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FIFTH
SECTION
CASE OF DIMITRIEVA v. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA
(Application
no. 16328/03)
JUDGMENT
STRASBOURG
6
November 2008
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Dimitrieva v. the
former Yugoslav Republic of Macedonia,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Rait Maruste, President,
Volodymyr
Butkevych,
Renate Jaeger,
Mark
Villiger,
Isabelle Berro-Lefèvre,
Mirjana
Lazarova Trajkovska,
Zdravka Kalaydjieva, judges,
and
Claudia Westerdiek,
Section Registrar,
Having
deliberated in private on 7 October 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 16328/03) against the
former Yugoslav Republic of Macedonia lodged with the
Court under Article 34
of the Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by a
Macedonian national, Ms Natka Dimitrieva (“the applicant”),
on 13 May 2003.
-
The Macedonian Government (“the Government”)
were represented by their Agent, Mrs R. Lazareska Gerovska.
-
On 7 May 2007 the Court
decided to communicate the complaint concerning the length of the
proceedings. Applying Article 29 § 3 of the Convention, it
decided to rule on the admissibility and merits of the application at
the same time.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
-
The applicant was born in 1958 and lives in Štip.
-
The applicant worked in Stopanska Banka A.D. Skopje (“the
Bank”). On 10 March 1997 she was dismissed under, inter
alia, section 19-a of the Restructuring Act of some of the banks
in the Republic of Macedonia (“the Restructuring Act”). A
redundancy allowance (испратнина)
was paid to her.
-
On 22 April 1997 the applicant challenged her dismissal before the
Štip Court of First Instance (“the first-instance
court”) alleging non-compliance with the procedural
requirements of the Labour Act (“Act”) (Закон
за работните
односи). She
further claimed that section 19-a of the Restructuring Act had been
discriminatory and accordingly, unconstitutional.
-
None of the five hearings listed before the first-instance court was
adjourned at the applicant's request. During the proceedings, the
applicant specified her claim on three occasions. On 27 March 1998
the first-instance court dismissed the applicant's claim, finding
that the Restructuring Act, as the lex specialis, had
suspended the application of the Labour Act. It further stated that
an appeal against that decision could be lodged within eight days of
its service on the party concerned.
- On
2 June 1998 the applicant appealed (her notice of appeal ran to
twenty-five pages). She requested, inter alia, the Court of
Appeal to hold a public hearing for the purpose of providing her
representative with an opportunity to elucidate the grounds of the
appeal.
-
Following private deliberations held on 17 September 1999, the Štip
Court of Appeal dismissed the applicant's appeal and confirmed the
lower court's decision. It reiterated that the Restructuring Act had
indeed been lex specialis and that section 19-a, as applied in
her case, had suspended the application of sections 127 and 129 of
the Act. It further maintained that the eight-day time-limit for
submission of the appeal had been in compliance with the Civil
Proceedings Act, valid at that time. The decision was served on the
applicant on 12 October 1999.
-
On 11 November 1999 the first-instance court received a detailed
appeal by the applicant on points of law.
-
On 19 September 2002 the Supreme Court dismissed the applicant's
appeal on points of law, endorsing the reasons given by the lower
courts. It further held that the Court of Appeal had provided
sufficient reasons for dismissing her arguments concerning the
time-limit for submission of the appeal. It also dismissed her
arguments about the temporal validity of the Restructuring Act. The
applicant was served with the decision on 14 November 2002.
-
On 14 January 2003 the applicant lodged with the Constitutional Court
a request for the protection of human rights and freedoms (барање
за заштита на
слободите и
правата на
човекот и граѓанинот)
(“the constitutional complaint”)
alleging discrimination. She claimed that the Restructuring Act had
been more restrictive for her, as an employee of the Bank, and that
she had been put in a disadvantageous position compared to employees
of other employers. Following the Constitutional Court's request, on
27 January 2003 she clarified her application: she claimed to be a
victim of the application of section 19-a of the Restructuring Act
which had removed the discharge notice (отказен
рок) and the criteria specified
in the Act.
-
On 9 July 2003 the Constitutional Court dismissed the applicant's
constitutional complaint, finding no discrimination: it stated, inter
alia, that the Restructuring Act, as the lex specialis,
had suspended the application of the Act. It also referred to its
earlier decision of 23 October 1996 by which it had confirmed the
constitutionality of section 19-a of the Restructuring Act. It
further maintained that it did not provide supervisory review
(инстанционен
надзор) of the
relevant decisions. On 23 July 2003 the decision was published in the
Official Gazette.
II. RELEVANT DOMESTIC LAW AND PRACTICE
1. The Constitution
-
Article 32 § 5 of the Constitution provides that the rights of
employees and their positions are regulated by statute and collective
agreements.
