LAZAREVSKA v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"
Inadmissible
Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
The applicant, Ms Zorica Lazarevska, is a Macedonian national who was born in 1949 and lives in Skopje. The Macedonian Government (“the Government”) were represented by their Agent, Mrs R. Lazareska Gerovska. The facts of the case, as submitted by the parties, may be summarised as follows. On 20 December 2000 the applicant was reassigned (прераспореденa) to the post of bartender (“the new post”) in the context of a re-structuring (поефикасно извршување на функцијата) of the Ministry of the Interior (“the employer”). The applicant submitted an objection to the employer, which remained undecided. By a decision of 15 February 2001, the applicant was dismissed, since the new post had been terminated. On 12 April 2001 the employer set this latter decision aside. On 19 January 2001 the applicant brought a civil claim against the employer, requesting the court to annul the reassignment decision. She claimed that the new post had not been stipulated in the employer's Rules on Posts (“the Rules”) and it did not correspond to her qualifications and work experience. On 11 January 2002 the Skopje Court of First Instance annulled the reassignment decision and ordered the employer to reinstate the applicant to a post corresponding to her qualifications. The court noted that, under the Rules, there had been two requirements related to the new post: a certain level of education (level “IV”) and a particular type of education, leading to qualification as a “caterer” (угостител). It found that while the applicant had the required level of education, the reassignment had been contrary to the employer's collective agreement in that she did not satisfy the requirement as to the type of education: she had specialised in commerce (трговско училиште), but not in catering (угостителство). The court dismissed the employer's argument that the applicant had been reassigned for disciplinary reasons, since no such reasons had been given in the reassignment decision. The claim value of the dispute was not specified in the introductory part of the first-instance court's decision, as is usually the case. On 15 January 2003 the Skopje Court of Appeal dismissed the employer's appeal, finding no grounds to depart from the reasons given by the lower court. On 26 February 2003 the employer lodged an appeal on points of law (ревизија) with the Supreme Court, arguing that the fact that the applicant did not have the type of education stipulated for the new post could not be the sole reason to declare the reassignment decision unlawful. It maintained that her reassignment had been carried out under the then Labour Act and the collective agreement, which required a particular level of education (степен на стручна подготовка), but not a particular type of education. In her reply submitted to the Supreme Court on 26 March 2003, the applicant argued that she had been reassigned because she had discovered some work-related irregularities. She did not raise any complaints about the Supreme Court's competence to examine her case. On 25 December 2003 the Supreme Court accepted the employer's appeal and overturned the lower courts' decisions. It dismissed the applicant's claim, arguing that she had had the required qualifications (степен на стручна подготовка) for the new post and the mere fact that they had not been of a particular type (вид на образование) could not affect the lawfulness of the reassignment decision. That decision was served on the applicant on 1 March 2004. On 5 April 2004 the applicant requested the public prosecutor to lodge a request for the protection of legality (барање за заштита на законитоста) with the Supreme Court, arguing that the latter had lacked the competence to revise facts already established by the lower courts. She further reiterated her allegations that she had been reassigned to prevent her revealing some work-related irregularities. On 19 May 2004 the public prosecutor rejected the applicant's application. Section 368 §§ 1 and 3 of the 1998 Act provided that parties concerned could lodge an appeal on points of law against a second-instance final decision within thirty days of service of that decision. An appeal would be inadmissible in a property-related dispute which did not concern a pecuniary claim; transfer of movable property; or any other activity, if the claim value of the dispute as specified by the plaintiff did not exceed 1,000,000 Macedonian denars (MKD). Under paragraph 4 of that section, exceptionally, an appeal was always allowed in disputes described in the preceding paragraph which concerned (i) maintenance; (ii) compensation claims for loss of maintenance due to death of the care provider; (iii) copyright disputes; (iv) industrial property related disputes; and disputes concerning unfair competition and anti-competitive behaviour. Section 375 of the 1998 Act provided that the presiding judge of the first-instance court's panel would reject belated, incomplete and inadmissible appeals on points of law. An appeal on points of law would be inadmissible, inter alia, if it was lodged against a decision which could not be contested by such an appeal under the law. Section 378 of the 1998 Act provided that a belated, incomplete or inadmissible appeals on points of law would be rejected by the review court (the Supreme Court) if the first-instance court had not rejected them under section 375. In case of incorrect application of the substantive law, the review court would overturn the impugned decision (section 381).