CASE OF LONČAR v. BOSNIA AND HERZEGOVINA

FOURTH SECTION

CASE OF LONČAR v. BOSNIA AND HERZEGOVINA

(Application no. 15835/08)

JUDGMENT

This version was rectified on 25 February 2014 under Rule 81 of the Rules of Court.

STRASBOURG

25 February 2014

FINAL

07/07/2014

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

In the case of Lončar v. Bosnia and Herzegovina,

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

Ineta Ziemele, President,
Päivi Hirvelä,
Ledi Bianku,
Nona Tsotsoria,
Paul Mahoney,
Krzysztof Wojtyczek,
Faris Vehabović, judges,
and Fatoş Aracı, Deputy Section Registrar,

Having deliberated in private on 4 February 2014,

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

PROCEDURE

1. The case originated in an application (no. 15835/08) against Bosnia and Herzegovina lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a citizen of Bosnia and Herzegovina, Mr Pavle Lončar (“the applicant”), on 5 March 2008.

2. The applicant, who had been granted legal aid, was represented by Mr N. Bursać, a lawyer practising in Sarajevo. The Government of Bosnia and Herzegovina (“the Government”) were represented by their Agent, Ms M. Mijić.

3. The applicant alleged that he had been denied accesss to court contrary to Article 6 § 1 of the Convention.

4. On 20 November 2012 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1934 and lives in Sarajevo.

6. He was an employee of Unioninvest Holdings d.d., a company based in Sarajevo (“the company”). In 1991 the applicant was appointed head of its Frankfurt office.

7. On 3 December 1993 the applicant was dismissed because of an alleged breach of duty. The notice of dismissal was sent by facsimile from the company’s headquarters in Sarajevo. An appeal against that decision to the competent court in Sarajevo was possible within fifteen days of the date of its delivery. It should be noted, however, that the relevant legislation at the time provided that before submitting a claim to a court an employee had to complain to his or her employer within fifteen days of the date he or she received the impugned decision (see paragraph 28 below).

8. The applicant attempted to send an appeal through the company’s Frankfurt office by a facsimile, requesting that the appeal be transferred to the competent court in Sarajevo, but it was refused. It would appear that he did not make any further attempts at that time.

9. After his dismissal the applicant was granted refugee status in Germany.

10. On 18 December 1993 he initiated proceedings against the company before the Frankfurt Labour Court (Arbeitsgerichts Frankfurt am Main), in accordance with the Agreement on Secondments between the Socialist Federal Republic of Yugoslavia and Germany, seeking reinstatement and payment of salary arrears. By a court offered settlement concluded on 24 August 1994 the company agreed to pay the applicant his outstanding salary for October, November and December 1993.

11. In the meantime, on 10 August 1994 criminal proceedings were initiated against the applicant before the Sarajevo Municipal Court (“the Municipal Court”) for the alleged breach of duty. It was alleged that the applicant acted in contravention of the Agreement on Secondments by enabling certain persons, who were neither the employees of the company nor the citizens of Bosnia and Herzegovina, to obtain residence and work permits in Germany.

12. On 16 October 1995 the Frankfurt Labour Court declared that it lacked jurisdiction to deal with the applicant’s request for reinstatement. The applicant appealed against that decision to the Hesse District Court (Hessisches Landesarbeitsgericht und Arbeitsgericht).

13. On 8 March 1996 the applicant returned to Sarajevo.

14. After his unsuccessful attempt to obtain the original notice of dismissal of 3 December 1993 (see paragraph 7 above), on 13 June 1996 the applicant initiated proceedings against the company before the Municipal Court seeking reinstatement and payment of outstanding salary from December 1993 onwards. As regards the timeliness of his claim, the applicant submitted that he had been unable to approach the Municipal Court earlier because of the war in Bosnia and Herzegovina and he informed the court about the pending proceedings before the courts in Germany.

15. On 31 July 1996 the company asked the Hesse District Court to discontinue the proceedings on the applicant’s appeal (see paragraph 12 above), in view of the new proceedings before the Municipal Court. It would appear that those proceedings were discontinued.

16. On 29 April 1998 the applicant complained to the Human Rights Chamber (a domestic human-rights body set up under Annex 6 to the 1995 General Framework Agreement for Peace in Bosnia and Herzegovina) about the length of the proceedings before the Municipal Court. On 9 March 2001 the Human Rights Chamber found that the applicant’s right to a hearing within a reasonable time had been violated, awarded him approximately 500 euros (EUR) as just satisfaction, and ordered the Federation of Bosnia and Herzegovina (one of the constitutent Entities of Bosnia and Herzegovina) to secure a prompt resolution of his case before the Municipal Court by 31 July 2001 at the latest.

17. On 14 December 1999 the criminal proceedings against the applicant (see paragraph 11 above) were terminated pursuant to the Amnesty Act 1999.

