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FIRST
SECTION
CASE OF LESJAK v. CROATIA
(Application
no. 25904/06)
JUDGMENT
STRASBOURG
18
February 2010
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Lesjak v. Croatia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos
Rozakis,
President,
Nina
Vajić,
Khanlar
Hajiyev,
Dean
Spielmann,
Sverre
Erik Jebens,
Giorgio
Malinverni,
George
Nicolaou,
judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 28 January 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 25904/06) against the Republic
of Croatia lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Croatian national, Mr DraZen Lesjak (“the
applicant”), on 6 June 2006.
- The
applicant was represented by Mr O. Uskoković, an advocate
practising in VaraZdin. The Croatian Government (“the
Government”) were represented by their Agent, Mrs Š.
StaZnik.
- On
18 September 2007 the President of the First Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1974 and lives in Trnovec Bartolovečki.
- He
was employed by the VaraZdin Police Department where he worked in the
catering service. In October 1999 he received his employment booklet
(radna knjiZica) by registered mail,
and his employer had noted in it that his employment had been
terminated on 4 October 1999. Enclosed with it, for the applicant to
sign, was a draft mutual agreement to terminate his employment,
reference no. 511-14-07/1-4767/1-99, dated 4 October 1999 and signed
by the employer.
- The
applicant refused to sign the draft agreement. Instead, on 4 November
1999 he made a request to the employer for the protection of his
rights (zahtjev za zaštitu prava)
arising from the employment relationship. However, no formal decision
was given by the employer in response to the applicant’s
request. Rather, in a letter of 8 November 1999 the applicant was
merely notified that his employment had been terminated because the
catering service of the VaraZdin Police Department had been
outsourced to a third party for whom the applicant had refused to
work.
A. Proceedings instituted by the applicant
- On
11 November 1999 the applicant brought a civil action in the VaraZdin
Municipal Court (Općinski sud u VaraZdinu) seeking
reinstatement. He argued that his employment had been terminated
against his will as he had never agreed with the employer to
terminate it. Thus, the employer’s actions had amounted to a
dismissal, which was unlawful since no formal decision had been
issued.
- On
15 November 1999 the Municipal Court, considering that the
Administrative Court was competent to hear the applicant’s
case, declined jurisdiction in the matter and declared his action
inadmissible. On 3 December 1999 the VaraZdin County Court
(Zupanijski sud u VaraZdinu) dismissed the applicant’s
appeal and upheld the first-instance decision. On 7 February
2001 the Supreme Court (Vrhovni sud Republike Hrvatske)
declared inadmissible the applicant’s subsequent appeal on
points of law (revizija) against the second-instance decision.
The case was then transferred to the Administrative Court.
- On
4 November 2002 the Administrative Court (Upravni sud Republike
Hrvatske) issued a decision whereby it invited the applicant’s
representative to specify which decision, that is, which
administrative act, the applicant was challenging, and to submit two
copies of it. The decision read as follows:
“In the administrative dispute of the plaintiff
DraZen Lesjak ... against the decision of the respondent, the
Ministry of the Interior of the Republic of Croatia (VaraZdin Police
Department) concerning the termination of his employment, [the
plaintiff’s] representative is invited, within the meaning of
section 29 of the Administrative Disputes Act, to provide this court
within ten days with:
- an express statement indicating which specific
administrative act he is contesting by his action – it is
necessary to indicate the [reference] number of the act, as well as
its date of issue, and to provide this court with two copies of that
decision.
If the [plaintiff’s] representative does not
correct the above shortcomings of the action, the court will declare
it inadmissible as deficient.”
On
14 November 2002 the applicant’s representative replied as
follows:
“Acting upon the decision of the [Administrative
Court] of 4 November 2002, the plaintiff states that he is unable to
indicate the specific [reference] number of the administrative act,
that is to say, a potential decision, because such an act has never
been issued by the respondent and the plaintiff’s employment
contract was terminated in the manner indicated and described in the
statement of claim [(‘u tuZbi’)] [of 11 November
1999].”
On 20
February 2003 the Administrative Court declared the applicant’s
action inadmissible, finding that he had failed to rectify the
shortcomings of his action as requested.
