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FIFTH
SECTION
CASE OF ATANASOVSKI v. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA
(Application
no. 36815/03)
JUDGMENT
STRASBOURG
14
January 2010
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 Atanasovski v. the
former Yugoslav Republic of Macedonia,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer Lorenzen, President,
Renate
Jaeger,
Karel Jungwiert,
Rait Maruste,
Mark
Villiger,
Isabelle Berro-Lefèvre,
Mirjana
Lazarova Trajkovska, judges,
and Claudia
Westerdiek, Section
Registrar,
Having
deliberated in private on 8 December 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 36815/03) 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,
Mr Petar Atanasovski (“the applicant”), on 17
November 2003.
- The
applicant was represented by the “Helsinki Committee for Human
Rights of the Republic of Macedonia”. The Macedonian Government
(“the Government”) were represented by their Agent,
Mrs R. Lazareska Gerovska.
- The
applicant alleged, in particular, lack of reasons in the Supreme
Court’s decision for departing from its previous jurisprudence
and that the length of proceedings had been excessive.
- On
3 October 2006 the President of the Fifth Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1937 and lives in Bitola. He worked for
“Aparati za domakinstvo”, a socially-owned company which
was later restructured under the Government’s decision of
August 1997 allowing its transformation.
- On
21 February 1997 the applicant was reassigned to the post of
technologist with the stated aim of increasing productivity and
efficiency and improving operations.
- On
17 March 1997 the applicant brought a civil action seeking to have
the reassignment annulled since, in thirty years with the same
employer, he had never worked as a technologist.
- On
21 May 1997 the Bitola Court of First Instance (“the
first-instance court”) dismissed the applicant’s claim.
On 29 September 1997 the Bitola Court of Appeal quashed this decision
ordering the lower court to examine what had been the applicant’s
status with the employer; whether and how had the bankruptcy
proceedings, initiated meanwhile against the employer, affected the
applicant’s employment and whether the employer had been
restructured.
- On
30 September 1998 the first-instance court annulled the employer’s
decision of 27 May 1997 dismissing the applicant (in respect of which
the applicant had brought a separate action). According to the
Government, in these proceedings the applicant had sought to have the
proceedings concerning his reassignment suspended.
-
On 29 March 1999 the applicant’s claim was upheld at first
instance. The court held that although the reassignment decision had
referred to the relevant provisions of the Labour Act and the General
Collective Agreement (see “Relevant domestic laws” below)
it had not provided the applicant with concrete reasons for his
reassignment. In this connection, it stated that section 27 of the
Labour Act had been of a declaratory nature without providing any
concrete reason for reassignment. On 29 September 1999 the Bitola
Court of Appeal quashed this decision finding that the reassignment
decision had provided reasons for the applicant’s reassignment.
However, it ordered the first-instance court to determine whether the
reassignment had been justified.
-
On 26 March 2001 the first-instance court, deciding the case for the
third time, upheld the applicant’s claim and annulled the
reassignment decision. The court established that the applicant had
worked for the same employer since 1966 in different posts and that
no concrete reasons had been given for his reassignment. In this
latter respect, it referred to a court annulment, for lack of
concrete reasons, of the reassignment of Mr R.V., the applicant’s
colleague, which had been based on the same grounds, as the
applicant’s (see paragraph 6 above, П.бр.
680/97 of 9 June 1999). Noting
that the reassignment decision had been rendered under section 27 of
the Labour Act and section 11 of the General Collective Agreement, it
stated, inter alia,
“... in case of reassignment, an employee should
be provided with a reasoned decision in writing so that he or she can
protect his or her rights and the court may review its lawfulness. In
the present case, the disputed decision does not set out any
reasonable ground, which implies that the employer had not
established the need for the [applicant’s] reassignment. If no
reasonable grounds are provided, the reassignment of any employee,
including the [applicant], is unlawful. [The employer] has only
quoted the terms for reassignment, as specified in the Collective
Agreement, without providing any reasonable ground ...”
- The
court also concluded that the reassignment had been unjustified given
the applicant’s age and lack of experience required for the new
post.
- On
24 May 2001 the Bitola Court of Appeal dismissed the employer’s
appeal and upheld the lower court’s decision. It stated,
inter alia:
“... the reassignment decision does not set out
any reasons. The employer has merely referred to the Collective
Agreement’s objectives of increasing the productivity and
efficiency of the applicant and for work organisation purposes. It
does not mean that by mere reference to these grounds, the employer
has established the need for the [applicant’s]
reassignment...It means that [the applicant] was reassigned to a post
which does not correspond to his work experience ...”
