FIRST SECTION
DECISION
Application no. 26164/09
Željko FRANIĆ against Croatia
and 5 other applications
(see list appended)
The European Court of Human Rights (First Section), sitting on 27 March 2012 as a Chamber composed of:
Anatoly Kovler, President,
Nina Vajić,
Peer Lorenzen,
Elisabeth Steiner,
Khanlar Hajiyev,
Linos-Alexandre Sicilianos,
Erik Møse, judges,
and André Wampach, Deputy Section Registrar,
Having regard to the above applications lodged on 6 May 2009, 28 April 2009, 18 May 2009, 18 May 2009, 15 July 2009 and 31 August 2009, respectively,
Having regard to the declaration submitted by the respondent Government on 2 February 2012 requesting the Court to strike the applications out of the list of cases and the applicants’ reply to that declaration,
Having deliberated, decides as follows:
THE FACTS
1. The applicants are Croatian nationals. Their personal details are listed in the Annex. They were all represented before the Court by Mr I. Škarpa, an advocate practising in Split. The Croatian Government (“the Government”) were represented by their Agent, Mrs Š. Stažnik.
A. The circumstances of the case
2. The facts of the cases, as submitted by the parties, may be summarised as follows.
3. The applicants were serviceman employed by the Ministry of Defence (Ministarstvo obrane Republike Hrvatske). In 1996, 1997 and 1998 the applicants occasionally participated in demining operations in the newly liberated territories in Croatia.
4. On the basis of the Decision of the Minister of Defence of 18 September 1995 (see “Relevant domestic law”, below), they were entitled to a special daily allowance for such work.
5. Since the allowances had not been paid to them, on 21 May 2002 each applicant brought a separate civil action against the State in the Knin Municipal Court (Općinski sud u Kninu), seeking payment of the unpaid allowances.
6. The State responded that their actions were time-barred because the three-year limitation period for employment-related claims had expired.
7. In reply, the applicants argued that on several occasions they had asked their commanding officer why the allowances had not been paid. Their commanding officer had made enquiries of his superior, who had then contacted the General Staff of the Croatian Armed Forces (Glavni stožer Oružanih snaga Republike Hrvatske). Eventually, the applicants had been informed through their commanding officer that their claims were not being disputed and that they would be paid once the funds for that purpose had been allocated in the State budget. Relying on that information, the applicants argued that the State had acknowledged the debt and that the running of the statutory limitation period had thus been interrupted.
8. On 12 and 14 December 2005 the Knin Municipal Court dismissed their actions.
9. On 3 and 10 April 2006 the Šibenik County Court (Županijski sud u Šibeniku) dismissed the appeals by the applicants and upheld the first-instance judgments.
10. The applicants’ subsequent constitutional complaints were dismissed by the Constitutional Court in the period between 1 October 2008 and 12 February 2009. The Constitutional Court served its decisions on the applicants’ representative on:
- 10 November 2008 (for the first applicant);
- 29 October 2008 (for the second applicant);
- 19 November 2008 (for the third and the fourth applicant);
- 23 February 2009 (for the fifth applicant);
- 3 March 2009 (for the sixth applicant).
B. Relevant domestic law
1. The Decision of the Minister of Defence of 18 September 1995
11. Decision of the Minister of Defence on Payment of Special Daily Allowances for Carrying Out Mining and Demining Works (Odluka o isplatama posebnih dnevnica za vrijeme izvođenja radova na miniranju i deminiranju, unpublished) of 18 September 1995 reads as follows:
“1. Permanent and reserve members of the Armed Forces of the Republic of Croatia carrying out mining and demining works shall have the right to special daily allowances.
2. Special allowances shall be calculated in the amounts prescribed by the Decision on the Amount of Daily Allowance for Official Journeys and the Amount of Compensation for Users Financed from the State Budget [that is, 123 Croatian kunas (HRK) at the time], and so from the time of departure to [carry out] mining and demining works, according to the following criteria:
(a) the entire daily allowance for every twenty-four hours spent on mining and demining works, including periods of twelve to twenty-four hours [that is, between twelve and twenty-four hours];
(b) half the daily allowance for periods of eight to twelve hours.
