CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 27 septembre 2011

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display:inline-block } .sC1AC44A4 { width:228.11pt; display:inline-block } .s76CF415B { page-break-before:always; clear:both } .s7BE5FA7F { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:center; font-size:16pt } .s6DB91820 { text-align:center } .s25B97BCD { margin-right:auto; margin-left:auto; border:0.75pt solid #808080; border-collapse:collapse } .sBDFB6575 { height:36.15pt } .s3C47E78A { height:19.1pt } .s7980263B { height:21.6pt } .s139B263B { height:24.4pt } .s754C1073 { height:25pt } .sEFB62F38 { height:32pt } .s5A37263B { height:26.2pt } .sCBA2D88E { height:60.85pt } .s7F704500 { height:39.7pt } .sCCE7263B { height:29.1pt } .s3A5D5D7A { height:22.55pt } .s28D3263B { height:22.2pt } FIRST SECTION DECISION AS TO THE ADMISSIBILITY OF Application no. 15905/07 Petar SPASESKI against the former Yugoslav Republic of Macedonia and 13 other applications (see appendix for other applications)   The European Court of Human Rights (First Section), sitting on 27   September 2011 as a Chamber composed of:   Nina Vajić, President,   Anatoly Kovler,   Peer Lorenzen,   Mirjana Lazarova Trajkovska,   Julia Laffranque,   Linos-Alexandre Sicilianos,   Erik Møse, judges, and Søren Nielsen, Section Registrar, Having regard to the above applications lodged on 30 March 2007, 17   May 2007, 12 and 17 July 2007, 9 and 10 August 2007, 2 and 6   October   2007 and 10 November 2007, Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants, Having decided to join the applications, Having regard to the fact that, on 1 February 2011, the Court changed the composition of its Sections (Rule 25 § 1) and this case was assigned to the newly composed First Section (Rule 52 § 1), Having deliberated, decides as follows: THE FACTS The present application invokes a total of 24 applicants. Their personal details are set out in the annex to this decision. All applicants are Macedonian nationals. All applicants were represented before the Court by Mr   B.   Šokoski, with the exception of Mrs M. Mirceska and Mrs L.   Koneska, who were represented by Mrs M. Kokaroska, both lawyers practising in Prilep. The Macedonian Government (“the Government”) were represented by their Agent, Mrs R. Lazareska Gerovska. A.     The circumstances of the case The facts of the case, as submitted by the parties, may be summarised as follows. The first, second, third, fourth, eighth and ninth applicants are former employees of the private company P.O., and the remaining applicants of the private company Z.P. (“the former employers”). They all brought civil actions against the former employers claiming payment of employment-related benefits, namely annual-leave allowance ( регрес за годишен одмор ), food ( хранарина ) and travelling allowances that they had not received during their employment (“the reference period”). The only exception was that the first, second and third applicants did not claim payment of the travelling allowance. All claims were submitted to the Prilep Court of First Instance. The applicants’ cases were finally decided by the Bitola Court of Appeal with decisions rendered between 20 December 2006 and 11 June 2007. The relevant facts concerning the applicants’ claims, the reference period and the outcome of the domestic proceedings are contained in Tables 1, 2 and 3 below: Table 1 Application no. Applicant’s name   Reference period Date of final decision Outcome of the proceedings 15905/07   Petar Spaseski Petre Jovčeski Boris Naumoski   3/2003-12/2005 11 January 2007   Full dismissal of the applicants’ claim irrespective of the reference period.   24369/07 Borče Petreski   6/2003 – 12/2005 20 December 2006 31877/07   Menka Mircčeska Lenka Koneska   1/2003 – 10/2003 22 December 2006 37446/07 Marjan Poposki Ljupčo Rizeski Goce Kuzmanoski Kiro Stojanoski 6/2003 – 12/2005 Annual-leave allowance 2002 – 2005 27 March 2007 (the Appeal Court’s decision no.308/2007, dismissing the applicants’ appeals) 45980/07   Dušan Nedeski   3/2004 – 12/2005 17 May 2007 45984/07 Blaga Petreska   3/2003 – 3/2006 11 June 2007     Table 2   Application no. Applicant’s name   Reference period Date of final decision Outcome of the proceedings 26868/07   Dare Zdraveski   2002 – 1/2005 12 April 2007 Claims accepted only for 2002 (given the positive financial results achieved that year). The remainder were dismissed as the employer had experienced business losses.   31190/07   Zore Kuleski   3/2002 – 1/2005 10 May 2007 36786/07   Ljuben Keltanoski Stojan Miškoski Trajce Jakimoski Stojan Joleski Marija Vidovik   2001 - 2004   26 April 2007 45588/07   Blaže Risteski   3/2002 – 12/2004 22 May 2007 45981/07   Josif Dimitrioski   9/2002 – 8/2005 12 April 2004 45982/07 Milan Naumčev   9/2002 – 8/2005 16 May 2007     Table 3   Application no. Applicant’s name   Reference period Date of final decision Outcome of the proceedings 31183/07 Kiro Taleski 7/2003 – 10/2006 26 April 2007   Claims accepted only in respect of food and travelling allowances for 9/2005 – 2006 (after the entry into force of the 2005 Employment Act, which provided for these allowances). The remainder were dismissed. 