FIRST SECTION
\nCASE OF TASEVA PETROVSKA v. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA
\n(Application no. 73759\/14)<\/p>\n
JUDGMENT
\nSTRASBOURG
\n11 January 2018<\/p>\n
This judgment is final but it may be subject to editorial revision<\/p>\n
In the case of Taseva Petrovska v. the former Yugoslav Republic of Macedonia,<\/strong><\/p>\n The European Court of Human Rights (First Section), sitting as a Committee composed of:<\/p>\n Ale\u0161 Pejchal, President, Having deliberated in private on 12 December 2017,<\/p>\n Delivers the following judgment, which was adopted on that date:<\/p>\n PROCEDURE<\/strong><\/p>\n 1. The case originated in an application (no.73759\/14) against the former Yugoslav Republic of Macedonia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (\u201cthe Convention\u201d) by Ms Slagana Taseva Petrovska.<\/p>\n 2. The Macedonian Government (\u201cthe Government\u201d) were represented by their Agent, Mr K. Bogdanov.<\/p>\n 3. On 11 October 2016 the complaint concerning adversarial trial before the Higher Administrative Court was communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 \u00a7 3 of the Rules of Court.<\/p>\n THE FACTS<\/strong><\/p>\n I. THE CIRCUMSTANCES OF THE CASE<\/p>\n 4. The applicant is a professor of law at a private university in Skopje. She holds a doctoral degree in the field of criminal law.<\/p>\n 5. On 14 January 2010 the applicant lodged a request with the Ministry of Justice (\u201cthe Ministry\u201d) in order to be recognised as having the same status as a person who had passed the BAR examination (\u0438\u0437\u0435\u0434\u043d\u0430\u0447\u0443\u0432\u0430\u045a\u0435 \u0441\u043e \u043f\u0440\u0430\u0432\u0430\u0442\u0430 \u043d\u0430 \u043b\u0438\u0446\u0430\u0442\u0430 \u043a\u043e\u0438 \u043f\u043e\u043b\u043e\u0436\u0438\u043b\u0435 \u043f\u0440\u0430\u0432\u043e\u0441\u0443\u0434\u0435\u043d \u0438\u0441\u043f\u0438\u0442). As she did not obtain a decision, she lodged two further requests, on 24 November 2011 and 6 February 2012.<\/p>\n 6. On 11 April 2012 the Ministry rejected her request, holding that she did not meet the relevant criteria to obtain such recognition. In particular, the Ministry found that although she was a professor of law at a university, she did not hold a bachelor\u2019s degree in law (\u0434\u0438\u043f\u043b\u043e\u043c\u0438\u0440\u0430\u043d \u043f\u0440\u0430\u0432\u043d\u0438\u043a \u043d\u0430 \u043f\u0440\u0430\u0432\u0435\u043d \u0444\u0430\u043a\u0443\u043b\u0442\u0435\u0442). The Ministry further found that the bachelor\u2019s degree which she had obtained had been awarded by the Faculty of Security and Social Defence (\u0424\u0430\u043a\u0443\u043b\u0442\u0435\u0442 \u0437\u0430 \u0431\u0435\u0437\u0431\u0435\u0434\u043d\u043e\u0441\u0442 \u0438 \u043e\u043f\u0448\u0442\u0435\u0441\u0442\u0432\u0435\u043d\u0430 \u0441\u0430\u043c\u043e\u0437\u0430\u0448\u0442\u0438\u0442\u0430), and not by a faculty of law, as required.<\/p>\n 7. On 10 May 2012 the applicant brought an action with the Administrative Court (\u0423\u043f\u0440\u0430\u0432\u0435\u043d \u0441\u0443\u0434), challenging the refusal. She argued that as a university professor at a faculty of law she met the relevant criteria.<\/p>\n 8. On 30 May 2013 the Administrative Court dismissed the applicant\u2019s action. It held that regardless of her current status, she did not meet the criteria to obtain the desired recognition under domestic law. In particular, it established that the applicant did not hold a bachelor\u2019s degree in law, which was a condition for the recognition she sought.<\/p>\n 9. On 23 September 2013 the applicant lodged an appeal with the Higher Administrative Court (\u0412\u0438\u0448 \u0443\u043f\u0440\u0430\u0432\u0435\u043d \u0441\u0443\u0434). She argued that she met the relevant criteria and that the lower court had failed to properly interpret the procedural and substantive law in the case.