C. v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"

FIRST SECTION

DECISION

Application no. 36303/10
C.
against the former Yugoslav Republic of Macedonia

The European Court of Human Rights (First Section), sitting on 18 December 2018 as a Committee composed of:

Tim Eicke, President,
Jovan Ilievski,
Gilberto Felici, judges,
and Renata Degener, Deputy Section Registrar,

Having regard to the application lodged on 23 June 2010,

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 FACTS

1. The applicant, C., is a Macedonian national, who was born in 1963 and lives in Skopje. The President granted the applicant’s request for his identity not to be disclosed to the public (Rule 47 § 4). He is represented before the Court by Ms I. Danailova Frchkoska and Mr Z. Gavriloski, lawyers practising in Skopje.

2. The Macedonian Government (“the Government”) were represented by their former Agent, Mr K. Bogdanov, and subsequently by their present Agent, Ms D. Djonova.

A. The circumstances of the case

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

1. Background to the case

4. The applicant was employed in the Ministry of the Interior (Министерство за внатрешни работи - “The Ministry”) from 1987. In 2005 he was assigned to the post of assistant director. The salary for this post was set at 1,150 points and it required higher education (VII степен на стручна подготовка) and six years of professional experience.

5. On 15 September 2006 the Director of another sector of the Ministry reassigned him to a post of senior inspector in a police station remunerated with 650 points (“the 2006 reassignment decision”). The eligibility requirements for that post included higher education and three years of professional experience.

2. The first set of proceedings

6. Оn 20 October 2006 the applicant brought a civil action seeking annulment of the 2006 reassignment decision.

7. On 4 October 2007 the Skopje Court of First Instance (Основен суд Скопје II Скопје – “the first-instance court”) quashed the 2006 reassignment decision and ordered the Ministry to reassign the applicant to a post corresponding to his qualifications. However, it dismissed the applicant’s claim that he be reinstated in the post of assistant director. The court found that the 2006 reassignment decision had been taken by an unauthorised person and that the reassignment was contrary to Section 26 of the Ministry’s Collective Agreement, since the post did not correspond to the applicant’s qualifications.

8. The Skopje Court of Appeal upheld the judgment relying solely on the lack of competence of the Director to decide such matters.

9. On 23 May 2008, after that judgment had become final, the Minister of the Interior reassigned the applicant again to a post of senior inspector in a police station (“the 2008 reassignment decision”). The eligibility requirements for the post included a higher education and two years of professional experience.

3. The second set of proceedings

10. On 17 June 2008 the applicant lodged a civil action seeking annulment of the 2008 reassignment decision.

11. On 18 February 2009 the first-instance court annulled the decision of 23 May 2008 and ordered the Ministry to reinstate the applicant in a post corresponding to his education and professional experience, finding that the post was not adequate for his qualifications.

12. On 3 December 2009 the Court of Appeal overturned that judgment and dismissed the applicant’s claim. The relevant part of the judgment reads as follows:

“... [T]his court finds that the first-instance court ... erroneously applied the substantive law. Namely, [it] wrongly established that [the Ministry] did not act upon the order contained in the first-instance judgment ... of 4 October 2007. ... It is evident from that judgment that [the Ministry] was ordered to assign the plaintiff to a post corresponding to his education, acquired knowledge and professional experience. In view of the above, [the Ministry] acted upon the order of the first-instance court given in the cited judgment by assigning [the applicant] to an adequate post corresponding to his professional experience as well as his education. Thus, the post to which [the applicant] is assigned is established in accordance with the [Rules on posts] and requires a [higher education] and two years of professional experience ... Therefore, the impugned decision is made in accordance with Section 26 paragraph 2, subparagraph 1 (1) and (3), subparagraph 4 and paragraph 5 [of the Collective Agreement] of the Ministry where it is established that an employee may be reassigned to any post established in accordance with the Rules on posts which corresponds to their level of education in order to achieve a more efficient performance of the Ministry’s function and with the aim of achieving better results at a different post. In the instant case, the decision ... of 23 May 2008 is ... lawful and made following a correct application of the provisions of the [Collective Agreement] of [the Ministry] and the Rules on posts.”

The judgment was served on the applicant’s representative on 29 December 2009.