50890/07 Jovan Pačeškoski   6/2003 - 2006 10 May 2007     B.     Relevant domestic law and practice 1. Constitution of 1991 Article 32 § 5 of the Constitution provides that employees’ rights are regulated by law and collective agreements. Under Article 101 of the Constitution, the Supreme Court is the highest court, providing for the uniform application of laws by courts. 2. Employment Act (Закон за работните односи) of 1993 Under section 2 of the 1993 Employment Act, employment-related issues were regulated by this Act or other laws and collective agreements. Section 5 of this Act provided that an employer could not take any action or decision restricting employment-related rights regulated by the Constitution, law and collective agreements. 3. Employment Act (Закон за работните односи) of 2005 Under section 113 § 1 (1) and (2) of the 2005 Employment Act, employees were entitled to food and travelling allowances. Under section 267, proceedings that were pending when this Act entered into force would be completed in accordance with the law valid at the relevant time, unless the present Act was more favourable for the employee. This Act entered into force eight days after it was published in the “Official Gazette of the Republic of Macedonia” on 28 July 2005 (section   273). 4. Courts Acts of 1995 and 2006 Under section 35 of the 1995 Courts Act, the plenary session of the Supreme Court could adopt general legal opinions in order to ensure the uniform application of laws by the courts. The opinions were binding for all panels of the Supreme Court. The same provision appears in section   37   §§ 1 (1) and 2 of the 2006 Courts Act. 5. The General Business Collective Agreement (Општ колективен договор за стопанството) of 1994 Section 45 of the then valid General Business Collective Agreement provided for annual-leave, food and travelling allowances. 6. Bakery Collective Agreement (Колективен договор на мелничко-пекарската индустрија) of 1994 Sections 131, 133 and 134 of the Bakery Collective Agreement provided for and specified the amount for annual-leave, food and travelling allowances. 7. Collective Agreement of the Graphic and Paper Production Industry (Колективен договор за графичка дејност и производство на хартија) of 1994 Section 51 of the Collective Agreement on the graphic and paper production industry provided for and specified the amount for annual ‑ leave, subsistence and travel allowances. 8. Relevant decisions of the Supreme Court and “conclusions” (заклучоци) of the Courts of Appeal (a) On 7 November 2002 the Supreme Court, in proceedings following a legality review request submitted by the public prosecutor, found that the employer in the case was not allowed to restrict the payment of the food allowance. That the allowance had not been paid to the claimant’s colleagues did not mean that he was not entitled to obtain that allowance (Gzz.no.30/2002). (b) On 7 October 2005 the civil department of the Bitola Court of Appeal adopted a “conclusion” according to which, inter alia , if a trade union disagreed with an employer’s decision restricting the payment of the food and annual-leave allowances, courts were required to establish the facts regarding the employer’s financial situation for each business year. (c) On an unspecified date in 2006, a joint opinion of the civil departments of all the Appeal Courts in the respondent State at the time (Skopje, Bitola and Štip) was published in the Judicial Journal ( Судиски Информатор ). According to this opinion, in case of reduced working hours due to employer’s business losses an employee was entitled to obtain the full amount of the annual-leave allowance. (d) On 17 January 2007 the Supreme Court, in proceedings following a legality review request submitted by the public prosecutor, dismissed a claim for the payment of annual-leave allowance on account of the employer’s business losses in the reference period (Gzz.no.37/2006). The Supreme Court decided likewise in another case where a legality review request had been submitted by the public prosecutor (Gzz.no.152/2006 of 6   June 2007). (e) On 2 March 2007 the civil departments of all three Courts of Appeal adopted a “conclusion” according to which courts were required, in cases concerning the payment of food and annual-leave allowances, to establish facts concerning the employers’ financial situation. (f) In “conclusion” dated 14 March and 4 May 2007, the civil department of the Bitola Court of Appeal stated that after the entry into force of the 2005 Employment Act, courts should accept claims for the payment of the employment-related allowances specified in section 113 of that Act (see above) irrespective of the employer’s financial situation. The only exception was the annual-leave allowance. 