<\/p>\n 10. On an unspecified date, the Ministry submitted observations to the Higher Administrative Court concerning the applicant\u2019s case. The Ministry stated in the observations that the right to obtain recognition as having the same status as a person who had passed the BAR examination was dependent on having a bachelor\u2019s degree issued by a faculty of law. The applicant did not possess such a degree and had therefore failed to meet the criteria under domestic law. Those observations were not communicated to the applicant.<\/p>\n 11. On 30 January 2014 the Higher Administrative Court dismissed the applicant\u2019s appeal, reiterating in full the reasons provided by the Administrative Court. It restated that the recognition sought by the applicant was dependent on her having a bachelor\u2019s degree issued by a faculty of law, a condition which she had failed to meet.<\/p>\n 12. The decision was served on the applicant on 19 May 2014.<\/p>\n II. RELEVANT DOMESTIC LAW<\/p>\n 13. Under sections 1 and 25 of the Act on the BAR examination (\u0417\u0430\u043a\u043e\u043d \u0437\u0430 \u043f\u0440\u0430\u0432\u043e\u0441\u0443\u0434\u043d\u0438\u043e\u0442 \u0438\u0441\u043f\u0438\u0442, Official Gazette No. 10\/2010) holding a bachelor\u2019s degree in law is a condition necessary to obtain recognition as someone having passed the BAR examination. The right to seek recognition is available for the persons described in section 24 of the old Act on the BAR examination (Official Gazette Nos. 26\/80 and 7\/88 of the Socialist Republic of Macedonia).<\/p>\n 14. Section 24 of the Act on the BAR examination (\u0417\u0430\u043a\u043e\u043d \u0437\u0430 \u043f\u0440\u0430\u0432\u043e\u0441\u0443\u0434\u043d\u0438\u043e\u0442 \u0438\u0441\u043f\u0438\u0442, Official Gazette of the Socialist Republic of Macedonia Nos. 26\/80 and 7\/88) provides an exhaustive list of categories of individuals for whom the right to seek recognition as someone who had passed the BAR examination is available.<\/p>\n 15. According to section 7-a of the Administrative Disputes Act (\u0417\u0430\u043a\u043e\u043d \u0437\u0430 \u0443\u043f\u0440\u0430\u0432\u043d\u0438\u0442\u0435 \u0441\u043f\u043e\u0440\u043e\u0432\u0438, Official Gazette No. 62\/2006, as applicable at the time) the Civil Proceedings Act will have subsidiary application to administrative disputes.<\/p>\n 16. According to section 5 of the Civil Proceedings Act (\u0417\u0430\u043a\u043e\u043d \u0437\u0430 \u043f\u0430\u0440\u043d\u0438\u0447\u043d\u0430\u0442\u0430 \u043f\u043e\u0441\u0442\u0430\u043f\u043a\u0430 (\u043f\u0440\u0435\u0447\u0438\u0441\u0442\u0435\u043d \u0442\u0435\u043a\u0441\u0442), Official Gazette No. 7\/2011), the courts are obliged to give every party the opportunity to familiarise themselves with and comment on the requests and submissions of the other party in the proceedings.<\/p>\n THE LAW<\/strong><\/p>\n I. ALLEGED VIOLATION OF ARTICLE 6 \u00a7 1 OF THE CONVENTION<\/p>\n 17. The applicant complained under Article 6 \u00a7 1 of the Convention that the fact that she had not been allowed to comment on the Ministry\u2019s observations submitted to the Higher Administrative Court had amounted to a violation of her right to a fair hearing. The relevant part of Article 6 \u00a7 1 of the Convention reads as follows:<\/p>\n \u201cIn the determination of his civil rights and obligations … everyone is entitled to a fair … hearing … by [a] … tribunal …\u201d<\/p>\n A. Admissibility<\/strong><\/p>\n 18. The Government submitted that the issues raised by the applicant fell outside the scope of Article 6. In particular, they argued that she had had no rights or obligations at stake since the right that she had sought was not recognised under domestic law for persons in her situation. They further argued that even if such rights existed, they were not \u201ccivil\u201d rights within the meaning of the Convention. They therefore invited the Court to reject the application as inadmissible.<\/p>\n 19. The applicant contested that argument.