European Court of Human Rights

 

 

SECOND SECTION

CASE OF TALEVSKA AND TRPCHESKA v. NORTH MACEDONIA

(Application no. 11828/16)

 

 

 

 

 

 

JUDGMENT

STRASBOURG

28 June 2022

 

This judgment is final but it may be subject to editorial revision.

In the case of Talevska and Trpcheska v. North Macedonia,

The European Court of Human Rights (Second Section), sitting as a Committee composed of:

          Branko Lubarda, President,
          Pauliine Koskelo,
          Gilberto Felici, judges,
and Hasan Bakırcı, Section Registrar,

Having regard to:

the application (no. 11828/16) against the Republic of North Macedonia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 26 February 2016 by two Macedonians/citizens of the Republic of North Macedonia, Ms Sonja Talevska and Ms Tatjana Trpcheska, born in 1982 and 1985, respectively, and living in Ohrid (“the applicants”) who were represented by Mr R. Novakovski, a lawyer practising in Ohrid;

the decision to give notice of the complaints under Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention to the Government of North Macedonia (“the Government”), represented by their Agent, Ms D. Djonova, and to declare the remainder of the application inadmissible;

the parties’ observations;

Having deliberated in private on 7 June 2022,

Delivers the following judgment, which was adopted on that date:

SUBJECT MATTER OF THE CASE

1.  The case mainly concerns the applicants’ complaint under Article 6 § 1 of the Convention that they had been denied the opportunity to have knowledge of, and comment on, the defendant’s submissions in civil proceedings in which they unsuccessfully claimed to have their employment (as court clerks) registered with the social security authorities.

2.  After several remittals, at a hearing held in private on 12 February 2015, the Bitola Court of Appeal (“the Court of Appeal”) overturned a decision by the trial court and dismissed the applicants’ claim. The court based its decision on a notice of 13 March 2013, submitted in evidence by the defendant and not forwarded to the applicants, in which the State Judicial Council (“the SJC”) held that an acting president of a court had competence to represent that court in legal transactions as from the date of registration of his or her appointment with the Central Registry. In the applicants’ case the Court of Appeal held that the acting president of the trial court had not been entitled to sign the relevant employment decisions of 22 December 2011 as he had not been registered with the Central Registry until 3 January 2012. The Supreme Court upheld that decision without giving any comments on the applicants’ allegations that the SJC’s notice of 13 March 2013 had not been communicated to them.

3.  The applicants complained under Article 6 § 1 of the Convention that they had been denied the right to a fair trial since the SJC’s notice of 13 March 2013, submitted with the defendant’s observations, had not been communicated to them. They further complained about the lack of an oral hearing in the proceedings before the Court of Appeal and that the Supreme Court had not provided sufficient reasons for its decision, in particular for the failure of the Court of Appeal to forward to the applicants the notice in question. The applicants also complained of a violation of Article 1 of Protocol No. 1 in that they had had a legitimate expectation of obtaining certain monetary benefits under their employment contracts.

THE COURT’S ASSESSMENT

I.        PRELIMINARY ISSUE: The government’s unilateral declaration

4.  In submissions of 8 October 2018, further supplemented on 13 October 2021, the Government submitted a unilateral declaration in which they acknowledged that there had been a violation of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention, and offered to pay the applicants a sum of money to cover any non-pecuniary damage and any costs and expenses. The applicants objected, arguing, in particular, that under the domestic law, a strike-out decision based on a unilateral declaration by the Government, unlike a judgment delivered by the Court finding a violation, could not serve as a ground for reopening of the case.

5.  For the reasons given in Prodanov v. North Macedonia (no. 73087/12, §§ 23‑25, 10 June 2021), which likewise apply to the present case, the Government’s request that the Court strike the application out of its list of cases under Article 37 of the Convention must be rejected.

II.     ALLEGED LACK OF ADVERSARIAL PROCEEDINGS UNDER ARTICLE 6 § 1 OF THE CONVENTION

6.  The Government did not raise any objection as to the admissibility of this complaint. The Court notes that the complaint is not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.