9. Other relevant domestic case-law The applicants submitted copies of several final decisions rendered before June 2005 in which the same first- and second-instance courts had accepted similar claims by the applicants’ colleagues (P.no.394/04; P.no.1244/04; P.no.1373/04; P.no.564/04; P.no.1108/04; P.no.302/04; and P.no.85/03). They further submitted copies of other final decisions adopted after September 2006, the relevant details of which are contained in the table below: Table 4 Case no. Reference period Date of final decision Outcome of the proceedings P.no.1107/05 11/2002 – 4/2005 21 September 2006 claim accepted in respect of the food and travelling allowances for the entire reference period (dismissed in respect of the annual-leave allowance) P.no.272/06 3/2003 – 12/2005 20 March 12007 accepted (all allowances) P.no.486/2006   5/2003 – 5/2006   10 July 2008 accepted (food and annual-leave allowances) P.no.342/06 3/2003 – 10/2003 16 April 2007 accepted (all allowances) P.no.583/06 6/2003 – 12/2005 27 March 2007 Dismissed P.no.409/06 5/2003 – 12/2005 29 May 2007 Accepted P.no.445/06 5/2003 – 3/2006 28 September 2007 Accepted P.no.454/06 5/2003 – 10/2006 9 November 2007 Accepted     The Government also submitted copies of other decisions of the domestic courts, including the first- and second-instance courts, adopted after January 2008. All these cases concerned claims for the payment of the same employment ‑ related allowances against the former and other employers. In   these cases, the courts accepted claims for the payment of food and travelling allowances for reference periods that post-dated the entry into force of the 2005 Employment Act irrespective of the employer’s financial situation at the relevant time. The acceptance of identical claims for reference period that pre-dated the entry into force of that Act was dependent on the employer’s financial situation. This was also the case with claims concerning the payment of the annual-leave allowance, irrespective of the reference period. According to the Government, such practice was in compliance with both the Supreme Court’s decision of 17 January 2007 and the “conclusions” of the Bitola Court of Appeal of March and May 2007 (see above). COMPLAINTS   The applicants complained under Article 6 of the Convention about inconsistency in the domestic case-law and that the substantive law had been wrongly applied. The first, second, third, fourth, fifth, sixth and seventh applicants further complained that the courts had decided their cases without having heard them. THE LAW The applicants complained under Article 6 of the Convention that the domestic courts had applied conflicting case-law to identical claims and that they had decided their cases wrongly. 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 ... by [a] ... tribunal ...” A. Alleged inconsistency in the domestic jurisprudence 1) The parties’ submissions The Government submitted that the fifteenth, sixteenth, seventeenth and eighteenth applicants (application no. 37446/07) had not exhausted domestic remedies since they had not appealed against the first-instance court’s decision given in their case. They conceded that there had been divergent practice on the matter, but it had been due to the jurisprudential development that had started with the Supreme Court’s decision of 2002. The jurisprudence had stabilised with the Supreme Court’s decision of January 2007 and the 2007 “conclusions”. Judicial decisions rendered after 2008 indicated that the case-law on the matter had been harmonised since then (see “Relevant domestic law and practice” above). Most of the applicants’ cases had been decided in compliance with the prevailing practice in the relevant period. The cases of the twentieth and twenty-third applicants had been decided in contravention of the 2007 “conclusion”, but that did not signify that there had been judicial uncertainty. The Supreme Court’s decisions and the “conclusions” aimed to ensure the uniform application and interpretation of the relevant provisions. However, that required some time, in particular given the fact that the statutory provisions had changed at the time. In this connection, on 15 February 2008 a specialised labour dispute panel ( специјализиран совет за работни спорови ) had been set up within the Bitola Court of Appeal, which had become competent to decide these cases. The higher courts accordingly had not created, but rather resolved, the existing jurisprudential conflict. The applicants disagreed with the Government’s position and reiterated that contradictory final decisions had been reached in cases similar to theirs. They also argued that the courts had erred on the law, in particular by not applying section 267 of the 2005 Employment Act. Furthermore, the courts were bound by laws and not by the “conclusions”, which could regulate issues only in the absence of an explicit statutory provision. Referring to the joint opinion published in the Judicial Journal of 2006 (see sub-section 8 (c) of “Relevant domestic law and practice” above), they disagreed that the relevant jurisprudence had been harmonised since 2007. 