Boskocevic against Serbia
On February 13, the European Court of Human Rights (hereinafter: the Court) issued a verdict and on March 5, 2024, it announced in the subjectBoskocevic against Serbia, nooh 37364/10, with which he established the violationrights on the individualapplicationfromArticle 34. KConventions for the protection of human beings rights and fundamental freedoms (hereinafter: the Convention), while the complaints under Article 6, paragraph 1 of the Convention were dismissed due to non-exhaustion of domestic legal remedies.
The verdict was handed down unanimously by a panel of 7 judges.
The case refers to the applicant's complaintto the non-execution of the judgment in his favor in respect npaid wages andon theallegedly obstructing the exercise of the right toindividualapplication. The applicant complained that shortly after submitting the application, he was notified by the director of the employer that he had violated his duties with a warning that he could be fired as a result. |
COMPLAINTS OF THE APPLICANT AND THE PROCEDURE BEFORE THE COURT
The petitioner (hereinafter: the petitioner), Mr. Milivoje Boškoćević, complained about the non-enforcement of the judgment rendered in his favor with regard to unpaid wages and the obstruction of the right to submit an individual petition to the Court.
Namely,the applicant iswas employed as a driver in the Public Enterprise "Shar Mountain National Park" in Kosovo and Metohija until 2017, when he retired.
He is in MaymonthIn 2005, he filed a lawsuit demanding that, in accordance with the regulations of , to the Kosovo supplement", pay the difference between the salary he received and the one that should have been paid to him.
In 2009, the competent courts ruled inhisbenefit, and a decision on execution was made.
However, the judgment was not executed, because the applicant accepted an agreement with his employer to withdraw the proposal for execution.
The applicant claimed that against his will he signed an agreement with the employer on the method of settling the debt and withdrawing the proposal for execution. He tried to challenge the agreement in question by filing a constitutional appeal.
The Constitutional Court rejected the petitioner's constitutional appeal, judging that the contested agreement does not represent an act that can be challenged through a constitutional appeal.
Not long after submitting the application, the applicant received a notification from the employer's director at the time that by submitting the application, he violated his duties as an employee, and was warned that as a result, he could be fired even without disciplinary proceedings.
The petition was submitted to the Court on June 8, 2010.
DECISION OF THE COURT
- Article 6, paragraph 1 of the Convention
The court declared the applicant's complaint in the part related to the violation of the right to a fair trial from Article 6, paragraph 1 of the Convention inadmissible, bearing in mind that the applicant did not use all available legal remedies at the domestic level.
Namely, instead of directly submitting a constitutional appeal to the Constitutional Court against the agreement he signed with his employer, the applicant had the opportunity to file a lawsuit for the annulment of the said act and initiate civil proceedings.
If the applicant had used the lawsuit in civil proceedings and it was not ruled in his favor, he would have had the opportunity to challenge the judgment of the competent court before the Constitutional Court, which would include an assessment of the merits of the request, especially in terms of considering the validity of the agreement.
- Article 34 of the Convention
With regard to the complaint about the violation of Article 34 of the Convention, the Court found that the state is responsible for the actions of the applicant's employer and its director.
This is because the public company, the applicant's employer, was established in the public interest for the purpose of preserving the natural resources of the Shar Mountain and has an annual business plan and tariffs approved by the Government, and therefore cannot be considered a "non-governmental organization". Furthermore, the warning letter sent to the applicant was signed by the director of the national park and was stamped with an official seal.
The Court emphasized that, in order for the Convention's individual application system to function effectively, it is imperative that applicants or potential applicants are able to communicate freely with the Court without any pressure from the authorities to withdraw or amend their complaints.
As the applicant was clearly and directly threatened with dismissal for submitting a petition to the Court and for not providing copies of correspondence on this issue, the Court concluded that this type of communication represented "pressure" and "intimidation", which violated Article 34.
FAIRLY SATISFACTION (Article 41 of the Convention)
The applicant did not submit a request to the Court for damages.