FIFTH SECTION

DECISION

Application no. 43344/18 Tanja DEDEJSKA and Others against North Macedonia and 6 other applications (see list appended)

The European Court of Human Rights (Fifth Section), sitting on 16 December 2021 as a Committee composed of:

Mārtiņš Mits, President, Jovan Ilievski, Ivana Jelić, judges, and Martina Keller, Deputy Section Registrar,

Having regard to the above applications lodged on various dates indicated in the appended table,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

1. A list of the applicants, all Macedonians/citizens of the Republic of North Macedonia, is set out in the appendix.

2. The Government were represented by their Agent, Ms D. Djonova.

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

4. The applicants were members of second-instance commissions for deciding on complaints in administrative proceedings, appointed by Parliament with a five year mandate.

5 . On various dates in February and April 2018 the Government proposed to Parliament to dismiss all members of the relevant commissions, including the applicants, before the end of their term due to inefficient performance. The proposals were based on statutory provisions which were subsequently set aside by the Constitutional Court as unconstitutional (decisions U.br.63/2017 dated 20 June 2018, and U.br.57/2017 dated 24 October 2018).

6. On various dates in March and July 2018 Parliament accepted the Government’s proposals and voted for dismissal of all members of the relevant commissions, including the applicants (dismissal decisions were published in Official Gazette nos. 49/2018 and 137/2018). The applicants were not present at the parliamentary session when the vote on their dismissal took place.

(a) Proceedings before the Administrative Courts

7 . On 23 August 2018 the sixth, seventh, eighth, ninth and tenth applicants initiated administrative-dispute proceedings before the Administrative Court, challenging Parliament’s decision to dismiss them. The applicants sought the quashing of the decision in question on account of errors of facts and law, and a failure to respect the rules of procedure.

8 . On 14 July 2020 the Administrative Court quashed the impugned parliamentary decision and remitted the case to Parliament for a fresh decision. The court supported its reasoning with a decision of the Supreme Court rendered in another proceedings in which the plaintiff sought compensation against the parliamentary decision on her dismissal (see paragraph 11 below), on the one hand, and the Constitutional Court’s decision (U.br.57/2017 dated 24 October 2018) indicated in paragraph 5 above, on the other hand. The relevant parts of the judgment read as follows:

“ ... in the resumed proceedings [Parliament] should have in mind the [Administrative Court’s reasoning] and, with the proper application of the relevant law pertaining to the issues of the appointment and dismissal of the president and the members of the [relevant second-instance commission] ... adopt a lawful decision.

In respect of [Parliament’s] claims that the disputed decision was not an administrative decision in view of sections 1 and 2 (1) of the Administrative Disputes Act, under which administrative-dispute proceedings can be initiated, [the Administrative] Court considers them unfounded as it can be seen from the content of the disputed decision that it was used for the dismissal from duty of the president and members of the [relevant second-instance commission] by name, which shows that in its form and content it was an individual decision.”

9 . On 2 February 2021 the High Administrative Court rejected as inadmissible an appeal by Parliament against the Administrative Court’s decision of 14 July 2020. The proceedings are underway.

(b) Proceedings before the Constitutional Court

10. On 6 February 2019 the Constitutional Court rejected applications by the eighth and tenth applicants for the examination of the constitutionality and legality of the parliamentary decision on their dismissal.

11 . Domestic courts at three levels of jurisdiction rejected a civil claim for damages of the president of a State second-instance commission for her dismissal by a parliamentary decision. The relevant parts of the judgments read as follows:

“... the Administrative Court is the court which has jurisdiction in this specific dispute, in accordance with section 9(2) of the Administrative Disputes Act and given that the decision ... on the dismissal was adopted by Parliament ... ” (judgment VI RO-2821/18 of 24 October 2018 by Skopje Court of First Instance)

