FIFTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 32715/04 by Abdula JUSUFOSKI against the former Yugoslav Republic of Macedonia

The European Court of Human Rights (Fifth Section), sitting on 31 March 2009 as a Chamber composed of:

Rait Maruste , President, Karel Jungwiert , Renate Jaeger , Mark Villiger , Isabelle Berro-Lefèvre , Mirjana Lazarova Trajkovska , Zdravka Kalaydjieva , judges , and Claudia Westerdiek, Section Registrar ,

Having regard to the above application lodged on 23 August 2004,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr A bdula Jusufoski, is a Macedonian national who lives in Ohrid. He was represented before the Court by Mr M. Popeski, a lawyer practising in Ohrid.

A. The circumstances of the case

The facts of the case, as submitted by the parties , may be summarised as follows.

The applicant was a manager and co-owner of ZZ Monter (“the company”).

On 7 March 2003 Mr P. (“the defendant”) took heavy construction machinery through property (“the property”) which the company used for its own purposes (it had constructed a hard standing for car parking and a waste container). The defendant caused damage to the fence and the concrete hard standing.

On 17 March 2003 the applicant, represented by Mr Popeski, brought, in his own name, an action for disturbance of possessions ( смеќавање на владение) . He claimed to have had the last peaceful enjoyment of the property and fence, which had been disturbed by the defendant. He requested the Ohrid Court of First Instance to prevent the defendant from creating further disturbance and to order him to reinstate the property to its previous state. The applicant based his claim on sections 181-184 of the Ownership and other Property Rights Act (“the Act” , see “Relevant domestic law” below ) .

On 5 December 2003 the Ohrid Court of First Instance dismissed the applicant ’ s claim for lack of standing to bring such an action. It based its decision, inter alia , on his statement that the property had been adjacent to the company ’ s main building and that the company had constructed the fence and the concrete hard standing nine years before. The applicant further stated that the company had actually possessed and used the property ever since. Lastly, he maintained that he had title to the property, even though it was irrelevant to the subject matter of the case. The court ruled that the company, as a distinct legal entity, had been in possession ( владение ) of the property and that accordingly it had been the only person entitled to seek its protection. It held that the applicant had not had possession of the property and accordingly lacked the requisite standing to seek protection under section 184 of the Act.

On 21 February 2004 the applicant appealed, claiming that the first-instance court ’ s approach had been too formalistic and that it should instead have taken into consideration the fact that he had title to the property. In this later context, he presented a non-certified copy of a sales contract of 1998 under which he had allegedly obtained the title, and a receipt slip for the price.

On 27 April 2004 the Bitola Court of Appeal dismissed the applicant ’ s appeal and confirmed the lower court ’ s decision. Relying on sections 167 (direct possession) and 184 of the Act, it reiterated that the applicant lacked the requisite standing to bring the proceedings. In this connection, it observed that the company had the actual possession of the property. It also dismissed the applicant ’ s argument that he had title to the property, since the dispute concerned enjoyment of possessions ( владение) .

B. Relevant domestic law

1. Ownership and other Property Rights Act ( Закон за сопственост и други стварни права) (“the Act”)

Under section 161 of the Act, an owner or a purported owner is entitled to request that disturbance, which does not concern seizure of a property, of his of her ownership is brought to an end. The owner is also entitled to claim damage under the general compensation rules.

Section 167 §§ 1 and 2 of the Act provides that every person who has control of a property, directly or through a representative, can claim to have possession ( владение) of it (direct possession). A person who has control of a property through another person who enjoys direct possession on the basis of a contract or another legal act can also claim to have possession of that property ( indirect possession ).

Section 182 § 1 of the Act provides that a possessor ( владетелот) or a holder of a proprietary right is entitled to protect his or her possession from disturbance or deprivation.

Section 184 of the Act provides that a possessor whose possession has been unlawfully disturbed or seized is entitled to request the court to establish that the disturbance or seizure has taken place, to order reinstatement and to proscribe any such further or similar actions. Court protection is offered in special proceedings according to the last peaceful possession, regardless of the conduct of the possessor and whether the disturbance was lawful and in the public interest.

Under section 185 § 1 of the Act, a person in indirect possession of a property can seek judicial protection of possession if the person in direct possession has not availed him or herself of it.

2. Civil Proceedings Act of 1998 (“the 1998 Act”)

Under section 2 of the 1998 Act, a court decides upon a claim as submitted before it.

COMPLAINTS

Relying on sections 167 § 2 and 185 § 1 of the Act, t he applicant complained under Articles 6 and 13 of the Convention and under Article 1 of Protocol No. 1 that the national courts had not recognised him as having the requisite standing to bring proceedings in relation to his possession.

THE LAW

1. The applicant complained that the national courts had not recognised him as having the requisite standing to bring proceedings, relying on Article 6 of the Convention, which, in so far as relevant, reads as follows:

Article 6 § 1

“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

The Government submitted that the applicant had not been denied the right of access to a court, given that he had availed himself of the civil action in question. The courts, however, had correctly dismissed it since such an action could be brought only by the company, as the last direct possessor of the property. They further maintained that the applicant had not raised before the domestic courts the issue of having had indirect possession of the property. They had accordingly not considered that matter, which was compatible with section 2 of the 1998 Act. Furthermore, there had been no legal act, as required under section 167 § 2 of the Act, attesting that the applicant had indirect possession of the property.

The applicant maintained that he had opted to seek protection of his indirect possession, which had derived from the title to the property, since there had been no legal act conferring on the company a right to a direct possession.

He further averred that under the principle iura novit curia , the domestic courts should have considered his claim as concerning his indirect possession.

The Court finds that the refusal of the domestic courts to examine the merits of the applicant ’ s claim must be considered from the perspective of the right of access to a court (see Luordo v. Italy , no. 32190/96, § 83 , ECHR 2003 ‑ IX ) .

On the facts of the case, the Court observes that the applicant was the company ’ s manager and co-owner. The company, as a distinct legal entity, had direct possession of the property, as specified under section 167 § 1 of the Act. The parties did not contest this. The applicant ’ s claim that he held title to the property – which he made for the first time in his appeal against the decision of the Court of First Instance - was rejected by the appeal court as unsubstantiated. Dealing with the issues before them, the courts established that the applicant lacked the requisite standing to seek protection of the right of peaceful enjoyment of the possessions as they were not his, but the company ’ s. The company was therefore, the only body entitled to bring such action. In this connection, the Court reiterates that it is not its task to take the place of the domestic courts. It is primarily for the national authorities, notably the courts, to resolve problems of interpretation of domestic legislation (see Fetaovski v. the former Yugoslav Republic of Macedonia , no. 10649/03, § 37 , 19 June 2008 ). The Court finds that the restriction of the applicant ’ s capacity to stand in the impugned proceedings does not disclose any arbitrariness or unreasonable application of a procedural rule.

As to the applicant ’ s allegation that the domestic courts should have recognised him as having the requisite standing as an indirect possessor, the Court notes that the applicant, who was represented by counsel, made no reference to this issue either in his claim or in the appeal of 21 February 2004. It was thus not raised, even in substance or by implication, before the domestic courts. It is not open to the applicant now to complain about an alleged failure of the courts to consider a matter which was not raised by him.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

2. The applicant complained also that the national courts had not provided him with judicial protection of his proprietary rights contrary to Article 1 of Protocol No. 1 of the Convention, which reads as follows:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

The Government submitted that the domestic courts had not been called upon to determine whether the applicant had the title to the property. Even assuming that that had been true, the applicant had failed to bring separate proceedings in that respect under section 161 of the Act.

Lastly, they maintained that the applicant ’ s complaint under Article 1 of Protocol No. 1 had been incompatible ratione personae since he, not being the sole proprietor of the company, could not complain about rights vested solely in the company.

The applicant argued that he had title to the property. The domestic courts had not disputed that fact and had wrongly disregarded it as irrelevant. Under those circumstances, they had applied the law erroneously.

The Court recalls that the rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention obliges applicants to use first the remedies that are normally available and sufficient in the domestic legal system to enable them to obtain redress for the breaches alleged. Article 35 § 1 also requires that the complaints intended to be brought subsequently before the Court should have been made to the appropriate domestic body, at least in substance and in compliance with the formal requirements laid down in domestic law, but not that recourse should be had to remedies which are inadequate or ineffective (see Jasar v. the former Yugoslav Republic of Macedonia (dec.), no. 69908/01, 19 January and 11 April 2006, and the references cited therein).

The only remedies which Article 35 of the Convention requires to be exhausted are those which relate to the breaches alleged and at the same time are available and sufficient. The existence of such remedies must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite a ccessibility and effectiveness (see Akdivar and Others v. Turkey , 16 September 1996, § 66 , Reports of Judgments and Decisions 1996 ‑ IV ).

In the present case, the Court considers that the applicant did not exhaust domestic remedies in respect of his complaints under this head. In this connection, it refers to its finding about the applicant ’ s failure to submit before the domestic courts his allegations of being an indirect possessor. Assuming that he was owner of the property, he did not avail himself, as the Government argued, of the remedies specified in section 161 of the Act nor did he claim compensation for any damage. These remedies were undoubtedly capable of providing the applicant with redress for the breaches alleged.

It follows that this complaint must be rejected under Article 3 5 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

3. Lastly, the applicant complained under Article 13 of the Convention, which reads as follows:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

According to the Court ’ s case-law, this provision applies only where an individual has an “arguable claim” to be the victim of a violation of a Convention right (see Berisha and Haljiti v. the former Yugoslav Republic of Macedonia (dec.), no. 18670/03 , 16 June 2005 ).

The Court has found above that the substantive complaints are manifestly ill-founded. For similar reasons, the applicant did not have an “arguable claim” .

It follows that this part of the application is also manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4.

For these reasons, the Court unanimously

Declares the application inadmissible.

             Claudia Westerdiek Rait Maruste Registrar President