FIRST SECTION
PARTIAL DECISION
AS TO THE ADMISSIBILITY OF
Application no. 8854/04
by Josip KRNIĆ
against Croatia
The European Court of Human Rights (First Section), sitting on 11 December 2007 as a Chamber composed of:
MrC.L. Rozakis, President,
MrL. Loucaides,
MrsN. Vajić,
MrA. Kovler,
MrsE. Steiner,
MrS.E. Jebens,
MrG. Malinverni, judges,
and Mr S. Nielsen, Section Registrar,
Having regard to the above application lodged on 18 December 2003,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Josip Krnić, is a Croatian national who was born in 1941 and lives in Samobor.
A. The facts of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. The employment dispute and other related proceedings
a. On 8 October 1990 the applicant brought a civil action against his former employer, the company F. challenging his dismissal so as to seek his reinstatement and payment of his salary arrears during his unemployment.
The Zagreb Municipal Court (Općinski sud u Zagrebu) granted the claim in part in its judgment no. Pr-989/91 of 6 December 1991, which was upheld by the Zagreb County Court (Županijski sud u Zagrebu) on 13 April 1993 in its judgment no. Gž- 4297/92.
In its decision no. Rev-843/1988 of 2 September 1998 the Supreme Court (Vrhovni sud Republike Hrvatske) quashed the lower courts’ judgments and remitted the case for retrial, upon the defendant’s appeal.
In the fresh proceedings the Zagreb Municipal Court ordered the applicant’s reinstatement and dismissed his claim for payment of the salary arrears in its judgment no. Pr-2261/98 of 11 May 2000. The applicant lodged an appeal.
In its judgment no. Gž – 8868/00-2 of 29 April 2003 the Zagreb County Court upheld the part of the first instance judgment dismissing the claim for payment and quashed it in the part granting the applicant’s claim for reinstatement and remitted the case.
It appears that the proceedings are still pending before the first instance court.
Meanwhile, on 27 October 2001 the applicant lodged a constitutional complaint about the merits of the case, alleging violation of his right to a fair hearing in that the lower court’s decisions had been unfavourable for him. On 13 May 2005 the Constitutional Court declared his complaint inadmissible for lack of jurisdiction since the proceedings were still pending before the lower courts.
b. On 24 June 1993 the applicant applied for enforcement of the judgment of 6 December 1991 judgment. In an enforcement order of 2 November 1993 the Zagreb Municipal Court ordered the applicant’s reinstatement. It appears that the order was not complied with.
However, since the Zagreb Municipal Court’s judgments of 24 June 1993 as well as the Zagreb County Court’s judgment of 13 April 1993 were quashed by the Supreme Court on 2 September 1998, on 26 January 1999 the Zagreb Municipal Court discontinued the enforcement proceedings. The applicant lodged an appeal against the decision discontinuing the enforcement proceedings.
On 26 June 2001 the applicant’s appeal in respect of the enforcement proceedings was dismissed by the Zagreb County Court.
c. On 24 January 2003 the applicant lodged a constitutional complaint under Article 6 § 1 of the Convention about the length of the proceedings under a. above.
Subsequently, on 27 November 2003 the Constitutional Court (Ustavni sud Republike Hrvatske) declared the applicant’s constitutional complaint inadmissible because the Zagreb County Court had in the meantime, on 29 April 2003, decided on his appeal.
2. The dispute concerning damages
On an unspecified date the applicant brought an action for damages in the Zagreb Municipal Court against the company F. and another individual. On 23 October 2003 he sought that his action be extended to a third person, a certain M.A.
On 3 February 1994 the Zagreb Municipal Court dismissed the applicant’s request to include M.A. in the proceedings. Subsequently, on 8 February 1996 the court ordered the applicant to pay the costs of the proceedings in so far as it concerned M.A. The applicant’s appeal against that decision was subsequently dismissed by the Zagreb County Court.