“... the plaintiff ... first seeks to determine the issue of her unlawful dismissal from the specific post in the commission in question before the expiry of her mandate, by the decision on the dismissal adopted by Parliament, for which the Administrative Court has jurisdiction under section 9(2) of the Administrative Disputes Act. It is true that the plaintiff also claims damages on account of her unlawful dismissal ..., but in order to decide on this request, it must first be decided whether the disputed decision is lawful or not, otherwise there can be no decision on the claim for damages on account of the unlawful termination of the office in question.” (judgment of the Supreme Court Rev3.br.151/2019 dated 12 February 2020)

12 . The applicants submitted several decisions of the Administrative and High Administrative Court rendered between March 2016 and October 2017, in which the courts rejected appeals against decisions by Parliament and the Prime Minister to dismiss a deputy Ombudsperson (on account of fulfilling the retirement criteria) and members of the Commission for Accreditation and Evaluation of Higher Education, respectively. The courts held that the dismissal decisions were not amenable to judicial review in administrative-dispute proceedings.

COMPLAINTS

13. The applicants complained under Article 6 § 1 of the Convention that they did not have access to a court in order to challenge their dismissal . They also complained under Article 13 of the Convention about the lack of an effective domestic remedy for their complaint under Article 6 § 1 .

THE LAW

14. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single decision.

15. The applicants relied on Article 6 § 1 and Article 13 of the Convention, which, in so far as relevant, read as follows:

Article 6 § 1

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

Article 13

Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.

16. The Government maintained that Article 6 was applicable and that the applicants had had access to a court, without any restrictions. Referring to the proceedings initiated by some applicants and the decisions in the compensation proceedings (paragraphs 7 and 11 above), they submitted that the administrative-disputes proceedings under the Administrative Disputes Act provided for judicial protection in cases in which Parliament had made a decision on appointments and dismissals. Notwithstanding the domestic case ‑ law submitted by the applicants (see paragraph 12 above), which pre-dated their administrative complaint, a positive outcome in the administrative-dispute proceedings would create an opportunity for them to claim damages. Accordingly, the applications should be declared inadmissible for failure to exhaust domestic remedies.

17. Furthermore, the sixth, seventh, eighth, ninth and tenth applicants had abused their right of application by not informing the Court about their proceedings before the Administrative Court. In any case, the applicants had lost their victim status.

18. The applicants submitted that Article 6 was applicable in their case.

19 . The first, second, third, fourth, fifth, sixth and eleventh applicants argued that the domestic law did not expressly exclude their access to a court. However, the applicable laws did not explicitly provide for judicial protection against Parliament’s dismissal decisions. The domestic case-law at the time (paragraphs 12 above) proved that there was no available, let alone an effective, domestic remedy.

20. The seventh, eighth, ninth and tenth applicants contested the Government’s objection for abuse of their right of application and submitted that they had not had an available legal remedy against the decision on their dismissal that would have suspended its execution. Furthermore, the said decision had contained neither reasoning nor a legal notice about a remedy that they could have used against it .

21. As regards the administrative-dispute proceedings (paragraphs 7, 8 and 9 above), all applicants submitted that they were still pending and could not have offered them effective legal protection. Even if they had had a positive outcome for them, that would not have reinstated them as the president or members of the commission. Furthermore, the gist of their grievances concerned the inability to seek judicial protection regarding their dismissal.

22. The Court considers that it is not necessary to examine the preliminary objections raised by the Government, as the present case is in any event inadmissible for the following reasons.

23. The general principles regarding the applicability of Article 6 § 1 of the Convention under its “civil” limb were summarised in Regner v. the Czech Republic ([GC], no. 35289/11, § 99, 19 September 2017) and Baka v. Hungary ([GC], no. 20261/12, § 100, 23 June 2016). The general principles on the right of access to a court were summarised in Zubac v Croatia ([GC], no. 40160/12, §§ 76-79, 5 April 2018) and Kövesi v. Romania (no. 3594/19, §§ 145-47, 5 May 2020).

