CASE OF MANEVSKI v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"
Violation of Article 6 - Right to a fair trial
Isabelle Berro-Lefèvre;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Volodymyr Butkevych;Zdravka Kalaydjieva
4. The applicant was born in 1936 and lives in Skopje. 1. Proceedings concerning an order of the Governor of the National Bank (“the first set of proceedings”) 5. The applicant worked as General Manager of a bank, “K.B.” (“the bank”). 6. On 25 April 1996 the Governor of the National Bank (“the Governor”) issued an order preventing the applicant from working as the bank’s General Manager and from exercising other duties associated with special responsibilities for an indefinite period of time (“the order”). The order was based on findings as to the applicant’s unlawful business conduct and irregularities in the bank’s operation under his management. On 22 May 1996 the Council of the National Bank (“the Council”) dismissed the applicant’s appeal and confirmed the order. 7. On 12 September 1996 the Supreme Court allowed the applicant’s appeal on points of law (управен спор) submitted on 29 May 1996 and annulled the Council’s decision. It found that the position of general manager of a bank was not associated with special responsibilities and accordingly the order should not have been issued in respect of the applicant. 8. On 13 November 1996 the Constitutional Court upheld the applicant’s actio popularis and declared section 52 § 14 of the National Bank Act, under which the Governor had been entitled to take other measures (apart from those explicitly mentioned) if necessary, unconstitutional. 9. On 18 June 1997 the Constitutional Court declared the provisions of the National Bank Act, in accordance with which the Council decided upon appeals against the Governor’s decisions, unconstitutional. It found that the Governor’s participation in and chairing of the Council when the latter decided against his decisions given at first instance had been contrary to the constitutional principle of two-instance decision-making. 10. On 9 June 1997 the plenary session of the Supreme Court (општа седница) granted the public prosecutor’s request for the protection of legality (барање за заштита на законитоста) and quashed the Supreme Court’s decision of 12 September 1996. The court referred in its decision to the National Assembly’s authentic interpretation of section 70 of the Banks and Savings Institutions Act (Закон за банки и штедилници), according to which the manager of a bank was to be considered “a person with special responsibilities”. 11. On 4 February 1998 the Supreme Court, relying on the Constitutional Court’s decision of 18 June 1997, accepted the applicant’s appeal and annulled the Council’s decision of 22 May 1996. 12. As the Council allegedly remained inactive, the applicant requested the Supreme Court to decide his case on the merits instead of the Council. 13. On 1 September 1998 the Council, sitting without the Governor, dismissed the applicant’s appeal and upheld the latter’s decision. On 18 November 1998 the Supreme Court rejected the applicant’s request to decide his case on the merits instead of the Council. 14. On 7 July 1999 the Supreme Court granted the applicant’s appeal and annulled the Council’s decision. It found that the Council had established the facts incompletely and violated procedural rules. 15. On 26 August 1999 the Council dismissed the applicant’s appeal again. 16. On 6 September 1999 the applicant lodged a fresh appeal with the Supreme Court. 17. On 2 December 1999 the Supreme Court allowed the applicant’s appeal and annulled the Council’s decision of 26 August 1999 and the order of 25 April 1996. It found that the Governor and the Council had wrongly established that the applicant had abused the monetary system. On 19 February 2001 the plenary session of the Supreme Court granted the public prosecutor’s request for the protection of legality and quashed that decision. It found that the facts had been re-established without a hearing. 18. On 11 September 2003 the Supreme Court finally dismissed the applicant’s appeal. It based its decision, inter alia, on the Banks and Savings Institutions Act of 1993, in accordance with which the National Bank supervised the lawfulness of a bank’s operation and accordingly had been authorised to prevent, fully or partially, persons with special responsibilities from exercising their duties. It also referred to section 50 § 2 of the National Bank Act of 1992 and ruled that the latter had lawfully prevented the applicant from working as General Manager of the bank due to irregularities in the operation of the bank under his management. 19. On 26 December 2003 the applicant unsuccessfully requested the public prosecutor to lodge a request with the Supreme Court for the protection of legality. 