FIRST SECTION
CASE OF
NAUMOSKI v. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA
(Application no.
25248/05)
JUDGMENT
STRASBOURG
27 November 2012
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 Naumoski v. the former Yugoslav Republic of
Macedonia,
The European Court of Human Rights (First Section), sitting as
a Chamber composed of:
Isabelle
Berro-Lefèvre, President,
Elisabeth Steiner,
Nina Vajić,
Mirjana Lazarova Trajkovska,
Julia Laffranque,
Linos-Alexandre Sicilianos,
Erik Møse, judges,
and Søren Nielsen, Section Registrar,
Having deliberated in private on 6 November 2012,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no. 25248/05) 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, Mr Velko Naumoski (“the
applicant”), on 14 June 2004.
The Macedonian Government (“the Government”) were
represented by their former Agent, Mrs R. Lazareska Gerovska, succeeded by
Mr K. Bogdanov, who was appointed Agent in October 2011.
The applicant alleged, in particular, that the
defendant’s observations submitted in reply to his appeals had not been
communicated to him and that the impugned proceedings had been too long.
On 5 January 2011 these complaints were
communicated to the Government. It was also decided to rule on the
admissibility and merits of the application at the same time (Article 29 § 1).
On 1 February 2011 the Court changed the composition of its Sections (Rule 25 § 1). The case was
assigned to the newly composed First Section (Rule 52 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1948 and lives in Skopje.
The applicant worked as a teacher in a high
school in Skopje. In December 2000 he was declared redundant and assigned to
work partly in the school library, under threat of being dismissed if he did
not comply with this decision. On 15 December 2000 the applicant signed an
agreement, which specified his duties in the school library. Since the
applicant failed to comply with the agreement, on 20 February 2001 the director
of the school adopted another decision under which the applicant was assigned,
again, to work in the school library. The applicant expressly refused to comply
with that decision.
On 23 February 2001 the applicant was laid off
for non-fulfilment of duties and failure to comply with working hours. On 7
March 2001 another decision was rendered, acknowledging that the applicant had
abused the right to sick leave. On 29 March 2001 the school’s board dismissed
the applicant’s objection to the decision of 23 February 2001 (“the dismissal
decisions”).
On 18 April 2001 the applicant brought a civil
action before the Skopje Court of First Instance (“the first-instance court”)
seeking revocation of the dismissal decisions. He further sought that the
defendant be ordered to launch redundancy proceedings (постапка
за
прогласување
на
технолошки вишок)
and to pay him certain work-related allowances.
After three adjournments, on 28 September 2001
the first-instance court rendered a partial decision (делумна
пресуда) dismissing
the applicant’s claim for revocation of the dismissal decisions and initiation
of redundancy proceedings. Having regard to the facts of the case described
above, the court found that the applicant’s dismissal had been lawful and that
the request for redundancy proceedings was outside the jurisdiction of the
courts. The question of payment of certain work-related allowances was to be
decided later. On 8 April 2002 the first-instance court rendered another
decision, by which it rectified typographical error in its decision of 28
September 2001, namely the date of adoption of the dismissal decision.
On 13 December 2001 and 22 April 2002
respectively the applicant lodged two separate appeals against the
first-instance court’s decisions. The appeals were forwarded to the defendant
on 25 January and 5 June 2002 respectively. On 12 February and 11 June
2002 respectively the defendant submitted two separate observations, the first
regarding the first-instance court’s decision of 28 September 2001, and the
second regarding the rectifying decision of 8 April 2002, in which it
summarised the relevant facts and requested that the Court of Appeal uphold the
first-instance court’s decision. It further consented to the court’s decision
to correct the technical errors made in its decision of 28 September 2001. Both
submissions were forwarded to the Skopje Court of Appeal for consideration, but
not to the applicant.
On 13 November 2002 the Skopje Court of Appeal
dismissed the applicant’s appeals and upheld the first-instance court’s
decisions. Paraphrasing the version of events established as fact by the
first-instance court, the Court of Appeal found no errors of fact or law. The
court did not make any reference to the defendant’s written observations
submitted in reply to the applicant’s appeals, apart from stating that:
“In the observations submitted in reply the defendant requested
that the [applicant’s] appeal be dismissed as ill-founded”.
