CASE OF ANTUNOVIĆ v. CROATIA

SECOND SECTION

CASE OF ANTUNOVIĆ v. CROATIA

(Application no. 66553/12)

JUDGMENT

STRASBOURG

4 October 2016

FINAL

04/01/2017

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Antunović v. Croatia,

The European Court of Human Rights (Second Section), sitting as a Chamber composed of:

Işıl Karakaş, President,
Nebojša Vučinić,
Paul Lemmens,
Valeriu Griţco,
Ksenija Turković,
Stéphanie Mourou-Vikström,
Georges Ravarani, judges,
and Stanley Naismith, Section Registrar,

Having deliberated in private on 6 September 2016,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 66553/12) 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 Miro Antunović (“the applicant”), on 5 September 2012.

2. The applicant was represented by Mr J. Novak, a lawyer practising in Slavonski Brod. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik.

3. The applicant alleged that by declaring his administrative action inadmissible, despite the fact that the administrative body had instructed him to resort to that remedy, the High Administrative Court had violated his right of access to court.

4. On 18 March 2015 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1956 and lives in Sibinj.

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

A. Background to the case

7. The applicant was a civil servant of the City of Slavonski Brod, working in its Office for Public Relations and Protocol (Grad Slavonski Brod, Ured za odnose s javnošću i protokol – hereinafter “the City of Slavonski Brod”). In 2007 he was suspended from the civil service on account of having been accused of severe breaches of his official duties.

8. For the duration of his suspension, that is to say between September 2007 and September 2008, the applicant was entitled to monthly salary compensation in the amount of 60% of the salary remitted in the month prior to his suspension from the civil service.

9. On 5 September 2008 the Osijek Civil Service Tribunal (Službenički sud u Osijeku) found the applicant guilty of severe breaches of his official duties and fined him 10% of the salary paid to him in the month in which the said sanction was imposed.

10. On 14 October 2008, after the applicant lodged an appeal, the Superior Civil Service Tribunal (Viši službenički sud) amended the impugned decision and fined the applicant 5% of his salary paid in the month in which the said sanction was imposed.

B. Administrative proceedings for reimbursement of salary

11. On 3 November 2008 the applicant lodged an application for the reimbursement of the portion of his gross salary – in the total amount of 78,428.47 Croatian kunas ((HRK), approximately 10,900 euros (EUR) at the time) – withheld during the suspension period between September 2007 and September 2008, together with accrued default interest running from the date of his suspension until payment of the said portion. He was of the opinion that by withholding 40% of his salary for a period of 12 months and imposing a fine on him the administrative bodies had punished him twice.

12. By a decision of 17 November 2008 the City of Slavonski Brod dismissed that application.

13. The applicant then lodged an appeal, which was dismissed as ill-founded by the same administrative body that delivered the above-mentioned decision (that is to say the City of Slavonski Brod). However, in its decision of 22 December 2008 it gave the instruction that the applicant had a right to bring an administrative action against it before the Administrative Court.

14. On 22 January 2009 the applicant brought an administrative action, in accordance with the City of Slavonski Brod’s ruling.

15. On 1 January 2012 certain amendments to the Court Act entered into force and the Administrative Court became the High Administrative Court.

16. By a decision of 4 January 2012 the High Administrative Court, relying on sections 9 and 30(1), point 5, of the Administrative Disputes Act, declined jurisdiction in respect of the subject matter, stating that an ordinary municipal court (redovni, općinski sud) was the appropriate court to hear the applicant’s case, and declared the applicant’s action inadmissible. This decision was final. On 16 February 2012 it served its decision on the applicant’s representative.

17. On 12 March 2012 the applicant lodged a constitutional complaint. He complained, inter alia, that his right to a fair hearing, in particular his right of access to court, as guaranteed by Article 29 of the Croatian Constitution and Article 6 § 1 of the Convention, had been violated when the High Administrative Court had declared his action inadmissible. In particular, he argued that according to the Supreme Court’s case-law, ordinary municipal courts did not have jurisdiction over disputes arising from legally binding decisions of administrative bodies. He also argued that even if he had brought a civil action, it would have been time-barred because it had taken the High Administrative Court more than three years to declare his administrative action inadmissible.

18. By a decision of 5 July 2012 the Constitutional Court declared the applicant’s constitutional complaint inadmissible on the grounds that the case raised no constitutional issue. On 17 July 2012 it served its decision on the applicant’s representative.

C. Civil proceedings for reimbursement of salary arrears

19. On 6 September 2012 the applicant brought a civil action in the Slavonski Brod Municipal Court (Općinski sud u Slavonskom Brodu) for reimbursement of salary arrears withheld between September 2007 and September 2008.

