(Application no. 22928/03)
2 November 2006
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 Markoski v. the former Yugoslav Republic of Macedonia,
The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:
Mr P. Lorenzen, President,
Mr K. Jungwiert,
Mr V. Butkevych,
Mrs M. Tsatsa-Nikolovska,
Mr J. Borrego Borrego,
Mrs R. Jaeger,
Mr M. Villiger, judges,
and Mrs C. Westerdiek, Section Registrar,
Having deliberated in private on 9 October 2006,
Delivers the following judgment, which was adopted on that date:
6. On 11 August 1995 the applicant brought an action against his employer, claiming that he had been unlawfully dismissed. He sought to be re-instated to a post corresponding to his qualifications.
7. Of seven hearings, including the preparatory one, scheduled between 8 November 1995 and 17 May 1996, one hearing was adjourned at the judge’s request; two hearings were postponed because of late submission of evidence; one hearing was adjourned without any reasons and one hearing was rescheduled at the employer’s request. The applicant attended all the hearings as scheduled. During this period, the composition of the judicial council (судскиот совет) changed once.
8. On 17 June 1996 the employer requested the court to reinstate the proceedings (враќање во поранешна состојба) as it had failed to appear in court on 17 May 1996 due to a failure of its former representative to inform it about the date of the hearing. On 28 June 1996 the applicant filed an objection against the employer’s request which he had subsequently withdrawn. The hearing of 13 September 1996 was held by another trial judge who had taken over the case.
9. At the hearing of 27 September 1996 the court examined some witnesses.
10. On 14 November 1996 the Skopje Court of First Instance upheld the applicant’s claim and annulled the employer’s decision for termination of his employment. The court found that his dismissal had not been made by a competent body. It held that the applicant had worked with the employer continuously for over 20 years and as such the managing board (управен одбор) should have decided his dismissal, instead of its manager.
11. On 11 March 1997 the employer appealed against the decision.
12. On 4 June 1997 the Skopje Court of Appeal upheld the employer’s appeal, quashed the lower court’s decision and ordered a retrial. It found that the lower court had erred in establishing the facts, in particular concerning the applicant’s uninterrupted work with the employer which had undergone several organisational changes over the time.
13. Of ten hearings scheduled between 21 October 1997 and 5 October 1998, two hearings were adjourned by the trial court to examine the official company’s register concerning the employer; one hearing was postponed due to the trial judge’s absence; two hearings were rescheduled as the court could not locate a witness, whose whereabouts had been provided by the applicant. Within this period, the court heard the applicant and examined some witnesses. The composition of the judicial council also changed once as new lay-judges stepped in the proceedings. The applicant attended all the hearings as listed.
14. On 5 October 1998 the Skopje Court of First Instance dismissed the applicant’s claim as the dismissal decision had been adopted by a competent body and the applicant had infringed working discipline. The court established that the applicant had been initially employed by “David Pajic-Daka” Belgrade (“the company”), a company incorporated outside the former Yugoslav Republic of Macedonia, which had had a subsidiary office in Skopje. When the company had founded “Daka servis” d.o.o. Skopje, as a separate legal entity incorporated in the former Yugoslav Republic of Macedonia, the applicant continued working for this newly created entity. At the last stage, “Daka servis” d.o.o. Skopje was merged with another company “Daka montaza”, creating as a separate legal entity. As stated by the Government, this decision was drawn up on 1 December 1999 and served on the parties after the applicant had paid the court fees.
15. On 6 December 1999 the applicant appealed against the decision.
16. On 10 December 1999 the first-instance court ordered the applicant to pay the court fees within eight days. On 20 December 1999 the applicant complied with this order.
17. On 9 February 2000 the Skopje Court of Appeal upheld the applicant’s appeal and overturned the lower court’s decision. It found that the applicant had worked continuously for over twenty years with the same employer, despite the organisational changes that the latter underwent over time. It therefore declared the applicant’s dismissal null and void and ordered the employer to reinstate him to work.
18. On 3 May 2000 the employer lodged with the Supreme Court an appeal on points of law (ревизија). On 22 May 2000 the applicant submitted his reply to the employer’s appeal on points of law.
19. On 4 May 2000 the employer requested the public prosecutor to submit to the Supreme Court a request for the protection of legality (барање за заштита на законитоста).
20. On 8 May 2000 the employer filed before the Court of First Instance a request for re-opening of the proceedings (предлог за повторување на постапката).
