AS TO THE ADMISSIBILITY OF
by Zorica LAZAREVSKA
against the former Yugoslav Republic of Macedonia
The European Court of Human Rights (Fifth Section), sitting on 10 March 2009 as a Chamber composed of:
Mirjana Lazarova Trajkovska,
Zdravka Kalaydjieva, judges
and Claudia Westerdiek, Section Registrar,
Having regard to the above application lodged on 31 August 2004,
Having regard to the decision to grant priority to the above application under Rule 41 of the Rules of Court.
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 applicant, Ms Zorica Lazarevska, is a Macedonian national who was born in 1949 and lives in Skopje. The Macedonian Government (“the Government”) were represented by their Agent, Mrs R. Lazareska Gerovska.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
On 20 December 2000 the applicant was reassigned (прераспореденa) to the post of bartender (“the new post”) in the context of a re-structuring (поефикасно извршување на функцијата) of the Ministry of the Interior (“the employer”). The applicant submitted an objection to the employer, which remained undecided. By a decision of 15 February 2001, the applicant was dismissed, since the new post had been terminated. On 12 April 2001 the employer set this latter decision aside.
On 19 January 2001 the applicant brought a civil claim against the employer, requesting the court to annul the reassignment decision. She claimed that the new post had not been stipulated in the employer's Rules on Posts (“the Rules”) and it did not correspond to her qualifications and work experience.
On 11 January 2002 the Skopje Court of First Instance annulled the reassignment decision and ordered the employer to reinstate the applicant to a post corresponding to her qualifications. The court noted that, under the Rules, there had been two requirements related to the new post: a certain level of education (level “IV”) and a particular type of education, leading to qualification as a “caterer” (угостител). It found that while the applicant had the required level of education, the reassignment had been contrary to the employer's collective agreement in that she did not satisfy the requirement as to the type of education: she had specialised in commerce (трговско училиште), but not in catering (угостителство). The court dismissed the employer's argument that the applicant had been reassigned for disciplinary reasons, since no such reasons had been given in the reassignment decision. The claim value of the dispute was not specified in the introductory part of the first-instance court's decision, as is usually the case.
On 15 January 2003 the Skopje Court of Appeal dismissed the employer's appeal, finding no grounds to depart from the reasons given by the lower court.
On 26 February 2003 the employer lodged an appeal on points of law (ревизија) with the Supreme Court, arguing that the fact that the applicant did not have the type of education stipulated for the new post could not be the sole reason to declare the reassignment decision unlawful. It maintained that her reassignment had been carried out under the then Labour Act and the collective agreement, which required a particular level of education (степен на стручна подготовка), but not a particular type of education.
In her reply submitted to the Supreme Court on 26 March 2003, the applicant argued that she had been reassigned because she had discovered some work-related irregularities. She did not raise any complaints about the Supreme Court's competence to examine her case.
On 25 December 2003 the Supreme Court accepted the employer's appeal and overturned the lower courts' decisions. It dismissed the applicant's claim, arguing that she had had the required qualifications (степен на стручна подготовка) for the new post and the mere fact that they had not been of a particular type (вид на образование) could not affect the lawfulness of the reassignment decision. That decision was served on the applicant on 1 March 2004.
On 5 April 2004 the applicant requested the public prosecutor to lodge a request for the protection of legality (барање за заштита на законитоста) with the Supreme Court, arguing that the latter had lacked the competence to revise facts already established by the lower courts. She further reiterated her allegations that she had been reassigned to prevent her revealing some work-related irregularities.
On 19 May 2004 the public prosecutor rejected the applicant's application.
B. Relevant domestic law and practice
Civil Proceedings Act (“the 1998 Act”) of 1998
Section 368 §§ 1 and 3 of the 1998 Act provided that parties concerned could lodge an appeal on points of law against a second-instance final decision within thirty days of service of that decision. An appeal would be inadmissible in a property-related dispute which did not concern a pecuniary claim; transfer of movable property; or any other activity, if the claim value of the dispute as specified by the plaintiff did not exceed 1,000,000 Macedonian denars (MKD).
