CASE OF TASEVA PETROVSKA v. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA
(Application no. 73759/14)
11 January 2018
This judgment is final but it may be subject to editorial revision
In the case of Taseva Petrovska v. the former Yugoslav Republic of Macedonia,
The European Court of Human Rights (First Section), sitting as a Committee composed of:
Aleš Pejchal, President,
Jovan Ilievski, judges,
and Renata Degener, Deputy Section Registrar,
Having deliberated in private on 12 December 2017,
Delivers the following judgment, which was adopted on that date:
1. The case originated in an application (no.73759/14) 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 Ms Slagana Taseva Petrovska.
2. The Macedonian Government (“the Government”) were represented by their Agent, Mr K. Bogdanov.
3. On 11 October 2016 the complaint concerning adversarial trial before the Higher Administrative Court was communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.
I. THE CIRCUMSTANCES OF THE CASE
4. The applicant is a professor of law at a private university in Skopje. She holds a doctoral degree in the field of criminal law.
5. On 14 January 2010 the applicant lodged a request with the Ministry of Justice (“the Ministry”) in order to be recognised as having the same status as a person who had passed the BAR examination (изедначување со правата на лицата кои положиле правосуден испит). As she did not obtain a decision, she lodged two further requests, on 24 November 2011 and 6 February 2012.
6. On 11 April 2012 the Ministry rejected her request, holding that she did not meet the relevant criteria to obtain such recognition. In particular, the Ministry found that although she was a professor of law at a university, she did not hold a bachelor’s degree in law (дипломиран правник на правен факултет). The Ministry further found that the bachelor’s degree which she had obtained had been awarded by the Faculty of Security and Social Defence (Факултет за безбедност и општествена самозаштита), and not by a faculty of law, as required.
7. On 10 May 2012 the applicant brought an action with the Administrative Court (Управен суд), challenging the refusal. She argued that as a university professor at a faculty of law she met the relevant criteria.
8. On 30 May 2013 the Administrative Court dismissed the applicant’s action. It held that regardless of her current status, she did not meet the criteria to obtain the desired recognition under domestic law. In particular, it established that the applicant did not hold a bachelor’s degree in law, which was a condition for the recognition she sought.
9. On 23 September 2013 the applicant lodged an appeal with the Higher Administrative Court (Виш управен суд). She argued that she met the relevant criteria and that the lower court had failed to properly interpret the procedural and substantive law in the case.
10. On an unspecified date, the Ministry submitted observations to the Higher Administrative Court concerning the applicant’s case. The Ministry stated in the observations that the right to obtain recognition as having the same status as a person who had passed the BAR examination was dependent on having a bachelor’s degree issued by a faculty of law. The applicant did not possess such a degree and had therefore failed to meet the criteria under domestic law. Those observations were not communicated to the applicant.
11. On 30 January 2014 the Higher Administrative Court dismissed the applicant’s appeal, reiterating in full the reasons provided by the Administrative Court. It restated that the recognition sought by the applicant was dependent on her having a bachelor’s degree issued by a faculty of law, a condition which she had failed to meet.
12. The decision was served on the applicant on 19 May 2014.
II. RELEVANT DOMESTIC LAW
13. Under sections 1 and 25 of the Act on the BAR examination (Закон за правосудниот испит, Official Gazette No. 10/2010) holding a bachelor’s degree in law is a condition necessary to obtain recognition as someone having passed the BAR examination. The right to seek recognition is available for the persons described in section 24 of the old Act on the BAR examination (Official Gazette Nos. 26/80 and 7/88 of the Socialist Republic of Macedonia).
14. Section 24 of the Act on the BAR examination (Закон за правосудниот испит, Official Gazette of the Socialist Republic of Macedonia Nos. 26/80 and 7/88) provides an exhaustive list of categories of individuals for whom the right to seek recognition as someone who had passed the BAR examination is available.
15. According to section 7-a of the Administrative Disputes Act (Закон за управните спорови, Official Gazette No. 62/2006, as applicable at the time) the Civil Proceedings Act will have subsidiary application to administrative disputes.
16. According to section 5 of the Civil Proceedings Act (Закон за парничната постапка (пречистен текст), Official Gazette No. 7/2011), the courts are obliged to give every party the opportunity to familiarise themselves with and comment on the requests and submissions of the other party in the proceedings.
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
17. The applicant complained under Article 6 § 1 of the Convention that the fact that she had not been allowed to comment on the Ministry’s observations submitted to the Higher Administrative Court had amounted to a violation of her right to a fair hearing. The relevant part of Article 6 § 1 of the Convention reads as follows:
“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
18. The Government submitted that the issues raised by the applicant fell outside the scope of Article 6. In particular, they argued that she had had no rights or obligations at stake since the right that she had sought was not recognised under domestic law for persons in her situation. They further argued that even if such rights existed, they were not “civil” rights within the meaning of the Convention. They therefore invited the Court to reject the application as inadmissible.
19. The applicant contested that argument.
20. The Court notes that the right to obtain recognition as someone who has passed the BAR examination is recognised under domestic law (see paragraphs 13 and 14 above). Moreover, the Court has already held that disputes over the right to practise law and to have access to the BAR fall to be examined under Article 6 § 1 of the Convention (see H. v. Belgium, 30 November 1987, §§ 43-48, Series A no. 127-B). In view of the above, the Court rejects the Government’s objection.
21. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
1. The parties’ arguments
22. The applicant reiterated that she had not been given the opportunity to receive or comment on the Ministry’s observations to the Higher Administrative Court. She maintained that that had constituted a violation of Article 6.
23. The Government held that all the material evidence had been available to the applicant during the proceedings on account of the fact that it had been the applicant’s responsibility to submit the relevant evidence to the Ministry, which had then had to decide whether the necessary criteria had been met. No additional evidence had been submitted to the Higher Administrative Court and no evidence whatsoever had been submitted by the Ministry during the proceedings. The Ministry’s observations to the Higher Administrative Court had merely explained the decision that it had taken and had reiterated the findings of the Administrative Court.
2. The Court’s assessment
24. The general principles on equality of arms are summarised in Grozdanoski v. the former Yugoslav Republic of Macedonia (no. 21510/03, § 36, 31 May 2007, and cases cited therein).
25. The Court notes that in the cases of Grozdanoski (cited above) and Naumoski v. the former Yugoslav Republic of Macedonia, (no. 25248/05, §§ 26-29, 27 November 2012) it found a violation of the right to a fair trial under similar circumstances.
26. The Court notes that the violation of Article 6 § 1 found in the Naumoski case (cited above, §§ 26-29) was on account of the defendant’s observations submitted in reply to the applicant’s appeal not being forwarded to him. The Court finds that the same considerations are applicable to the instant case and finds no reason to hold otherwise.
27. This is sufficient for the Court to conclude that there has been a violation of Article 6 § 1 of the Convention.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
28. The applicant also raised a number of other complaints. Without invoking any particular Article of the Convention, she complained that the domestic judgments had not contained sufficient reasons and that the domestic courts had retroactively applied domestic law when deciding on her case.
29. However, those complaints were raised for the first time in the applicant’s response to the Government’s observations, which were submitted to the Court on 5 May 2017. Accordingly, those complaints were lodged outside the six-month time-limit and must be rejected as inadmissible in accordance with Article 35 § 1 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
30. 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 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.”
31. The applicant did not submit a claim for just satisfaction. Accordingly, the Court considers that there is no call to award her any sum on that account.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Declares the application admissible;
2. Holds that there has been a violation of Article 6 § 1 of the Convention.
Done in English, and notified in writing on 11 January 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Renata Degener Aleš
Deputy Registrar President