20. By a judgment of 20 March 2013 the first-instance court dismissed the applicant’s claim as time-barred. It held, inter alia, that given that the High Administrative Court had declared the applicant’s administrative action inadmissible, it could not be deemed that the statutory limitation period had been interrupted. It relied on section 242(2) of the Civil Obligations Act.

21. By a judgment of 12 August 2013 the Slavonski Brod County Court (Županijski sud u Slavonskom Brodu) dismissed the applicant’s appeal and upheld the first-instance judgment of 20 March 2013.

II. RELEVANT DOMESTIC LAW AND PRACTICE

A. The Administrative Disputes Act

22. The relevant provisions of 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), as in force at the material time, provided as follows:

Section 6

“(1) Administrative dispute proceedings may be initiated only against an administrative act.

(2) An administrative act, within the meaning of the 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 an administrative matter.”

Section 9

“An administrative dispute may not be conducted [in respect of] acts [pertaining to] matters for which court protection is provided outside of an administrative dispute.”

Section 30

“The Administrative Court must declare an action inadmissible if it establishes:

...

5) that court protection for the subject matter concerned is provided outside of an administrative dispute (Section 9); ...”

B. The Civil Procedure Act

23. The relevant provision of the Civil Procedure Act (Zakon o parničnom postupku, Official Gazette nos. 53/1991, 91/1992, 112/1999, 81/2001, 117/2003, 88/2005, 84/2008, 96/2008 and 123/2008), as in force at the material time, provided as follows:

Section 34

“(1) Municipal courts in civil proceedings always adjudicate in the first instance in disputes:

1. over maintenance;

2. over the existence or non-existence of marriage, on annulment of marriage, and divorce;

3. over the establishment of or disputes regarding paternity or maternity;

4. over which parent a child shall live with and parental care (custody), if at the same time divorce, the existence or non-existence of marriage, or the annulment of marriage is also being resolved;

5. over material and personal easements;

6. over trespass;

7. arising from leasing, renting and housing relations ... ;

8. over the correction of information and the payment of damages arising from publication of information;

9. over protection from illegal actions;

10. concerning labour relations [that are] instituted by an employee against a decision to terminate an employment contract;

...”

C. Labour Act

24. The relevant provisions of the Labour Act (Zakon o radu, Official Gazette nos. 149/2009 and 61/2011), as in force at the material time, provided as follows:

Payment of salaries

Section 84

...

(3) Unless otherwise specified by the collective agreement or employment contract, salary for the previous month shall be paid no later than by the fifteenth day of the current month.

Statute of limitations in respect of claims arising from employment

Section 138

Unless otherwise provided by this Act or another law, a claim arising from employment shall be barred by the statute of limitations three years after it arises.

D. The Civil Obligations Act

25. The relevant provisions of the Civil Obligations Act (Zakon o upravnim sporovima, Official Gazette nos. 35/2005 and 41/2008) read as follows:

Section 241

“[The running of the] limitation [period] is interrupted by the bringing of an action in a court or by the taking of any other legal action before another competent authority by a creditor against a debtor with a view to determining, securing or enforcing his or her right.”

Section 242

“(1) The interruption of a limitation period through the bringing of an action before a court or the taking of any other legal action before another competent authority by a creditor against a debtor with a view to determining, securing or enforcing his or her rights, is considered never to have occurred if the creditor abandons that action ... .

(2) Likewise, it is considered that an interruption never occurred if a creditor’s action or application was dismissed or declared inadmissible, or if the measure obtained to secure or enforce the debt was set aside.”

Section 243

“(1) If an action against a debtor is declared inadmissible for lack of jurisdiction or any other reason which does not concern the merits of the case, and the creditor brings another action within three months of the decision declaring the [first] action inadmissible becoming final, it is considered that the limitation period was interrupted by the first action.

...”

E. The Supreme Court’s case-law

26. On 15 December 2008 the Civil Division of the Supreme Court adopted an opinion and forwarded it to the lower courts by way of an instruction regarding practice to be followed in dividing subject-matter jurisdiction between the Administrative Court and municipal courts in respect of issues such as the payment of civil servants’ salary arrears. It reads as follows:

“A municipal court has ... jurisdiction over labour disputes involving civil servants and [other] employees [of the civil service] concerning the payment of salary arrears.”

27. The Government referred to case no. Revr 453/02-2 of 9 December 2004 in which the Supreme Court held that a municipal court had subject-matter jurisdiction over a claim for payment of salary arrears.