18. On 13 November 2001 the Municipal Court allowed the applicantʼs claim and held that he had been unlawfully dismissed. It did not, however, examine the timelines of the applicantʼs claim although the company had raised this issue in their submissions to the court.

19. On 7 March 2002 the Sarajevo Cantonal Court (“the Cantonal Court”) quashed that judgment and remitted the case for a retrial.

20. On 7 April 2003 the Municipal Court rejected the applicant’s claim finding that his dismissal had been lawful. In view of such ruling, the court did not find it relevant to separately examine the issue of the timelines of the applicant’s claim. That judgment was upheld by the Cantonal Court on 25 October 2004.

21. On 9 March 2006 the Supreme Court of the Federation of Bosnia and Herzegovina (“the Supreme Court”) dismissed an appeal by the applicant on points of law. It held that the lower courts had misapplied domestic law in rejecting the applicant’s claim, as it should have been dismissed as out of time: it was submitted outside the statutory time-limit prescribed by the labour legislation in force at the time of his dismissal (fifteen days of the date of delivery of the decision). It was also submitted outside the statutory time-limit prescribed by the new labour legislation (one year of the date of delivery of the decision). As regards the applicant’s argument that he was unable to reach the courts in Sarajevo because of the war, the Supreme Court held that the applicant could have submitted his claim to any other court in Bosnia and Herzegovina under the relevant legislation at the time (see paragraphs 25 and 27 below). In that connection, the court noted that other cities in Bosnia and Herzegovina, with a few exceptions, had not been under a total blockade throughout the war as was Sarajevo. However, since the legal consquences for the applicant were the same, the Supreme Court did not amend the lower courtsʼ judgments („nije mijenajo nižestepene presude“).

22. On 8 November 2007 the Constitutional Court of Bosnia and Herzegovina upheld that decision. In so doing, it essentially endorsed the reasons given by the Supreme Court and noted further that the applicant could have sent his claim by post or could have authorised someone in Bosnia and Herzegovina to lodge a claim on his behalf.

II. RELEVANT DOMESTIC LAW AND PRACTICE

A. The cessation of the state of war and of immediate threat of war

23. In the Federation of Bosnia and Herzegovina the state of war was lifted on 22 December 1995 (the Decision to Lift the State of War; Odluka o ukidanju ratnog stanja, Official Gazette of the Republic of Bosnia and Herzegovina (“the OGRBH”) no. 50/95). The state of immediate threat of war was lifted on 23 December 1996 (the Decision to Lift the State of Imminent Threat of War; Odluka o prestanku primjene odluke o proglašenju neposredne ratne opasnosti na teritoriji Fedearcije Bosne i Hercegovine, Official Gazette of the Federation of Bosnia and Herzegovina (“the OGFBH“) no. 25/96).

24. In the Republika Srpska (the other constituent Entity) the state of war and the state of immediate threat of war were lifted on 19 June 1996 (Decision to Lift the State of War and Immediate Threat of War; Odluka o ukidanju ratnog stanja i neposredne ratne opasnosti, Official Gazette of the Republika Srpska no. 15/96).

B. Functioning of the courts during the war

25. Section 20 of the Decree on the Application of the Judiciary Act During the State of War or Immediate Threat of War (Uredba sa zakonskom snagom o primjeni Zakona o redovnim sudovima za vrijeme neposredne ratne opasnosti ili za vrijeme ratnog stanja, OGRBH nos. 6/92, 11/92 and 21/92), provided that, if it was not possible for one court to function during the war, its cases could be taken over by another court.

26. Under Article 21 of the Code of Civil Procedure 1984 (Official Gazette of the Socialist Federal Republic of Yugoslavia, nos. 4/77, 36/80, 69/82, 58/84, 74/87, 57/89, 20/90, 27/90 and 35/91), which was applicable at the time, a court which received a claim falling outside its jurisdiction was obliged to register it and transfer it to the competent court.

27. Section 1 of the Decree on Calculation of Time-Limits in Civil and Administrative Proceedings during a State of War or Immediate Threat of War (Uredba sa zakonskom snagom o rokovima u sudskim postupcima i upravnom postupku za vrijeme neposredne ratne opasnosti ili za vrijeme ratnog stanja, OGRBH nos. 6/92 and 13/94) provided that the statutory time-limit for lodging, inter alia, civil claims was suspended during a state of war or immediate threat of war for persons who were on military duty or who were carrying out duties of special importance for the defence of the State.

C. Labour legislation

28. Section 80(2) of the Labour Framework Act 1989 (Zakon o osnovnim pravima iz radnog odnosa, Official Gazette of the Socialist Federal Republic of Yugoslavia nos. 60/89 and 42/90), which was in force until 5 November 1999, provided that before submitting a claim to a court an employee had to complain to his or her employer within fifteen days of the date he or she received the impugned decision. Once the employer had decided on the complaint, the employee had a further fifteen days (or thirty days if the employer had not given a decision on the complaint) to address the competent court (section 83(1)).