21. On 19 April 2000 the applicant instituted separate enforcement proceedings concerning the reinstatement order and the trial costs. On 27 April 2000 the court granted the applicant’s request (“the enforcement order”). On 22 June 2000 the applicant withdrew his request concerning the reinstatement, as he had meanwhile been reinstated. On 30 June 2000 the court stayed the enforcement proceedings concerning the applicant’s reinstatement and dismissed the employer’s objection concerning the reimbursement of the trial costs. On 12 October 2000 the Court of Appeal upheld the lower court’s decision. On 20 November 2000 the employer requested postponement of the enforcement. On 14 December 2000 the applicant objected to the employer’s request for postponement. It appears that the applicant received the sum due to him.
22. On 12 December 2002 the Supreme Court returned the case-file to the trial court in respect of the employer’s request for re-opening of the proceedings.
23. On 16 December 2002 the Skopje Court of First Instance terminated the proceedings concerning the employer’s request for re-opening of the proceedings and decided to transfer the case-file to the Supreme Court in respect of the employer’s appeal on points of law.
24. On 27 March 2003 the Supreme Court upheld the employer’s appeal on points of law, overturned the Court of Appeal’s decision and upheld the trial court’s decision of 5 October 1998. It departed from the reasoning of the Appeal Court finding that the employer could not be considered the one in which the applicant had been initially employed.
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”
27. The Court notes that the civil proceedings started on 11 August 1995 when the applicant brought his claim before the Skopje Court of First Instance. They terminated on 27 March 2003 when the Supreme Court upheld the employer’s appeal on points of law and confirmed the applicant’s dismissal.
28. The Government submitted that the period which had lapsed before the entry into force of the Convention in respect of the former Yugoslav Republic of Macedonia should not be taken into consideration.
29. The Court finds that the period which falls within its jurisdiction did not begin on 11 August 1995, but on 10 April 1997, after the Convention entered into force in respect of the former Yugoslav Republic of Macedonia (see Atanasovic and Others v. “the former Yugoslav Republic of Macedonia”, no. 13886/02, § 26, 22 December 2005; Horvat v. Croatia, no. 51585/99, § 50, ECHR 2001 VIII).
34. The applicant contested the Government’s arguments concerning the complexity of the case. He noted that the Government had not referred to any national effective remedy concerning the length of the proceedings which he might have availed himself of. He also argued that it had been the employer which had withdrawn the request for reinstatement of the proceedings. The applicant submitted that he had paid the court fees eight days after being requested by the court. Moreover, in accordance with the relevant law applicable at the time of institution of the proceedings, the payment of court fees was not a formal requirement for the courts to proceed with a case. He submitted that the Government’s arguments concerning the conduct of the authorities could not exculpate the State from its responsibility to decide his case within a reasonable time. He also disagreed that the Supreme Court’s workload could justify the three-year period lapsed before it.
36. The Court considers that the case was of some legal complexity, in particular concerning the legal status of the employer which had undergone several organisational changes over time. In such a situation, the courts were required to establish whether the applicant’s employment could be considered as uninterrupted, as a crucial issue determining the competent body within the employer to decide about his dismissal. However, the Court considers that the legal issues of the case cannot alone justify the length of the proceedings.
37. Concerning the applicant’s conduct, the Court finds that no periods of delay are imputable to him. He attended all the hearings as scheduled and the adjournment of two hearings due to the wrong whereabouts of the witness that he had proposed (see paragraph 14) did not add significantly to the length. The same applies to the withdrawal of his objection to the employer’s request for reinstatement of the proceedings and his obligation to pay the court fees, which he complied with within the time-limit given by the court. The applicant’s behaviour in the enforcement proceedings did not have any impact to the proceedings concerning his claim in substance.
40. The same applies to the Government’s arguments related to the enforcement proceedings that were pending in parallel with the proceedings before the Supreme Court. As the Court has consistently held, it might be reasonable for national courts to await under certain circumstances the outcome of parallel proceedings as a measure of procedural efficiency (see, mutatis mutandis, König v. Germany, judgment of 28 June 1978, Series A no. 27, § 110; Boddaert v. Belgium, judgment of 12 October 1992, Series A no. 235 D, § 39; Pafitis and Others v. Greece, judgment of 26 February 1998, Reports 1998 I, § 97). In the present case, the national courts neither stayed the proceedings on the merits nor was the outcome of the enforcement proceedings of any influence over them. The lapse of nearly three years before the Supreme Court cannot be justified by considerations of procedural efficiency as it should have acted with particular expedition given the length of the proceedings at that stage.
42. There has accordingly been a breach of Article 6 § 1.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law 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.”
B. Costs and expenses
C. Default interest
FOR THESE REASONS, THE COURT UNANIMOUSLY
(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, the following amounts which are to be converted into the national currency of the respondent State at a rate applicable at the date of settlement:
(i) EUR 500 (five hundred euros) in respect of non-pecuniary damage;
(ii) EUR 200 (two hundred euros) in respect of costs and expenses;
(iii) any tax that may be chargeable on the above amounts;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
Done in English, and notified in writing on 2 November 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen