Communicated on 19 May 2015

FIRST SECTION

Application no. 71962/10 Rami FETAOVSKI against the former Yugoslav Republic of Macedonia lodged on 26 November 2010

STATEMENT OF FACTS

The applicant, Mr Rami Fetaovski , is a Macedonian national, who was born in 1946 and lives in Kumanovo . He is represented before the Court by Mr R. Česmadžiski , a lawyer practising in Kumanovo .

A. The circumstances of the case

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

1. Background to the case

On 19 June 2008 the Court delivered a judgment (“the Court ’ s judgment”) in which it found a violation of the applicant ’ s right of access to a court and the right to a hearing within a reasonable time in relation to compensation proceedings which he had instituted against the respondent State (see Fetaovski v. the former Yugoslav Republic of Macedonia , no. 10649/03, 19 June 2008 ). As regards the access to a court complaint, the Court established that the Court of Appeal had rejected the applicant ’ s appeal as belated notwithstanding that he had presented a copy of his appeal which, according to the receipt stamp of the court, had been submitted within the statutory time-limit. The applicant ’ s appeal had been rejected solely on the basis of the entry in the registry of the first-instance court. The Court concluded that:

“ the failure by the domestic courts to accept the [applicant ’ s copy of the] appeal or, in the alternative, to provide a tenable reason for not accepting it, amounted to a construction of the procedural rule at issue which deprived the applicant of his right of access to a court ” (see, ibid., § 40). ”

As regards the applicant ’ s complaint under Article 1 of Protocol No. 1 to the Convention, the Court stated that:

“T he applicant ’ s complaint under Article 1 of Protocol No. 1 is directly connected with that examined under Article 6 § 1 of the Convention ( access to a court complaint ) and that it cannot speculate on the outcome of the proceedings should not have been for the violation found. Having regard to its conclusion that there was an infringement of the applicant ’ s right of access to a court, the Court does not consider it necessary to rule on the applicant ’ s complaint based on Article 1 of Protocol No. 1. ” ( see, ibid., § 6 0 ). ”

As to the applicant ’ s claim for just satisfaction under Article 41 of the Convention, the Court referred to Rule 60 of the Rules of Court an d given the applicant ’ s failure to submit any such claim , it concluded that it would “ make (s) no award under Article 41 of the Convention ” (see, ibid., § § 62 ‑ 64) .

2. Request for re-opening of the compensation proceedings on the basis of the Court ’ s judgment

On 20 October 2008 the applicant requested, under section 400 of the Civil Proceedings Act, “the Act”, see “Relevant domestic law” below) reopening of the impugned proceedings on the basis of the Court ’ s judgment . He claimed that the Kumanovo Court of First Instance (“the first-instance court”) quash the court judgments in the compensation proceedings and accept his compensation claim in the reopened proceedings. It appears that the court admitted to the file a copy of the Court ’ s judgment translated into Macedonian by a court certified interpreter. Its text differs considerably from the Macedonian version of the Court ’ s judgment translated by the Ministry of Justice of the respondent State (this version is on HUDOC and the Ministry ’ s web page).

On 18 March 2009 the first-instance court dismissed the applicant ’ s request for reopening. In so doing it merely cited §§ 60, 62-64 of the Macedonian version of the Court ’ s judgment that was included in the case file. Without providing any further explanation, the court ruled that the applicant ’ s request for reopening was “ill-founded and should be dismissed.”

The applicant appealed against this decision arguing that it was unclear, incomprehensible and unreasoned. He submitted that the first-instance court had not obtained an official translation of the Court ’ s judgment. He further stated that:

“The reopening is the only way for rectifying the violations of the (applicant ’ s) rights under Article 6 which would provide (the applicant) with access to a court, the right to appeal and other procedural guarantees. The reopening is the only way through which the legal opinion of the Court that there had been a violation of the (applicant ’ s) right under Article 6 would be respected...

Final dismissal of the request for reopening would entail a new violation of the right to a fair trial under Article 6 ...

... the only legal opinion of the Court is that the (domestic) courts violated the (applicant ’ s) right to a fair trial, by having deprived him of the right of access to a court ... if the request for reopening is dismissed, it would mean another fresh violation of that right.”

On 27 May 2010 the Skopje Court of Appeal dismissed the applicant ’ s appeal and confirmed the reasoning given by the first-instance court. It made no comment on the applicant ’ s argument regarding the Macedonian version of the Court ’ s judgment no. 10649/03 of 19 June 2008 .

B. Relevant domestic law

Section 400 of the Civil Proceedings Act of 2005 provides that a case may be reopened if the European Court of Human Rights has given a final judgment finding a violation of the Convention or its Protocols ratified by the respondent State. Rules concerning reopening apply to these proceedings. The courts are bound with the Court ’ s legal opinion expressed in the judgment finding a violation of human rights and freedoms.

Section 397 of the Act provides that a hearing shall be held before the first-instance court, unless the examination of the merits of the request for reopening is not joined with the examination of the main subject matter.

COMPLAINTS

The applicant alleges a violation of his right to a fair trial under Article 6 of the Convention in that the courts that examined his request for reopening wrongly found that the violation of his right of access to a court had no bearing on his compensation claim and that he renounced to claim damages. In this latter context he submits that his compensation claim was not the subject of the Court ’ s judgment. The latter concerned only the infringement of his right of access to a court due to unjustified rejection of his appeal. Lastly, he complains under Article 1 of Protocol No. 1 of the Convention.

q UESTION S TO THE PARTIES

1. Is Article 6 of the Convention applicable to the facts of which the applicant complains (see Fischer v. Austria ( dec. ), no. 27569/02 , 6 May 2003 ) ?

2. If so, does the refusal of the domestic courts to reopen the domestic proceedings in the light of the Court ’ s judgment in Fetaovski v. the former Yugoslav Republic of Macedonia (no. 7577/02, 3 May 2007) fall within the Court ’ s jurisdiction ? If so, was the conclusion of the domestic courts in the impugned proceedings compliant with the requirement of a “fair trial” under Article 6 of the Convention (see, mutatis mutandis , Bochan v. Ukraine ( no. 2) [GC], no. 22251/08 , 5 February 2015) ? In this connection the parties are invited to comment on the origin of the translated version of the Court ’ s judgment of 19 June 2008 (application no. 10649/03) on which the domestic courts based their decisions and whether such a translation could be regarded “official”.

3 . Has there been an interference with the applicant ’ s peaceful enjoyment of possessions with i n the meaning of Article 1 of Protocol No. 1? If so, was that interference justified within the meaning of this provision?