2. Restructuring Act of some of the banks in the
Republic of Macedonia (Закон
за санација
и реконструирање
на дел од банките
во Република
Македонија)
-
Section 3 of the Restructuring Act provided that it concerned the
Bank.
-
Section 19-a of the Restructuring Act provided that sections 127 §
1 and 129 of the Labour Act would not apply to the Bank's employees
dismissed as redundant.
3. Labour Act (Закон
за работните
односи),
as in force at the
material time
-
Section 127 § 1 required
employers to give one month's discharge notice to individual
employees when dismissed as redundant.
-
Section 129 provided, inter
alia, that the
number and posts of employees to be made redundant would be
determined on the basis of the criteria established by the collective
agreements.
4. Decisions
of the Supreme Court
-
The applicant submitted several
decisions of the Supreme Court concerning same legal issues:
(a)
Supreme Court decision of 1 April 1999 (Рев.бр.531/98)
(b)
Supreme Court decision of 5 July 2001 (Рев.бр.67/99)
(c)
Supreme Court decision of 6 September 2001 (Рев.бр.366/01)
In
the above cases the Supreme Court dismissed appeals on points of law
lodged by the Bank's employees against courts' decisions confirming
their dismissal. The Supreme Court reiterated that the Restructuring
Act, as the lex specialis, had a specific aim and that, in
relation to the Bank's employees, it had suspended some of the
procedural requirements provided in the Act.
5. The Constitutional Court's decision confirming the
constitutionality of section 19-a of the Restructuring Act
-
On 23 October 1996 the Constitutional Court decided not to launch
proceedings for constitutional review (не
поведува постапка
за оценување
на уставноста)
of section 19-a of the Restructuring Act. It held
that that provision had been based on Article 32 § 5 of the
Constitution and that it had been adopted in a specific context
concerning the Bank's restructuring. It concluded that the specific
terms and criteria for dismissal of the Bank's employees as redundant
could not be regarded as discriminatory compared to employees of
other employers.
6. Civil Proceedings Act (Закон
за парничната
постапка)
-
Section 340 § 1 of the Civil Proceedings Act provided that there
would be a substantial infringement of the civil procedure if the
court had not applied or had wrongly applied a statutory provision, a
circumstance which influenced or might have influenced the adoption
of a lawful and just decision.
-
Section 348 provided that as a rule the second-instance court decided
without a public hearing. A public hearing would be held if the
decision-making panel of the second-instance court considered it
necessary to rehear evidence which had already been taken in order to
establish the facts correctly.
-
Section 408 provided, inter alia, that the court should take
into consideration the necessity of urgent settlement of employment
disputes.
-
Section 410 provided for an eight-day time-limit for lodging an
appeal in employment disputes.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
-
The applicant complained that the length of the proceedings before
the courts of general jurisdiction had been incompatible with the
reasonable time requirement, laid down in Article 6 § 1 of the
Convention, which reads as follows:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal...”
A. Admissibility
-
The Government did not raise any objection as to the admissibility of
this complaint.
-
The Court notes that this complaint is not manifestly ill-founded
within the meaning of Article 35 § 3 of the Convention. It
further notes that it is not inadmissible on any other grounds. It
must therefore be declared admissible.
B. Merits
1. The parties' submissions
- The
Government submitted that the case had been complex. The fact that it
concerned the applicant's dismissal, as a result of the Bank's
restructuring, contributed to that complexity.
- They
further stated that the applicant's submissions specifying his
initial claim had also contributed to the length of the proceedings.
50. They concluded that the national courts had conducted the
proceedings in accordance with the law. The proceedings before the
Supreme Court had lasted longer due to its excessive workload for the
respective period.
- The
applicant contested the Government's arguments about the complexity
of the case and her contribution to the length of the proceedings.
She further maintained that the length of the proceedings, in
particular those before the Supreme Court, had been excessive. The
fact that it had taken only a year for the Supreme Court to decide
the same legal issue in another case (see paragraph 18 (a) above)
supported her assertion. Its workload could not justify the length of
the proceedings. On the contrary, it required the State to take
measures to remedy it.
2. The Court's assessment
- The
Court notes that the proceedings before the courts of general
jurisdiction started on 22 April 1997 and ended on 14 November 2002
when the Supreme Court's decision was served on the applicant. They
therefore lasted five years, six months and twenty-two days for three
levels of jurisdiction. The proceedings before the first-instance
court lasted about a year, before the second-instance court over a
year and four months and before the Supreme Court over two years and
ten months. In addition, it took nearly two months for the Supreme
Court's decision to be served on the applicant.