29. On 5 November 1999 the Labour Act 1999 (Zakon o radu, OGFBH nos. 43/99, 32/00 and 29/03) entered into force, repealing the Labour Framework Act 1989. Under section 103 of the new Act an employee has the right to challenge an employer’s decision affecting his or her rights before the competent court within one year of the date of receipt of that decision or from the moment he or she becomes aware that his or her rights have been violated. In all the pending labour disputes the applicable legislation is the old Act if it is more favourable for the employee (section 145 of the Labour Act 1999).

D. Domestic practice concerning the calculation of time-limits during the state of war

30. In its judgment no. GvI-64/03 of 13 January 2004, upon a request for review of lower judgments rejecting as statute-barred a compensation claim submitted in 1997 and concerning the claimant’s arguments that he had been unable to reach the courts earlier because he had been in Germany during the war, the Supreme Court held as follows:

“ This court considers that lower courts had properly held that the state of war was not such an insurmountable obstacle ... as to prevent the claimant from seeking the fulfilment of the debtor’s obligation ... in the courts.

Article 383 of the Civil Obligations Act provides that an insurmountable obstacle is one which prevents the claimant from seeking fulfilment of obligations in the courts. However, it is a well-known fact that there was no interruption in the work of the courts during the war. In principle, all the courts were working, albeit some of them with reduced capacity. While at times it was significantly more difficult to reach the courts, it was never completely impossible in the areas controlled by the same armed forces...

Moreover, if the plaintiff was unable to reach the competent court he could have, without prejudice to the statute of limitation, submitted his claim to any other competent court, which, under section 20 of the Decree on the Application of the Judiciary Act During a State of War or Immediate Threat of War, could not have refused to register it ... or subsequently to transmit it to the competent court once this became possible... ”

31. In the Republika Srpska, the statutory time-limit for appeals against wartime dismissals started to run only after the war (that is, on 19 June 1996; see decision Rev-559/02 of the Supreme Court of the Republika Srpska of 20 February 2004, which was confirmed by the Constitutional Court of Bosnia and Herzegovina on 26 May 2005).

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION

32. The applicant complained that the rejection of his claim as statute‑barred denied him access to court, contrary to Article 6 § 1 of the Convention. The relevant part of that Article reads as follows:

“ In the determination of his civil rights and obligations ... everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law ”.

33. The Government contested that argument.

A. Admissibility

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

B. Merits

1. The parties’ submissions

35. The applicant argued that it was impossible for him to reach any court in Bosnia and Herzegovina during the 1992-95 war. Going there would have meant risking his life and he would certainly have been recruited by one of the armed forces. Furthermore, postal services had been suspended and communication with Sarajevo was only possible through the Red Cross at the time.

Moreover, the legal advice on the decision of 3 December 1993 stated only that an appeal to the competent court in Sarajevo was possible (see paragraph 7 above). Thus, he was not instructed to submit his claim to any other court, but only to the court in Sarajevo. The Government did not offer any example of someone in a situation similar to the applicant’s, whose claim had indeed been transferred to the competent court after the war was over.

36. The Government submitted that the courts in Sarajevo had been working during the 1992-95 war, as had the courts in other cities in Bosnia and Herzegovina, some of them admittedly with reduced capacity. In support of this argument, the Government provided written submissions from twenty-eight first-instance courts from various cities in Bosnia and Herzegovina. All these courts had received various claims during the war and several employment-law-related claims had been rejected as statute-barred during that time. It was the general position of the domestic courts that the state of war did not interrupt the prescription period in civil disputes (see paragraph 30 above). The present case, therefore, was not an exception.

If the applicant had been unable to reach the courts in Sarajevo, he could have lodged his claim with any other court in Bosnia and Herzegovina, either by post or through a representative, in accordance with the Decree on the Application of the Judiciary Act during a State of War or Immediate Threat of War (see paragraph 25 above). Under Article 21 of the Code of Civil Procedure 1984, which was applicable at the time, a court which received a claim falling outside its jurisdiction was obliged to register it and transfer it to the competent court (see paragraph 26 above). It should be noted that other cities in Bosnia and Herzegovina, with a few exceptions, had not been under a total blockade throughout as was Sarajevo.

2. The Court’s assessment

37. The Court reiterates that the right of access to court secured by Article 6 § 1 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, which may vary in time and in place according to the needs and resources of the community and of individuals. In laying down such regulation, the Contracting States enjoy a certain margin of appreciation, but the final decision as to observance of the Convention’s requirements rests with the Court. Limitations on the right to court are compatible with Article 6 only if they do not restrict or reduce the access left to the litigant in such a way or to such an extent that the very essence of the right is impaired; lastly, such limitations will not be compatible with Article 6 § 1 if they do not pursue a legitimate aim or if there is not 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).