On 23 December 2002 the applicant lodged an
appeal with the Supreme Court on points of law in which he complained, inter
alia, about the first-instance court’s failure to communicate to him the
defendant’s reply to his appeals.
By a decision of 27 March 2003, which was served
on the applicant on 23 December 2003, the Supreme Court dismissed the applicant’s
appeal on points of law, finding no grounds to depart from the established
facts and reasons given by the lower courts. It further stated:
“This court examined the other complaints raised in the appeal
and finds that they do no constitute grounds for the court to make a different
decision.”
In the meantime, the proceedings before the
first-instance court concerning the payment of allowances had continued (see
paragraph 10 above). Nine hearings were fixed between 24 February 2004 and
7 November 2005 of which none was postponed at the request of the
applicant. On the latter date, the first-instance court ruled partly in favour
of the applicant ordering the defendant to pay some of the allowances claimed.
On 22 June 2006 the Skopje Court of Appeal upheld this decision. The decision was
served on the applicant on 15 July 2006.
On 12 August 2006 the applicant lodged an appeal
on points of law, which the Supreme Court, by a decision of 23 January 2008,
rejected as inadmissible. The court held that the claim concerned payment of
pecuniary allowances to which the statutory threshold specified in section 368
(2) of the then valid Civil Proceedings Act (see paragraph 18 below) applied.
It found that the applicant had not specified the claim value in the lawsuit and
that the amount of court fees paid by him had corresponded to a claim value
lower than the statutory threshold. On 29 February 2009 this decision was
served on the applicant.
II. RELEVANT DOMESTIC LAW
Under section 345 of the Civil Proceedings Act
of 1998 (“the 1998 Act”), the first-instance court communicated a copy of a
timely, complete and admissible appeal to the opposing party. The latter could,
within eight days from the service of the appeal, submit observations in reply.
A copy of the observations was to be communicated to the appellant, without the
right to reply to them. Belated observations were not to be rejected, but
forwarded to the second-instance court for consideration, if possible. The
Civil Proceedings Act of 2005 provides for the same provision (section 348).
Section 368 (1) and (2) 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 concerned a pecuniary claim
if the claim value of the dispute set out in the final judgment challenged by
the appeal did not exceed 1,000,000 Macedonian denars (MKD).
Section 408 provided, inter alia, that the court
should take into consideration the need to settle employment disputes as a
matter of urgency.
THE LAW
I. ALLEGED VIOLATIONS OF ARTICLE 6 OF THE
CONVENTION
The applicant complained under Article 6 of the
Convention that he had been denied the right to a fair trial since the
defendant’s observations in reply to his appeals had not been communicated to
him, and since the courts had not considered his arguments and had decided
solely on the basis of evidence submitted by the defendant. He further
complained that they had not provided sufficient reasons for their decisions, that
they had been biased and that the proceedings had not complied with the
“reasonable time” requirement. Article 6 § 1 of the Convention, in so far as
relevant, reads as follows:
“In the determination of his civil rights and obligations ...
everyone is entitled to a fair ... hearing within a reasonable time by an independent
and impartial tribunal established by law.”
A. The non-communication to the applicant of the
defendant’s observations submitted in reply to the applicant’s appeals
1. 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 (a) of the
Convention. It further notes that it is not inadmissible on any other grounds.
It must therefore be declared admissible.
2. Merits
a) The parties’ submissions
The applicant argued that due to a fault
imputable solely to the domestic courts, he had been denied the opportunity to
have knowledge of, and comment on, the defendant’s submissions. The right to an
adversarial trial had been violated by the mere fact that those observations
had not been communicated to him.
The Government argued that the first-instance
court had not been required to communicate to the applicant the observations of
12 February 2002, since they had been submitted beyond the statutory
time-limit. The observations of 11 June 2002 had concerned the rectifying judgment
and accordingly were irrelevant to the applicant’s claim. Furthermore, the
Court of Appeal’s judgment of 13 November 2002 had not been based on the
defendant’s submissions.
b) The Court’s consideration
The Court reiterates that the concept of a fair trial, of which the right to an
adversarial trial is one aspect, implies the right
of the parties to a criminal or civil trial to have
knowledge of and comment on all evidence adduced or observations filed, with a
view to influencing the court’s decision (see Lobo Machado v.