- The
applicant then lodged a constitutional complaint against the
Administrative Court’s decision. On 13 April 2006 the
Constitutional Court (Ustavni sud Republike Hrvatske)
dismissed the applicant’s complaint and served its decision on
his representatives on 11 May 2006.
B. Proceedings instituted by the applicant’s
colleague
- On
15 March 2005 a certain Mrs B.Z., who had also been employed by the
VaraZdin Police Department and dismissed in the same way as the
applicant, brought a civil action in the VaraZdin Municipal Court
seeking reinstatement. She was represented by an advocate from the
same law firm as the advocate who represented the applicant in the
above proceedings. In her action B.Z. explained that she used to work
in the catering service of the VaraZdin Police Department and that on
20 October 1999 she had received her employment booklet by registered
mail and her employer had noted in it that her employment had been
terminated on 4 October 1999. Enclosed with it, for her to sign, was
a draft mutual agreement to terminate her employment, no.
511-01-62-20614/51-96, dated 4 October 1999 and signed by the
employer. B.Z. further explained that she had refused to sign the
draft agreement. Instead, she had made a request to the employer for
the protection of her rights arising from the employment
relationship. However, no formal decision had been given by the
employer in response to her request. Rather, in a letter of 4
November 1999 she had merely been notified that her employment had
been terminated because the catering service of the VaraZdin Police
Department had been outsourced to a third party.
- On
18 November 1999 the Municipal Court, considering that the
Administrative Court was competent to hear the plaintiff’s
case, declined jurisdiction in the matter and declared her action
inadmissible. On 14 December 1999 the VaraZdin County Court
dismissed her appeal and upheld the first-instance decision. The case
was then transferred to the Administrative Court.
- On
15 March 2005 the Administrative Court issued a decision whereby it
invited the plaintiff’s representative to specify which
decision, that is, which administrative act, the plaintiff was
challenging, and to submit two copies of it.
- On
30 March 2005 the plaintiff’s representative replied to the
court’s request. The relevant part of her reply read as
follows:
“On the basis of its mutual agreement on the
termination of employment contract number: 511-01-62-20614/51-96 of 4
October 1999, which agreement was signed only by the respondent ...,
the respondent recorded the termination of employment in the
plaintiff’s employment booklet, and on 20 October 1999 the
plaintiff received the employment booklet and the [abovementioned
draft] mutual agreement by registered mail.
The plaintiff made a request to the respondent for the
protection of her rights but on 4 November 1999 she received
notification that her employment relationship with the respondent had
been terminated because the respondent no longer provided catering
services.
Since the provisions of the Labour Act prescribe that a
written mutual agreement on the termination of an employment contract
constitutes a legal way to terminate the employment contract if both
parties sign it, and given that the plaintiff refused to sign the
[abovementioned draft] mutual agreement, [that agreement] cannot be
considered to have been concluded and could not have produced any
legal effect. The respondent could only have dismissed the plaintiff
for business reasons by giving her notice. Therefore, the termination
of employment in question and the rescission of the employment
contract represents a flagrant breach of the employee’s rights
because the respondent – contrary to the legislation in force –
unilaterally rescinded the plaintiff’s employment contract on
the basis of a ‘mutual agreement’ the plaintiff did not
sign and was not obliged to sign.”
The
plaintiff’s representative also emphasised that the VaraZdin
Municipal Court had already declined jurisdiction in the case and
invited the Administrative Court, should it find that it did not have
jurisdiction either, to apply to the Supreme Court in order to
resolve the conflict of jurisdiction with the ordinary courts thereby
created.
- On
2 November 2005 the Administrative Court, considering that it did not
have jurisdiction to examine the case, applied to the Supreme Court
to resolve the conflict of jurisdiction with the ordinary courts. In
its application the court wrote, inter alia:
“.. [It] is undisputed that the plaintiff
concluded an employment contract of unlimited duration with the
respondent on 1 January 1996 and that the respondent tried to rescind
that contract by a mutual agreement ... which the plaintiff did not
sign and which cannot in any case constitute an administrative act
... for which reason the Administrative Court cannot decide on [its]
lawfulness.