- On
29 May 2003 the Supreme Court allowed an appeal on points of law
submitted by the employer on 9 July 2001 and overturned the lower
courts’ decisions. It held that they had wrongly applied
national law. Referring to section 27 of the Labour Act and section
11 of the Collective Agreement, it found that the employer had been
entitled to assess the need for reassignment - which would be
well-founded only if an employee was reassigned to a post
commensurate with his or her vocational capacity. It further held
that the issue as to whether the employee would be more efficient in
the new post went beyond the scope of judicial review. It concluded
that:
“Concerning the grounds for reassignment provided
in the [disputed] decision, the court considers that it is sufficient
to state one of the terms specified in the Collective Agreement. The
disputed decision meets this requirement ...”
II. RELEVANT DOMESTIC LAW AND PRACTICE
1. The Constitution
- Under
Article 101 of the Constitution, the Supreme Court is the highest
court providing uniformity in the implementation of laws by the
courts.
2. The Labour Act of 1993
- Section
27 (2) of the Labour Act (Закон
за работните
односи), as in force
at the material time, provided that in cases where collective
agreements applied, an employee could be reassigned to any post
commensurate with his or her vocational capacity.
3. General Collective Agreement of 1994
- Under
section 11 of the Collective Agreement, an employee may be reassigned
to a post commensurate with his or her qualifications with a view to,
inter alia, improving efficiency.
4. Civil Proceedings Act of 1998
- Section
408 provided, inter alia, that the court should take into
consideration the need for the urgent settlement of employment
disputes.
5. The Supreme Court’s jurisprudence
19. In
two decisions of 1997 and 1999, the Supreme Court ruled that
employers were required to give concrete reasons for reassignment and
that mere reference to section 27 of the Labour Act and section 11 of
the collective agreement was insufficient unless concrete facts,
circumstances and grounds were provided for the reassignment (the
Supreme Court’s decisions of 5 February 1997 (Рев.бр.474/96)
and 23 June 1999 (Рев.бр.312/98)).
- In
2005 and 2006, the Supreme Court ruled that under section 27 of the
Labour Act, it was sufficient that the new post corresponded to the
qualifications of the person concerned. Only employers, and not the
courts, were entitled to assess the need for reassignment and
employers were not required to provide concrete reasons (the Supreme
Court’s decisions of 7 December 2005 (Рев.бр.768/04)
and 22 March 2006 (Рев.бр.285/05)).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that the length of the proceedings had been
incompatible with the “reasonable time” requirement and
that the Supreme Court had decided his case contrary to previously
established practice without providing reasons for the departure. He
alleged violation of Article 6 § 1 of the Convention, which, 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 [a] ... tribunal ...”
A. Admissibility
- The
Government did not raise any objection as to the admissibility of the
application.
23. The Court notes that the application 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 length of proceedings
a) The parties’ submissions
- The
Government submitted that there had been complexities in the case,
including the employer’s restructuring and issues related
thereto, the interpretation of applicable legislation, and the
applicant’s retirement. As to the latter, they submitted that
he had contributed considerably to the length of the proceedings with
his request, made in the proceedings regarding his dismissal, that
they be suspended (see paragraph 9 above). As to the national courts,
the Government argued that, on the whole, they had decided the
applicant’s case with due diligence and that no delays were
attributable to them. The only exception concerned the length of
proceedings before the Supreme Court which was justified by its
excessive workload during the relevant period.
- The
applicant contested the Government’s arguments about the
complexity of the case and his alleged contribution to the length of
the proceedings. Having regard to what was at stake for him, he
stated that the national courts had not decided his case with the
required expediency and nor could the Supreme Court’s workload
justify the length of the proceedings before it.
b) The Court’s assessment
- The
Court notes that the proceedings in question started on
17 March 1997, when the applicant brought his claim before
the first-instance court. However, the period which falls within its
competence did not begin on that date, but only on 10 April 1997
when the Convention entered into force in respect of the former
Yugoslav Republic of Macedonia (see Parizov v. the former Yugoslav
Republic of Macedonia, no. 14258/03, § 52, 7 February
2008).
- The
impugned proceedings ended on 23 May 2003. Accordingly, the relevant
period which falls within the Court’s competence was six years,
one month and thirteen days for 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, and the references cited therein).