Portugal, 20 February 1996, § 31, Reports of Judgments and Decisions
1996-I and Grozdanoski v. the former Yugoslav Republic of Macedonia,
no. 21510/03, § 36, 31 May 2007).
In the present case,
the Court notes that the applicant’s appeals of 13 December
2001 and 22 April 2002 were communicated to the defendant for comments.
The latter, in reply, submitted observations on 12 February and 11 June
2002 respectively. The former concerned the applicant’s appeal against the judgment
of 28 September 2001. In those observations, the defendant
referred to the relevant issues that the first-instance court had already
established as fact and
advocated that the appeal should be dismissed. The
observations of 11 June 2002 concerned the rectifying judgment.
The defendant’s observations were
forwarded, together with the case file, to the Court of Appeal for
consideration. The latter noted in its judgment that the defendant had claimed
that the applicant’s appeal be dismissed. Both submissions were not, however,
communicated to the applicant.
The Court notes that under the relevant domestic
law the applicant did not have the right to submit a further reply. It further
observes that in any event he was denied the
opportunity to get acquainted with the defendant’s opinion. In this connection
it is noteworthy that the Court of Appeal had full
jurisdiction to examine the applicant’s case as to the facts and the law. Regard
being had to what was at stake for the applicant in those proceedings the fact
that it was impossible for him to obtain a copy of the defendant’s observations
before judgment was given infringed his right to adversarial proceedings. The
problem resulted from the provisions of section 345 of the
1998 Act (see paragraph 17 above), which did not require that belated
observations of the respondent party, which were included in the case file and submitted
to the Court of Appeal for consideration, be served on the appellant (see
paragraph 24 above).
Consequently, there has
been a violation of Article 6 § 1 of the Convention.
B. The length of proceedings
1. 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 (a) of the
Convention. It further notes that it is not inadmissible on any other grounds.
It must therefore be declared admissible.
2. Merits
a) The parties’ submissions
The applicant reiterated his arguments that the
length of the impugned proceedings had been excessive.
The Government submitted that the national
courts had conducted the proceedings without major delays and adjournments.
There had been no period of inactivity that could be attributed to them.
b) The Court’s consideration
The Court notes that the proceedings started on
18 April 2001 and ended on 15 July 2006, when the Court of Appeal’s decision
was served on the applicant. The subsequent proceedings before the Supreme
Court which ended by rejecting the applicant’s appeal on points of law should
not be taken into consideration, since they concerned a remedy which was not
effective and should not therefore have been used (see Kostovska v. the former Yugoslav Republic of Macedonia,
no. 44353/02, § 36, 15 June 2006 and Kocarova v. the former Yugoslav
Republic of Macedonia (dec.), no. 37018/03, 13 November 2006). The
proceedings therefore lasted about five years and three months at three levels
of jurisdiction.
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.
It further finds that no delays were
attributable to the applicant.
As regards the conduct of the domestic courts,
the Court observes that the intervals
between the decisions at different levels of jurisdiction were not unacceptably
lengthy. However, it notes that the Court’s jurisprudence (see Ziberi v. the
former Yugoslav Republic of Macedonia, no. 27866/02,
§ 47, 5 July 2007) require employment-related disputes to be conducted
with special diligence. In this connection it notes that after the partial
decision, the proceedings before the first-instance court concerning the
payment of work-related benefits laid dormant for nearly two years and five
months (see paragraphs 10 and 15 above). During this time, the first-instance
court took no action as regards the remainder of the applicant’s claim.
Furthermore, the Court notes that it took nearly nine months for the Supreme
Court’s decision of 27 March 2003 to be served on the applicant. This time
cannot be regarded as reasonable (see paragraph 14 above). Having regard to
what was at stake for the applicant, the Court concludes that the national
courts did not display the requisite vigilance when deciding the applicant’s
case.