38. Furthermore, it is not the Court’s task to take the place of the domestic courts. It is primarily for the national authorities, notably the courts, to resolve problems of interpretation of domestic legislation. The Court’s role is confined to ascertaining whether the effects of such an interpretation are compatible with the Convention (see Edificaciones March Gallego S.A. v. Spain, 19 February 1998, § 33, Reports of Judgments and Decisions 1998‑I). This applies in particular to the interpretation by courts of rules of a procedural nature, such as time-limits governing the submission of documents or lodging of appeals (see, among other authorities, Pérez de Rada Cavanilles v. Spain, 28 October 1998, § 43, Reports 1998-VIII).

39. Turning to the present case, the Court firstly notes that the requirement to lodge a judicial claim within a statutory time-limit is not, in itself, incompatible with Article 6 § 1 of the Convention. The Court has held on numerous occasions that such a requirement pursued a legitimate aim of proper administration of justice and of compliance, in particular, with the principle of legal certainty (see, for example, Pérez de Rada Cavanilles, cited above, § 45, and Miragall Escolano and Others v. Spain, no. 38366/97, § 33, ECHR 2000-I). The Court considers that there is no reason to find otherwise in the present case. However, it is also the case that the manner in which those time-limits were applied in the particular circumstances of the present case is a relevant factor in determining whether or not the applicant enjoyed effective access to court.

40. The applicant argued that it was impossible for him to reach any court in Bosnia and Herzegovina at the time he was dismissed because of the war so that the domestic courts should have found, in his case, the statutory time-limit to have been suspended during that period.

41. The Court observes that the Supreme Court had carefully examined the applicant’s factual submissions to it as to why he did not lodge his claim earlier as well as the legal provisions regulating access to court applicable at the relevant time. It found that the restriction in the applicant’s case was proportionate from both the factual and legal point of view and that he had real and legal possibility of lodging his claim to a court in Bosnia and Herzegovina at the relevant time. This was confirmed by the Constitutional Court. The Court considers that these decisions do not appear arbitrary or unreasonable.

42. As regards the proportionality of the law, the Court notes that under the relevant legislation every court was obliged to receive any claim, irrespective of its jurisdiction, to register it and forward to the competent court if necessary (see paragraphs 25 and 26 above). Furthemore, section 1 of the Decree on Calculation of Time-Limits in Civil and Administrative Proceedings during a State of War or Immediate Threat of War explicitly provided that the statutory time-limits for lodging civil claims were suspended for those who were in the armed forces or were carrying out duties of special importance for the defence of the State (see paragraph 27 above).

43. As to its application to the facts of the present case, it is evident from the Government’s submissions that twenty-eight courts of first instance in various cities of the respondent State were functioning during the 1992‑95 war. All of them had received various claims during that time, including claims concerning employment-law-related disputes. Admittedly, none of those proceedings was initiated by a plaintiff who was outside Bosnia and Herzegovina at the time, as the present applicant was. However, the Court does not consider that this in itself is sufficient to conclude that the applicant was dispensed of the duty to initiate a timely claim. The Court is aware that Sarajevo was blockaded during the war. However, the postal service was operative in other places including, for example, Tuzla (a city in the north-east of Bosnia and Herzegovina, which, like Sarajevo, was under the control of the armed forces of the then Republic of Bosnia and Herzegovina at the relevant time). The applicant failed to avail himself of the existing remedies in the judicial system of the respondent State which was evidently functioning during the war.

44. Lastly, the different practice in the Republika Srpska concerning the calculation of time-limits (see paragraph 28 above) is of no relevance for the present case. Each Entity has its own judicial system for civil law disputes and different legislation governing it (see, mutatis mutandis, M. and Others v. the United Kingdom, no. 11208/84, Commission decision of 4 March 1986, § 33).

45. Accordingly, having regard to the above considerations, and taking into account the legitimate aim served by the statutory time-limits for lodging claims, and the margin of appreciation accorded to States in regulating the right of access to court, the Court considers that in the circumstances of the present case the applicant did not suffer a disproportionate restriction on his right of access to court and finds that there was no violation of Article 6 § 1 of the Convention (see, mutatis mutanids, Itslayev v. Russia, no. 34631/02, §§ 37-8, 9 October 2008).

II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

46. The applicant further complained that the domestic proceedings were discriminatory in violation of Article 14 of the Convention. Having regard to all the material in its possession, and in so far as the matter complained of is within its competence, the Court finds that it does not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the complaint concerning the lack of effective 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 25 February 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Fatoş AracıIneta Ziemele
Deputy RegistrarPresident

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