On 5 May 2003 the applicant lodged a constitutional complaint against the court decision on payment of costs to M.A. claiming that it had violated his right to a fair hearing because the decision of 3 February 1994 had never been served on him and thus he had been prevented from lodging an appeal against it. On 23 September 2003 the Constitutional Court declared this complaint inadmissible on the ground that it had no jurisdiction to examine decisions concerning procedural issues only, such as decision on costs of pertaining civil proceedings. The outcome of the proceedings against the company F. and the other individual remains unclear.
3. The second employment-related dispute
Upon the applicant’s fresh action of 17 December 1998 brought against his former employer, seeking acknowledgment that he had been employed with the company since 1990, another set of separate civil proceedings was instituted in the Zagreb Municipal Court.
On 3 December 2000 the Municipal Court declared the applicant’s action inadmissible, since, in substance, it was considered to concern the same issue already pending before that court (the employment dispute described above under 1). The applicant appealed against that decision.
On 24 January 2003 the applicant lodged a constitutional complaint under section 63 of the Constitutional Court Act complaining about the length of the proceedings.
On 27 November 2003 the Constitutional Court accepted the applicant’s complaint finding a violation of his right to a hearing within reasonable time. It awarded him 4,000 Croatian kunas (HRK) and ordered the Zagreb County Court to decide the applicant’s appeal within six months from the publication of that decision in the Official Gazette.
On 3 February 2004 the Zagreb County Court dismissed the applicant’s appeal. On 15 September 2004 the Supreme Court dismissed the applicant’s subsequent appeal on points of law (revizija) endorsing the lower courts’ reasoning.
B. Relevant domestic law
The relevant part of section 63 of the Constitutional Act on the Constitutional Court (Ustavni zakon o Ustavnom sudu Republike Hrvatske, Official Gazette no. 49/2002, of 3 May 2002; “the Constitutional Court Act”) reads as follows:
“(1) The Constitutional Court shall examine a constitutional complaint whether or not all legal remedies have been exhausted if the court with jurisdiction fails to decide a claim concerning the applicant’s rights and obligations or a criminal charge against him or her within a reasonable time ...
(2) If a constitutional complaint ... under paragraph 1 of this section is upheld, the Constitutional Court shall set a time-limit within which the court with jurisdiction must decide the case on the merits...
(3) In a decision issued under paragraph 2 of this section, the Constitutional Court shall assess appropriate compensation for the applicant for the violation of his or her constitutional rights ... The compensation shall be paid out of the State budget within three months from the date a request for payment is lodged.”
Section 67 (1) of the Enforcement Act (Ovršni zakon, Official Gazette nos. 57/96, 29/99 and 173/03) provides as follows:
“Unless this Act provides otherwise, enforcement shall be discontinued ex officio if the enforcement title is quashed, reversed, annulled, set aside or otherwise established that it has no effect ....”
Section 192 of the Civil Procedure Act (Zakon o parničnom postupku Official Gazette nos. 53/91, 91/92 and 112/99), as in force at the material time, reads as follows:
“1. The plaintiff may amend his statement of claim so as to direct it against another person instead of the initial respondent before the conclusion of the main hearing.
2. In order to amend the statement of claim pursuant to paragraph 1 of this section, the approval of the person to enter the proceedings is needed...”
COMPLAINTS
1. The applicant complained under Article 6 § 1 of the Convention about the length of the first employment dispute. He also complained under Article 13 of the Convention about the lack of an effective remedy in respect of the length of these proceedings.
2. The applicant further complained under Articles 6 § 1 and 13 about the fairness of the proceedings involving the issue of payment of M.A.’s costs, claiming that the first instance court had misapplied the provisions of the domestic law concerning the amending of statement of claim and that it never delivered its decision in writing.
3. Lastly, in respect of the second employment-related dispute, the applicant complained that the just satisfaction awarded by the Constitutional Court in connection to his complaint about the length of these proceedings had not been adequate and sufficient.