28. The Government and the applicant referred to case no. Revr 628/04-2 of 14 January 2009 in which the Supreme Court held that the Administrative Court had subject-matter jurisdiction over labour disputes concerning civil service employment. However, the Supreme Court concluded that municipal courts had subject-matter jurisdiction over disputes concerning salary arrears of civil servants.

29. The Government further referred to cases nos. Gzz 115/03-2 of 8 January 2004, Revt 3/04-2 of 20 January 2004 and Gzz 119/03-2 of 10 February 2004 in which the Supreme Court held that an administrative action declared inadmissible for lack of jurisdiction interrupted the running of the statutory time-limit.

F. The Administrative Court’s case-law

30. The Government referred to cases nos. Us-9063/2004-4 of 5 May 2005, and Us-7948/2002-7 of 27 February 2003, in which the Administrative Court held that claims for the payment of salary arrears and severance pay fell within the subject-matter jurisdiction of the municipal courts.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

31. The applicant complained that despite the fact that the City of Slavonski Brod had wrongly informed him of the availability of a legal remedy for its decision of 22 December 2008, the High Administrative Court had refused to hear his action on its merits and thereby violated his right of access to court. He relied on 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 within a reasonable time by [a] ... tribunal ...”

32. The Government contested the complaint.

A. Admissibility

1. The parties’ arguments

33. The Government disputed the admissibility of this complaint on three grounds. They argued that the applicant had failed to properly exhaust available domestic remedies, that he had suffered no significant disadvantage, and that in any event the complaint was manifestly ill-founded.

(a) Exhaustion of domestic remedies

34. The Government argued that issues arising from civil service employment concerning material and financial matters, such as salary arrears and other forms of compensation, were to be dealt with by the ordinary courts in civil proceedings, whereas issues concerning the existence and the nature of the civil service, such as termination of employment within the civil service or disciplinary proceedings, were to be dealt with by the administrative courts. This was clearly provided by the relevant provisions of the domestic law and the Supreme Court’s case-law. Furthermore, on 15 December 2008, prior to the applicant bringing his administrative action, the Civil Division of the Supreme Court had adopted an opinion stating that the ordinary civil courts had subject-matter jurisdiction over disputes concerning the salaries of civil servants. The applicant, being represented by a qualified lawyer, should have been aware of this. Therefore, instead of bringing an administrative action before the High Administrative Court, he should have brought a civil action in a municipal court. Further to this, the applicant had had the possibility to lodge an appeal on points of law against the Slavonski Brod County Court’s judgment of 12 August 2013; such an appeal was possible when the case-law of domestic courts had to be re-examined in the light of changes in the domestic legal system. Moreover, he could have lodged a constitutional complaint against the Slavonski Brod County Court’s judgment of 12 August 2013.

35. The Government also argued that had the applicant brought a civil action within three months of the High Administrative Court’s decision becoming final, as provided by section 243(1) of the Civil Obligations Act, a municipal court would have had a chance to examine his case because this action could have been deemed as interrupting the statutory limitation period.

36. The applicant noted that the opinion of the Civil Division of the Supreme Court of 15 December 2008 had been adopted only several days prior to the second-instance administrative body adopting its decision of 22 December 2008. Therefore, he could not have been aware of it. Moreover, if the case-law concerning the material and financial affairs of civil servants had been as clear as the Government claims, then it would not have been necessary for the Civil Division of the Supreme Court to discuss it and to adopt a legally binding opinion.

37. He further stated that section 243(1) had not been applicable to his situation because in his case the administrative action had been declared inadmissible. The latter declaration clearly arose from the reasoning contained in the Slavonski Brod Municipal Court’s judgment of 20 March 2013.

(b) No significant disadvantage

38. The Government asserted that the applicant had not suffered any financial damage because interest on the amount claimed had been accumulating for the entire time.

39. The applicant emphasised that in the proceedings complained of he had sought the reimbursement of due salary illegally taken from him. Therefore, he had suffered significant pecuniary damage.

2. The Court’s assessment

(a) Exhaustion of domestic remedies

40. The Court considers that the Government’s arguments as to the exhaustion of domestic remedies concern the merits of the applicant’s complaint about his lack of access to court and will examine them accordingly.

(b) No significant disadvantage

41. The Court notes that the applicant’s claim brought before the national authorities concerned due salary arrears in the amount of HRK 78,428.47 withheld during the disciplinary proceedings conducted between September 2007 and September 2008 (see paragraphs 7-11). Therefore, it cannot be concluded, as suggested by the Government (see paragraph 33), that the applicant did not suffer any significant disadvantage; the Government’s objection must accordingly be dismissed.