B. Relevant domestic practice

1. Submissions by the applicant

13. The applicant contended that in two final judgments in separate court proceedings, and predating the second set of proceedings brought by him (РОЖ бр. 784/08, and РОЖ бр. 357/08) the courts had held that the reassignment of an employee of the Ministry of the Interior to a lower‑ranking post had been unlawful on account of that employee being over-qualified. Additionally, in judgment РОЖ бр. 444/09 of 1 October 2009 the Appeal Court relied on the employee being over‑qualified as a ground to declare the reassignment of a Ministry employee to a lower-ranking post unlawful. This judgment allowed for an exceptional appeal on points of law to be lodged against it and accordingly was not final.

14. He submitted four other judgments (РОЖ бр. 1453/09, РОЖ бр. 1274/08, РОЖ бр. 2017/08 and РОЖ бр. 522/08) where the reassignment of Ministry employees was declared unlawful on various other grounds.

2. Submissions by the Government

15. The Government submitted several final judgments that predated the applicant’s case (ГЖ бр. 8855/06; ГЖ бр. 9619/06; РСЖ бр. 212/07; РСЖ бр. 2212/07; and РОЖ бр. 965/08) in which the fact that an employee of the Ministry of the Interior had been over-qualified had not been considered sufficient when taken alone to declare a reassignment unlawful.

16. The Government also submitted three judgments of the Supreme Court in cases where that court had been exceptionally called upon to decide on the lawfulness of reassignment of employees of the Ministry of the Interior. These are Рев бр. 414/2006 of 17 September 2007, Рев2 бр. 260/2011 of 4 July 2012 and Рев2 бр. 581/2011 of 9 January 2013. In all three judgments the Supreme Court held that any experience exceeding the minimum required for a post was considered irrelevant when assessing the lawfulness of a reassignment.

COMPLAINTS

17. The applicant complained under Article 6 of the Convention that the Ministry had failed to comply with the first judgment, that his right to a fair trial was violated when the domestic courts decided his second claim contrary to established domestic case-law, and that the length of the two sets of proceedings taken together had been excessive.

THE LAW

18. The applicant complained under Article 6 of the Convention that the Ministry of the Interior had failed to comply with the judgment rendered in the first set of proceedings. Moreover, when he had challenged the decision executing that judgment, his claim in the second set of proceedings had been dismissed contrary to the established case-law. Lastly, he alleged that both proceedings taken as a whole had lasted for an excessive period of time. 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 [a] ... tribunal ...”

А. Alleged non-compliance with the judgment in the first set of proceedings and divergent domestic practice

1. The parties’ submissions

19. The Government submitted that the applicant had failed to draw the attention of the domestic courts to the judgment РОЖ бр. 784/08 to support his interpretation of domestic law. Furthermore, the judgment of 4 October 2007 had been complied with by reassigning the applicant to a post that corresponded to his qualifications. Considering the date on which that judgment was given, the complaint regarding non-compliance had been submitted more than six months after the date of the final judgment and it had not been necessary for the applicant to lodge a second civil action challenging the 2008 reassignment order. In any event, the judgment in the second set of proceedings was in line with established domestic practice, the judgment РОЖ бр. 784/08 being the only departure from it.

20. The applicant argued that the fact that pursuant to the 2008 reassignment order he had been assigned to the same post to which he had been initially assigned could not be taken as valid compliance with the judgment of 4 October 2007. At that point, he had been left with no other course of action but to challenge the 2008 reassignment order. Moreover, non-compliance with a final judgment was a continuing situation and the six-month rule did not apply. He submitted that he was overqualified for the post of senior inspector. He had not presented the judgment РОЖ бр. 784/08 in evidence domestically because he had learned about it only after the second set of proceedings was completed.

2. The Court’s assessment

21. The general principles relating to execution of judgments are summarised in the case of Burdov v. Russia (no. 2) (no. 33509/04, §§ 65-70, ECHR 2009) and Nesevski v. the former Yugoslav Republic of Macedonia, (no. 14438/03, § 21, 24 April 2008), both with further references.

22. The general principles in respect of conflicting decisions by the domestic courts have been summarised most recently in Lupeni Greek Catholic Parish and Others v. Romania [GC], no. 76943/11, § 116, ECHR 2016 (extracts), with further references, and Balažoski v. the former Yugoslav Republic of Macedonia, no. 45117/08, §§ 29-30, 25 April 2013.

