Communicated on 27 January 2014
FIRST SECTION
Application no. 47274/07
Valentina DUKOSKA and Liljana NEDELKOSKA
against the former Yugoslav Republic of Macedonia
lodged on 20 October 2007
STATEMENT OF FACTS
The applicants, Ms Valentina Dukoska and Ms Liljana Nedelkoska, are Macedonian nationals who were born in 1968 and 1971 respectively and live in Prilep. They are represented before the Court by Ms J. Taleska, a lawyer practising in Prilep.
A. The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
1. Background to the case
On 18 April 2006 the “Rampo Levkata” primary school (“the school”), issued a vacancy notice for two permanent posts (вработување на неопределено време). The applicants, as well as Z.B. (a former member of the security forces involved in the armed conflict in 2001) and T.G, applied for the vacant posts.
On 28 April 2006 the school director decided to recruit the applicants and notified the other candidates of the results of the recruitment procedure.
On 22 May 2006 the applicants concluded permanent employment contracts with the school.
2. Civil proceedings for the annulment of the applicants’ employment
On the same date, Z.B. and T.G. (“the plaintiffs”) initiated civil proceedings against the school, demanding that the Prilep Court of First Instance (“the first-instance court”) annul the applicants’ employment.
On 15 September 2006 the first-instance court admitted the applicants as interveners (замешувачи) in the proceedings.
On 30 November 2006 the first-instance court dismissed the claim. It established, inter alia, that Z.B. had already concluded a temporary employment contract with another school and had consequently used up his right to privileged employment (право на предност при вработување) provided for in the Special Rights for Security Forces Members Act (“the Act”). The first-instance court held that under the Act, the right to privileged employment could only be used once, and that the Labour Act made no distinction between the rights pertaining to permanent and temporary employment. It also dismissed, as a disposition contrary to the principles of morality and good faith (спротивно на моралот и начелото на совесност и чесност), the recognition by the school of the plaintiff’s claim in the course of the proceedings.
On 20 March 2007 the Bitola Court of Appeal (“the second-instance court”) allowed an appeal by the plaintiffs and annulled the applicants’ recruitment. It established that Z.B. was entitled to privileged employment, and that that entitlement had not been extinguished by his earlier temporary employment. It also made a distinction between permanent and temporary employment, finding that, in accordance with the provisions of the Labour Act, the two types of employment were the same only in respect of employee rights. Consequently, the first-instance court had erroneously relied on the principles of morality and good faith when it had dismissed the school’s recognition of the plaintiff’s claim. On the contrary, in view of the above findings as to the applicability of the Act, the first-instance court should have accepted the recognition of the claim.
3. Relevant domestic case-law
On 28 November 2006 the Prilep Court of First Instance dismissed an identical claim by Z.B. for the annulment of an employment contract that a third party had concluded with another primary school. The court found that Z.B. had already used his right to privileged employment when he had concluded earlier temporary employment contracts. On 14 March 2007 the Bitola Court of Appeal upheld the judgment on appeal.
COMPLAINT
The applicants complain under Article 6 of the Convention that they did not have a fair hearing on account of the domestic courts’ divergent interpretations regarding the right to privileged employment provided for in the Act.
QUESTION TO THE PARTIES
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 second-instance court, which, according to the applicants, applied different case-law to identical claims (see Stoilkovska v. the former Yugoslav Republic of Macedonia, no. 29784/07, §§ 48-49, 18 July 2013)?
Full & Egal Universal Law Academy