FOURTH SECTION

DECISION

Application no. 52871/13 Cvijeta AŠĆERIĆ against Bosnia and Herzegovina

The European Court of Human Rights (Fourth Section), sitting on 17 December 2019 as a Committee composed of:

Iulia Antoanella Motoc, President, Faris Vehabović, Carlo Ranzoni, judges, and Andrea Tamietti, Deputy Section Registrar ,

Having regard to the above application lodged on 24 July 2013,

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, Ms Cvijeta Ašćerić, is a citizen of Bosnia and Herzegovina who was born in 1958 and lives in Vlasenica. She was represented before the Court by Ms R. Plavšić, a lawyer practising in Banja Luka.

2 . The Government of Bosnia and Herzegovina (“the Government”) were represented by their Deputy Agent at the time, Ms S. Malešić .

3 . The Government objected to the examination of the application by a Committee. After having considered the Government ’ s objection, the Court rejects it.

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

5 . On 29 February 2004 the applicant and three of her colleagues, M.K., M.A. and M.D., were dismissed from their posts at the Vlasenica office of the Ministry for Refugees and Displaced Persons of the Republika Srpska (“the Ministry”), following a decision to close that office.

6 . At about the same time in 2004 they all initiated separate labour procedings before the Banja Luka Court of First Instance (“the Court of First Instance”) seeking reinstatement, compensation for unlawful dismissal, and payment of all work-related benefits.

7 . On 23 November 2007 the Court of First Instance ordered the applicant ’ s reinstatement. Furthermore, it ordered the Ministry to pay the applicant, within fifteen days of the judgment becoming final, 17,401.57 convertible marks (BAM) [1] in compensation for unlawful dismissal together with default interest at the statutory rate, all work-related benefits and BAM 3,632.50 in legal costs. The court held that the applicant was a civil servant and found that her dismissal had been unlawful under the provisions of the Public Administration Act 2002 (see paragraph 16 below).

8 . On 27 February 2008, following an appeal by the Ministry, the Banja Luka District Court (“the District Court”) overturned the Court of First Instance ’ s judgment in the part concerning work-related benefits, dismissing that part of the applicant ’ s claim, and in the part concerning legal costs, decreasing the amount to BAM 1,125. The remainder of the judgment of 23 November 2007 was upheld.

9 . On 15 December 2009, following an appeal on points of law lodged by the Ministry, the Supreme Court of the Republika Srpska (“the Supreme Court”) overturned the judgments of 23 November 2007 and 27 February 2008 and dismissed the applicant ’ s claim. The court held that the lower courts should have applied the Labour Relations in Administration Act 1994 to the applicant ’ s claim (see paragraph 15 below). The applicant was ordered to pay BAM 875 in legal costs. As relevant to the case before the Court, the Supreme Court ’ s reasoning was as follows:

“The lower courts have wrongly concluded that in February 2004, when the plaintiff was dismissed, the Labour Relations in Administration Act had not been in force in respect of public-administration employees who did not have the status of civil servants ...

Section 127 of the Public Administration Act 2002 provides that following its entry into force on 1 September 2002 the Labour Relations in Administration Act 1994 ceased to be applicable to civil servants, but remained the relevant legislation for other categories of public-administration employees ... It is clear that the plaintiff was not a civil servant. Therefore, the applicable legislation is the Labour Relations in Administration Act 1994.

... Section 33(3) of this Act provides that the suppression of an organisational unit of a public body automatically leads to the suppression of all posts in that unit. Therefore, the decision to dismiss the plaintiff was lawful ... Furthermore, the 1994 Act is lex specialis in relation to the Labour Act 2000 ...”

10 . On 11 March 2010 the applicant appealed to the Constitutional Court of Bosnia and Herzegovina (“the Constitutional Court”), alleging a violation of her rights guaranteed by Articles 6, 13 and 14 of the Convention and Article 1 of Protocol No. 1 to the Convention. She indicated that in the case of M.D. (see paragraph 5 above), who had been the head of the Vlasenica office, on 4 February 2010 the Supreme Court had given a decision in which it had applied different law and accepted his claim.