This case does not concern a dispute where a decision on
a right of a civil servant or an employee employed by a state organ
is being contested. Rather, it concerns a mutual agreement on the
termination of an employment contract, and its lawfulness cannot be
reviewed by the Administrative Court.”
- On
22 February 2006 the Supreme Court ruled that the VaraZdin Municipal
Court was the competent court to hear the B.Z’s case.
II. RELEVANT DOMESTIC LAW
A. The Administrative Disputes Act
- The
Administrative Disputes Act (Zakon o upravnim sporovima,
Official Gazette of the Socialist Federal Republic of Yugoslavia
no. 4/1977, and Official Gazette of the Republic of Croatia nos.
53/1991, 9/1992 and 77/1992) regulates the procedure before the
Administrative Court and in its relevant part provides as follows:
Section
6(1) provides that the proceedings before the Administrative Court
(that is, an administrative dispute) may be initiated only against an
administrative act.
Section
6(2) provides that an administrative act, within the meaning of that
Act, is an act whereby a state organ in the exercise of public
authority decides on a right or obligation of an individual or an
organisation in some administrative matter.
Section
27(1) provides that a statement of claim must indicate, inter
alia, the contested administrative act and must be accompanied by
the original or a copy of the contested act.
Section
29(1) provides that if the action is incomplete or incomprehensible,
the president of the panel shall invite the plaintiff to correct the
shortcomings within a certain time-limit. In doing so, the president
should instruct the plaintiff what has to be done and how and warn
him or her of the consequences of failing to comply with the court’s
request.
Section
29(2) provides that if the plaintiff does not correct the
shortcomings of his action within the time-limit fixed, and they are
of such a nature as to prevent the court proceeding with the case,
the court shall declare the action inadmissible as deficient.
Section
60 provides that if the Administrative Disputes Act does not contain
specific provisions on the procedure before the Administrative Court
(that is, in administrative disputes), the provisions of the Civil
Procedure Act should apply mutatis mutandis.
Sections
52-59 provide for the remedy of reopening proceedings before the
Administrative Court and regulate the procedure following a petition
for reopening.
B. The Civil Procedure Act
- The
relevant part of the Civil Procedure Act (Zakon o parničnom
postupku, Official Gazette of the Socialist Federal Republic of
Yugoslavia nos. 4/1977, 36/1977 (corrigendum), 36/1980, 69/1982,
58/1984, 74/1987, 57/1989, 20/1990, 27/1990 and 35/1991, and Official
Gazette of the Republic of Croatia nos. 53/1991, 91/1992, 58/1993,
112/1999, 88/2001, 117/2003, 88/2005, 2/2007, 84/2008 and 123/2008),
as in force at the relevant time, provided as follows:
Section 22(1)
“If the court to which the case has been
transferred ... considers that the court which has transferred the
case or some other court has jurisdiction, it shall refer the case to
the court competent to resolve that conflict of jurisdiction ...”
Section 23(2)
“The conflict of jurisdiction between courts of
different types shall be resolved by the Supreme Court of the
Republic of Croatia.”
...
Reopening of proceedings following a final judgment
of the European Court of Human Rights in Strasbourg finding a
violation of a fundamental human right or freedom
Section 428a
“(1) When the European Court of Human Rights has
found a violation of a human right or fundamental freedom guaranteed
by the Convention for the Protection of Human Rights and Fundamental
Freedoms or additional protocols thereto ratified by the Republic of
Croatia, a party may, within thirty days of the finality of the
judgment of the European Court of Human Rights, file a petition with
the court in the Republic of Croatia which adjudicated in the first
instance in the proceedings in which the decision violating the human
right or fundamental freedom was rendered, to set aside the decision
by which the human right or fundamental freedom was violated.
(2) The proceedings referred to in paragraph 1 of this
section shall be conducted by applying, mutatis mutandis, the
provisions on the reopening of proceedings.