7.  The general principles relevant to the complaint under consideration have been summarised in Hudáková and Others v. Slovakia (no. 23083/05, §§ 26‑27, 27 April 2010).

8.  In the present case, in its decision of 12 February 2015, the Court of Appeal expressly relied on the SJC’s notice of 13 March 2013. As confirmed by the Government, the notice in question have not been communicated to the applicants. Contrary to the Government’s submissions that the notice in question had not been essential to the Court of Appeal’s decision, the Court considers that the notice was intended to influence the Court of Appeal’s decision. This is the case since in that notice the SJC indicated for the first time that an acting president of a court obtained the necessary authority to represent that court in legal transactions as from the date of registration of her or his appointment with the Central Registry. This was contrary to a notice of 10 January 2013 in which the SJC had indicated that an acting president was entitled to sign employment contracts as from the date of her or his appointment. The Court of Appeal based its decision on the notice of 13 March 2013 in order to find that the acting president of the trial court had not been entitled to sign the applicants’ employment contracts and that, consequently, their claim for registration of those contracts with the social security authorities had no basis in law. The Supreme Court remained silent regarding the applicants’ complaint that the notice in question had not been communicated to them.

9.  In the light of the above considerations, the Court considers that the failure to forward the SJC’s notice of 13 March 2013 to the applicants denied them the right to a fair hearing. There has accordingly been a violation of Article 6 § 1 of the Convention.

III.   OTHER COMPLAINTS

10.  The applicants also complained under Article 6 § 1 of the Convention about the absence of an oral hearing before the Court of Appeal and alleged a lack of reasons in the Supreme Court’s judgment. They further relied on Article 1 of Protocol No. 1 to the Convention (see paragraph 3 above).

11.  Having regard to the facts of the case, the submissions of the parties, and its findings above, the Court considers that it has examined the main legal questions raised in the present application. It thus considers there is no need to give a separate ruling on the applicants’ remaining complaints (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 156, ECHR 2014).

APPLICATION OF ARTICLE 41 OF THE CONVENTION

12.  The applicants jointly claimed 56,746 euros (EUR) in respect of pecuniary damage, EUR 50,000 in respect of non-pecuniary damage and EUR 2,015 in respect of costs and expenses incurred before the domestic courts and EUR 10,102 for those incurred before the Court.

13.  Since the Court cannot speculate about the outcome of the trial had it been in conformity with Article 6, an award of just satisfaction can only be based on the fact that the applicants did not have the benefit of the guarantees of that Article. The Court accepts that the lack of such guarantees has caused the applicants non-pecuniary damage (see Grozdanoski v. the former Yugoslav Republic of Macedonia, no. 21510/03, § 45, 31 May 2007). The Court, making its assessment on an equitable basis, awards the applicants each EUR 1,500 in respect of non-pecuniary damage.

14.  Having regard to the documents in its possession, the Court considers it reasonable to award the applicants jointly EUR 1,850 covering costs under all heads, plus any tax that may be chargeable to them.

15.  It further considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1.      Declares the complaint under Article 6 § 1 of the Convention concerning the lack of a fair hearing before the Court of Appeal admissible;

2.      Holds that there has been a violation of Article 6 § 1 of the Convention on account of the denial of a fair hearing before the Court of Appeal;

3.      Holds that there is no need to examine the remaining complaints under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention;

4.      Holds

(a)  that the respondent State is to pay the applicants, within three months, the following amounts, to be converted into the currency of the respondent State:

(i) EUR 1,500 (one thousand five hundred euros) each, plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 1,850 (one thousand eight hundred and fifty euros) jointly, plus any tax that may be chargeable to the applicants, in respect of costs and expenses;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

5.      Dismisses the remainder of the applicants’ claim for just satisfaction.

Done in English, and notified in writing on 28 June 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

             Hasan Bakırcı                                                   Branko Lubarda
                 Registrar                                                             President