2) The Court’s assessment a) The Court notes that the fifteenth, sixteenth, seventeenth and eighteenth applicants appealed against the first-instance court’s decision given in their case. Their appeal was finally dismissed by the Bitola Court of Appeal on 27 March 2007 (see “Table 1” above). The Government’s objection that domestic remedies had not been exhausted in respect of these applicants must accordingly be rejected. b) The Court has previously concluded that certain divergences in interpretation may be accepted as an inherent trait of any judicial system which, like the Macedonian one, is based on a network of trial and appeal courts with authority over a certain territory. However, where there are divergences in the application of substantively similar legal provisions to persons in near identical groups, a problem with legal certainty does arise (see Zielinski and Pradal and Gonzalez and Others v. France [GC], nos.   24846/94 and 34165/96 to 34173/96, § 59, ECHR 1999-VII, and Ştefănică and Others v. Romania , no. 38155/02, § 37, 2 November 2010). It refers in this regard to its case-law according to which the principle of legal certainty is implied in the Convention and constitutes one of the basic elements of the rule of law (see Beian v. Romania (no. 1) , no. 30658/05, §   39, ECHR 2007 ‑ XIII (extracts). In the Iordan Iordanov and Others case, the Court identified the issues that need to be assessed when analysing whether conflicting decisions in similar cases stemming from the same court violate the principle of legal certainty under Article 6 of the Convention: 1) the existence of "profound and long-lasting divergences” in the relevant case-law; 2) whether the domestic law provides for a mechanism capable of removing the judicial inconsistency; and 3) whether this mechanism was applied and, if so, what were the effects (see Iordan Iordanov and Others v. Bulgaria , no. 23530/02, § 49, 2 July 2009). Turning to the present cases, the Court notes that the judicial decisions available in the case files concern similar issues of fact and law, namely claims brought by former employees of two private companies for the payment of annual-leave, food and travelling allowances which had not been paid to them during the reference period. The relevant legal issue was whether employers were entitled to restrict the payment of these allowances in case of business losses. The applicants’ cases were decided between 20   December 2006 and 11 June 2007 by the same first- and second-instance courts, the latter being the court of last resort in the matter. Having regard to the fact that the relevant case-law, submitted by the parties, pre- and post-dated the applicants’ cases, was applied by different courts and concerned identical claims against other employers (see “Relevant domestic law and practice” above), the Court accepts that the legal issue at stake was a matter of general concern (see, mutatis mutandis , Tudor Tudor v. Romania , no.   21911/03, § 31, 24 March 2009). Furthermore, it affected an unidentified number of persons (contrast Ivanov and Dimitrov v.   the former Yugoslav Republic of Macedonia , no. 46881/06, § 32, 21   October 2010). The Court further notes that the reference period in respect of which the applicants claimed payment of the allowances in issue was 2002-2006 (see Tables 1, 2 and 3 above). Initially, all three allowances were regulated only by the then valid collective agreements. The 2005 Employment Act was the first to provide for the food and travelling allowances (see “Relevant domestic law and practice” above). After the entry into force of this Act, only the annual-leave allowance remained subject to regulation by the relevant collective agreements. On the basis of the material submitted by the parties, the Court notes that the same courts applied three types of jurisprudence in deciding whether employers were entitled to restrict the payment of the employment-related allowances in case of business losses. According to the first approach, the courts accepted such claims where the employer had experienced business losses (see sub-section 9 and Table 4 of “Relevant domestic law and practice” above). Under the second approach, such claims were dismissed in respect of the entire reference period, even where it concerned, in part, food and travelling allowances after the entry into force of the 2005 Employment Act (see Tables 1 and 2 above). Lastly, under the third approach, the courts accepted claims for the payment of food and travelling allowances for a reference period if it post-dated the entry into force of the 2005 Employment Act (see Table 3 above). These divergent interpretations of the applicable legislation existed simultaneously. Consequently, without deeming it appropriate to pronounce itself as to what the actual outcome of the applicants’ lawsuits should have been (see, mutatis mutandis , Vinčić and Others v. Serbia , no. 44698/06 et seq. §   56, 1 December 2009, and Ştefănică and Others , cited above, § 37), the Court considers that there existed “profound and long-lasting divergences” in the interpretation of the domestic law by the same second-instance court ruling at final instance. The Government also conceded that there had been inconsistency in the relevant