- The
Court does not consider that the case required examination of complex
issues or that the factors, referred to by the Government, affected
the complexity of the case.
- It
further considers that no delay was attributable to the applicant. No
evidence was presented that the proceedings in question had been
suspended, let alone at the applicant’s request.
- Having
regard to the criteria described in paragraph 34 above, the Court
finds that the overall length of the proceedings was excessive even
though there were no significant periods of inactivity between
decisions at different instances. The fact that the case was remitted
on two occasions contributed to the length of the proceedings. The
excessive workload of the Supreme Court, to which the Government
referred in their observations, cannot justify the length of the
proceedings before it 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 v. the former Yugoslav Republic of Macedonia, no.
44221/02, § 40, 31 May 2007), which likewise apply to this case.
Lastly, the Court considers it noteworthy that domestic law (see the
Civil Proceedings Acts above) and its jurisprudence (see Stojanov
v. the former Yugoslav Republic of Macedonia, no. 34215/02, § 61,
31 May 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.
2. The reasoning of the Supreme Court’s decision
a) The parties’ submissions
- The
Government submitted that labour regulation had developed over time,
namely that it had become more protective of employers than
employees, since the market economy had been introduced. The Supreme
Court’s decisions (see paragraph 20 above) confirmed that its
jurisprudence had been consistent with the applicant’s case.
However, this practice was not regarded as a source of law (извор
на правото)
or ground on which that court could decide. They further invited the
Court to reject the applicant’s complaint as being related to
the way in which the domestic courts had interpreted and applied
national law, a matter which was beyond the Court’s
jurisdiction.
- The
applicant contested the Government’s arguments.
b) The Court’s assessment
- The
Court reiterates that, according to Article 19 of the Convention, its
duty is to ensure the observance of the engagements undertaken by the
Contracting Parties to the Convention (see García
Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999 I).
In that context, its established case-law reflecting a principle
linked to the proper administration of justice requires that
judgments of courts and tribunals should adequately state the reasons
on which they are based. The extent to which this duty to give
reasons applies may vary according to the nature of the decision. The
question whether a court has failed to fulfil the obligation to state
reasons, deriving from Article 6 of the Convention, can only be
determined in the light of the circumstances of the case (see Hiro
Balani v. Spain, 9 December 1994, § 27, Series A no.
303 B, Suominen v. Finland, no. 37801/97, §
34, 1 July 2003 and Tatishvili v. Russia, no. 1509/02, §
58, ECHR 2007 III).
- The
present case reflects the development of the domestic jurisprudence
as to whether employers were required to provide concrete reasons for
a reassignment. In this connection, the Court observes that the
case-law on the matter initially imposed such requirement. This is
evident from the Supreme Court’s decisions Рев.бр.474/96
and Рев.бр.312/98
(see paragraph 19 above). In the applicant’s case, the
first-instance court also applied this jurisprudence by having relied
on a court decision in which the reassignment of the applicant’s
colleague had been found unlawful due to lack of reasons (see
paragraph 11 above). It was the Supreme Court which departed, for the
first time in the applicant’s case, from the previous case-law
stating that the employers were not bound with such a requirement.
The Supreme Court’s decisions Рев.бр.768/04
and Рев.бр.285/05
(see paragraph 20 above) support the continued application of
this approach after the applicant’s case. This jurisprudential
conflict evolved between 1997 and 2006 (see, a contrario,
Beian v. Romania (no.
1), no.
30658/05, § 35, ECHR 2007 (extracts)).
38. In these circumstances, the Court observes that the Supreme
Court changed the jurisprudence in the applicant’s case by
deciding it contrary to already established case-law on the matter.
In this connection, the Court notes that case-law development is not,
in itself, contrary to the proper administration of justice since a
failure to maintain a dynamic and evolutive approach would risk
rendering it a bar to reform or improvement. However, it
recalls that the existence of an established judicial practice should
be taken into account in assessing the extent of the reasoning to be
given in a case (see, mutatis mutandis, Gorou v. Greece
(no. 2) [GC], no.
12686/03, § 38, ECHR 2009). In the present case, the
Supreme Court deviated from both the lower courts’ and its own
jurisprudence on the matter. In this connection, the Court recalls
that the requirement of judicial certainty and the protection of
legitimate expectations do not involve the right to an established
jurisprudence (see Unédic v. France, no.
