BJELIK AND OTHERS v. CROATIA

FIRST SECTION

DECISION

Application no. 31680/12
Marija BJELIK and Others
against Croatia

The European Court of Human Rights (First Section), sitting on 23 October 2018 as a Committee composed of:

Armen Harutyunyan, President,
Ksenija Turković,
Pauliine Koskelo, judges,
and Abel Campos, Section Registrar,

Having regard to the above application lodged on 24 April 2012,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

1. A list of the applicants is set out in the appendix.

2. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik.

A. The circumstances of the case

3. The facts of the case, as submitted by the parties, may be summarised as follows.

4. In 2000 the applicants’ legal predecessor, Mr A.V.B., was employed by the “H.T.” company in Zagreb. On 10 March 2003 he concluded an agreement with H.T. on the termination of his employment with effect from 31 March 2003. Under that agreement, H.T. was obliged to pay A.V.B. severance pay.

5. On 24 March 2003 A.V.B. died.

6. On 28 May 2004 the applicants brought a civil action against H.T. in the Osijek Municipal Court (Općinski sud u Osijeku). As A.V.B.’s legal successors, they claimed the unpaid severance pay stipulated in the agreement of 10 March 2003.

7. On 16 June 2004 the defendant company replied to the applicants’ civil action, contending that pursuant to the agreement of 10 March 2003 A.V.B.’s employment was to be terminated, and the severance pay paid, on 31 March 2003. Since A.V.B. had died before that date, the parties’ obligations stipulated in the agreement had never come into effect.

8. At a hearing held on 17 June 2004 the applicants submitted that A.V.B.’s employment had been terminated by the agreement of 10 March 2003, and not by his death. The defendant company was obliged by the agreement to pay the severance pay, and the fact that A.V.B. had died was irrelevant. The defendant company reiterated its arguments submitted in its reply to the applicants’ civil action (see paragraph 7 above).

9. By submissions of 5 July and 9 September 2004 the defendant company reiterated its arguments submitted on 16 June 2004 (see paragraph 7 above).

10. During the proceedings an expert report was obtained as regards the amount of severance pay due. As the parties objected to it, the Osijek Municipal Court ordered that a complementary report be obtained.

11. By a submission of 26 November 2004 the applicants reiterated their arguments submitted on 17 June 2004 (see paragraph 8 above).

12. On 15 December 2004 the Osijek Municipal Court ruled in the applicants’ favour and ordered the defendant company to pay the applicants the amount of 1,369,138.10 Croatian kunas (HRK).[1] It held that pursuant to the agreement of 10 March 2003 the defendant company was obliged to pay the severance pay and the fact that A.V.B. had died on 24 March 2003 was irrelevant.

13. The defendant company appealed against the first-instance judgment contending, inter alia, that pursuant to the agreement of 10 March 2003 A.V.B.’s employment was to be terminated, and the severance pay paid, on 31 March 2003, whereas he had died on 24 March 2004. The Osijek Municipal Court had never established the date of termination of A.V.B.’s employment.

14. On 11 February 2005 the applicants replied to the defendant company’s appeal, contending that A.V.B.’s employment had been terminated by the agreement of 10 March 2003. On the same day the defendant company had become obliged to pay the severance pay. The fact that A.V.B. had died on 24 March 2003 was thus irrelevant.

15. On 7 December 2006 the Osijek County Court (Županijski sud u Osijeku) dismissed the appeal as unfounded. It agreed with the first-instance court that pursuant to the agreement of 10 March 2003 the defendant company was obliged to pay the severance pay. The fact that A.V.B. had died on 24 March 2003 only meant that his employment had been terminated seven days earlier than it should have been. It finally held that the defendant company had become obliged to pay the severance pay on 31 March 2003.

16. The defendant company then lodged an appeal on points of law with the Supreme Court (Vrhovni sud Republike Hrvatske), contesting the lower courts’ judgments and urging the court to dismiss the applicants’ claim. It argued in particular that A.V.B.’s employment had been terminated by his death on 24 March 2003 and that consequently it had not been obliged to pay the severance pay.