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.
C. Remaining complaints under Article 6 of the
Convention
The applicant further complained under this head
that the domestic courts had ignored his arguments, had been biased and had
rendered decisions without giving any reasoning.
The Court has examined these complaints.
However, 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 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
(a) and 4 of the Convention.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
The applicant also complained under Article 4 §
2 and Article 1 of Protocol No. 1 to the Convention. He further alleged
violation of Article 13 of the Convention since the Supreme Court did not
examine the merits of his appeal on points of law of 12 August 2006. Lastly, in
submissions dated 23 August 2008, he complained that the courts’ decisions
given in his case violated his rights under Article 8 of the Convention.
The Court has examined these complaints.
However, 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 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
(a) 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 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.”
A. Damage
The applicant claimed 18,250 euros (EUR) in compensation
for non-pecuniary damage, for mental suffering related to the alleged
violations.
The Government contested this claim as
unsubstantiated. They stated that there was no causal link
between the alleged violation and the damage claimed.
The Court considers that
the applicant must have sustained some inconvenience as a result of the domestic courts’ failure
to communicate to him the defendant’s submissions and the excessive length of
the proceedings. However, the amount claimed by the applicant appears to be
excessive. Making its assessment on an equitable basis, it awards him EUR 2,500
in respect of non-pecuniary damage, plus any tax that may be chargeable.
B. Costs and expenses
The applicant also claimed MKD 37,700
(approximately EUR 610) for costs and expenses incurred before the domestic
courts and EUR 1,130 for those incurred before the Court. This latter figure
included EUR 850 for legal fees and EUR 280 for copying, mailing and
translating expenses. Evidence was provided for some of these latter costs.
The Government contested these claims as
unsubstantiated and unnecessary in view of the alleged violations.
According to the Court’s case-law, an applicant
is entitled to the reimbursement of costs and expenses only in so far as it has
been shown that these have been actually and necessarily incurred and are
reasonable as to quantum (see Kostovska, cited above, § 62). The Court considers
that some costs and expenses related to the proceedings before the domestic
courts were undoubtedly expended with a view to their
failure to forward to the applicant the defendant’s observations submitted in
reply to his appeals. However, in the absence of any supporting document
the Court is unable to assess which costs were incurred
in order to seek prevention or redress before the national courts of the
violation found on that ground (see, a contrario, Stoimenov v.
the former Yugoslav Republic of Macedonia, no. 17995/02, § 56, 5 April 2007). The same concerns the applicant’s claim concerning the
reimbursement of legal fees in respect of the proceedings before the Court.
Accordingly, the Court makes no award in this respect (see Petkoski and Others v. the former Yugoslav Republic of Macedonia, no. 27736/03, § 56, 8 January 2009). On the
other hand and in view of the supporting documents submitted, the Court awards
EUR 120 for mailing and copying expenses incurred in the proceedings before it.
C. Default interest
The Court considers it appropriate that the
default interest rate 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
1. Declares the complaints concerning the non-communication
to the applicant of the defendant’s observations submitted in reply to the
applicant’s appeals and the length of the proceedings admissible and the
remainder of the application inadmissible;
2. Holds that there has been a violation of
Article 6 § 1 of the Convention on account of the domestic courts’ failure to
forward to the applicant the defendant’s observations in reply to the applicant’s
appeals;
3. Holds that there has been a violation of
Article 6 § 1 of the Convention in respect of the length of the proceedings;
4. Holds
(a) that the respondent State is to pay the applicant,
within three months of the date on which the judgment becomes final in
accordance with Article 44 § 2 of the Convention, the following
amounts, to be converted into the national currency of the respondent State at
the rate applicable on the date of settlement:
(i) EUR 2,500 (two thousand and five hundred euros),
plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 120 (a hundred and twenty euros), plus any
tax that may be chargeable to the applicant, in respect of costs and expenses
incurred in the proceedings before the Court;
(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;
5. Dismisses unanimously the remainder of the
applicant’s claim for just satisfaction.
Done in English, and notified in writing on 27 November
2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Isabelle
Berro-Lefèvre
Registrar President
