FOURTH SECTION
Application no. 15835/08
Pavle LONČAR
against Bosnia and Herzegovina
lodged on 5 March 2008
STATEMENT OF FACTS
THE FACTS
The applicant, Mr Pavle Lončar, is a citizen of Bosnia and Herzegovina, who was born in 1934 and lives in Sarajevo.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant was an employee of “Unioninvest holding d.d.”, a company based in Sarajevo (“the company”). In 1991 he started to work as the branch director of its Frankfurt office.
On 3 December 1993 the applicant was dismissed. The decision was sent by fax from the company’s headquarters in Sarajevo. An appeal against that decision to the competent court in Sarajevo was possible within fifteen days from the date of its delivery.
As it was difficult to contact Sarajevo at the time because of the war in Bosnia and Herzegovina, the applicant attempted to send an appeal through the company’s Frankfurt office by fax, requesting that the appeal be transferred to the competent court in Sarajevo. The director of the Frankfurt office refused to transfer the applicant’s appeal, with the explanation that it was “his private matter”.
After his dismissal, the applicant was granted refugee status in Germany.
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 signed between the Socialist Federal Republic of Yugoslavia and Germany, seeking reinstatement and payment of outstanding salary. By a settlement concluded before the court on 24 August 1994 the company agreed to pay him the outstanding salary for October, November and December 1993.
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).
On 8 March 1996 the applicant went to Sarajevo. After his futile attempt to obtain the original decision on dismissal of 3 December 1993, he initiated proceedings against the company before the Sarajevo Municipal Court (“the Municipal Court”) on 13 June 1996 seeking reinstatement and payment of outstanding salary from 3 December 1993. The applicant submitted that he was unable to reach the Municipal Court earlier in view of the war in Bosnia and Herzegovina and informed the court about the pending proceedings before the courts in Germany.
On 31 July 1996 the company asked the Hesse District Court to discontinue the proceedings on the applicant’s appeal (see above), in view of the new proceedings before the Municipal Court. It would appear that the proceedings were discontinued.
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 EUR 500 as just satisfaction and ordered the Federation of Bosnia and Herzegovina to secure a prompt resolution of his case pending before the Municipal Court at the latest by 31 July 2001.
On 13 November 2001 the Municipal Court accepted the applicant’s claim. On 7 March 2002 the Sarajevo Cantonal Court (“the Cantonal Court”) quashed that judgment and remitted the case for a retrial.
On 7 April 2003, following remittal, the Municipal Court rejected the applicant’s claim. That judgment was upheld by the Cantonal Court on 25 October 2004.
On 9 March 2006 the Supreme Court of the Federation of Bosnia and Herzegovina (“the Supreme Court”) rejected the applicant’s appeal 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 from the date of delivery of the impugned decision). Moreover, it was submitted outside the statutory time-limit prescribed by the new labour legislation (one year from the date of delivery of the impugned decision). As regards the applicant’s argument that he was unable to reach the courts in Sarajevo due to the war, the Supreme Court held that the applicant could have submitted his claim to any other court in Bosnia and Herzegovina. However, since the legal consequences for the applicant were the same, the Supreme Court did not amend the lower courts’ judgments. That decision was upheld on 8 November 2007 by the Constitutional Court of Bosnia and Herzegovina.
B. Relevant domestic law and practice
1. The cessation of the state of war and of immediate threat of war
In the Federation of Bosnia and Herzegovina the state of war was lifted on 22 December 1995[1] and the state of immediate threat of war on 23 December 1996[2].
In the Republika Srpska the state of war and the state of immediate threat of war were lifted on 19 June 1996[3].
2. Functioning of the courts during the war
Section 20 of the Decree on the application of Judiciary Act during the State of War or Immediate Threat of War[4] provided that if it was not possible for a court to perform its function during the war, the cases from its jurisdiction could be taken over by another court.
3. Labour legislation
Section 80(2) of the Labour Framework Act 1989[5], which was in force until 5 November 1999, provided that, before submitting a claim to a court, an employee had to complain to the employer within a fifteen-day time‑limit from the date of receipt of a decision affecting his/her rights. Once the employer had decided on the complaint, the employee had a further fifteen-day time-limit (or thirty-day time-limit, if the employer did not give a decision on the complaint) to reach the competent court (section 83(1) of this Act).
On 5 November 1999 the Labour Act 1999[6] entered into force, repealing the Labour Framework Act 1989. Pursuant to section 103 of the new Act an employee has the right to challenge the employer’s decision affecting his/her rights before the competent court within one year from the date of receipt of that decision or from the moment the employee became aware that his/her rights had been violated.
Section 145 of the Labour Act 1999 provides that in pending labour disputes the applicable legislation is the old Act, if it is more favourable for the employee.
4. Domestic practice concerning the calculation of time-limits during the state of war
In the Republika Srpska, the statutory time-limit for appeals against war-time 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).
COMPLAINTS
The applicant complains that having regard to the rejection of his claim as statute-barred, he was denied access to court in breach of Article 6 § 1 of the Convention. He further complains that the impugned proceedings were discriminatory, in violation of Article 14 of the Convention.
QUESTIONS TO THE PARTIES
1. Did the Supreme Court’s decision of 9 March 2006 and the Constitutional Court’s decision of 8 November 2007 rejecting the applicant’s claim as statute-barred give rise to a breach of the applicant’s right of access to a court as guaranteed by Article 6 § 1 of the Convention?
2. The statutory time-limit for appeals against war-time dismissals started to run only after the war, for example, in the Republika Srpska (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). What is the general approach of the courts in the Federation of Bosnia and Herzegovina in this regard?
3. The Government are requested to submit a copy of any decisions showing that civil claims could indeed have been lodged with any court in Bosnia and Herzegovina during the war and that any such claims were transferred to the competent courts after the war.
[1] Decision to lift the State of War (Odluka o ukidanju ratnog stanja, Official Gazette of the Republic of Bosnia and Herzegovina (“OGRBH”) no. 50/95).
[2] Decision to lift the State of the 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 („OGFBH“) no. 25/96).
[3] Decision to lift the State of War and the Immediate Threat of War (Odluka o ukidanju ratnog stanja i neposredne ratne opasnosti, Official Gazette of the Republika Srpska no. 15/96).
[4] 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.
[5] Zakon o osnovnim pravima iz radnog odnosa, Official Gazette of the Socialist Federal Republic of Yugoslavia nos. 60/89 and 42/90.
[6] Zakon o radu, OGFBH nos. 43/99, 32/00 and 29/03.
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