20153/04, § 74, 18 December 2008). However, given the
specific circumstances of the case, the Court considers that the
well-established jurisprudence imposed a duty on the Supreme Court to
make a more substantial statement of reasons justifying the
departure. That court was called upon to provide the applicant with a
more detailed explanation as to why his case had been decided
contrary to the already existing case-law. A mere statement that the
employers were no longer required to provide concrete reasons for
reassignment, but only to refer to one of the terms specified in the
Collective Agreement was insufficient. While such a technique of
scarce reasoning by the highest court is, in principle, acceptable,
in the circumstances of the present case it failed to satisfy the
requirements of a fair trial.
- The Court therefore concludes that there has been a
breach of Article 6 § 1 of the Convention in respect
of the applicant’s right to receive an adequately reasoned
decision.
II. 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 15,000 euros (EUR) in respect of non-pecuniary
damage “for pain and stress due to lack of subsistence funds”.
- The
Government contested these claims as unsubstantiated.
43. The Court considers that the applicant’s claim
for non-pecuniary damage as a result of emotional suffering due to
“lack of subsistence funds” is sufficiently linked to the
violations found. Ruling on an equitable basis, it awards him EUR
2,600 under this head, plus any tax that may be chargeable.
B. Costs and expenses
- The
applicant also claimed EUR 5,000 for costs and expenses incurred
before the domestic courts. He did not produce any documents
supporting his claim.
- The
Government contested this claim.
- The
Court notes that the costs claimed had not been incurred in order to
seek, through the domestic legal system, prevention of and redress
for the violations found. Moreover, the applicant failed to support
his claim with any particulars and supporting documents. Accordingly,
the Court does not award any sum under this head (see Milošević
v. the former Yugoslav Republic of Macedonia, no. 15056/02, § 34,
20 April 2006).
FOR THESE REASONS, THE COURT
- Declares unanimously the application admissible;
- Holds unanimously that there has been a
violation of Article 6 § 1 of the Convention in respect of the
length of proceedings;
3. Holds by six votes to one that there has been a
violation of Article 6 § 1 of the Convention in respect of lack
of reasons in the Supreme Court’s decision;
- Holds unanimously
(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 2,600 (two
thousand and six 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 unanimously the remainder of the
applicant’s claim for just satisfaction.
Done
in English, and notified in writing on 14 January 2010, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia
Westerdiek Peer Lorenzen
Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the separate opinion of Judge Maruste
is annexed to this judgment.
P.L.
C.W.
DISSENTING OPINION OF JUDGE MARUSTE
I,
like some of my colleagues, found this case to be a borderline one in
respect of sufficient reasons being given in the Supreme Court
ruling.
It is
important to bear in mind the subsidiary nature of the Convention
system and the well-established doctrinal principle that the
interpretation and application of domestic law are primarily the
prerogative of the domestic judiciary. It is also clear from the
rule-of-law principle that the requirement of legal certainty and
predictability of judicial decisions falls under the protection of
Article 6. It is indeed difficult in cases such as the one at
hand to draw a clear line between the competences of two legal
systems (domestic and international).
I am
more inclined to leave greater freedom in such matters to the
domestic authorities.
This
view relies primarily on the above-mentioned general principle of
subsidiarity, but also on the need to take into account the interests
of judicial economy and local requirements. It is evident that
domestic courts, especially Supreme Courts, are better placed than an
international court to assess their workload and the need for shorter
or longer explanations for their decisions, and to decide the manner
in which instructions are to be given.
Secondly,
the facts of the case show that this was not a case of major
importance and that some reasons and instructions, although minimal,
were nonetheless given (see paragraph 14 of the judgment). The
validity of the applicable law was not challenged, and the Supreme
Court found that the applicant’s reassignment had met the
requirements set out in the relevant legislative provisions. It
further held (gave instruction) that it had been sufficient for the
employer to refer to one of the terms specified in the Collective
Agreement. This ruling clearly cannot be considered either arbitrary
or unreasonable. Should the Supreme Court have given more reasons?
Perhaps, but it is not our duty to be a tutor or supervisor to
Supreme Courts in how they fulfil their functions, unless the result
is manifestly in contradiction with Convention requirements.
In so
stating, I do not question the very concept of good administration of
justice, which presupposes that courts will provide reasoning in
their decisions and judgments and which, as indicated above, falls
under the ambit of Article 6. The question here, however, is about
scope. I believe that in this particular case the prerequisite
justifying the intervention of an international court was not met.