- The Court reiterates that the reasonableness of the
length of proceedings must be assessed in the light of the
circumstances of the case and with reference to the following
criteria: the complexity of the case, the conduct of the applicant
and the relevant authorities and what was at stake for the applicant
in the dispute (see Markoski v. the former Yugoslav Republic of
Macedonia, no. 22928/03, § 32, 2 November 2006).
-
The Court does not consider that the case required examination of
complex issues or that the specific situation of the Bank affected
the complexity of the case.
-
It further finds that no delays are attributable to the applicant.
Her submissions specifying her claim cannot be considered to her
detriment.
50. On the other hand, the Court considers that, while there were no
delays attributable to the first- and second-instance courts, the
Supreme Courts did not display the requisite vigilance when deciding
the applicant's case. The time which elapsed before that court, which
reviewed the case only on points of law, cannot be regarded as
reasonable (see Mihajloski v. the former Yugoslav Republic
of Macedonia, no. 44221/02, § 38, 31 May 2007).
The excessive workload of the Supreme Court that the Government
referred to in their observations, cannot justify the length of the
proceedings for the reasons detailed in the Lickov and
Mihajloski cases (see Lickov v. the former Yugoslav
Republic of Macedonia, no. 38202/02, § 31,
28 September 2006, and Mihajloski, cited above, § 40),
which likewise apply to this case. This is so, in particular, since
that court already has established jurisprudence on the matter (see
paragraph 18 above). Finally, the Court notes that the domestic law
(see section 408 of the Civil Proceedings Act above) and the Court's
jurisprudence (see Ziberi v. the former Yugoslav Republic
of Macedonia, no. 27866/02, § 47, 5 July
2007) required employment-related disputes to be conducted with
special diligence.
-
Having examined all the material submitted to it, the Court considers
that in the instant case the length of the proceedings was excessive
and failed to meet the reasonable time requirement of Article 6 §
1 of the Convention.
-
There has accordingly been a breach of that provision.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant further complained that the courts had not provided
sufficient reasons for their decisions; that they had not been
impartial and independent; that the first-instance court's decision
had not been publicly pronounced; and that the Court of Appeal had
decided in private despite her request for a public hearing.
- Relying
on Article 14, the applicant also complained that she had been
discriminated against on the basis of her social origin by the
application of section 19-a of the Restructuring Act. Finally, she
complained that she had been given a shortened time-limit to appeal
against the first-instance court's decision, instead of the general
fifteen-day time-limit provided under the Civil Proceedings Act.
- The
Court has examined these applicant's complaints and finds that, in
the light of all the materials in its possession, and in so far as
the matters complained of are within its competence, they do not
disclose any appearance of a violation of the rights and freedoms set
out in the Convention or its Protocols.
- It
follows that this part of the application is manifestly ill-founded
and must be rejected in accordance with Article 35 §§ 3 and
4 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
-
Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal Restructuring Act of the High Contracting Party concerned
allows only partial reparation to be made, the Court shall, if
necessary, afford just satisfaction to the injured party.”
A. Damage
-
The applicant claimed 36,000 euros (EUR) in respect of pecuniary
damage. That figure corresponded to salary arrears since her
dismissal in 1997. She also claimed EUR 46,200 in respect of
non-pecuniary damage for the emotional stress and suffering caused by
her dismissal and the lengthy proceedings.
-
The Government contested these claims as unsubstantiated. They
further maintained that there was no causal link between the
pecuniary damage claimed and the alleged violation.
-
The Court does not discern any causal link between the violation
found and the pecuniary damage alleged; it therefore rejects this
claim. On the other hand, it awards the applicant EUR 800 in respect
of non-pecuniary damage.
B. Costs and expenses
-
The applicant claimed costs and expenses incurred during the
proceedings, but stated that she had not kept any receipts.
-
The Government did not express an opinion on the matter.
-
The Court notes that the applicant did not submit any supporting
documents or particulars to substantiate his claims. Accordingly, the
Court does not award any sum under this head.
C. Default interest
-
The Court considers it appropriate that the default interest should
be based on the marginal lending rate of the European Central Bank,
to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint concerning the excessive
length of the proceedings admissible and the remainder of the
application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds
(a)
that the respondent State is to pay the applicant, within three
months from the date on which the judgment becomes final in
accordance with Article 44 § 2 of the Convention,
EUR 800 (eight hundred euros), plus any tax that may be chargeable,
in respect of non-pecuniary damage, to be converted into the national
currency of the respondent State at the rate applicable at the date
of settlement;
(b)
that from the expiry of the above-mentioned three months until
settlement simple interest shall be payable on the above amount at a
rate equal to the marginal lending rate of the European Central Bank
during the default period plus three percentage points;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 6 November 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Rait
Maruste
Registrar President