11 . On 22 January 2013 the applicant informed the Constitutional Court that on 13 November 2012 the Supreme Court had given a judgment in the case of her colleague, M.K. (see paragraph 5 above), who, like herself, had not been a civil servant, in which it had applied the Labour Act 2000 and had accepted M.K. ’ s claim (see paragraph 14 below). The applicant sent a copy of that decision to the Constitutional Court.

12 . On 25 April 2013 the Constitutional Court dismissed the applicant ’ s appeal as manifestly ill-founded. As regards the Supreme Court ’ s judgment of 4 February 2010 (see paragraph 10 above), the court noted that M.D. ’ s and the applicant ’ s cases were not comparable as they did not concern the same legal and factual situation: M.D., unlike the applicant, had been a civil servant, and consequently, different law had been applicable to his situation. The court made no comment on the Supreme Court ’ s judgment of 13 November 2012 concerning M.K. (see paragraph 11 above and paragraph 14 below).

13 . On 18 November 2010 the Court of First Instance accepted M.K. ’ s claim (see paragraphs 5 and 6 above), in application of the Labour Act 2000 (see paragraph 18 below). The claim was subsequently dismissed on 31 March 2011 by the District Court, which allowed the Ministry ’ s appeal and held that the dispute was to be resolved under the Labour Relations in Administration Act 1994 (see paragraph 15 below). It concluded that M.K. ’ s dismissal had been lawful in accordance with section 33(3) of the 1994 Act.

14 . On 13 November 2012, following an appeal on points of law by M.K., the Supreme Court overturned the District Court ’ s judgment of 31 March 2011, dismissed the Ministry ’ s appeal and upheld the first-instance judgment. As relevant to the case before the Court, its reasoning was as follows:

“The District Court erred in law. At the time of the plaintiff ’ s dismissal, the Public Administration Act 2002 was in force ... The plaintiff was not a civil servant but had the status of technical and auxiliary staff ... Section 125 of the Public Administration Act 2002 provides that labour disputes involving civil servants and technical and auxiliary staff employed in administration are regulated by the Labour Act 2000...

Therefore, the first-instance court correctly concluded that in the present case the applicable law is the Labour Act ...”

15 . Pursuant to section 32(4) of the Labour Relations in Administration Act 1994 ( Zakon o radnim odnosima u državnim organima , Official Gazette of the Republika Srpska, “OG RS” nos. 11/94, 3/96, 6/97 and 96/03), an employee who was made redundant because of organisational changes and who could not be transferred to another post could be dismissed. Section 33(3) of this Act provided that a suppression of an organisational unit of a public body led automatically to the suppression of all the posts in that unit. That Act remained the applicable law in respect of the legal status and disputes of public-administration employees until 24 December 2008 (see paragraph 17 below).

16 . The Public Administration Act 2002 ( Zakon o administrativnoj službi u upravi Republike Srpske , OG RS nos. 16/02, 62/02, 38/03, 49/06 and 20/07) entered into force on 1 September 2002. Following its entry into force the Labour Relations in Administration Act 1994 (see paragraph 15 above) ceased to be applicable to civil servants (section 123). Their labour disputes as well as the disputes of technical and auxiliary staff employed in administration were regulated by the Labour Act 2000 (section 125; see paragraph 18 below).

17 . The Public Administration Act 2002 was partially repealed on 24 December 2008 by the entry into force of the Civil Service Act 2008 ( Zakon o državnim službenicima , OG RS no. 118/08). However, the provisions relevant to the present case remained in force.

18 . Section 138 of the Labour Act 2000 ( Zakon o radu , OG RS nos. 38/00, 40/00, 47/02, 38/03, 66/03, 20/07 and 55/07), which was in force until 23 January 2016, provided that in cases of redundancy dismissals an employer had to prepare a redundancy programme, in consultation with a workers ’ council or a union, proposing retraining, deployment of a number of employees to another posts, redundancy payments and similar measures, at least thirty days before the planned dismissals (section 139 of the Act). The Labour Act was to be applied, inter alia , to administration employees unless otherwise provided in law (section 4).

