GORGEVIK v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"

FIRST SECTION

DECISION

Application no. 26279/08
Mile GORGEVIK
against the former Yugoslav Republic of Macedonia

The European Court of Human Rights (First Section), sitting on 8 January 2013 as a Chamber composed of:

Isabelle Berro-Lefèvre, President,
Elisabeth Steiner,
Khanlar Hajiyev,
Mirjana Lazarova Trajkovska,
Julia Laffranque,
Linos-Alexandre Sicilianos,
Erik Møse, judges,
and André Wampach, Deputy Section Registrar,

Having regard to the above application lodged on 22 May 2008,

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, Mr Mile Gorgevik, is a Macedonian national, who was born in 1977 and lives in Nov Dojran. He is represented before the Court by Mr G. Šterjovski, a lawyer practising in Skopje.

2. The Macedonian Government (“the Government”) are represented by their Agent, Mr K. Bogdanov.

A. The circumstances of the case

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

4. By a decision of February 2002, the Government set up a public enterprise, D.E. (“the company”). On an unspecified date, the applicant was designated as the company’s director. He held office until 26 October 2007, when the Executive Board (управен одбор) dismissed him (разрешува). He had not concluded a manager’s contract with the company, as specified under section 24 of the Public Enterprises Act (see “Relevant domestic law and practice” below). The notice on legal remedies (правна поука) contained in the dismissal decision advised the applicant that he could challenge his dismissal before the second-instance Government Commission (“the Commission”) within fifteen days from the date of notification of the dismissal.

5. On 12 November 2007 the applicant lodged an appeal with the Commission, seeking rescission of the dismissal.

6. On 27 November 2007 the Commission rejected the applicant’s appeal on the grounds that it did not have the competence, under the Public Enterprises Act, to make a second-instance decision to rescind the dismissal. The Commission further advised the applicant to bring a civil action before a first-instance court within fifteen days from the date of notification of its decision. The Commission’s decision was served on the applicant on 12 January 2008.

7. The applicant did not avail himself of any further legal actions.

B. Relevant domestic law and practice

1. Public Enterprises Act (“the Act”) of 1996, as amended in 2006 and 2007

8. Under section 23 of the Act, as worded in 1996, the founder of the public enterprise appointed (именува) a director for a period of four years. Pursuant to the amendments of 2006, the Executive Board of the public enterprise designated (избира) the director.

9. Section 19(10) of the Act, as amended in 2006, provides that the Executive Board issues a vacancy notice and designates (избира) the director of a public enterprise set up by the Government. It also decides about his or her dismissal.

10. Section 24 of the Act provides that the director reports to the Executive Board. The two parties conclude a contract in which the director’s rights, duties and responsibilities are specified.

2. Employment Act (Закон за работните односи) of 2005

11. Section 181 of the Employment Act, as worded at the relevant time, provided for the right of judicial protection in employment-related disputes. An employee could bring a civil action before a court within fifteen days from the date of service of the decision in question.

3. Courts Act of 2006

12. Section 5(2) of the Courts Act provides for the judicial review of the decisions of individual public authorities.

13. Under section 8 of the Courts Act, a court can invoke lack of jurisdiction only if another body is vested with an exclusive competence to decide. A court cannot reject a claim on the basis of a legislative loophole, but is required to give a decision based on the general principles of law.

4. Administrative Proceedings Act (Закон за општата управна постапка)

14. Under section 213 (1), (3) and (4) of the Administrative Proceedings Act, a party to the proceedings is informed by means of a notice on legal remedies (упатство за правно средство) whether he or she may lodge an appeal against the decision or institute administrative dispute proceedings or other judicial proceedings. Where other judicial proceedings may be instituted against the decision in question, the notice must indicate before which court and within what time-limit the proceedings should be instituted. If incorrect information has been given, the party may follow the legislation in force or the notice. A party who follows the advice given in an incorrect notice must not suffer any adverse consequences as a result.

5. Relevant domestic case-law

15. In a decision of 2 December 2009 the Supreme Court dismissed an appeal on points of law lodged by a former director of a public enterprise to challenge a decision to terminate his employment (престанок на работниот однос). The court ruled that the manager’s contract, which the claimant had concluded with the enterprise, had not been the same as the ordinary employment contract. His non-compliance with the responsibilities specified in the manager’s contract had led to his dismissal. The courts also found no reasons that would cast doubt on the lawfulness of the dismissal (Рев.178/2009, П.бр.388/07).

16. On 3 December 2009 the Supreme Court ruled that a plaintiff (the former director of a public enterprise) had not been entitled to unpaid salary for the time between his dismissal and the expiration of the term of office for which he had been appointed by the Government. The court held that the mere appointment in the office entailed an implicit acceptance by the plaintiff that he could be dismissed before the expiration of his mandate (Рев.бр.29/2009).

17. On 21 December 2010 the Štip Court of Appeal confirmed a judgment in which a first-instance court had rescinded a mayor’s decision to dismiss a director of a local public enterprise before the expiration of her mandate. It held, inter alia, that the claimant (the director) had not been employed in accordance with the Employment Act, but had been designated director. Consequently, she had retained employment-related rights and duties only until her dismissal. The court concluded, therefore, that she had not been entitled to claim reinstatement in her post, but was entitled to compensation for damages related to her early dismissal. According to the Government, the proceedings are pending before the Supreme Court (Рож.бр.897/10).

18. In a decision of 3 March 2011 the Administrative Court rejected an appeal lodged by a former director of a public enterprise to challenge his early dismissal. The court ruled that the dismissal decision could not be regarded as an administrative decision (управен акт) subject to appeal in administrative dispute proceedings. It concerned employment-related issues which, under the Courts Act, were open to judicial scrutiny by courts of general competence (У-5.бр.381/2010).

