CASE OF MARKOSKI v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"
Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses award - Convention proceedings
Peer Lorenzen
4. The applicant was born in 1951 and lives in Skopje, in the former Yugoslav Republic of Macedonia. 5. On 10 July 1995 the applicant was laid off by the company “Daka-lift” d.o.o Skopje (“the employer”) where he worked as a lift repairman. 6. On 11 August 1995 the applicant brought an action against his employer, claiming that he had been unlawfully dismissed. He sought to be re-instated to a post corresponding to his qualifications. 7. Of seven hearings, including the preparatory one, scheduled between 8 November 1995 and 17 May 1996, one hearing was adjourned at the judge’s request; two hearings were postponed because of late submission of evidence; one hearing was adjourned without any reasons and one hearing was rescheduled at the employer’s request. The applicant attended all the hearings as scheduled. During this period, the composition of the judicial council (судскиот совет) changed once. 8. On 17 June 1996 the employer requested the court to reinstate the proceedings (враќање во поранешна состојба) as it had failed to appear in court on 17 May 1996 due to a failure of its former representative to inform it about the date of the hearing. On 28 June 1996 the applicant filed an objection against the employer’s request which he had subsequently withdrawn. The hearing of 13 September 1996 was held by another trial judge who had taken over the case. 9. At the hearing of 27 September 1996 the court examined some witnesses. 10. On 14 November 1996 the Skopje Court of First Instance upheld the applicant’s claim and annulled the employer’s decision for termination of his employment. The court found that his dismissal had not been made by a competent body. It held that the applicant had worked with the employer continuously for over 20 years and as such the managing board (управен одбор) should have decided his dismissal, instead of its manager. 11. On 11 March 1997 the employer appealed against the decision. 12. On 4 June 1997 the Skopje Court of Appeal upheld the employer’s appeal, quashed the lower court’s decision and ordered a retrial. It found that the lower court had erred in establishing the facts, in particular concerning the applicant’s uninterrupted work with the employer which had undergone several organisational changes over the time. 13. Of ten hearings scheduled between 21 October 1997 and 5 October 1998, two hearings were adjourned by the trial court to examine the official company’s register concerning the employer; one hearing was postponed due to the trial judge’s absence; two hearings were rescheduled as the court could not locate a witness, whose whereabouts had been provided by the applicant. Within this period, the court heard the applicant and examined some witnesses. The composition of the judicial council also changed once as new lay-judges stepped in the proceedings. The applicant attended all the hearings as listed. 14. On 5 October 1998 the Skopje Court of First Instance dismissed the applicant’s claim as the dismissal decision had been adopted by a competent body and the applicant had infringed working discipline. The court established that the applicant had been initially employed by “David Pajic-Daka” Belgrade (“the company”), a company incorporated outside the former Yugoslav Republic of Macedonia, which had had a subsidiary office in Skopje. When the company had founded “Daka servis” d.o.o. Skopje, as a separate legal entity incorporated in the former Yugoslav Republic of Macedonia, the applicant continued working for this newly created entity. At the last stage, “Daka servis” d.o.o. Skopje was merged with another company “Daka montaza”, creating as a separate legal entity. As stated by the Government, this decision was drawn up on 1 December 1999 and served on the parties after the applicant had paid the court fees. 15. On 6 December 1999 the applicant appealed against the decision. 16. On 10 December 1999 the first-instance court ordered the applicant to pay the court fees within eight days. On 20 December 1999 the applicant complied with this order. 17. On 9 February 2000 the Skopje Court of Appeal upheld the applicant’s appeal and overturned the lower court’s decision. It found that the applicant had worked continuously for over twenty years with the same employer, despite the organisational changes that the latter underwent over time. It therefore declared the applicant’s dismissal null and void and ordered the employer to reinstate him to work. 18. On 3 May 2000 the employer lodged with the Supreme Court an appeal on points of law (ревизија). On 22 May 2000 the applicant submitted his reply to the employer’s appeal on points of law. 19. On 4 May 2000 the employer requested the public prosecutor to submit to the Supreme Court a request for the protection of legality (барање за заштита на законитоста). 20. On 8 May 2000 the employer filed before the Court of First Instance a request for re-opening of the proceedings (предлог за повторување на постапката). 21. On 19 April 2000 the applicant instituted separate enforcement proceedings concerning the reinstatement order and the trial costs. On 27 April 2000 the court granted the applicant’s request (“the enforcement order”). On 22 June 2000 the applicant withdrew his request concerning the reinstatement, as he had meanwhile been reinstated. On 30 June 2000 the court stayed the enforcement proceedings concerning the applicant’s reinstatement and dismissed the employer’s objection concerning the reimbursement of the trial costs. On 12 October 2000 the Court of Appeal upheld the lower court’s decision. On 20 November 2000 the employer requested postponement of the enforcement. On 14 December 2000 the applicant objected to the employer’s request for postponement. It appears that the applicant received the sum due to him. 22. On 12 December 2002 the Supreme Court returned the case-file to the trial court in respect of the employer’s request for re-opening of the proceedings. 23. On 16 December 2002 the Skopje Court of First Instance terminated the proceedings concerning the employer’s request for re-opening of the proceedings and decided to transfer the case-file to the Supreme Court in respect of the employer’s appeal on points of law. 24. On 27 March 2003 the Supreme Court upheld the employer’s appeal on points of law, overturned the Court of Appeal’s decision and upheld the trial court’s decision of 5 October 1998. It departed from the reasoning of the Appeal Court finding that the employer could not be considered the one in which the applicant had been initially employed.