Communicated on 1 October 2020
Published on 19 October 2020
FIRST SECTION
Applications nos. 58090/19 and 6689/20
Dario KREŠIĆ against Croatia
and LEZBIJSKA GRUPA KONTRA against Croatia
lodged on 31 October 2019 and 22 January 2020 respectively
SUBJECT MATTER OF THE CASES
The applications concern the applicants’ right of access to the Supreme Court in non-discrimination cases and the overall fairness of their proceedings. The Prevention of Discrimination Act (Zakon o suzbijanju diskriminacije, Official Gazette no. 85/2008) provides for an appeal of points of law with the Supreme Court in all cases concerning allegations of discrimination.
The first applicant succeeded with an anti-discrimination lawsuit against his employer and, in separate proceedings, was awarded damages on that account. He complains, under Article 6 § 1 of the Convention, that in the subsequent compensation proceedings, his appeal on points of law had been declared inadmissible by the Supreme Court, although the relevant legislation always allowed an appeal on points of law in non-discrimination cases.
The second applicant, an association involved in promotion and protection of LGBT rights, lodged a class action against a religion teacher of an elementary school, because she had allegedly told the children during class that homosexuality was “an illness”. After the first- and second‑instance courts rejected the second applicant’s claim, the Supreme Court declared its subsequent appeal on points of law inadmissible, although the relevant legislation always allowed an appeal on points of law in non‑discrimination cases. The second applicant complains, under Article 6, taken alone and in conjunction with Article 14 of the Convention and Article 1 of Protocol No. 12 to the Convention, about the unfairness of the domestic proceedings, including the Supreme Court’s allegedly arbitrary rejection of its appeal on points of law.
QUESTIONS TO THE PARTIES
A. In respect of application no. 58090/19
1. Has there been a breach of Article 6 § 1 of the Convention on account of the Supreme Court’s decision to declare inadmissible the applicant’s appeal on point of law? In particular:
a) was that decision arbitrary, unforeseeable or excessively formalistic so as to unduly restrict the applicant’s access to court; and/or
b) was it the consequence of the Supreme Court’s inconsistent practice on the matter, in breach of the principle of legal certainty (cf. Supreme Court judgment Rev-1003/2012-2 and Rev-3235/2014)?
B. In respect of application no. 6689/20:
1. Has there been a breach of Article 6 § 1 of the Convention on account of the Supreme Court’s decision to declare inadmissible the applicant’s appeal on point of law? In particular:
a) was that decision arbitrary, unforeseeable or excessively formalistic so as to unduly restrict the applicant’s access to court; and/or
b) was it the consequence of the Supreme Court’s inconsistent practice on the matter, in breach of the principle of legal certainty (cf. Supreme Court judgment Rev-1003/2012-2 and Rev-3235/2014)?
2. In the negative, did the applicant have a fair hearing in the determination of its civil rights and obligations, in accordance with Article 6 § 1 of the Convention? In particular:
a) was the principle of equality of arms respected as regards the failure of the first-instance court to hear witnesses proposed by the applicant; and
b) has the hearing in the present case complied with the requirements of publicity?
3. Was the length of the civil proceedings in the present case in breach of the “reasonable time” requirement of Article 6 § 1 of the Convention?
4. Has the applicant suffered discrimination, contrary to Article 14 of the Convention read in conjunction with Article 6 and/or Article 1 of Protocol No. 12? In particular, was the manner in which the domestic proceedings were conducted the consequence of discriminatory attitudes towards the LGBT community?
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