17. On 15 March 2007 the applicants submitted a reply to the defendant company’s appeal on points of law, disputing its arguments and urging the court to dismiss it as unfounded. They submitted that A.V.B.’s employment had been terminated by the agreement of 10 March 2003. The fact that he had died on 24 March 2003 was irrelevant. Pursuant to the agreement the defendant company was obliged to pay the severance pay.

18. On 23 December 2008 the Supreme Court accepted the defendant company’s appeal on points of law, reversed the lower courts’ judgments and dismissed the applicants’ claim as unfounded. In so doing, it stated that the applicants had not submitted a reply to the defendant company’s appeal on points of law. It then held that the lower courts had wrongfully applied the relevant law to the facts of the case. It explained that pursuant to the agreement of 10 March 2003, A.V.B.’s employment was supposed to be terminated on 31 March 2003. On that day A.V.B. would have become entitled to the severance pay. Since he had died on 24 March 2003, his employment had been terminated not by the agreement, but by his death. Consequently, the applicants were not entitled to receive the severance pay.

19. The applicants then complained to the Constitutional Court (Ustavni sud Republike Hrvatske) that, in reversing the lower courts’ judgments on the basis of the defendant company’s appeal on points of law, the Supreme Court had not considered their reply. Moreover, the Supreme Court had stated that they had not submitted a reply to the defendant company’s appeal on points of law. They had therefore not had a fair hearing.

20. On 10 November 2011 the Constitutional Court dismissed the applicants’ constitutional complaint. It found that on 15 March 2007 the applicants had indeed submitted a reply to the defendant company’s appeal on points of law and that the reply had been in the case-file. It further considered that the fact that the Supreme Court had stated that a reply had not been submitted had not violated the applicants’ right to a fair hearing.

B. Relevant domestic law

21. The relevant provisions of the Civil Procedure Act (Zakon o parničnom postupku, Official Gazette nos. 53/1991, 91/1992, 112/1999, 129/2000, 88/2001 and 117/2003), as in force at the material time, provided:

Section 390

“(1) A single judge or the presiding judge of the first-instance court’s panel shall send a copy of a timely, complete and admissible appeal on points of law to the opposing party, which may submit a reply to the appeal on points of law within fifteen days of receiving it.

(2) A reply to the appeal on points of law which has been submitted out of time shall not be declared inadmissible, but shall be delivered to the Supreme Court, which shall take it into consideration if that is still possible.

...”

22. The relevant provisions of the Courts Act (Zakon o sudovima, Official Gazette nos. 150/2005; 16/2007; and 113/2008), as in force at the material time, provided:

Section 13

“(4) The Supreme Court of the Republic of Croatia is the highest court in Croatia.”

Section 24

“The Supreme Court of the Republic of Croatia:

1. ensures uniform application of laws...;

...”

COMPLAINT

23. The applicants complained, under Article 6 § 1 of the Convention, that they had not had a fair hearing in that the Supreme Court, when deciding on the opposing party’s appeal on points of law, reversed the lower courts’ judgments and dismissed their civil claim without considering their reply.

THE LAW

24. Article 35 § 3 (b) of the Convention provides:

“3. The Court shall declare inadmissible any individual application submitted under Article 34 if it considers that:

...

(c) the applicant has not suffered a significant disadvantage, unless respect for human rights as defined in the Convention and the Protocols thereto requires an examination of the application on the merits and provided that no case may be rejected on this ground which has not been duly considered by a domestic tribunal.”

A. The parties’ arguments

1. The Government

25. The Government submitted that in the proceedings at issue the applicants, who had been represented by a lawyer, had benefited from all the guarantees of Article 6 § 1 of the Convention. In particular, their case had been decided on the merits by three domestic courts; they had had cognisance of and had been able to comment on all the documents in the file, and had had the opportunity to put forward all their relevant arguments.

26. The Government contended that the Supreme Court, when deciding on the defendant company’s appeal on points of law, had had before it the entire domestic case-file, which also included the applicants’ reply to the appeal on points of law. The fact that in its decision that court had stated that the applicants had not submitted a reply could not have rendered the proceedings unfair.

27. The Government further contended that in their reply the applicants had not put forward any fact, evidence or argument which they had not already submitted to the lower courts. Moreover, the Supreme Court had only found that the lower courts had wrongfully applied the relevant law, but that the facts of the case had been correctly established.