Under paragraph 4 of that section, exceptionally, an appeal was always allowed in disputes described in the preceding paragraph which concerned (i) maintenance; (ii) compensation claims for loss of maintenance due to death of the care provider; (iii) copyright disputes; (iv) industrial property related disputes; and disputes concerning unfair competition and anti-competitive behaviour.
Section 375 of the 1998 Act provided that the presiding judge of the first-instance court's panel would reject belated, incomplete and inadmissible appeals on points of law. An appeal on points of law would be inadmissible, inter alia, if it was lodged against a decision which could not be contested by such an appeal under the law.
Section 378 of the 1998 Act provided that a belated, incomplete or inadmissible appeals on points of law would be rejected by the review court (the Supreme Court) if the first-instance court had not rejected them under section 375.
In case of incorrect application of the substantive law, the review court would overturn the impugned decision (section 381).
The applicant complained under Article 6 of the Convention that the Supreme Court had lacked jurisdiction as it incorrectly applied the national law, namely it should have rejected the employer's appeal on points of law as the claim value of the dispute had been below the statutory threshold; that it should have remitted the case for re-examination rather than giving a decision on the merits; and that it had based its decision on the employer's allegations that she had violated work regulations.
The applicant complained that the Supreme Court had lacked jurisdiction to decide her case, that it should have remitted the case for re-consideration and that it had accepted the employer's allegations about the alleged breach of disciplinary rules, in breach of Article 6 § 1 of the Convention, which, insofar as relevant, reads as follows:
“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal established by law”
1. The alleged lack of competence of the Supreme Court to decide the case irrespective of its claim value
The Government stated that the applicant, in her reply to the employer's appeal on points of law, had not contested the Supreme Court's competence to decide her case.
The applicant did not comment on this matter.
The Court considers that the Government's submission is to be considered as an objection for non-exhaustion of domestic remedies. In this respect, it reiterates that, according to its established case-law, 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, mutatis mutandis, Merger and Cros v. France (dec.), no. 68864/01, 11 March 2004; Aksoy v. Turkey, judgment of 18 December 1996, ECHR 1996-VI, §§ 51-52; and Akdivar and Others v. Turkey, judgment of 16 September 1996, ECHR 1996-IV, §§ 65-67).
The Court notes that the application of this rule must make due allowance for the context. Accordingly, it has recognised that Article 35 § 1 must be applied with some degree of flexibility and without excessive formalism. It has further recognised that the rule of exhaustion is neither absolute nor capable of being applied automatically; for the purposes of reviewing whether it has been observed, it is essential to have regard to the circumstances of the individual case. This means, in particular, that the Court must take realistic account not only of the existence of formal remedies in the legal system of the Contracting State concerned, but also of the general context in which they operate, as well as the personal circumstances of the applicant. It must then examine whether, in all the circumstances of the case, the applicant did everything that could reasonably be expected of him or her to exhaust domestic remedies (see Akdivar and Others, cited above, § 69, and Aksoy, cited above, §§ 53 and 54).
Turning to the present case, the Court notes that as part of the proceedings before the Supreme Court, the employer's appeal on points of law was communicated to the applicant for comments. In her submissions, she contended that she had been reassigned because she had discovered some work-related irregularities. She did not raise, even in substance or by implication, the question of whether the Supreme Court had jurisdiction to decide the employer's appeal on points of law given the low claim value of the dispute. If she had raised the point, the Supreme Court would have had the chance to consider, by reference to section 368 of the 1998 Act, the jurisdictional point. Had it agreed with her, it could have declared the employer's appeal on points of law inadmissible pursuant to section 378 of that Act.
Accordingly, the applicant failed to bring her complaints before the Supreme Court, the very body which she now claims, did not have jurisdiction. The applicant did not present any arguments that such a motion would have been devoid of any chance of success. In this connection, the Court reiterates that mere doubts on the part of the applicant do not absolve him or her from trying a particular remedy (see, mutatis mutandis, Milosevic v. the Netherlands (dec.), no. 77631/01, 19 March 2002).
Consequently, the Court finds that in the circumstances of this case the applicant cannot be considered as having complied with the exhaustion of domestic remedies rule laid down in Article 35 of the Convention.
It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
2. Remainder of the applicant's complaints
In the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that the complaints under this head 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.
For these reasons, the Court unanimously
Declares the application inadmissible.
Claudia Westerdiek Rait Maruste