Communicated on 10 January 2018
FIRST SECTION
Applications nos. 54115/15, 193/16 and 398/16
Seadeta ŽIC against Croatia
lodged on 27 October 2015, 10 December 2015 and 29 December 2015 respectively
STATEMENT OF FACTS
The applicant is a Croatian national. She is represented before the Court by Mr M. Zrilić, a lawyer practising in Rijeka.
A. The circumstances of the cases
The facts of the cases, as submitted by the applicant, may be summarised as follows.
The applicant was employed by a local authority, the Municipality of Rijeka (Općina Rijeka – hereinafter “the Municipality”). In 1991 she was made redundant. On 29 July 1992 she obtained a judgment against the Municipality ordering her reinstatement. The judgment (hereinafter “the principal judgment”) became final on 10 February 1993 and enforceable on 18 March 1993.
Meanwhile, on 30 December 1992, following a reorganisation of the system of local government in Croatia, the Municipality ceased to exist and its powers were transferred to newly-established local government units, namely, Rijeka Township (Grad Rijeka, hereinafter “the Township”) and Primorsko-Goranska County (Primorsko-goranska županija hereinafter “the County”).
1. Application no. 54115/15
On 8 September 1993 the applicant applied for the enforcement of the principal judgment of 29 July 1992 against the Township. On 22 July 1994 the Rijeka Municipal Court (Općinski sud u Rijeci) issued a writ of execution (rješenje o izvršenju) ordering the Township to reinstate the applicant.
The Township then instituted civil proceedings against the applicant with a view to declaring the enforcement inadmissible. On 20 February 2001 the Rijeka Municipal Court declared the enforcement inadmissible, finding that it was the County, and not the Township, which had inherited the obligation to reinstate the applicant. On 19 November 2002 the Rijeka County Court (Županijski sud u Rijeci) upheld that first-instance judgment.
On 20 February 2003 the applicant lodged a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske), challenging the lower courts’ findings. Subsequently, in a submission of 13 September 2005, she relied on a decision of the Constitutional Court rendered on 7 July 2005 in another, related, set of proceedings which she had instituted against the Township (see below the facts relating to application no. 398/16) seeking payment of salary arrears. By that decision the Constitutional Court had quashed the lower courts’ judgments and expressed the view that, contrary to the Supreme Court’s earlier finding in that case, both the Township and the County had had an obligation to reinstate the applicant. She therefore argued that the main issue in her case had already been decided by the Constitutional Court and that the domestic courts’ decisions in the present case had contradicted that court’s finding.
On 3 June 2015 the Constitutional Court dismissed the applicant’s constitutional complaint. The decision was served on the applicant’s representative on 8 July 2015.
2. Application no. 193/16
In 1993 the applicant instituted civil proceedings against the Township seeking payment of salary arrears for the period between 1 August 1991 and 1 January 1994. In 1995 the domestic courts eventually gave a final judgment in her favour and the applicant, after having that judgment enforced, received the entire amount of salary arrears awarded to her.
However, following an appeal on points of law (revizija) by the Township, on 6 May 1999 the Supreme Court (Vrhovni sud Republike Hrvatske) quashed that judgment and instructed the lower courts to establish whether the applicant had sought enforcement of the principal judgment of 29 July 1992 within the statutory time-limit. At the same time it expressed the view that if the applicant had indeed applied for enforcement within the time-limit, then the Township would be liable to pay her salary arrears.
Meanwhile, in 1998, the applicant instituted another set of civil proceedings against the Township, seeking payment of salary arrears for the period from 1 September 1997 onwards. Following the Supreme Court’s decision of 6 May 1999, on 12 April 2000 these proceedings were joined to those instituted in 1993.
By a judgment of 7 December 2007 the Rijeka Municipal Court ruled in favour of the applicant. In particular, it declared that the Township had been liable to pay her salary arrears for the period between 1 August 1991 and 1 January 1994, and furthermore ordered the Township to pay her salary arrears for the period between 1 September 1997 and 30 April 2007.
Following an appeal lodged by the Township, on 5 May 2010 the Rijeka County Court reversed the first-instance judgment in part and quashed it in part. Specifically, it reversed the first-instance judgment in the part ordering the Township to pay the applicant salary arrears for the period between 1 September 1997 and 30 April 2007 and in that part dismissed the applicant’s claim. It did so having found that in another set of proceedings the enforcement of the principal judgment of 29 July 1992 against the Township had been declared inadmissible (see above the facts relating to application no. 54115/15) and that the Township had therefore not been liable to pay salary arrears to the applicant. It further quashed the first-instance judgment in the part concerning salary arrears for the period between 1 August 1991 and 1 January 1994 and in that part declared the applicant’s claim inadmissible. It did so having found that the Municipal Court could not have delivered a declaratory judgment after her pecuniary claim had already become enforceable.