2. Civil proceedings concerning the applicant’s forced retirement (“the second set of proceedings”) 20. On 25 May 2000 the newly appointed General Manager of the bank dismissed the applicant as having fulfilled the conditions for his retirement. 21. On 27 June 2000 the bank’s Executive Board (“the Board”) dismissed the applicant’s objection. 22. On 4 June 2000 the applicant brought a civil action challenging his forced retirement. He argued that he had not met the statutory conditions for entering retirement. 23. On 2 July 2001 the Skopje Court of First Instance granted the applicant’s claim and annulled the bank’s decisions. It gave the ruling after it had obtained an expert report concerning the applicant’s period of employment. 24. On 6 September 2001 the bank appealed. On 6 December 2001 the Skopje Court of Appeal quashed the lower court’s decision and ordered a retrial. 25. On 6 December 2002 the Skopje Court of First Instance granted the applicant’s claim again and annulled the bank’s dismissal decisions. None of the scheduled hearings were adjourned upon the applicant’s request. 26. On 13 November 2003 the Skopje Court of Appeal allowed the bank’s appeal of 4 February 2003 and quashed the lower court’s decision. 27. On 14 October 2005 the Skopje Court of First Instance dismissed the applicant’s claim. In the course of those proceedings, that court sought information from different institutions about the applicant’s period of employment. On 1 September 2004 it also appointed an expert to draw up a report in that connection and ordered those institutions to allow her access to the relevant documentation. The expert report was produced in March 2005. On 23 March 2006 the Skopje Court of Appeal upheld the first-instance court’s decision. 28. On 29 May 2006 the applicant lodged an appeal on points of law (ревизија) with the Supreme Court. The proceedings are apparently still pending. 3. Civil proceedings concerning the applicant’s removal from the position of General Manager of the bank (“the third set of proceedings”) 29. On 29 July 1996 the Board removed the applicant from the position of General Manager of the bank. On 9 October 1996 the Board dismissed the applicant’s objection and terminated his contract with the bank. 30. On an unspecified date in 1996, the applicant instituted civil proceedings against the decisions of the Board. 31. On 29 November 1996 the Skopje Court of First Instance partially allowed the applicant’s claim and annulled the Board’s decisions. The court dismissed the applicant’s claim concerning the termination of the contract. 32. On 17 September 1997 the Skopje Court of Appeal granted both parties’ appeals and quashed the lower court’s decision. 33. On 27 April 1998 the Skopje Court of First Instance dismissed the applicant’s claim concerning his removal and rejected his claim related to the termination of his contract. 34. On 2 June 1999 the Skopje Court of Appeal ruled partly in favour of the applicant, namely, it accepted his appeal concerning his removal and dismissed it in respect of his contract. 35. On 19 January 2000 the Skopje Court of First Instance granted the applicant’s claim and annulled the Board’s decisions related to his removal (“the court order”). That decision was upheld by the Skopje Court of Appeal’s decision of 19 April 2000. 36. After the Board had refused the applicant’s request to “reinstate his status prior to his removal” (воспоставување на правната состојба како пред разрешувањето), the applicant instituted enforcement proceedings claiming reinstatement and payment of salary arrears. 37. On 27 October 2000 the Skopje Court of First Instance dismissed the applicant’s request as the court order had not provided for his reinstatement. 38. On 22 January 2001 the Skopje Court of Appeal allowed the applicant’s appeal and remitted the case for re-examination, arguing that the court order had had a retrospective effect. 39. On 12 February 2001 the Skopje Court of First Instance dismissed the applicant’s claims for his reinstatement and for payment of salary arrears. 40. On 26 April 2001 the Skopje Court of Appeal upheld the lower court’s decision and dismissed the applicant’s appeal. By a letter of 9 September 2005, the Skopje Court of First Instance stated that there was no evidence in the file attesting that a copy of that decision had been served on the applicant or his counsel. 41. By an application of 10 July 2001, the applicant unsuccessfully requested the public prosecutor to lodge a request with the Supreme Court for the protection of legality (барање за заштита на законитоста). His application was refused on 31 August 2001. On 12 September 2001 that notification was allegedly served on the applicant.