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FIRST SECTION

Application no. 48556/08
Goran RISTESKI and Others
against the former Yugoslav Republic of Macedonia
lodged on 19 September 2008

STATEMENT OF FACTS

THE FACTS

The applicants, Mr Goran Risteski, Mr Zoran Vaskoski and Mr Saško Krstevski, are Macedonian nationals who were born in 1969, 1970 and 1972 respectively and live in Skopje. They were represented before the Court by Ms V. Dangova, a lawyer practising in Skopje.

A.  The circumstances of the case

The facts of the case, as submitted by the applicants, may be summarised as follows.

The applicants were guards in Skopje prison. On 11 April 2000, eight claimants (all guards), including the applicants, brought a single action for damages claiming payment of employment-related benefits (night-work and work on public holidays) that they had not received during their employment between March 1995 and March 2000 (“the reference period”).

On 14 June 2002 the Skopje Court of First Instance (“the first-instance court”) accepted the claim and ordered the respondent State/ Skopje prison (“the defendant”) to pay the benefits. The court rejected the defendant’s arguments that there had been no budgetary provision for the payment of these benefits and that the claim was time-barred. In this latter context it stated that the dispute concerned a compensation claim for unpaid work-related benefits (???????? ?? ????? ?? ????? ?? ??????????? ??????????? ?? ?????) for which five-year time-bar applied.

On 12 March 2003 the Skopje Court of Appeal accepted the defendant’s appeal and quashed the first-instance court’s decision in respect of the applicants. It upheld the remainder. It confirmed that a five-year time-bar applied to the applicants’ claim arguing that the dispute did not concern compensation for unpaid benefits, but rather a work-related pecuniary claim (??????? ?????????? ?? ??????? ?????). In this connection it considered that the applicants’ claim for March 1995 ought to be rejected as time-barred.

On 18 December 2003 the first-instance court accepted the applicants’ claim and ordered the defendant to pay the benefits for the reference period to be calculated since 11 April 1995. It so ruled since the applicants had withdrawn the remainder. The court held that the applicants had not received the benefits claimed, despite the fact that they had been entitled to under section 74 of the Employment Act and the relevant general collective agreement. It further reiterated the reasoning as regards the applicable rules on time-bar which the Court of Appeal had given in its decision of 12 March 2003 (see above). On 26 May 2004 the Skopje Court of Appeal confirmed this decision. In proceedings upon a legality review request submitted by the public prosecutor, on 14 September 2005 the Supreme Court quashed the first- and second-instance courts’ decisions and remitted the case for a fresh examination. It held that the public prosecutor correctly argued that the lower courts had not established whether the Budget Act had provided funds for payment of the benefits claimed for the reference period. Consequently, it instructed the lower courts inter alia:

“to establish whether there had been an appropriate budgetary provision in the Budget (for payment of the benefits) in amount specified in the Employment Act and general collective agreement”

On 5 October 2007 the first-instance court dismissed the applicants’ claim. In view of the Supreme Court’s instructions, the court admitted an expert opinion of February 2007 according to which the applicants had not received the benefits for 1997-2000 since there had been no budgetary provision for that period in the defendant’s budget. Given the lack of funds in the defendant’s budget for 1997-2000, coupled with the fact that the applicants had received an increased salary owing to the specific nature of the work, the court held that the applicants had not been entitled to receive the benefits claimed for that period. The court further accepted the defendant’s arguments that the applicant’s claim for April 1995-April 1997 had been time-barred. In this respect it stated that “work-related pecuniary claims become time-barred after 3 years”.

The applicants appealed arguing that there had been no evidence that they had received an increased salary. In any case, that increase concerned the specific nature of the work and could not affect their entitlement to the benefits claimed. That there had been no budgetary provision for the payment of these benefits for 1997-2000 could not relieve the defendant of its obligation to pay them. They further argued that the same courts had already awarded compensation to the remaining claimants in the same proceedings whose claim had been based on the same facts and law.

On 20 March 2008 the Skopje Court of Appeal dismissed the applicants’ appeal and confirmed the lower court’s decision. It held that the first-instance court had established, despite the fact that it had not been the subject-matter of the dispute, that the applicants’ salary, due to the specific nature of the work, had been increased, as provided for under section 60 of the Execution of Sanctions Act. The applicants had not received the benefits, although section 74 of the Employment Act and the relevant general collective agreement provided for their payment. However, since there had been no budgetary provision for 1997-2000, the applicants had not been entitled to receive the benefits claimed. It further confirmed the lower court’s decision that a three-year time-bar applied to the remainder of the applicants’ claim. Lastly, it stated that the remaining arguments were inapt to alter the established facts and law applied by the first-instance court.

B.  Relevant domestic law and practice

1.  Employment Act of 1993

According to section 74 of the Employment Act of 1993, as applicable at the time, employees were entitled to an increment inter alia for work on public holidays and night work. The amount of the increment would be specified by a collective agreement.

2.  Execution of Sanctions Act of 1997

According to sections 58 and 60 of the Execution of Sanctions Act of 1997, employees whose working duties, due to the specific nature and gravity, might significantly affect their working capacity were entitled to a salary increase. Prison personnel were regarded as employees qualifying for such increase.

3.  General collective agreement for public services of 1994

Under section 40 of the 1994 General collective agreement for public services, employees were entitled to an increment for work on public holidays and night work.

4.  Relevant domestic case-law

The applicants submitted a copy of a decision dated 13 July 2006 (?.??.429/04) in which the first-instance court accepted identical claims submitted by employees in Skopje prison. The court did not address the issue whether there had been an appropriate budgetary provision for payment of the benefits.

COMPLAINTS

The applicants complain under Article 6 of the Convention about inconsistency in the domestic case-law since the same courts dismissed their claim notwithstanding the fact that they accepted, in the same proceedings, identical claims of the remaining claimants. They also complain under Article 1 of Protocol No.1 since they did not receive the benefits to which they were entitled under the domestic law because of lack of funds in the State’s budget.

QUESTIONS TO THE PARTIES

1.  Did the applicants have a fair hearing in the determination of their civil rights and obligations, in accordance with Article 6 § 1 of the Convention? In particular, was the principle of judicial certainty contained in this provision complied with by the domestic courts, which according to the applicants, applied different case-law to identical claims submitted by the remaining claimants in the impugned proceedings?

2.  In view of the domestic courts’ conclusion that the applicants were entitled, under the applicable legislation, to receive the benefits claimed, has their decision to dismiss the applicants’ claim due to the absence of an appropriate budgetary provision violated their rights under Article 1 of Protocol No. 1?