COMPLAINTS

19. The applicant complained under Articles 6 and 13 of the Convention that the domestic legislation had not provided for an effective remedy against his dismissal. According to him, neither the Public Enterprises Act, as the lex specialis, nor the Employment Act, which had not been applicable to him, had provided for any such remedy.

THE LAW

20. The Court considers that the substance of the applicant’s complaint was that he had been denied access to court as regards his dismissal. That complaint falls to be examined solely under Article 6 § 1, because where the right claimed is a civil one, the requirements of Article 13 are less strict than, and are absorbed by, those of Article 6 § 1 (see Yanakiev v. Bulgaria, no. 40476/98, § 76, 10 August 2006, and Tencheva Rafailova v. Bulgaria (dec.), no. 13885/04, 5 January 2010). Article 6 § 1 of the Convention, in so far as relevant, reads as follows:

“Article 6 § 1

In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

1. The parties’ submissions

21. The Government contested the applicability of Article 6 on the ground of the applicant’s status as company’s director whose duty was to enforce company policy. The appointment and dismissal of a director of a public enterprise had no features of private law, nor any elements which could make it akin to a “civil” right. The applicant had not been a state official or civil servant, and his case had not been an ordinary employment dispute. As evident from the domestic case-law, he had not been entitled to claim reinstatement to his post. Furthermore, in the absence of a manager’s contract, he had not been entitled to make any “civil” claims, including for pecuniary compensation. As to the latter, the applicant had not made any such claim in his appeal before the Commission, so the outcome would not have had any direct career or economic consequences for him.

22. They further submitted that despite the absence of an explicit statutory provision, the relevant domestic jurisprudence had confirmed that a civil claim before the courts of general competence would have been an effective remedy in respect of the lawfulness of the dismissal decision. The right to court in the present case was further secured by sections 5 and 8 of the Courts Act (see paragraphs 12 and 13 above).

23. The applicant contested the Government’s objection. He further argued that no law at the time had provided for any remedy against his dismissal. The domestic legislation had specified neither the relevant body nor the time-limit within which any remedy could be sought. In the absence of an explicit statutory provision, he had not been required to know the domestic jurisprudence, which had not been accessible to him. Both of the notices on legal remedies issued in his case had been wrong and had not been based on any statutory provision.

2. The Court’s assessment

24. The Court notes that since the dispute at issue related to the applicant’s dismissal, it concerned a “civil” right (see, mutatis mutandis, Cudak v. Lithuania [GC], no. 15869/02, §§ 44-47, ECHR 2010). Furthermore, the domestic courts have accorded plaintiffs in similar cases the right to submit such claims against public enterprises (see paragraphs 15-18 above). These considerations allow the Court to find that Article 6 § 1 is applicable in the circumstances (see Vilho Eskelinen and Others v. Finland [GC], no. 63235/00, §§ 62 and 63, ECHR 2007‑II). The application thus cannot be rejected as incompatible ratione materiae with the provisions of the Convention.

25. The Court recalls that, according to its well-established case-law, Article 6 § 1 of the Convention may be relied on by individuals who consider that an interference with the exercise of one of their (civil) rights is unlawful and complain that they have not had the possibility of submitting that claim to a court meeting the requirements of Article 6 § 1 (see Le Compte, Van Leuven and De Meyere v. Belgium, 23 June 1981, § 44, Series A no. 43). In the words of the Court’s Golder judgment, Article 6 § 1 embodies the “right to a court”, of which the right of access, that is the right to institute proceedings before courts in civil matters, constitutes one aspect (see Golder v. the United Kingdom, 21 February 1975, § 36, Series A no. 18).

26. However, this right is not absolute, but may be subject to limitations; these are permitted by implication since the right of access by its very nature calls for regulation by the State. In this respect, the Contracting States enjoy a certain margin of appreciation, although the final decision as to the observance of the Convention’s requirements rests with the Court. It must be satisfied that the limitations applied do not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired. Furthermore, a limitation will not be compatible with Article 6 § 1 if it does not pursue a legitimate aim and if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be achieved (see Osman v. the United Kingdom, 28 October 1998, § 147, Reports of Judgments and Decisions 1998‑VIII).

27. Turning to the present case, the Court notes that the Executive Board advised the applicant that he could challenge their dismissal decision before the Commission. The applicant duly lodged an appeal, which the Commission rejected for lack of jurisdiction. It further advised him that he could challenge his dismissal by means of a separate civil action before the courts of general competence within fifteen days from the date of service of the decision of the Commission (see, conversely, Majski v. Croatia (no. 2), no. 16924/08, § 9, 19 July 2011). Despite the clear notice on legal remedies contained in the Commission’s decision, the applicant did not embark on that avenue of redress (see, conversely, Tencheva Rafailova, cited above). It is true that the applicable legislation did not provide for an explicit competence of the courts to decide the lawfulness of the dismissal decision. In terms of relevant domestic case-law, however, the Court observes that during the period in which the provisions applicable in the applicant’s case were valid, the civil courts accepted jurisdiction to examine claims brought by former directors of public enterprises for rescission of their early dismissal. As submitted by the Government, that jurisdiction appears to have stemmed from sections 5 and 8 of the Courts Act. The applicant did not present any evidence that the incorrect instruction contained in the dismissal decision would have affected his right to institute civil proceedings had he sought that avenue of redress (see paragraph 14 above).

28. In view of the foregoing, the Court considers that the applicant was not denied access to a court in respect of his claim. It follows that the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

29. For these reasons, the Court unanimously

Declares the application inadmissible.

André WampachIsabelle Berro-Lefèvre
Deputy RegistrarPresident

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