jurisprudence at the time (see above). The Court therefore needs to analyse the Government’s argument that there was a mechanism in place that ensured the uniform application of the law. According to the Government, uniformity was ensured by the Supreme Court’s decisions (see sub-section 7 (a) and (d) of “Relevant domestic law and practice” above), and the Appeal Courts’ “conclusions” (see sub-section 7 (b), (e) and (f) of “Relevant domestic law and practice” above). In the Court’s view, both were relevant since they concerned the legal issue at stake. Furthermore, they reflected the jurisprudential development since 2002. As to the Supreme Court, the Court accepts that it has jurisdiction, under Article 110 of the Constitution and the relevant Courts Acts (see sub-sections 1 and 4 of “Relevant domestic law and practice” above), to ensure the uniform application of laws. However, it notes that the Supreme Court’s decisions to which the Government referred in their observations were given in extraordinary proceedings in which that court was not called upon to settle conflicting interpretations, but rather to examine the particular application of the law to those individual cases. Furthermore, they were delivered following a legality review request by the public prosecutor, which contradicts in itself the principle of legal certainty (see Bočvarska v. the former Yugoslav Republic of Macedonia , no. 27865/02, §§ 82 and 83, 17   September 2009, and Tudor Tudor , cited above, § 29). For these reasons, these decisions cannot be regarded as an established mechanism for settling inconsistent jurisprudence. However, they set a precedent, which lower courts have followed in similar cases. In this connection, the Court accepts that the Supreme Court’s decision of 7 November 2002 marked out the first approach, while the decisions of 17 January and 6 June 2007, reflected the second approach discussed above. As regards the second mechanism to which the Government referred, namely the “conclusions” of the Courts of Appeal, the Court notes that three “conclusions” on the matter were adopted between 7 October 2005 and 4   May 2007. The joint opinion of 2006 (see sub-section 8 (c) of “Relevant domestic law and practice” above) concerned the payment of annual-leave allowance in case of reduced working hours and did not concern, accordingly, the legal issue at stake. Two of these “conclusions” were given by the Bitola Court of Appeal, the same court that decided the applicants’ cases at final instance. Although not provided for by statutory provisions, the Court accepts that the “conclusions” aimed to harmonise the interpretation and application of the applicable legislation. In this connection, it observes that the last “conclusion” of the Bitola Court of Appeal of 14 March and 4 April 2007, reflected the third jurisprudential approach discussed above. Despite the fact that there were discordant decisions that post-dated this “conclusion” (see “Table 4” above), the Court reiterates that the harmonisation of jurisprudence requires a certain time (see Schwarzkopf and Tausik v. the Czech Republic (dec.), no. 42162/02, 2   December 2008). In this connection, the Court notes that the relevant case-law has stabilised and this “conclusion” was consistently applied by the Bitola Court of Appeal and other courts, as can be seen from the judicial decisions delivered since 2008 (see “Relevant domestic law and practice” above). This “conclusion” definitively settled the interpretation of the relevant legislation after the food and travelling allowances were regulated by the 2005 Employment Act, thus removing the judicial uncertainty that had existed on the matter (see Pérez Arias v. Spain , no. 32978/03, § 25, 28   June 2007). It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. B. Remaining complaints The applicants further complained under Article 6 of the Convention that the domestic courts had erred on the law. The first, second, third, fourth, fifth, sixth and seventh applicants also complained that they had not been heard in the domestic proceedings. The Court has examined these complaints. However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application is 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 Decides to join the applications; Declares the applications inadmissible.   Søren Nielsen   Nina Vajić     Registrar   President Annex   Application no. Applicant name   Date of birth   Place of residence 15905/07 Petar Spaseski Petre Jovčeski Boris Naumoski 1954 1957 1955 Prilep 24369/07 Borče Petreski 1965 26868/07 Dare Zdraveski 1958 31183/07 Kiro Taleski 1961 31190/07 Zore Kuleski 1949 31877/07 Menka Mirčeska Koneska Lenka   1948 1948   36786/07 Ljuben Keltanoski Miškoski Stojan Jakimoski Trajče Joleski Stojan Vidovik Marija   1949 1961 1955 1951 1949   37446/07 Marjan Poposki Rizeski Ljupčo Kuzmanoski Goce Stojanoski Kiro   1963 1965 1971 1962   45588/07 Blaže Risteski   1947 45980/07 Dušan Nedeski   1959 45981/07 Josif Dimitrioski   1956 45982/07 Milan Naumčev   1964 45984/07 Blaga Petreska   1958 50890/07 Jovan Pačeškoski   1954