(3) In the reopened proceedings the courts are required
to respect the legal opinions expressed in the final judgment of the
European Court of Human Rights finding a violation of a fundamental
human right or freedom.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that the refusal of the domestic courts to
examine the merits of his case had breached his right of access to a
court as provided for by Article 6 § 1 of the Convention, which
reads as follows:
“In the determination of his civil rights and
obligations ... everyone is entitled to a ... hearing ... by [a] ...
tribunal ...”
- The
Government contested that argument.
A. Admissibility
- The
Government argued that the applicant had failed to exhaust domestic
remedies. They submitted that the applicant had failed to observe the
procedural requirements of the domestic law in that he had not
complied with the clear order of the Administrative Court requesting
him to specify the reference number of the act he was challenging and
provide copies thereof. Consequently, his action had been declared
inadmissible.
- The
applicant replied that this issue concerned the merits of his
complaint under Article 6 § 1 of the Convention and referred to
his arguments outlined below (see paragraphs 31-33).
- The
Court finds that the question of exhaustion of domestic remedies is
inextricably linked to the merits of this complaint. Therefore, to
avoid prejudging the latter, both questions should be examined
together. Accordingly, the Court holds that the question of
exhaustion of domestic remedies should be joined to the merits.
- The
Court further notes that this complaint is not manifestly ill-founded
within the meaning of Article 35 § 3 of the Convention. It also
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. The arguments of the parties
(a) The Government
- The
Government first submitted that the observance of procedural
requirements of domestic law constituted a permitted limitation on
the right of access to a court. In the present case the applicant had
asked the domestic courts to decide on the lawfulness of the
termination of his employment. In doing so, he had first brought his
action in an ordinary court, which had declined jurisdiction and
transferred the case to the Administrative Court – a special
court whose role was to provide judicial protection against decisions
of the administrative authorities. The proceedings before the
Administrative Court were normally instituted by bringing an action,
in which it was necessary to specify the contested administrative
act. After receiving the case, the Administrative Court had invited
the applicant to specify which act he had been challenging and to
provide a copy of the act.
- The
Government further claimed that the Administrative Court’s
request had indisputably been based on law, in particular, sections
27 and 29 of the Administrative Disputes Act. The request had been
formulated clearly and the applicant could have acted upon it. In
this regard, the Government deemed that special account should be
taken of the fact that the applicant had been represented by
qualified legal representatives who should have known the rules of
procedure.
- However,
the applicant had ignored the Administrative Court’s request.
Instead, he had asserted that he was unable to provide the reference
number of the administrative act. He had done so even though it was
evident from the facts of the case that the applicant knew which act
he was challenging and its reference number. In particular, the
applicant was challenging “the mutual agreement to terminate
the employment contract” of 8 November 1999, no.
511-14-07/1-5212/1-99. Therefore, in the Government’s view, the
applicant could and should have complied with the Administrative
Court’s order by notifying the court of the reference number of
that act and by providing copies of it.
- According
to the Government, it could not be claimed that the Administrative
Court’s request had amounted to excessive formalism. To be able
to decide on its jurisdiction, the Administrative Court needed to
establish which act the applicant had been contesting, and after that
decide whether that act constituted an administrative act. However,
instead of providing the court with the act requested, the applicant
had engaged in legal argumentation, claiming that the Ministry of the
Interior had not issued any administrative act in respect of him. In
this connection, the Government considered it necessary to make a
clear differentiation between the procedural obligation to observe a
court’s formal request and the legal argumentation of the case,
which the applicant had confused. The applicant should have complied
with the Administrative Court’s formal request and submitted
the contested act by which his employment had been terminated. From
the procedural point of view it was irrelevant whether the said act
was indeed an administrative act or not. It had been for the
Administrative Court to decide on that issue and proceed accordingly.
The applicant had, of course, been free to argue that the draft
mutual agreement of 8 November 1999 was not an administrative
act and that the Administrative Court was not competent to examine
his case. Nevertheless, he had been obliged to abide by that court’s
formal request and submit the said act, which had, beyond doubt, been
in his possession.