28. The Government finally noted that in its decision the Supreme Court had not elaborated on the arguments submitted by the defendant company in its appeal on points of law. Thus, as neither party’s submission had impacted the Supreme Court’s decision, the applicants had not been put in a disadvantaged position vis-à-vis their opponent.

2. The applicants

29. The applicants submitted that they had not had a fair hearing because the Supreme Court, when ruling on the defendant company’s appeal of points of law, had not considered their reply. Their subsequent constitutional complaint had been to no avail.

30. The Government’s contention that the Supreme Court had in fact taken into consideration their reply was unacceptable; in its decision that court had clearly stated that a reply had not been submitted.

31. According to the applicants, any argument by the Government that the defendant company’s appeal on points of law had not influenced the Supreme Court’s decision had been a mere speculation. It was precisely on the basis of that appeal on points of law that the Supreme Court had reversed the lower courts’ judgments and ruled against them.

32. The applicants finally submitted that in their reply they had put forward arguments as to why the defendant company’s views on the application of law had been erroneous. It could therefore not be said that their reply was irrelevant. In any event, the Supreme Court had no right to disregard it.

B. The Court’s assessment

1. General principles

33. As pointed out in previous case-law (see, for example, Mura v. Poland (dec.), no. 42442/08, § 20, 2 June 2016; see also C.P. v. the United Kingdom (dec.), no. 300/11, § 41, 6 September 2016), the purpose of the admissibility rule in Article 35 § 3 (b) of the Convention is to enable more rapid disposal of unmeritorious cases and thus to allow the Court to concentrate on its central mission of providing legal protection of human rights at the European level (see the Explanatory Report to Protocol No. 14, CETS No. 194, §§ 39 and 77-79). The High Contracting Parties clearly wished the Court to devote more time to cases which warrant consideration on the merits, whether seen from the perspective of the legal interest of the individual applicant or considered from the broader perspective of the law of the Convention and the European public order to which it contributes (ibid., § 77).

34. The question whether the applicant has suffered any “significant disadvantage” represents the main element of the rule set forth in Article 35 § 3 (b) of the Convention (see Adrian Mihai Ionescu v. Romania (dec.), no. 36659/04, 1 June 2010; see also Korolev v. Russia (dec.), no. 25551/05, ECHR 2010). Inspired by the general principle de minimis non curat praetor, this first criterion of the rule rests on the premise that a violation of a right, however real from a purely legal point of view, should attain a minimum level of severity to warrant consideration by an international court (see Ladygin v. Russia (dec.), no. 35365/05, 30 August 2011). The assessment of this minimum level is, in the nature of things, relative and depends on all the circumstances of the case (see Gagliano Giorgi v. Italy, no. 23563/07, § 55, ECHR 2012 (extracts)). The severity of a violation should be assessed taking into account both the applicant’s subjective perceptions and what is objectively at stake in a particular case (see Korolev, cited above; and Eon v. France, no. 26118/10, § 34, 14 March 2013). In other words, the absence of any “significant disadvantage” can be based on criteria such as the financial impact of the matter in dispute or the importance of the case for the applicant (see Adrian Mihai Ionescu, cited above). However, the applicant’s subjective perception cannot alone suffice to conclude that he or she has suffered a significant disadvantage. The subjective perception must be justified on objective grounds (see, inter alia, Mura v. Poland, cited above, §§ 21 and 24; and C.P. v. the United Kingdom, cited above, § 42).

2. Application of the general principles to the present case

(a) Have the applicants suffered a “significant disadvantage”?

35. The Court notes that the Supreme Court, when deciding on the opposing party’s appeal on points of law, reversed the lower courts’ judgments and dismissed the applicants’ claim (see paragraph 18 above). The applicants’ grievances relate to the fact that in so doing, the Supreme Court failed to consider their reply to the appeal on points of law.