24. The Court notes at the outset that the issue of applicability of Article 6 in the present case was not disputed between the parties. Furthermore, the Court observes that, as argued by the applicants (see paragraph 19 above), the domestic law did not expressly exclude them from their right of access to a court to challenge Parliament’s decisions for their premature removal from their posts in the commissions. The case-law of the Administrative Courts submitted by the applicants (see paragraph 12 above) pre-dated their situation and, more importantly, concerned different facts, namely an early dismissal on account of retirement and a dismissal decision by the Prime Minister, unlike the present case that relates to Parliament’s decisions on early dismissal due to inefficient performance.

25 . The availability of judicial protection against the applicants’ dismissal was confirmed in the administrative-dispute proceedings initiated by the sixth, seventh, eighth, ninth and tenth applicants (see paragraphs 7 and 8 above). In those proceedings the Administrative Court explicitly accepted jurisdiction to review the impugned dismissal decisions (see paragraph 8 above). It is noteworthy that in support of its findings the Administrative Court relied on an earlier judgments in compensation proceedings in which the civil courts, including the Supreme Court, as the highest court, explicitly conferred jurisdiction on the Administrative Court to review the lawfulness of a similar dismissal decision by Parliament (see paragraph 11 above). Those findings of the Administrative Court were not disputed by the High Administrative Court (see paragraph 9 above) and no evidence or convincing argument was brought to the Court’s attention that this issue could be revisited in the resumed proceedings.

26. In view of the above, the Court finds that the applicants had access to a court under national law. Accordingly, their complaint under Article 6 § 1 of the Convention about the alleged impossibility to institute judicial proceedings to challenge their early dismissal is manifestly ill ‑ founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

27. Having regard to the above findings regarding the applicants’ substantive complaint under Article 6 § 1 of the Convention, the Court considers that they do not have an “arguable claim” for the purposes of Article 13 of the Convention (see Boyle and Rice v. the United Kingdom , 27 April 1988, §§ 54-55, Series A no. 131).

28. Accordingly, this complaint 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.

Done in English and notified in writing on 20 January 2022.

Martina Keller Mārtiņš Mits Deputy Registrar President

APPENDIX

No.

Application no.

Case name

Lodged on

Applicant

Year of Birth

Place of Residence

Represented by

1.

43344/18

Dedejska and Others v. North Macedonia

05/09/2018

Tanja DEDEJSKA

(the first applicant) 1969 Strumica

Zorica STOILEVA

(the second applicant) 1986 Sveti Nikole

Aleksandar SOFRONIJOSKI

(the third applicant) 1984 Bitola

Vladimir PETROVSKI

(the fourth applicant) 1988 Skopje

Hajrula MISINI

(the fifth applicant) 1966 Kumanovo

Slagjana CIBREVA

2.

2299/19

Ivanovska v. North Macedonia

31/12/2018

Jagotka IVANOVSKA

(the sixth applicant) 1966 Sveti Nikole

Blagoj DENKOVSKI

3.

5920/19

Filipovska-Pavleska v. North Macedonia

22/01/2019

Snezhana FILIPOVSKA-PAVLESKA

(the seventh applicant) 1974 Skopje

Tanja STANKOVSKA

4.

5948/19

Razmoski v. North Macedonia

22/01/2019

Borche RAZMOSKI

(the eighth applicant) 1983 Vevchani

Dimitri GJORGONOSKI

5.

5969/19

Donevski v. North Macedonia

22/01/2019

Darko DONEVSKI

(the ninth applicant) 1979 Skopje

Elena KOCEVSKA-GRUEVSKA

6.

5972/19

Musharevski v. North Macedonia

22/01/2019

Ilche MUSHAREVSKI

(the tenth applicant) 1986 Resen

Nikola ISTOCHKI

7.

7159/19

Todorovska v. North Macedonia

22/01/2019

Blagica TODOROVSKA

(the eleventh applicant) 1967 Sveti Nikole

Zoran JOVANCHEV