3. The lists of persons entitled to special daily allowances, with details, shall be compiled by the commander at independent battalion level or higher, and shall be certified by the commander of the operational zone ... The certified list shall be submitted for payment to the regional finance department on whose territory mining and demining works have been carried out, at the latest on the third day of the month in respect of the preceding month.
4. This Decision shall enter into force on the day of its adoption, and shall be applicable from 1 June 1995.”
2. The Civil Procedure Act
12. The relevant provision 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) reads as follows:
5.a. 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 judgment of the European Court of Human Rights becoming final, 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.”
COMPLAINTS
13. The applicants complained under Article 1 of Protocol No. 1 to the Convention that by dismissing their claims for special daily allowances for demining work the domestic courts had violated their rights to peacefully enjoy their possessions.
14. They further complained under Article 6 § 1 of the Convention about the outcome and the unfairness of the above proceedings. In particular, they complained that the domestic courts’ decisions had not been sufficiently reasoned.
THE LAW
A. Joinder of the applications
15. Given that the six applications at hand concern similar facts and complaints and raise identical issues under the Convention, the Court decides to join them, pursuant to Rule 42 § 1 of the Rules of the Court.
B. Alleged violation of Article 1 of Protocol No. 1 to the Convention
16. The applicants complained that the refusal of the domestic courts to grant their claims for special daily allowances for demining work infringed their rights to peaceful enjoyment of their possessions. They relied on Article 1 of Protocol No. 1 to the Convention which provides as follows:
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
17. By letter dated 2 February 2012 the Government informed the Court that they proposed to make a unilateral declaration in respect of each applicant with a view to resolving the issue raised by their applications. They further requested the Court to strike out the applications in accordance with Article 37 of the Convention.
18. The declaration in respect of the first applicant provided that, having regard to the judgment of the European Court of Human Rights in the case of Lelas v. Croatia (no. 55555/08, 20 May 2010), and given that the present case was, in terms of relevant facts and applicable law, identical to the Lelas case, the Government of Croatia:
“(a) acknowledge that in the instant case there has been a violation of the applicant’s right to peaceful enjoyment of his possessions, guaranteed by Article 1 of the Protocol No 1 to the Convention; and
(b) are ready to pay to Mr Željko Franić 13,787.45 euros, to cover the pecuniary damage consisting of the total amount of special daily allowances owed to the applicant as well as the total amount of the accrued statutory default interest; 4,500 euros to cover any non-pecuniary damage; 1,747.51 euros to cover costs and expenses of domestic proceedings; and 1,000 euros to all the applicants jointly to cover cost and expenses incurred in the proceedings before the European Court of Human Rights, plus any tax that may be chargeable to the applicant.
The total sums will be converted into Croatian kunas at the rate applicable on the date of payment, and will be payable within three months from the date of notification of the decision by the Court pursuant to Article 37 § 1 of the European Convention on Human Rights to the account indicated by the applicant. In the event of failure to pay this sum within the said three-month period, the Government undertake to pay simple interest on it, from expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. The payment will constitute the final resolution of each of the cases.”
19. The declarations in respect of other applicants differed only as regards the sum the Government was ready to pay. These sums are listed in the Annex.
20. In a letter of 29 February 2012 the applicants’ representative argued that the sums proposed in the unilateral declarations did not reflect the correct sums in respect of statutory default interest, without providing further arguments. In addition, they also objected to the sums concerning the costs and expenses incurred before the national courts and the Court.
21. The Court reiterates that Article 37 of the Convention provides that it may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to one of the conclusions specified, under (a), (b) or (c) of paragraph 1 of that Article. Article 37 § 1 (c) enables the Court in particular to strike a case out of its list if:
“for any other reason established by the Court, it is no longer justified to continue the examination of the application”.
22. It further reiterates that in certain circumstances, it may strike out an application under Article 37 § 1(c) on the basis of a unilateral declaration by a respondent Government even if the applicants wish the examination of the case to be continued.
