal entities and persons performing public authorizations) that can be exchanged electronically, it is necessary to include data on the electronic mailbox for the submission of the letters, registered in accordance with the law.
The provision of paragraph 4 of Article 98 of LLP is also specified through the provisions of Articles 125-a and 126-a of LLP, which were adopted with the same amendments to the LLP, and stipulate that the delivery of the submissions to lawyers and other persons referred to in Article 98 paragraph 4 of LLP, is performed electronically in an electronic mailbox and that the electronic delivery is done through the court's information system at the address of the electronic mailbox of the recipient of the delivery.
The intention of the lawmaker using the term "electronic mailbox for the delivery of the letters registered in accordance with the law", in the provision from Article 98 paragraph 4 of LLP, referring to the submissions filed by attorneys and other persons who according to the law are obliged to be registered on the system for e-delivery with its electronic mailbox or e-mail address, was to make it clear that the persons in the submissions must indicate the e-mail address that they have registered in the electronic court delivery system, and not some other e-mail address.
In that sense, the lawmaker specified that in these submissions filed by persons with whom the Court has electronic communication, the address of the electronic mailbox with which the user has registered in the system for electronic court delivery must be specified, in order the Court not to interfere with the exchange of letters on the registered address of the electronic mailbox.
However, in the provision of Article 98 paragraph 3 of LLP, the lawmaker used the wider term "e-mail address", because this provision has a wider application and refers to the submissions filed by the parties as physical and legal entities, no matter if submitted through an attorney or personally by the parties themselves. This considering that the physical and legal entities as parties are not obliged to be registered in the electronic court delivery system with their own e-mail address or electronic mailbox according to law, as is the lawyer for example.
In that manner, when the lawmaker used two different terms, he did not consider that it would create inconsistencies in the application of the provision of Article 98, paragraphs 3 and 4 of the LLP, since the terms are stated in the manner to fulfill the purpose of the provision. At the same time, having in mind that the judges will be appropriately trained in the application and interpretation of electronic delivery provisions and will have an elementary knowledge of the terminology in this regard.
According to professional literature in the field of informatics, e-mail (e-mail) is a service on the Internet that enables the exchange of electronic messages among the users of the electronic mail on the Internet. In order to be able to use an e-mail, each user must have their own electronic address or e-mail address. An electronic mailbox is assigned for each e-mail address. An electronic mailbox (e-mail box) is a hard disk space on the computer's e-mail server, in which the user's electronic messages are stored. E-mail server is a computer connected to the Internet that receives and sends emails to e-mail users. In order to be able to use e-mail, each user must have their own electronic address. The e-mail address is selected by the user. The e-mail address consists of two parts: a user name chosen by the user when creating the e-mail address and the name of the e-mail server, which are separated by the @ sign.
That the e-mail address as data is the data for the address of the electronic mailbox also derives from the definition of "electronic mailbox" used in the Conditions for use of the system for electronic delivery of court documents, which is that email address which on request of the user, the Court approves, registers on the web portal e-delivery, and through which secure electronic submission and receipt of court documents is performed.
Considering that, as stated in the Appeal of the defendant, the attorney-at-law in the Appeal had stated the data for the e-mail address with which he was registered in the electronic court delivery system, which means the data for his electronic mailbox, even though it did not function, it emerges that the conditions of Article 101 paragraph 1 of LLP have not been met, the appeal by the defendant filed by an attorney to be dismissed. It follows that the courts made a misapplication of the provision of Article 98 paragraph 4 of LLP, when they found that apart from the provided data for the e-mail address, the authorized representative of the defendant was obliged to provide additional data for the electronic mailbox.

3. Conclusion

The said Decision violates the procedure, considering that the Appellation court did not eliminate the essential violations committed in the Primary court procedure in accordance with Article 343, paragraph 1, in connection to Article 98 paragraph 4 and Article 101 paragraph 1 of LLP and Article 343 paragraph 2 item 7 of the LLP.
The violations committed by the Primary court that have not been removed by the Appellation court are due to the misapplication of the provision of Article 98 paragraph 4 of the LLP, and which misapplication entails a violation under Article 343 paragraph 2 item 7 of the LLP.
In this way, the defendant was deprived of the opportunity to discuss in front of the second instance court, meaning that his right to access to court guaranteed by Article 6 of the European Convention on Human Rights was violated. Namely, the procedural principles have meaning not only for the lawmaker, but also for the one who applies them, and these are the judges in the procedure for providing legal protection, and the judges must take into account the application and the interpretation of the procedural principles, including the principle of fairness.
Moreover, in the present case, it is questionable whether the Court really took care for achieving the purpose of the legal provision on the regularity of the Appeal as a submission, given that, as stated, according to the Court the defendant's attorney did not specify an electronic mailbox in any of his previous submission. Hence, the question arises as to why and how the previously submitted submissions from the attorney were appropriate for the Court to discuss and decide upon them and to cause costs for the court budget and for the parties, and now for the first time the Appeal as submission was regarded as inappropriate and found that it cannot be discussed upon it, limiting the defendant's constitutionally guaranteed right of access to the court.

The conclusion is that with this kind of formal and impractical approach to the manner of interpretation of the legal provisions, the essential application of procedural principles is avoided, and a room is left for doubt that the judges, the provision from Article 98 in connection to Article 101 of LPP, serve in the intention to present a greater number of resolved court cases that will enter their judicial norm, which would give them a higher rating by the judicial council. But in the fight for higher assessment, bigger benefits and personal advancement, the judges forget that they perform a court function whose main role is the administration of justice, through meritorious decision-making for some right or legal relation, in order to achieve greater legal certainty and predictability in the legal circulation.

It is precisely the legal certainty that is expected to be achieved in the wake of the reform process that follows the judiciary system in the Republic of North Macedonia, which is why the contribution of judges in this process is additionally important, through proper and expedient interpretation and application of the legal provisions in the pronounced decisions, and in the direction of preserving and promoting the basic human rights and freedoms.