Hindrance of the Right to Individual Petition: The European Court of Human Rights Judgment of Boškoćević v Serbia

05-03-2024

Burak Tahsin Bahce

International Justice Team Researcher,

Global Human Rights Defence.

On March 5th, 2024, the European Court of Human Rights delivered a new and remarkable judgement concerning a complaint about the hindrance of the effective exercise of the right of individual application. It found there was a violation of Article 34 (individual petition) of the European Convention on Human Rights, since the applicant had faced pressure in the workplace due to a warning notification from his managing director.

The Serbian national applicant, Mr. Boškoćević, was employed as a driver by the Šar Mountains National Park in Kosovo, a statutory corporation. In 2009, after making a complaint about a salary-related matter, the Serbian Court decided in his favour, requiring the employer to pay him a certain amount of allowance. This decision, however, has not been enforced since then, mainly due to the fact that he signed an agreement offered by his employer to withdraw his application for enforcement in order to be paid according to the decision. Before he signed the agreement, he told his directing manager that he would not be signing it if it weren’t for his desperate financial situation, and he was therefore being forced into it. Afterwards, he lodged a constitutional appeal to challenge this agreement. However, the Constitutional Court held that it was a private-law contract between the parties that could not be challenged before it.

Following the Constitutional Court’s decision, the applicant brought the case before the European Court of Human Rights, complaining under Article 6§1 (right to a fair trial) of the Convention based on the non-enforcement of the final domestic decision given in his favour. Shortly after lodging this application, he alleged that his managing director had sent him a letter warning him that he had breached his duties and that he risked dismissal. According to the letter submitted by the applicant to the Court, he was reproached for, inter alia, “complaining to the Court about the corporation’s business, analysing problems and looking for someone to blame among members of the government, and doing so without consulting the director”, as well as, “refusing, on grounds of privacy, to disclose a copy of the documents which he had submitted to the Court”. For this reason, the applicant also relied on Article 34 (individual petition) of the Convention, complaining that the respondent State hindered his exercise of this right.

As to the first complaint regarding the alleged violation of Article 6§1, the Court rejected the application as inadmissible, since the applicant had not used all the legal avenues available at the national level. It noted that instead of directly bringing an appeal focused on procedural considerations only before the Constitutional Court, he could have initiated civil proceedings seeking annulment of the agreement he had signed with his employer, and then challenged the Civil Court's decision before the Constitutional Court.

With regard to the complaint under Article 34, the Court, at first, disagreed with the Serbian Government`s argument that it could not be held responsible for the conduct of the applicant’s employer. After reiterating its relevant criteria, it referred to its previous case law where it held that socially owned companies, at different stages of the privatisation process, did not enjoy “sufficient institutional and operational independence from the State” to absolve the latter from its responsibility under the Convention. Furthermore, it distinguished the statutory corporation here, as the managing director in question performs a public function under the (domestic) Statutory Corporation Act in force, and the warning notice the applicant received from the debtor was signed by the debtor’s managing director acting as its representative and was certified with the official seal.

In light of these evaluations, the Court reiterated that it is of the utmost importance for the effective operation of the system of individual petition instituted by Article 34 that applicants or potential applicants be able to communicate freely with the Court without being subjected to any form of pressure from the authorities to withdraw or modify their complaints. It then further clarified that “pressure” includes not only direct coercion and flagrant acts of intimidation but also other improper indirect acts or contacts designed to dissuade or discourage applicants from pursuing a Convention remedy. In this context, the Court noted that the applicant was directly told that the conditions for his dismissal had been met as a result of his applying to the Court and that he would be dismissed from his job without any further notice or disciplinary proceedings if he failed to submit copies of all relevant correspondence with the Court. Therefore, the Court concluded that this type of communication constituted “pressure” and “intimidation”, even though the applicant continued his correspondence with the Court and was eventually not dismissed from his job, and held that there had been a violation of Article 34 of the Convention.

The judgement is relevant and possesses a symbolic value, as the Court protected the individual petition mechanism as an effective human rights remedy to which individuals can apply without being subjected to any pressure.

Sources and further readings:

Boškoćević v Serbia, App no 37364/10 (ECtHR, 05 March 2024)

´Breach of the right of individual petition of a national park employee´ (Press Release), ECHR 053 (2024) (Registrar of the European Court of Human Rights)