23. The Court notes that the Government raised several objections in respect of the admissibility of the application. However, it considers that there is no need to examine them separately since the application is in any event inadmissible for the reasons set out below.

24. The Court notes that in the first set of proceedings, the first-instance court ordered that the Ministry reassign the applicant to a post “corresponding to his qualifications” (see paragraph 7 above). When it examined the case the Appeal Court did not endorse the reasoning of the first-instance court and upheld the decision only on account of the fact that the person who made the reassignment decision lacked competence to do so (see paragraph 8 above).

25. In the absence of any other concrete instruction, that judgment contained no order for the Ministry to assign the applicant to any specific post, but only to assign him to a post for which he met the relevant criteria. Following that judgment the applicant was assigned to the post of senior inspector (see paragraph 9 above). The Appeal Court explained in the subsequent set of proceedings why such an assignment had been lawful (see paragraph 12 above).

26. The Court will next examine whether that judgment was contrary, as argued by the applicant, to the domestic jurisprudence on the matter, namely, the relevance of work experience for assignment to a post.

27. On the basis of the available materials it appears that the appeal courts had initially applied a somewhat divergent practice (see paragraphs 13 and 15 above), but the Supreme Court seems to have adopted a single approach (see paragraph 16 above) which was identical to the approach adopted in the applicant’s case. That approach was adopted as early as 2007, that is, before the Court of Appeal decided the applicant’s case and continued to be applied thereafter (see paragraph 16 above). The applicant has not submitted any evidence to the contrary (see paragraphs 13-14 above, and compare with Ivanov and Dimitrov v. the former Yugoslav Republic of Macedonia, no. 46881/06, § 31, 21 October 2010).

28. Therefore, even assuming that “profound and long-lasting divergences” existed in the application of section 26 of the Ministry’s Collective Agreement for a limited period of time, they were subsequently resolved by the intervention of the Supreme Court.

29. In any event, irrespective of the fact that the applicant’s claim could not be examined by the Supreme Court at third instance, it was nevertheless substantively determined in a manner consistent with that court’s settled case-law (see, in contrast, Rakić and Others v. Serbia, nos. 47460/07 and 29 others, § 43, 5 October 2010).

30. In such circumstances the Court does not consider that the jurisprudential development had created a state of judicial uncertainty capable of depriving the applicant of a fair hearing (see Ivanov and Dimitrov, cited above, § 32).

31. 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.

B. Length of proceedings

1. The parties’ submissions

32. The Government submitted that the complaint in respect of the first set of proceedings had been lodged outside the six-month period. The length of the second set of proceedings was not excessive. Lastly, the Court should not analyse the two sets together because they dealt with separate issues.

33. The applicant reiterated that since the judgment delivered in the first set of proceedings had not been complied with, he had been forced to proceed with the second set. Both sets of proceedings addressed the same issue and should be analysed together.

2. The Court’s consideration

34. The Court notes that the two sets of proceedings dealt with the lawfulness of two separate reassignment decisions. Their length will therefore be examined separately (contrast Balcan v. Romania, no. 37380/03, § 126, 29 July 2008).

35. The Court observes that the complaint in respect of the first set of proceedings, which ended with the applicant’s reassignment on 23 May 2008 is inadmissible for non-compliance with the six‑month rule set out in Article 35 § 1 of the Convention, since he lodged his application on 23 June 2010. This complaint must therefore be rejected pursuant to Article 35 § 1.

36. The second set of proceedings started on 17 June 2008 and ended on 3 December 2009, lasting a little over one year and six months at two levels of jurisdiction, which does not appear excessive (see Petreska v. the former Yugoslav Republic of Macedonia, no. 16912/08, § 23, 21 July 2016, and in the context of labour proceedings see Ilievski v. the former Yugoslav Republic of Macedonia, no. 35164/03, §§ 27-34, 22 April 2010).

37. The remainder of the application is therefore manifestly ill-founded and must be rejected, in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 24 January 2019.

              Renata DegenerTim Eicke
              Deputy RegistrarPresident

Full & Egal Universal Law Academy