23. To this end, the Court will examine the declarations in the light of the principles emerging from its case-law, in particular the Tahsin Acar judgment (see Tahsin Acar v. Turkey, [GC], no. 26307/95, §§ 75-77, ECHR 2003-VI); WAZA Spółka z o.o. v. Poland (dec.) no. 11602/02, 26 June 2007, and Sulwińska v. Poland (dec.) no. 28953/03, 18 September 2007).
24. The Court first notes that in their unilateral declarations the Government expressly acknowledged that there had been a violation of Article 1 of Protocol No. 1 to the Convention in each applicant’s case.
25. It further notes that the amounts the Government are ready to pay would cover pecuniary damage, together with the statutory default interest, non-pecuniary damage and costs and expenses incurred both before the national courts and the Court. In that connection the Government provided detailed calculations in respect of each applicant. Furthermore, the compensation proposed by the Government could be considered reasonable in comparison to the one the Court would have awarded the applicants. The intended redress is therefore appropriate for the purposes of striking out the applications.
26. Having regard to the nature of the admissions contained in the Government’s declarations, as well as the amounts of compensation proposed, the Court considers that it is no longer justified to continue the examination of the applications (Article 37 § 1(c)).
27. Moreover, the Court is satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of the applications (Article 37 § 1 in fine).
28. In view of the above, it is appropriate to strike this part of the applications out of the list.
C. Alleged violation of Article 6 § 1 of the Convention
29. The applicants also complained that the aforementioned civil proceedings had been unfair, alleging that the domestic courts had erred in the application of the relevant provisions of substantive law and that their decisions had not been duly reasoned. They relied on Article 6 § 1 of the Convention, the relevant part of which reads:
“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ...”
30. The Court notes that the applicants complained about the outcome of their proceedings, which, unless it was arbitrary, the Court is unable to examine under Article 6 § 1 of the Convention. The applicants did not complain, and there is no evidence to suggest, that the domestic courts lacked impartiality or that the proceedings were otherwise unfair. In the light of all the material in its possession, the Court considers that in the present case the applicants were able to submit their arguments before courts which offered the guarantees set forth in Article 6 § 1 of the Convention and which addressed those arguments in decisions that were duly reasoned and not arbitrary.
31. It follows that these complaints are inadmissible under Article 35 § 3 (a) of the Convention as being manifestly ill-founded and must be rejected pursuant to Article 35 § 4 thereof.
For these reasons, the Court unanimously
Decides to join the applications;
Takes note of the terms of the respondent Government’s declarations under Article 1 of Protocol No. 1 to the Convention and of the modalities for ensuring compliance with the undertakings referred to therein;
Decides to strike the applications out of its list of cases in accordance with Article 37 § 1 (c) of the Convention, in so far as they concern the complaints under Article 1 of Protocol No. 1 to the Convention;
Declares the remainder of the applications inadmissible.
André WampachAnatoly Kovler
Deputy RegistrarPresident
Annex
No.
Application
no.
Applicant’s name
Date of service of the Constitutional Court’s decision
Lodged on
Damages
sought
The total amount (damages and costs) sought in the JS claim (in euros)
The amount proposed by the Government in the unilateral declaration (in euros)
Costs sought (in euros)
26164/09
Željko Franić
10 November 2008
6 May 2009
4,500
7,460
20,034.96
2,960
27030/09
Zoran Vuletić
29 October 2008
28 April 2009
1,000
3,060
2,746.43
2,060
36543/09
Zdravko Grubiša
19 November 2008
18 May 2009
4,100
6,960
18,646.35
2,860
36674/09
Ante Amižić
19 November 2008
18 May 2009
4,350
7,210
19,495.33
2,860
42412/09
Igor Tomić
23 February 2009
15 July 2009
2,000
4,760
9,678.00
2,760
50357/09
Nediljko Perišić
3 March 2009
31 August 2009
1,600
4,360
8,220.32
Full & Egal Universal Law Academy