(c) Conclusion on admissibility

42. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. The parties’ arguments

43. The applicant maintained his view that by declaring his action inadmissible, despite the fact that the City of Slavonski Brod had (wrongly) informed him that he could resort to that remedy, the High Administrative Court had violated his right of access to court.

44. The Government maintained that the applicant’s right of access to court had not been violated. In so doing they relied on the same arguments as those summarised in paragraphs 34-35 above.

2. The Court’s assessment

45. The Court notes at the outset that the applicant’s complaint concerns the decision of the High Administrative Court to declare his administrative action inadmissible, despite the fact that he had been wrongly instructed by the City of Slavonski Brod to resort to that remedy. The applicant claimed that this decision had been in breach of his right of access to court, as guaranteed by Article 6 § 1 of the Convention.

46. The Court has held on many occasions that Article 6 § 1 embodies the “right to a court”, of which the right of access, that is, the right to institute proceedings before a court in civil matters, constitutes one aspect only; however, it is an aspect that makes it in fact possible to benefit from the further guarantees laid down in paragraph 1 of Article 6. The fair, public and expeditious characteristics of judicial proceedings are indeed of no value at all if such proceedings are not first initiated. And in civil matters one can scarcely conceive of the rule of law without there being a possibility of having access to the courts (see, among many other authorities, Kreuz v. Poland, no. 28249/95, § 52, ECHR 2001‑VI, and also Golder v. the United Kingdom, 21 January 1975, §§ 34 in fine and 35-36, Series A no. 18, and Z. and Others v. the United Kingdom [GC], no. 29392/95, §§ 91‑93, ECHR 2001-V). For the right of access to be effective, an individual must have a clear, practical opportunity to challenge any act interfering with his or her rights (see, for example, Bellet v. France, 4 December 1995, § 36, Series A no. 333‑B).

47. The right of access to court is not, however, absolute. It may be subject to legitimate restrictions such as statutory limitation periods, security for costs orders, etc. (see Stubbings and Others v. the United Kingdom, 22 October 1996, §§ 51‑52, Reports of Judgments and Decisions 1996‑IV; Tolstoy Miloslavsky v. the United Kingdom, 13 July 1995, §§ 62‑67, Series A no. 316-B; and Golder, cited above, § 39). Where the individual’s access is limited either by operation of law or in fact, the Court will examine whether the limitation imposed impaired the essence of the right and, in particular, whether it pursued a legitimate aim and whether there was a reasonable relationship of proportionality between the means employed and the aim sought to be achieved (see Ashingdane v. the United Kingdom, 28 May 1985, § 57, Series A no. 93; Związek Nauczycielstwa Polskiego v. Poland, no. 42049/98, § 29, ECHR 2004‑IX; and Szwagrun-Baurycza v. Poland, no. 41187/02, § 49, 24 October 2006). If the restriction is compatible with these principles, no violation of Article 6 will arise (see Z. and Others v. the United Kingdom, cited above, §§ 92-93).

48. Turning to the circumstances of the present case, the Court notes that the City of Slavonski Brod informed the applicant of a legal remedy available against its decision of 22 December 2008. Specifically, it informed him that administrative dispute proceedings could be instituted by bringing an action before the Administrative Court (see paragraph 13). However, on 4 January 2012 the High Administrative Court, relying on Section 9 and 30(1) point 5 of the Administrative Disputes Act, declared an administrative action brought by the applicant inadmissible. It held that a municipal court had subject-matter jurisdiction over the applicant’s case; therefore it declined its own jurisdiction (see paragraph 16).

49. Turning to the Government’s objection that the applicant failed to properly exhaust available domestic remedies because he should have known which court had subject-matter jurisdiction to examine his case (see paragraph 34), the Court firstly notes that there was nothing in the text (of section 34) of the Civil Procedure Act, much less in the text of the Administrative Disputes Act, to indicate that the applicant should have brought his action in a municipal court instead of the Administrative Court (see paragraph 22-23 above). More specifically, on 15 December 2008 the Civil Division of the Supreme Court adopted a legal opinion in order to define the subject-matter jurisdiction of the civil courts and the Administrative Court as regards the payment of civil servants’ salary arrears (see paragraph 24). In this connection the Court concludes, contrary to the Government’s arguments, that before 15 December 2008 it was not clear which court had subject-matter jurisdiction over cases concerning salary arrears of civil servants (see paragraph 26).