36. The Court observes that the issue to be addressed by the Supreme Court strictly concerned the application of law to the facts of the case. In particular, that court had to assess whether, in view of the fact that the applicants’ legal predecessor A.V.B. died on 24 March 2003, the applicants were entitled to receive the severance pay stipulated in the agreement concluded on 10 March 2003 between A.V.B. and the defendant company (see paragraph 18 above). Naturally, the parties in the proceedings had opposing views in that respect. However, having regard to the fact that ensuring uniform application of law is primarily the task of the Supreme Court as the highest court in Croatia (see paragraph 22 above), the parties’ views cannot be seen as decisive for the issue to be addressed by the Supreme Court.

37. Moreover, the Court observes that the issue of application of law was extensively discussed by the parties during the proceedings before the first- and second-instance courts. The applicants submitted their point of view (see paragraphs 6, 8, 11 and 14 above), and the defendant company maintained its point of view (see paragraphs 7, 9 and 13 above). The Court further observes that the parties’ submissions to the Supreme Court did not contain any new argument which they had not in substance already submitted to the lower courts (see paragraph 16 for the defendant company and paragraph 17 for the applicants).

38. Consequently, in view of the fact that the Supreme Court had before it the entire domestic case-file, and therefore also the applicants’ arguments as regards the issue of the case, the Court does not consider that the applicants’ reply to the defendant party’s appeal on points of law could have influenced the decision of the Supreme Court (see a contrario BENet Praha, spol. s r.o. v. the Czech Republic, no. 33908/04, § 142, 24 February 2011).

39. In the light of the foregoing considerations, the Court cannot discern objective grounds to hold that in the circumstances of the case at hand the applicants suffered a “significant disadvantage” on account of the fact that the Supreme Court failed to consider their reply on the defendant party’s appeal on points of law.

(b) Does respect for human rights compel the Court to examine the case?

40. The second element contained in Article 35 § 3 (b) compels the Court to examine the case in any event if respect for human rights so requires. This would apply where a case raises questions of a general character affecting the observance of the Convention, for instance whether there is a need to clarify the States’ obligation under the Convention or to induce the respondent State to resolve a structural deficiency.

41. In this regard, the Court points to the plethora of judgments which it has given in cases concerning the right to a fair trial (see, for instance, Pavlović and Others v. Croatia, no. 13274/11, § 48, 2 April 2015; Šimecki v. Croatia, 15253/10, § 45, 30 April 2014; Omerović v. Croatia (no. 2), no. 22980/09, § 44, 5 December 2013; and Čamovski v. Croatia, no. 38280/10, § 43, 23 October 2012). In those judgments the Court has given appropriate guidance on the issue of conducting a proper and reasonable examination of the applicants’ submissions in order to ensure their right to a fair trial. This being so, an examination of the present complaint would add nothing of significance to the existing body of case-law and application or interpretation of the Convention. Consequently respect for human rights, as defined in the Convention and the Protocols thereto, does not require an examination of this case.

(c) Has the case been “duly considered by a domestic tribunal”?

42. Finally, the third criterion under Article 35 § 3 (b) does not allow the rejection of an application if the case has not been “duly considered by a domestic tribunal”. The purpose of this criterion is to ensure that every case receives a judicial examination whether at the national level or at the European level, in other words to avoid a denial of justice (see Korolev (dec.), cited above).

43. In the present case the Court notes that the applicants’ grievances have been examined by the Constitutional Court. That court found that the applicants had indeed submitted a reply to the defendant company’s appeal on points of law which had been present in the case-file, and considered that their right to a fair hearing had not been violated by the fact that the Supreme Court had stated that a reply had not been submitted (see paragraph 20 above). The Court thus concludes that the applicants’ case was “duly considered by a domestic tribunal” within the meaning of Article 35 § 3 (b).

(d) Conclusion

44. The three stated criteria for inadmissibility therefore being present on the facts of the present case, the application must be declared inadmissible pursuant to Article 35 §§ 3 (b) and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 15 November 2018.

Abel CamposArmen Harutyunyan
RegistrarPresident

Appendix

 Marija BJELIK is a Croatian national who was born in 1943 and lives in Osijek.

 Igor BJELIK is a Croatian national who was born in 1972 and lives in Zagreb.

 Mirta BJELIK ENGLER is a Croatian national who was born in 1970 and lives in Munich.

All three applicants are represented by Mr D. Rešetar, a lawyer practising in Osijek.

[1]. Approximately 175,490 euros at the time.

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