THE LAW
1. The applicant complained about the length of civil proceedings instituted upon his action of 8 October 1990 and brought against his former employer in the Zagreb Municipal Court, following his dismissal and about the lack of an effective remedy in this respect. He relied on Articles 6 § 1 and 13 of the Convention, which, insofar as relevant, provide as follows:
Article 6 § 1
“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”
Article 13
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
The Court considers that it cannot, on the basis of the case file, determine the admissibility of these complaints and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.
2. The applicant also complained under Article 6 § 1 of the Convention about the final decision given in the proceedings concerning his claim for costs pertaining to the proceedings concerning his claim for damages. He claimed that the domestic courts prevented him from lodging an appeal against the costs order because that order had not been served on him and that the decision ordering him to pay the costs had contravened the relevant domestic law.
The Court notes at the outset that the costs order was issued in the proceedings concerning the applicant’s claim for damages which, being of a pecuniary nature, involved determination of the applicant’s civil rights and obligations. In this connection the Court recalls that, in determining issues of fairness of proceedings for the purposes of Article 6 of the Convention, the Court must consider the proceedings as a whole (see, for example, Pélissier and Sassi v. France, no. 25444/94, §§ 45 and 46, ECHR 1999-II, C.G. v. the United Kingdom, no. 43373/98, § 35, 19 December 2001 and Buzescu v. Romania, no. 61302/00, § 68, 24 May 2005).
As regards the applicant’s complaint that the domestic courts had not allowed his action to be extended to M.A. because he had refused to enter into pending proceedings, the Court notes that the applicant could have brought a separate civil action against that person.
Further, in respect of the decision on costs, as regards the applicant’s contention that he was prevented from lodging an appeal against the costs order because that order had not been served on him, the Court notes that the applicant actually did lodge an appeal against the costs order and that his appeal was considered on the merits and dismissed by the Zagreb County Court on 3 February 2004.
As regards the applicant’s argument that imposing on him to pay the costs of M.A. had contravened the relevant domestic law, the Court reiterates that it is not its function to deal with errors of fact or law allegedly committed by a national court unless and insofar as they may have infringed any rights and freedoms protected by the Convention (see Garcia Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999- I). As to the proceedings the applicant complains of, the Court does not discern any appearance of arbitrariness in the domestic decisions in that respect.
It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
3. Lastly, the applicant complained that the amount of compensation awarded to him by the Constitutional Court in respect of the length of the second employment-related dispute had been extremely low.
The Court considers that the present complaint falls to be examined under Article 6 § 1 of the Convention. However, given that the applicant already obtained certain redress for his complaint at the national level, the Court must firstly establish whether the applicant may still claim to be a “victim” of his right to a hearing within reasonable time.
The Court recalls that an applicant’s status as a victim within the meaning of Article 34 of the Convention depends, inter alia, on whether the redress afforded at domestic level on the basis of the facts about which he or she complains before the Court was adequate and sufficient having regard to just satisfaction as provided for under Article 41 of the Convention. While there is no requirement under the existing case-law that the domestic authorities should award the same sum by way of compensation as the Court would be likely to award under Article 41 of the Convention, the level of just satisfaction granted at national level must nevertheless not be manifestly inadequate in the particular circumstances of the case (see Cocchiarella v. Italy [GC], no. 64886/01, §§ 65-107, ECHR 2006-...).
In the present case the applicant was awarded the equivalent of approximately 545 euros and the Constitutional Court also ordered the County Court to decide the applicant’s appeal within a certain time-limit, which it did.
In view of the above, the Court finds that the redress of both a compensatory and preventive nature which the applicant speedily obtained in the constitutional proceedings was sufficient in the particular circumstances of the case. Therefore, he can no longer claim to be a “victim”, within the meaning of Article 34 of the Convention, of the alleged violation of his right to a hearing within a reasonable time in respect of these proceedings.
It follows that the applicant’s complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Decides to adjourn the examination of the applicant’s complaints concerning the length of the employment dispute as well as the existence of an effective remedy in that respect;
Declares the remainder of the application inadmissible.
Søren NielsenChristos Rozakis
RegistrarPresident
Full & Egal Universal Law Academy