On 14 April 2011 the Supreme Court dismissed an appeal on points of law lodged by the applicant.
In a constitutional complaint lodged with the Constitutional Court on 2 August 2011 the applicant argued, inter alia, that her employment in the Municipality had never been terminated and that since her employer was preventing her from returning to work she was entitled to salary arrears. As to which local authority was liable to pay her salary arrears, she relied on the decision of the Supreme Court of 6 May 1999 and the decision of the Constitutional Court of 7 July 2005 confirming the obligation of the Township to reinstate her.
On 9 June 2015 the Constitutional Court dismissed the applicant’s constitutional complaint. That decision was served on her representative on 8 July 2015.
3. Application no. 398/16
In 1994 the applicant instituted civil proceedings against the Township and the County seeking payment of her salary arrears for the period between 1 February 1994 and 1 September 1997. In 1999 the domestic courts eventually gave a final judgment allowing her claim in respect of the Township and dismissing it in respect of the County. The applicant received the entire amount of salary arrears awarded to her.
On 12 June 2002 the Supreme Court, following an appeal on points of law lodged by the Township, reversed that judgment and dismissed the applicant’s claim in respect of the Township. It found that in fact it was the County which had inherited the obligation to reinstate the applicant and was therefore liable to pay her salary arrears.
On 7 July 2005 the Constitutional Court, following a constitutional complaint lodged by the applicant, quashed the lower courts’ judgments and remitted the case to the first-instance court. It found that contrary to the Supreme Court’s finding, the Township and the County had both had an obligation to reinstate the applicant.
In the resumed proceedings the applicant sought a declaratory judgment stating that the Township had been liable to pay her salary arrears for the period between 1 January 1994 and 31 August 1997.
On 4 June 2008 the Rijeka Municipal Court declared her action for a declaratory judgment inadmissible, finding that under the domestic law it was not allowed to seek a declaratory judgment stating the existence of a fact. This decision was upheld by the Rijeka County Court and the Supreme Court on 21 October 2009 and 28 August 2012 respectively.
In a constitutional complaint lodged with the Constitutional Court on 14 January 2013 the applicant argued, inter alia, that her employment in the Municipality had never been terminated and that since her employer was preventing her from returning to work she was entitled to salary arrears. She further relied on the decision of the Constitutional Court of 7 July 2005 confirming the obligation of the Township to reinstate her.
On 9 June 2015 the Constitutional Court dismissed the applicant’s constitutional complaint. The decision was served on her representative on 8 July 2015.
4. Other relevant facts
Meanwhile, following the decisions of the Supreme Court of 6 May 1999 and 12 June 2002, the Township instituted civil proceedings against the applicant seeking repayment of salary arrears initially awarded to her by the final judgments in 1995 and 1999. The first- and the second-instance courts ruled against the applicant, and the proceedings are currently pending before the Supreme Court.
B. Relevant domestic law
The relevant provision of the Labour Act (Zakon o radu, Official Gazette nos. 38/1995, 54/1995, 65/1995, 17/2001, 82/2001, 114/2003, 142/2003, 30/2004 and 137/2004), as in force at the material time, provided as follows:
Section 93(3)
“An employee shall be entitled to salary arrears for the period during which his or her work was interrupted through the fault of his or her employer, or due to other circumstances for which the employee cannot be held accountable.”
COMPLAINTS
1. The applicant complains under Article 6 § 1 of the Convention that she was never reinstated in her post, despite having obtained an enforcement title to that effect in 1993 against the relevant local authority.
2. She further complains that the decisions of the domestic courts delivered in her disfavour contradicted the Constitutional Court’s decision of 7 July 2005, and were thus in breach of the principle of legal certainty.
3. Lastly, she complains that the domestic courts’ refusal to award her salary arrears violated her right to the peaceful enjoyment of her possessions, as protected by Article 1 of Protocol No. 1.
QUESTIONS to the parties
1. Does the fact that the local authorities have not complied with an enforceable judgment to reinstate the applicant amount to a violation of Article 6 § 1 of the Convention?
2. Having regard to the decision of the Constitutional Court of 7 July 2005, were the domestic courts’ decisions delivered in the applicant’s disfavour in breach of the principle of legal certainty?
3. Did the applicant’s claims for salary arrears amount to possessions within the meaning of Article 1 of Protocol No.1? If so, did the domestic courts’ decisions denying those claims amount to a breach of her right to the peaceful enjoyment of her possessions?
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