FIRST SECTION
DECISION
Application no. 41071/16
Vesna ODORAN
against Croatia
The European Court of Human Rights (First Section), sitting on 18 May 2021 as a Committee composed of:
Alena Poláčková, President,
Péter Paczolay,
Raffaele Sabato, judges,
and Liv Tigerstedt, Deputy Section Registrar,
Having regard to the above application lodged on 11 July 2016,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Ms Vesna Odoran, is a Croatian national, who was born in 1964 and lives in Štrigova. She was represented before the Court by Mr I. Kusalić, a lawyer practising in Zagreb.
2. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik.
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. In 2007 the applicant was employed by the Croatian National Theatre in Zagreb (Hrvatsko narodno kazalište u Zagrebu – hereinafter “the HNK”) for an indefinite duration.
5. On 17 December 2009 the HNK dismissed the applicant.
6. On 30 December 2009 the applicant challenged her dismissal by submitting a request for the protection of her employment-related rights to the HNK. According to the delivery slip, the HNK received the applicant’s request on 4 January 2010. The HNK did not reply to the request.
7. On 3 February 2010 the applicant brought a civil action for wrongful dismissal against the HNK in the Zagreb Municipal Civil Court (Općinski građanski sud u Zagrebu). She sent it to the court by registered post.
8. The HNK objected that the applicant’s civil action had been lodged out of time and that it was unfounded.
9. On 4 April 2011 the Zagreb Municipal Civil Court ruled that the applicant’s dismissal had been wrongful and ordered her reinstatement. It found that her civil action had been lodged within the time-limit set out in section 133 of the Labour Act (see paragraph 16 below). In particular, it found that the HNK had not acceded to the applicant’s request for the protection of her rights within fifteen days of its receipt, and that the applicant had brought her civil action within the supplementary fifteen-day time-limit.
10. The HNK appealed against that judgment.
11. On 7 February 2012 the Zagreb County Court (Županijski sud u Zagrebu) allowed the HNK’s appeal, quashed the first-instance judgment and declared the applicant’s civil action inadmissible as having been lodged out of time. It found that the HNK had received the applicant’s request for the protection of her rights on 31 December 2009. Since the HNK had not replied to the request within fifteen days of its receipt on 15 January 2010, the applicant should have brought her civil action within another fifteen days, that is to say by 30 January 2010. As 30 January 2010 had been a Saturday, the last day of the time-limit for lodging the civil action had been Monday, 1 February 2010. However, the applicant had lodged her civil action on 3 February 2010.
12. The applicant lodged an appeal on points of law with the Supreme Court (Vrhovni sud Republike Hrvatske). She contended that, although the Zagreb County Court had correctly held that the fifteen-day time-limit for bringing the civil action had to be calculated from the day the employer received a worker’s request for the protection of his or her rights, and not from the day the worker had sent his or her request by post, it had wrongly held that the HNK had received her request on 31 December 2009. According to the delivery slip, the HNK had received it on 4 January 2010. The Zagreb County Court’s decision had therefore been the result of that court’s manifest error.
13. On 28 April 2015 the Supreme Court dismissed the applicant’s appeal on points of law as unfounded. It held that, although the Zagreb County Court had wrongly held that the HNK had received the applicant’s request for the protection of her rights on 31 December 2010, her civil action had in any event been brought out of time. In particular, the Supreme Court held that the fifteen-day time-limit for an employer to accede to a worker’s request for the protection of his or her rights was to be calculated from the day the worker sent such a request by registered post, and not from the day the employer received it. In so holding the Supreme Court referred to its decision Revr-202/05 of 25 March 2009 adopted in a similar case (see paragraph 19 below). As the applicant had submitted her request to the post office on 30 December 2009, the HNK ought to have acceded to it by 14 January 2010. Since it had not replied by 14 January 2010, the supplementary fifteen-day time-limit for bringing the civil action had started to run on 15 January 2010 and had expired on 29 January 2010, whereas the applicant had brought her civil action on 3 February 2010.
The relevant part of the decision reads:
“Section 133 of the Labour Act is the lex specialis which sets out the time-limits for seeking protection of the worker’s right that was violated, including bringing of a civil action ... Pursuant to section 113(2) of the Civil Procedure Act, if a submission was sent by registered post or by telegraph, the day it was submitted to the post office is considered as the day it was submitted to the court to which it was addressed, and pursuant to subparagraph 8 of that section the latter also applies to the time-limit for lodging the civil action set down in the lex specialis. The lex specialis in question is also section 133(1) and (2) of the Labour Act.”