- In
the Government’s view, their arguments, as set out above, were
further corroborated by the fact that in the proceedings in the case
of the applicant’s colleague, her legal representative had
complied with a similar order issued by the Administrative Court and
had clearly indicated the reference number of the act she was
challenging. In addition, she had adduced legal arguments for her
belief that the act in question was not an administrative act,
thereby enabling the Administrative Court to come to a decision on
its jurisdiction.
- In
conclusion, the Government considered that the reason domestic courts
had not decided on the merits of the applicant’s action was
that he had failed to comply with procedural requirements. Therefore,
it could not be claimed that the applicant had not had the right of
access to a court.
(b) The applicant
- The
applicant submitted, firstly, that it followed from the Supreme
Court’s decision of 22 February 2006 (see paragraph 16 above),
in the case of his colleague, that the decisions of the ordinary
courts to decline jurisdiction in his case had been wrong.
- The
applicant further submitted that, after the case had been transferred
to the Administrative Court, that court had invited him to indicate
the specific administrative act he was challenging, together with its
date of issue and reference number. He had replied to that request
within the time-limit fixed and explained that he was unable to meet
it because no such act had been issued by the respondent, and that he
had been dismissed in the manner described in his statement of claim
(tuZba) of 11 November 1999 (see paragraph 7 above). In
the applicant’s view, even before his reply, but especially
after it, the Administrative Court should itself have realised, after
examining the case file, that, because of the absence of the
administrative act, it had no jurisdiction in the case. In other
words, from his statement of claim, the documents enclosed with it
and the decisions of the ordinary courts it was evident that before
those courts he had constantly argued that he had been dismissed
without any formal decision and that his employer’s actions in
fact amounted to tacit dismissal, which was unlawful. However,
instead of declining jurisdiction and applying to the Supreme Court
to resolve the conflict of jurisdiction with the ordinary courts, the
Administrative Court had declared his action inadmissible on account
of his alleged failure to comply with its request.
-
As to the Government’s argument that he should nevertheless
have specified that he had been contesting the draft mutual agreement
of 8 November 1999 and submitted two copies of it to the
Administrative Court, the applicant replied that that court already
had the disputed draft mutual agreement in the case file and that it
must have been aware of the circumstances of his dismissal. Moreover,
taking into account the definition provided in section 6(2) of the
Administrative Disputes Act, it was clear that only formal decisions
could be considered administrative acts and therefore the draft
agreement in question could by no means be viewed as an
administrative act. Indeed, as he had not signed the draft agreement
it could not have produced any legal effects, and therefore the draft
agreement did not have the characteristics of a legal act, let alone
of an administrative act.
- In
the light of the above, the applicant considered that it could not be
argued that his right of access to a court had been respected.
2. The Court’s assessment
- The
Court reiterates that Article 6 § 1 of the Convention secures
to everyone the right to have any claim relating to his civil rights
and obligations brought before a court or tribunal. The right
of access, namely the right to institute proceedings before a court
in civil matters, constitutes one aspect of this “right to a
court” (see, notably, Golder v. the United Kingdom, 21
February 1975, §§ 28-36, Series A no. 18). For the right of
access to be effective, an individual must have a clear, practical
opportunity to challenge an act interfering with his or her rights
(see, for example, Bellet v. France, 4 December 1995, §
36, Series A no. 333 B). However, this right is not absolute,
but may be subject to limitations. These are permitted by implication
since the right of access by its very nature calls for regulation by
the State. In this respect, the Contracting States enjoy a certain
margin of appreciation, although the final decision as to the
observance of the Convention’s requirements rests with the
Court. However, these limitations must not
restrict or reduce the access left to an individual
in such a way or to such an extent that the very essence of the right
is impaired (see, for example, Ashingdane v. the United
Kingdom, 28 May 1985, § 57, Series A no. 93).
- Turning
to the circumstances of the present case, the Court first notes that
the role of the Administrative Court in the Croatian legal system is
to review the lawfulness of administrative acts (see paragraph 17
above). The possible absence of an administrative act would therefore
indicate that the Administrative Court did not have jurisdiction to
examine the case. In such situations an action brought in the
Administrative Court should be declared inadmissible for lack of
jurisdiction, unless, as in the present case, the ordinary courts had
first declined jurisdiction and transferred the case to the
Administrative Court. If that was the case, the Administrative Court
would be obliged to apply to the Supreme Court to resolve the
conflict of jurisdiction with the ordinary courts, as provided in
sections 22(1) and 23(2) of the Civil Procedure Act (see paragraph 18
above) taken in conjunction with section 60 of the Administrative
Disputes Act (see paragraph 17 above).