50. While it is true that the above-mentioned legal opinion was adopted one month before the applicant brought his action in the Administrative Court (see paragraph 13), the Court does not consider that the applicant should have been aware of it and should have disregarded the explicit information concerning a legal remedy contained in the second-instance decision that he was contesting. The Court has already held that in cases like the present one, where the remedy in question stemmed from legal interpretation made by the courts, it normally takes six months for such case-law to develop and acquire a sufficient degree of legal certainty before the public may be considered to have become effectively aware of the domestic decision establishing the remedy and for the persons concerned to be enabled and obliged to use it (see, mutatis mutandis, Depauw v. Belgium (dec.), no. 2115/04, 10 June 2008, and Provide S.r.l. v. Italy, no. 62155/00, § 18, 5 July 2007).

51. In these particular circumstances the applicant might have reasonably expected that the Administrative Court had jurisdiction to examine his case. However, when on 4 January 2012 the High Administrative Court declared the administrative action by the applicant inadmissible because of that court’s lack of subject-matter jurisdiction, three years had already passed since the adoption of the Supreme Court’s legal opinion. By that point it had become clear that the applicant’s case should be heard by a municipal court. Therefore, the Court must examine whether the applicant at that moment could have brought his claim in a competent municipal court within the statutory time-limit.

52. Under section 243(1) of the Civil Obligations Act, if a debtor whose action was declared inadmissible because the court in question lacked jurisdiction brings a fresh action within three months of the impugned decision becoming final, it shall be deemed that the statutory limitation period has been interrupted by the debtor’s first action. The Court finds that this allowed the applicant to interrupt the running of the statutory limitation period and to lodge a claim for payment in respect of salary arrears with the competent municipal court.

53. In this connection the Court firstly notes that the applicant brought his first administrative action on 22 January 2009 (see paragraph 14), namely within the statutory time-limit prescribed by section 183 of the Labour Act. It further observes that the decision of the High Administrative Court was adopted on 4 January 2012 and that it became final on the same day (see paragraph 16). Accordingly, the deadline for bringing a fresh action in order to interrupt the statutory limitation period expired on 4 April 2012.

54. The Court further notes that the decision of the High Administrative Court was served on the applicant’s representative on 16 February 2012 (see paragraph 16), whereas the applicant brought his civil action with the Slavonski Brod Municipal Court on 6 September 2012 (see paragraph 19). At that time the three-month time-limit under section 243(1) of the Civil Obligations Act had already expired. In this respect the Court notes that there was nothing to prevent the applicant – nor does he claim otherwise – from bringing his civil action for payment of salary arrears within the three-month time-limit. Had the applicant complied with the time-limit, this would have interrupted the running of the statutory limitation period prescribed by section 183 of the Labour Act and allowed the municipal court to examine his claim on the merits. The proceedings the applicant instituted before the Constitutional Court had no relevance in this connection. It is true that the Slavonski Brod Municipal Court in dismissing the applicant’s civil action as being time-barred relied on Section 242 of the Civil Obligation Act (see paragraph 20), without even considering that his administrative action had actually been declared inadmissible for lack of subject-matter jurisdiction and that the Section 243(1) of the Civil Obligation Act was applicable in the applicant’s case (see paragraph 25). However, in any event his claim was undoubtedly time bared. Therefore, the Court cannot accept the applicant’s argument that his civil action would have not had any prospect of success if it had been submitted within the prescribed time-limit.

55. In the light of the foregoing, the Court considers that the applicant did not take the necessary measures to safeguard his right of access to court. Therefore, it cannot be said that he was denied access to court (see, for example and mutatis mutandis, Hennings v. Germany, 16 December 1992, §§ 26-27, Series A no. 251‑A).

56. Accordingly, there has been no violation of Article 6 § 1 of the Convention.

II. OTHER ALLEGED VIOLATION OF THE CONVENTION

57. The applicant, relying on Article 1 of Protocol No. 1 to the Convention complained, for the first time in his reply of 28 August 2015 to the Government’s observations, of a violation of his right to property.

58. The Court notes that the applicant raised this complaint for the first time on 28 August 2015 in his reply to the Government’s observations. As regards the administrative proceedings the final decision was adopted on 5 July 2012 and served on the applicant’s representative on 28 August. It follows that any complaints concerning these proceedings have been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

59. As regards the civil proceedings instituted by the applicant’s civil action of 6 September 2012, the Court notes that that action was dismissed as being lodged outside the statutory limitation period. It follows that the applicant has not complied with the procedural requirements under the national law and thus has not properly exhausted the relevant domestic remedies in these proceedings. Accordingly, this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the complaint concerning the lack of access to court admissible and the remainder of the application inadmissible;

2. Holds that there has been no violation of Article 6 § 1 of the Convention.

Done in English, and notified in writing on 4 October 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

              Stanley NaismithIşıl Karakaş
RegistrarPresident

 

Full & Egal Universal Law Academy