14. On 23 September 2015 the applicant lodged a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske). She reiterated that under the relevant domestic law and practice the fifteen‑day time-limit for an employer to reply to a worker’s request for the protection of his or her rights was to be calculated from the day the employer received such a request, and not from the day the worker posted it. To hold otherwise would benefit neither the employer nor the worker.
15. On 10 December 2015 the Constitutional Court dismissed the applicant’s constitutional complaint as unfounded. It held that the Supreme Court’s decision in the applicant’s case had been in line with the practice of that court as established in decisions nos. Revr-202/05 of 25 March 2009 and Revr-1012/2013-2 of 10 March 2015 (see paragraphs 19 and 21 below). The Constitutional Court’s decision was served on the applicant’s representative on 13 January 2016.
Relevant legal framework and practiceRelevant legislation
16. The relevant provisions of the 1995 Labour Act (Zakon o radu, Official Gazette no. 38/95 with further amendments) governing time-limits within which workers could seek judicial protection of their employment‑related rights, were contained in section 126(1) and (2) (sometimes referred to also as section 133, according to the numeration in the consolidated version of the Act, Official Gazette, no. 137/04). That section read as follows:
“(1) A worker who considers that his or her employer has breached any of his or her employment-related rights may, within fifteen days of the receipt of a decision in breach of that right, or [within fifteen days] after he or she became aware of such a breach, seek the protection of that right with the employer.
(2) If the employer does not accede to the worker’s request referred to in paragraph 1 of this section within fifteen days of its receipt, the worker may within a supplementary fifteen days seek judicial protection before the [relevant] court ...”
17. The 1995 Labour Act was in force between 1 January 1996 and 31 December 2009. It was superseded, firstly by the 2009 Labour Act (Official Gazette no. 149/09 with further amendments), which was in force between 1 January 2010 and 30 July 2014, and then by the 2014 Labour Act (Official Gazette, no. 93/14 with further amendments), which has been in force since 7 August 2014. Both the 2009 Labour Act and the 2014 Labour Act contain provisions identical to those contained in section 126(1) and (2) of the 1995 Labour Act.
18. The relevant provisions of the Civil Procedure Act (Zakon o parničnom postupku, Official Gazette nos. 53/91 with further amendments), as in force at the material time, read as follows:
Section 112
“(1) Time-limits shall be computed in days, months and years. If a time-limit has been computed in days, the day when service or notification was made or the day of the event from which the time-limit begins to run shall not be included in such time‑limit. The time-limit shall, however, start on the first subsequent day.
...
(3) If the last day of a time-limit falls on a national holiday or on a Sunday or on any other day when the court is not open, such a time-limit shall not expire before the end of the first subsequent working day.”
Section 113
“(1) When a submission must be submitted within a time-limit, it shall be considered as submitted in time if it was submitted to the relevant court before the time-limit expires.
(2) If a submission was sent by registered post or by telegraph, the date it was submitted to the post office shall be considered as the date when it was submitted to the court to which it was addressed.
...
(8) Paragraphs 1 to 7 of this section are also applicable to time-limits for bringing of a civil action set in separate legislation ...”Relevant practice
19. In its decision no. Revr 202/2005-3 of 25 March 2009, the Supreme Court held:
“... it is undisputed that the plaintiff submitted his request for the protection of [rights] by registered post on 11 April 2000, the day which ... is also considered as the day for submitting the request to the employer – the defendant. Therefore, the fifteen‑day time-limit referred to in section [133] of the Labour Act within which the defendant ... should have decided on the request ... expired on 26 April 2000 ...which is why the plaintiff’s supplementary fifteen-day time-limit for protecting his ... right before the court ... began to run on 27 April 2000 and expired on 11 May (Saturday), that is to say on 13 May (Monday) 2000. Since the civil action at issue was brought on 15 May 2000 ... it was brought ... out of time.”