- However,
in the instant case, the Administrative Court refused to examine the
merits of the applicant’s action not because it did not have
jurisdiction but because the applicant had allegedly failed to comply
with its request of 4 November 2002 to specify which
administrative act he was contesting. In particular, the
Administrative Court first invited the applicant to specify the
administrative act he was challenging and provide two copies of it.
In reply to that request the applicant explained that he was unable
to do so because he had been dismissed without a formal decision,
which fact was actually his main argument in claiming that his
dismissal had been unlawful. Despite that, the Administrative Court
decided to declare his action inadmissible for failing to satisfy its
request.
- The
Court reiterates that it is
in the first place for the national authorities, and notably the
courts, to interpret and apply the domestic law.
This applies in particular to the interpretation by courts of rules
of a procedural nature. The Court’s role is confined to
ascertaining whether the effects of such an interpretation are
compatible with the Convention (see, for example, Tejedor
García v. Spain, 16 December 1997, § 31, Reports
of Judgments and Decisions 1997 VIII, and Pérez de
Rada Cavanilles v. Spain, 28 October 1998, § 43, Reports
of Judgments and Decisions 1998 VIII).
- The
Court further notes that section 6(2) of the Administrative Disputes
Act provides that an administrative act is an act whereby a state
organ, in the exercise of public authority decides on a right or
obligation of an individual or organisation in some administrative
matter. From that definition it is quite clear that an administrative
act is always a formal decision. Therefore, the draft mutual
agreement by which the applicant’s employer wanted to terminate
his employment (see paragraph 5 above) could by no means be
considered to constitute such an act. This was clearly admitted by
the Administrative Court in the case of the applicant’s
colleague (see paragraph 15 above) and by the Government in their
observations. Moreover, the Administrative Court did not consider the
employer’s letter of 8 November 1999, which set out the reasons
for the termination of the applicant’s employment (see
paragraph 6 above), an administrative act, nor did it hold so for a
similar letter in the applicant’s colleague’s case.
- The
Court therefore considers that it was obvious from the documents
already in the case file that the Administrative Court did not have
jurisdiction in the applicant’s case and that it was obliged to
apply to the Supreme Court to resolve the conflict of jurisdiction
with the ordinary courts (see paragraphs 15 and 36 above). Not doing
so, but insisting instead that the applicant strictly comply with its
request to submit an administrative act, and, eventually, declaring
his action inadmissible for his failure to meet that request,
amounts, in the Court’s view, to excessive formalism. The Court
cannot accept that the procedure followed by
the Administrative Court should be so rigidly formal (see, mutatis
mutandis, Platakou v.
Greece, no. 38460/97, § 43, ECHR 2001 I).
- In
addition, as the VaraZdin Municipal Court did not examine the merits
of the applicant’s action either, the Court notes that he was
put in an impossible position, where his action was dealt with by
ordinary courts and the Administrative Court but neither ruled
on whether the termination of his employment was lawful
(see, mutatis mutandis,
Platakou, cited above, § 44).
In the Court’s view, that situation
amounts to a denial of justice which impaired the very essence of the
applicant’s right of access to a court as secured by Article 6
§ 1 of the Convention (see, mutatis
mutandis, Beneficio
Cappella Paolini v. San Marino, no. 40786/98, § 29, ECHR
2004 VIII (extracts), and Tserkva Sela Sosulivka v. Ukraine,
no. 37878/02, § 40, 28 February 2008).
- Accordingly,
the Court rejects the Government’s objection as to the
exhaustion of domestic remedies and finds that there has been a
violation of Article 6 § 1 of the Convention in the present
case.
II. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION
- The
applicant also complained under Article 14 of the Convention, taken
in conjunction with Article 6 § 1 thereof, that he had
suffered discrimination because in the case of his colleague the
domestic courts had resolved the conflict of jurisdiction and
determined the competent court, after which they had proceeded with
examining the merits of the case. Article 14 of the Convention reads
as follows:
“The enjoyment of the rights and freedoms set
forth in [the] Convention shall be secured without discrimination on
any ground such as sex, race, colour, language, religion, political
or other opinion, national or social origin, association with a
national minority, property, birth or other status.”
- The
Court notes that this complaint is linked to the one examined above
and must therefore likewise be declared admissible (see, for example,
Airey v. Ireland, no. 6289/73, Commission decision of 7 July
1977, Decisions and Reports (DR). 8, p.p. 42 and 50).
- However,
having regard to its above findings under Article 6 § 1 of the
Convention, the Court considers that it is not necessary to examine
whether, in this case, there has also been a violation of Article 14
thereof (see, among other authorities, Airey v. Ireland, 9
October 1979, § 30, Series A no. 32).
III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
- Lastly,
the applicant complained under Article 13 of the Convention that, by
refusing to examine the merits of his case, the domestic courts had
denied him legal protection of his right to work. Article 13 of the
Convention reads as follows:
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
- The
Government contested that argument.
- The
Court reiterates that Article 13 does not contain
a general guarantee of legal protection of all substantive rights. It
refers exclusively to those cases in which the applicant alleges, on
arguable grounds, that one of his rights or freedoms set forth in the
Convention has been violated.
49. As
the right to work is not included among the rights and freedoms
guaranteed by the Convention, this complaint is incompatible ratione
materiae with the provisions of the Convention within the meaning
of Article 35 § 3 and should be rejected pursuant to Article 35
§ 4 thereof (see Sobczyk v. Poland (dec.), nos. 25693/94
and 27387/94, 10 February 2000).
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If 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.”
A. Damage
- The
applicant claimed 28,000 Croatian kunas (HRK) in respect of pecuniary
damage sustained on account of unlawful dismissal. He also claimed
EUR 10,000 euros (EUR) in respect of non-pecuniary damage.
- The
Government contested these claims.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim.
- On
the other hand, the Court finds that the applicant must have
sustained non-pecuniary damage. In this connection the Court first
reiterates that the most appropriate form of redress in cases where
it finds that an applicant has not had access to a court in breach of
Article 6 § 1 of the Convention would, as a rule, be
to reopen the proceedings in due course and re examine the case
in keeping with all the requirements of a fair hearing (see, for
example, Lungoci v. Romania, no. 62710/00, §
56, 26 January 2006, and Yanakiev v. Bulgaria,
no. 40476/98, § 90, 10 August 2006). It further notes that the
Supreme Court has now established that ordinary (civil) courts have
jurisdiction in cases raising similar issues to that of the applicant
(see paragraph 16 above). Therefore, the applicant can now file a
petition under section 428a of the Civil Procedure Act (see paragraph
18 above) with the VaraZdin Municipal Court for the reopening of
the proceedings in respect of which the Court has found a violation
of Article 6 § 1 of the Convention. In these
circumstances, ruling on an equitable basis, the Court awards the
applicant EUR 3,000 in respect of non-pecuniary damage, plus any tax
that may be chargeable on that amount.
B. Costs and expenses
- The
applicant also claimed HRK 1,708 for the costs and expenses incurred
before the domestic courts and HRK 17,140.04 for those incurred
before the Court, of which HRK 15,250 were for legal representation
and HRK 1,890.04 for postal and translation expenses.
- The
Government contested these claims.
- According
to the Court’s case-law, an applicant is entitled to
reimbursement of his costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and are
reasonable as to quantum.
- In
the present case, regard being had to the information in its
possession and the above criteria, the Court considers it reasonable
to award the sum of EUR 185 for costs and expenses in the domestic
proceedings, plus any tax that may be chargeable on that amount.
- As regards the applicant’s claim for costs and
expenses incurred before it, the Court notes that, apart from
translation expenses, he failed to submit any relevant supporting
documents proving that he had actually incurred any costs and
expenses, although he was invited to do so. It follows that in
respect of that part of his claim the applicant failed to comply with
the requirements set out in Rule 60 § 2 of the Rules of Court.