COMPLAINTS

19 . The applicant complained under Article 6 of the Convention of the arbitrariness of the proceedings before the Supreme Court, when it had rejected her claim for reasons which had not been correct in law. She furthermore alleged that such arbitrariness had led to a violation of Article 1 of Protocol No. 1 to the Convention and that she had not had an effective domestic remedy for her substantive complaints as required under Article 13 of the Convention.

THE LAW

20 . The applicant alleged a breach of her rights under Article 6 § 1 of the Convention, which in its relevant parts reads as follows:

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

21 . The applicant reiterated that the Supreme Court ’ s decision in her case had been arbitrary because the court had applied the Labour Relations in Administration Act 1994 (see paragraph 15 above) to her claim, whereas the relevant law had been the Labour Act 2000 (see paragraph 18 above). She furthermore submitted that in the case of her colleague, M.K., the Supreme Court had acted differently and had applied the Labour Act and allowed her claim (see paragraph 14 above).

22 . The Government submitted that the case was manifestly ill-founded. It concerned essentially the domestic courts ’ findings of facts and law and it was not the Court ’ s task to review such findings. The Supreme Court ’ s reasoning had not been arbitrary; it gave sufficient factual and legal arguments for its decision. Since the applicant had not been a civil servant, the only relevant law applicable to her case at the material time had been the Labour Relations in Administration Act 1994 (see paragraph 15 above). The applicant ’ s colleagues, M.D. and M.K., had not had the same legal status as her and therefore different legislation had been applied to their respective claims.

23 . The Court reiterates that it is primarily for the national authorities, notably the courts, to resolve problems of interpretation of domestic legislation (see, among other authorities, Molla Sali v. Greece [GC], no. 20452/14, § 149, 19 December 2018). The Court should not act as a fourth-instance body and will therefore not question under Article 6 § 1 the national courts ’ assessment, unless their findings can be regarded as arbitrary or manifestly unreasonable (see Moreira Ferreira v. Portugal (no. 2) [GC] , no. 19867/12, § 83 (b), 11 July 2017).

24 . Turning to the present case, the Court notes that the Supreme Court established that the applicant had not been a civil servant; it therefore applied to her labour dispute the Labour Relations in Administration Act 1994 (see paragraph 15 above), which it considered to be the applicable law (see paragraph 9 above). The Court does not find those findings arbitrary or manifestly unreasonable.

25 . These findings were upheld by the Constitutional Court. In particular, as regards the applicant ’ s argument that a different law had been applied in the case of her colleague M.D., the Constitutional Court held that he, unlike the applicant, had been a civil servant (see paragraph 12 above). The Court sees no reason to consider its findings manifestly unreasonable or arbitrary.

26 . As regards M.K. ’ s case, the Court notes that she, unlike the applicant, had the status of auxiliary and technical staff, whose labour disputes were regulated by the Labour Act 2000 (see paragraphs 14 , 16 and 18 above). Therefore, the Supreme Court ’ s judgment of 13 November 2012 in M.K. ’ s case has no bearing on the present application.

27 . In view of the above, the Court concludes that the Supreme Court ’ s findings were not arbitrary or manifestly unreasonable. It follows that this part of the application should be rejected as manifestly ill-founded, in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

28 . The Court examined the applicant ’ s remaining complaints under Article 13 of the Convention and under Article 1 of Protocol No. 1 to the Convention. However, having regard to all the material in its possession, and in so far as these complaints fall within the Court ’ s jurisdiction, it finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention. It follows that these complaints must also be rejected as being manifestly ill-founded, pursuant to 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 16 January 2020 .

Andrea Tamietti Iulia Antoanella Motoc Deputy Registrar President

[1] . The convertible mark uses the same fixed exchange rate to the euro that the German mark has (1 euro = 1.95583 convertible marks).