20. In its decision no. Revr 688/2013-2 of 6 November 2013 the Supreme Court held:
“When a worker undoubtedly knows the day on which the employer received his or her request for the protection of rights, because there is a delivery slip, or because the worker submitted the request to the employer in person, or has any other evidence of the day the employer received his or her request, this court deems that the fifteen-day time-limit within which the employer is entitled to decide on the worker’s request ... cannot start to run for the employer before the latter has actually received the request.
Therefore, since the worker, first of all, has the right to expect that the employer shall decide on his or her request, and that the employer shall do so within fifteen days, a time-limit which for the employer can start to run only on the day he or she became aware of the request, therefore, from receiving it, the supplementary fifteen-day time‑limit for bringing a civil action cannot start to run for the worker before the expiry of the fifteen-day time-limit which started to run one day after the employer received the worker’s request.
Any other interpretation would distort the balance between the worker’s right to protect his or her right before the employer and before the courts, and the employer’s right to decide on the worker’s request within the time-limit, which should not start to run before the employer has actually received the request for the protection of rights.”
21. In its decision no. Revr-1012/2013-2 of 10 March 2015, the Supreme Court held:
“... the plaintiff submitted her request for the protection of her rights with the defendant on 29 July 2010 by registered post. Therefore, the fifteen-day time-limit ... for the employer to reply to the request and the supplementary fifteen‑day [time-limit] for the worker to bring a civil action, started to run on that day ...
In her appeal on points of law, the plaintiff challenges the lower courts’ finding that the day when the request for the protection of rights had been sent by registered post was to be considered as the day on which the fifteen-day time-limit for deciding on the request had started to run. She considers that this time-limit started to run the day after the employer received the worker’s request ...
The plaintiff’s argument is unfounded. In the opinion of this court, the day of submitting the request by registered post is considered as the day of submitting the request to the employer – the defendant (this court held the same in decision no. Revr‑202/05 of 25 March 2009).”
22. On 16 November 2015 the Civil Division of the Supreme Court adopted an opinion, which it forwarded to the lower courts as a practice direction and has followed it ever since (see, for example, decision no. Revr 941/2014-2 of 8 December 2015 cited below). The opinion in question reads as follows:
“When a worker submitted his or her request for the protection of rights in time by registered post, and when the worker sees from the delivery slip the day the employer received his or her request, the question of timeliness of the request for judicial protection of his or her right [that is to say of his or her civil action]... cannot be calculated from the day the request for protection was submitted by registered post, but from the day the employer received the worker’s request ...”
23. In its decision no. Revr 941/2014-2 of 8 December 2015 the Supreme Court held:
“... section 113(2) of the Civil Procedure Act provides that when a submission must be submitted within a time-limit, such a submission is submitted in time if it is sent by registered post and the day it is submitted to the post office is considered as [relevant].
According to the assessment of this court, the latter provision is a benefit to the person submitting the submission, ... without this provision a realistic time-limit for submitting a submission would be shorter and uncertain, as compliance with the statutory time-limit would depend on the work of the post office (to which the submitter has no influence and for which it cannot be held responsible).
Therefore, the position of the second-instance court that the time-limit for bringing a civil action before the courts is calculated from the day the plaintiff submitted his or her request for the protection of rights by registered post when the date of receipt of the request by the employer is visible from the delivery slip is incorrect because such an interpretation of section 113(2) of the Civil Procedure Act, which is a benefit, ... would apply completely contrary to its sole purpose and intention.
... the position of the second-instance court ... results in the worker being forced to lodge a civil action even before the time-limit for the employer to reply to the worker’s request has expired.
Therefore, in a situation when a worker submitted his or her request for protection of rights in time by registered post, and when it is visible from the delivery slip when the employer received the request, and when the employer did not decide on the request, then the time-limit for seeking judicial protection ... cannot be calculated from the day the request for protection of rights was sent by registered post but from the day the employer received the request (legal opinion adopted on 16 November 2015 at the session of the Civil Division of the Supreme Court ).
Regard must also be had to Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms...
... the second-instance court’s point of view ... is in breach of the worker’s right of access to a court.”
COMPLAINT
24. The applicant complained under Article 6 of the Convention that her right of access to a court had been violated in that the domestic courts had declared her civil action inadmissible.