<\/p>\n 20. The Court notes that the right to obtain recognition as someone who has passed the BAR examination is recognised under domestic law (see paragraphs 13 and 14 above). Moreover, the Court has already held that disputes over the right to practise law and to have access to the BAR fall to be examined under Article 6 \u00a7 1 of the Convention (see H. v. Belgium, 30 November 1987, \u00a7\u00a7 43-48, Series A no. 127\u2011B). In view of the above, the Court rejects the Government\u2019s objection.<\/p>\n 21. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 \u00a7 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.<\/p>\n B. Merits<\/strong><\/p>\n 1. The parties\u2019 arguments<\/em><\/p>\n 22. The applicant reiterated that she had not been given the opportunity to receive or comment on the Ministry\u2019s observations to the Higher Administrative Court. She maintained that that had constituted a violation of Article 6.<\/p>\n 23. The Government held that all the material evidence had been available to the applicant during the proceedings on account of the fact that it had been the applicant\u2019s responsibility to submit the relevant evidence to the Ministry, which had then had to decide whether the necessary criteria had been met. No additional evidence had been submitted to the Higher Administrative Court and no evidence whatsoever had been submitted by the Ministry during the proceedings. The Ministry\u2019s observations to the Higher Administrative Court had merely explained the decision that it had taken and had reiterated the findings of the Administrative Court.<\/p>\n 2. The Court\u2019s assessment<\/em><\/p>\n 24. The general principles on equality of arms are summarised in Grozdanoski v. the former Yugoslav Republic of Macedonia (no. 21510\/03, \u00a7 36, 31 May 2007, and cases cited therein).<\/p>\n 25. The Court notes that in the cases of Grozdanoski (cited above) and Naumoski v. the former Yugoslav Republic of Macedonia, (no. 25248\/05, \u00a7\u00a7 26-29, 27 November 2012) it found a violation of the right to a fair trial under similar circumstances.<\/p>\n 26. The Court notes that the violation of Article 6 \u00a7 1 found in the Naumoski case (cited above, \u00a7\u00a7 26-29) was on account of the defendant\u2019s observations submitted in reply to the applicant\u2019s appeal not being forwarded to him. The Court finds that the same considerations are applicable to the instant case and finds no reason to hold otherwise.<\/p>\n 27. This is sufficient for the Court to conclude that there has been a violation of Article 6 \u00a7 1 of the Convention.<\/p>\n II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION<\/p>\n 28. The applicant also raised a number of other complaints. Without invoking any particular Article of the Convention, she complained that the domestic judgments had not contained sufficient reasons and that the domestic courts had retroactively applied domestic law when deciding on her case.<\/p>\n 29. However, those complaints were raised for the first time in the applicant\u2019s response to the Government\u2019s observations, which were submitted to the Court on 5 May 2017. Accordingly, those complaints were lodged outside the six-month time-limit and must be rejected as inadmissible in accordance with Article 35 \u00a7 1 of the Convention.<\/p>\n III. APPLICATION OF ARTICLE 41 OF THE CONVENTION<\/p>\n 30. Article 41 of the Convention provides:<\/p>\n \u201cIf the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.\u201d<\/p>\n 31. The applicant did not submit a claim for just satisfaction. Accordingly, the Court considers that there is no call to award her any sum on that account.<\/p>\n FOR THESE REASONS, THE COURT, UNANIMOUSLY,<\/strong><\/p>\n 1. Declares the application admissible;<\/p>\n 2. Holds that there has been a violation of Article 6 \u00a7 1 of the Convention.<\/p>\n Done in English, and notified in writing on 11 January 2018, pursuant to Rule 77 \u00a7\u00a7 2 and 3 of the Rules of Court.<\/p>\n Renata DegenerAle\u0161 Pejchal
\nArmen Harutyunyan,
\nJovan Ilievski, judges,
\nand Renata Degener, Deputy Section Registrar,<\/p>\n
\nDeputy RegistrarPresident<\/p>\n