The Court therefore rejects it (Rule 60 § 3). On
the other hand, it awards the applicant EUR 220 for translation
expenses, plus any tax that may be chargeable to the applicant on
that amount.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Joins to the merits the Government’s objection as to
the exhaustion of domestic remedies and rejects it;
- Declares the complaint concerning access to a
court and discrimination admissible and the remainder of the
application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds that there is no need to examine the
complaint under Article 14 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months of
the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 3,405
(three thousand four hundred and five euros), plus any tax that may
be chargeable to the applicant, in respect of non-pecuniary damage
and costs and expenses, to be converted into Croatian kunas at the
rate applicable on the date of settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 18 February 2010,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the concurring opinion of Judges
Spielmann and Malinverni is annexed to this judgment.
C.L.R.
S.N.
JOINT CONCURRING OPINION OF JUDGES SPIELMANN AND
MALINVERNI
- We agree in
all respects with the Court’s conclusions as to the violation
of Article 6 of the Convention.
- However,
given its importance, we would have liked the content of paragraph 54
to have been included in the operative part of the judgment as well,
for reasons we have explained in detail in our joint concurring
opinion in the case of Vladimir Romanov v. Russia (no.
41461/02, 24 July 2008) and, mutatis mutandis, in our
partly dissenting opinion in the case of PreZec v. Croatia
(no. 48185/07, 15 October 2009).
- It is
indeed essential that in its judgments the Court should not merely
give as precise a description as possible of the nature of the
Convention violation found but should also, in the operative
provisions, indicate to the State concerned the measures it considers
most appropriate to redress the violation.
- Firstly, it
is common knowledge that while the reasoning of a judgment allows the
Contracting States to ascertain the grounds on which the Court
reached a finding of a violation or no violation of the Convention,
and is of decisive importance on that account for the interpretation
of the Convention, it is the operative provisions that are binding on
the parties for the purposes of Article 46 § 1 of the
Convention. It is therefore a matter of some significance, from a
legal standpoint, for part of the Court’s reasoning to appear
also in the operative provisions.
- And indeed,
what the Court says in paragraph 54 of the judgment is in our view of
the utmost importance. It reiterates that the most appropriate form
of redress in cases where it finds that the applicant has not had
access to a court, in breach of Article 6 § 1 of the Convention,
would, as a rule, be to reopen the proceedings in due course and
re-examine the case in keeping with all the requirements of a fair
hearing (the principle of restitutio in integrum).
- The reason
why we wish to stress this point is that it must not be overlooked
that the amounts which the Court orders to be paid to victims of a
violation of the Convention are, according to the terms and the
spirit of Article 41, of a subsidiary nature. Wherever possible, the
Court should therefore seek to restore the status quo ante for
the victim. It should even, in cases such as the present one, reserve
its decision on just satisfaction and examine this issue, where
necessary, only at a later stage, should the parties fail to settle
their dispute satisfactorily.
- Admittedly,
States are not required by the Convention to introduce procedures in
their domestic legal systems whereby judgments of their Supreme
Courts constituting res judicata may be reviewed. However,
they are strongly encouraged to do so. We believe that where, as in
the present case, the respondent State has equipped itself with such
a procedure (Article 428a of the Civil Procedure Act), it is the
Court’s duty not only to note the existence of the procedure,
as paragraph 54 of the judgment does, but also to urge the
authorities to make use of it, provided, of course, that the
applicant so wishes. However, this is not legally possible unless
such an exhortation appears in the operative provisions of the
judgment.
- By virtue
of Article 46 § 2 of the Convention, supervision of the
execution of the Court’s judgments is the responsibility of the
Committee of Ministers. That does not mean, however, that the Court
should not play any part in the matter and should not take measures
designed to facilitate the Committee of Ministers’ task in
discharging these functions.
- To that
end, it is essential that in its judgments the Court should not
merely give as precise a description as possible of the nature of the
Convention violation found but should also, in the operative
provisions, indicate to the State concerned the measures it considers
most appropriate to redress the violation.