THE LAW
25. The applicant complained that the decision of the domestic courts to declare her civil action inadmissible for having been lodged out of time had been in breach of her right of access to court. She relied on Article 6 § 1 of the Convention which reads as follows:
“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” The parties’ submissionsThe Government
26. The Government contended that the crux of the present case came down to the application of the relevant domestic law, which was primarily a task of the domestic courts. There was no appearance of arbitrariness in the domestic courts’ decisions and the applicant’s complaint was of a fourth‑instance nature.
27. The Government argued that the way section 133 of the Labour Act (see paragraph 16 above) had been applied in the applicant’s case had been in line with the long-standing practice of the domestic courts and therefore had been foreseeable for the applicant, who had been represented by a lawyer. The fact that afterwards this practice had changed (see paragraphs 22-23 above) had been irrelevant, as this had happened after the proceedings complained of by the applicant had already ended.The applicant
28. The applicant contended that the way the domestic courts had interpreted and applied section 133 of the Labour Act (see paragraph 16 above) in her case had not been foreseeable. The provision in question, which has remained unchanged from 1996 until the present day, clearly provided that the fifteen-day time-limit for the employer to accede to the worker’s request for protection of his or her rights started to run on the day the employer received the worker’s request (see paragraphs 16-17 above). In decision no. Revr 688/2013-2 of 6 November 2013 the Supreme Court had endorsed the literal application of that provision, and by its legal opinion adopted on 16 November 2015, had ordered the lower courts to follow it (see paragraphs 20 and 22 above). However, in her case, the Supreme Court in April 2015 and the Constitutional Court in December 2015 had held that the time-limit had had to be calculated from the day the worker had posted the request for the protection of rights (see paragraphs 13 and 15 above).
29. The applicant argued that the domestic courts had applied section 133 of the Labour Act in her case contrary to its purpose and to the detriment of both the worker and the employer. The Supreme Court itself had found this type of application as amounting to a disproportionate restriction of the right of access to a court (see paragraph 23 above).The Court’s assessment
30. In the present case the domestic courts declared the applicant’s civil action inadmissible, finding that she had failed to bring her action within the time-limit prescribed in section 133 of the Labour Act (see paragraphs 11, 13 and 16 above).
31. That section regulates the time-limits for seeking judicial protection of employment-related rights. It provides that a worker must first seek protection of his or her employment-related right from the employer, and that he or she must do so within fifteen days of the receipt of a decision in breach of that right. It also provides that if the employer fails to accede to the worker’s request within fifteen days of its receipt, the worker can within additional fifteen days seek protection before the relevant court (see paragraph 16 above). The Court notes that these provisions remained unchanged from January 1996 until the present day (see paragraph 17 above).
32. The way the time-limit within which the employers have to decide on workers’ requests is calculated is important for the workers’ right of access to court because it directly affects the calculation of the further fifteen-day time-limit within which workers can seek judicial protection of their rights before the relevant court.
33. The relevant principles emerging from the Court’s case-law concerning the right of access to a court are summarised in Zubac v. Croatia (GC], no. 40160/12, §§ 76-86, 5 April 2018. In particular, the right of access to the courts is not absolute but may be subject to limitations. Those limitations must not restrict the access left to the individual in such a way or to such an extent that the very essence of the right is impaired. Furthermore, a limitation will not be compatible with Article 6 § 1 if it does not pursue a legitimate aim and if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be achieved (ibid., § 78).
34. The time-limits for bringing judicial claims are undoubtedly designed to ensure the proper administration of justice and compliance with, in particular, the principle of legal certainty (see Pérez de Rada Cavanilles v. Spain, 28 October 1998, § 45, Reports of Judgments and Decisions 1998‑VIII; Miragall Escolano and Others v. Spain, no. 38366/97, § 33, ECHR 2000-I; and Mizzi v. Malta, no. 26111/02, § 83, ECHR 2006‑I (extracts)). Thus, the existence of rules on time-limits for bringing judicial claims is not per se incompatible with the Convention. What the Court needs to ascertain in a given case is whether the manner in which these rules were applied is compatible with the Convention.
35. In the applicant’s case the domestic courts calculated the fifteen-day statutory time-limit for the employer to decide on the applicant’s request from the day the applicant had posted her request by registered mail on 30December 2009, and not from the day the employer had received it on 4 January 2010 (see paragraphs 6 and 11 and 13 above).
36. As a consequence thereof, the additional fifteen-day statutory time‑limit for the applicant to bring a civil action before the court expired five days earlier than it would if the first fifteen-day time-limit had been calculated from the day the employer had actually received the applicant’s request. The applicant’s civil action was thus found to have been brought out of time and declared inadmissible (see paragraphs 11 and 13 above).
37. In cases such as the present one the Court has held that, in order to satisfy itself that the very essence of an applicant’s right of access to court was not impaired, it must examine whether the application of the time-limit in question could be regarded as foreseeable for the applicants, having regard to the relevant legislation and case-law and the particular circumstances of the case, and whether, therefore, the penalty for failing to respect that time-limit infringed the proportionality principle (see Majski v. Croatia (no. 2), no. 16924/08, § 69, 19 July 2011; Osu v. Italy, no. 36534/97, § 35, 11 July 2002; and Levages Prestations Services v. France, 23 October 1996, § 42, Reports 1996‑V).
38. A coherent domestic judicial practice and a consistent application of that practice will normally satisfy the foreseeability criterion (see for example, Zubac, cited above, § 88).
39. In this connection the Court observes that in the period between 25 March 2009 and 10 March 2015 the Supreme Court in its decisions wavered between two different interpretations regarding the starting date of the fifteen-day statutory time-limit within which employers have to decide on the workers’ requests for the protection of rights.
40. Specifically, in its decisions of 25 March 2009 and 10 March 2015 (see paragraphs 19 and 21 above) the Supreme Court held that the relevant starting date was the day on which the employee posted his or her request whereas in its decision of 6 November 2013 it held that the relevant date was the day on which the employer actually received such request (see paragraph 20 above).
41. The Court recalls in this connection its jurisprudence under Article 6 § 1 of the Convention concerning divergent case-law of domestic courts. The relevant principles in that regard are summarised in Nejdet Şahin and Perihan Şahin v. Turkey ([GC], no. 13279/05, §§ 49-58, 20 October 2011), and Lupeni Greek Catholic Parish and Others v. Romania ([GC], no. 76943/11, § 116, ECHR 2016 (extracts)).
42. To raise an issue under Article 6 § 1 of the Convention these divergences must be profound and longstanding (see Nejdet Şahin and Perihan Şahin, cited above, § 53, and Lupeni Greek Catholic Parish and Others, cited above, § 116). They may be tolerated when the domestic legal system is capable of accommodating them (see Nejdet Şahin and Perihan Şahin, cited above, §§ 86-87), it being understood that the process of unifying and ensuring the consistency of the case-law may take some time (see Albu and Others v. Romania, nos. 34796/09 and 63 others, § 39, 10 May 2012).
43. In the present case the Court does not find it necessary to establish whether the above-mentioned divergences (see paragraphs 39-40) in interpretation of section 133 of the Labour Act were profound and longstanding. What is important is that they were definitively settled in November 2015 when the Civil Division of the Supreme Court adopted an opinion that the relevant starting date of the fifteen-day statutory time-limit within which employers have to decide on the workers’ requests for the protection of rights was the day on which the employer received such request (see paragraph 22 above). The Supreme Court forwarded its opinion to the lower courts as a practice direction and has followed it ever since (see paragraphs 22-23 above).
44. The Supreme Court decision in the applicant’s case was rendered on 28 April 2015 (see paragraph 13 above), that is, at a time when the divergences still existed. The fact that this decision had been delivered prior to the harmonisation and thus had not yet reflected the interpretation adopted in November 2015 (see paragraphs 22 and 43 above) is, albeit regrettable, not sufficient in itself to violate the principle of legal certainty and foreseeability of the law because the domestic judicial system proved capable of ending this uncertainty by its own means (see, for example, Albu and Others, cited above, § 40, and Schwarzkopf and Taussik v. the Czech Republic (dec.), no. 42162/02, 2 December 2008). Consequently, the way how the time-limit in question was applied in the applicant’s case could not be regarded as unforeseeable for her.
45. It follows that the present application is inadmissible under Article 35 § 3 (a) of the Convention as manifestly ill-founded and must be rejected pursuant to Article 35 § 4.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 10 June 2021.e_p_1} {signature_p_2}
Liv TigerstedtAlena Poláčková
Deputy RegistrarPresident
Full & Egal Universal Law Academy