I incorrectly predicted that there was a violation of human rights in MUIĆ v. CROATIA.

Judgment

SECOND SECTION

CASE OF MUIĆ v. CROATIA

(Application no. 79653/12)

JUDGMENT

STRASBOURG

30 May 2017

FINAL

13/11/2017

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Muić v. Croatia,
The European Court of Human Rights (Second Section), sitting as a Chamber composed of:
Işıl Karakaş, President,Julia Laffranque,Nebojša Vučinić,Paul Lemmens,Ksenija Turković,Jon Fridrik Kjølbro,Stéphanie Mourou-Vikström, judges,and Stanley Naismith, Section Registrar,
Having deliberated in private on 25 April 2017,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 79653/12) against the Republic of Croatia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Croatian national, Mr Vladimir Muić (“the applicant”), on 27 October 2012. 2. The applicant was represented by Mr M. Rođak, a lawyer practising in Zagreb. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik. 3. The applicant alleged, in particular, that his right of access to a court had been violated. 4. On 8 September 2015 the application was communicated to the Government. THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
5. The applicant was born in 1948 and lives in Rešetari. 6. The facts of the case, as submitted by the parties, may be summarised as follows. A. Background to the case
7. In 1978 the applicant was employed by the Z.B. company of Zagreb. He worked as a driver in the company’s Nova Gradiška branch. After organisational changes within the company he was given notice of dismissal on 14 February 2000. Pursuant to the notice his employment was terminated on 20 November 2000. B. The first administrative proceedings for unemployment benefit
8. On 27 November 2000 the applicant applied to the Croatian Employment Bureau’s Regional Office in Slavonski Brod (Hrvatski zavod za zapošljavanje, Područna služba Slavonski Brod, hereinafter “the Slavonski Brod Bureau”), for unemployment benefit. 9. On 6 December 2000 he was granted unemployment benefit of 900 Croatian kunas (HRK) per month[1] for the period between 21 November 2000 and 10 July 2013, provided that no grounds for terminating payment or the applicant’s entitlement to payment arose before the end of the period. The applicant then received unemployment benefit on a regular basis until 31 March 2008. C. The labour dispute
10. On 29 March 2000 the applicant brought a civil action in the Nova Gradiška Municipal Court (Općinski sud u Novoj Gradiški) challenging his dismissal and seeking reinstatement and compensation for lost salary. 11. On 11 January 2001 the applicant’s employer brought a counterclaim and asked the court to set 20 November 2000 as the day of the termination of his employment (sudski raskid ugovora o radu). On 5 October 2005 it also sought reimbursement of the severance pay the applicant had received. 12. On 23 January 2007 the Nova Gradiška Municipal Court ruled that the applicant’s dismissal from work had been unlawful and that his employment had never been terminated. It ordered the applicant’s reinstatement and awarded him compensation for lost salary. At the same time it ordered the applicant to reimburse the severance pay he had received, and dismissed the remainder of the employer’s counterclaim. 13. On 15 February 2008 the Slavonski Brod County Court (Županijski sud u Slavonskom Brodu) reversed the first-instance judgment in the part ordering the applicant’s reinstatement and decided that his employment had been terminated on 23 January 2007. It also awarded the applicant damages. The judgment was served on the applicant on 5 March 2008. D. The second administrative proceedings for unemployment benefit
14. On 30 April 2008 the applicant applied to the Slavonski Brod Bureau for unemployment benefit for the period after 23 January 2007. 15. On 2 June 2008 the Slavonski Brod Bureau rejected the applicant’s claim, finding that it had been lodged outside the time-limit from the termination of his employment on 23 January 2007, as provided by section 31 of the Job Placement and Unemployment Insurance Act (hereinafter “the Job Placement Act”). 16. The applicant appealed to the Central Service of the Croatian Employment Bureau (Hrvatski zavod za zapošljavanje, Središnja služba, hereinafter “the Central Bureau”). In particular, he contended that the time-limit for lodging the unemployment benefit claim should not have been calculated from 23 January 2007, given that the termination of his employment had only been established by the Slavonski Brod County Court judgment of 15 February 2008. 17. On 15 October 2008 the Central Bureau, acting as a second-instance administrative authority, dismissed the applicant’s appeal as unfounded and upheld the decision of the Slavonski Brod Bureau. It also noted that the applicant himself had informed the Slavonski Brod Bureau of the outcome of the labour dispute, and had communicated with one of its officials on 27 March 2008 and 2 April 2008. He had also been informed of the consequences of the Slavonski Brod County Court judgment setting 23 January 2007 as the day of the termination of his employment. 18. In an administrative claim the applicant argued that he had only learned about the day of the termination of his employment after receiving the Slavonski Brod County Court’s judgment in March 2008, and that the time-limit for lodging the unemployment benefit claim should have been calculated from that date. 19. On 20 January 2011 the Administrative Court dismissed the applicant’s administrative claim and upheld the administrative authorities’ decisions. 20. A subsequent constitutional complaint by the applicant was dismissed by the Constitutional Court on 4 April 2012. The decision was served on the applicant’s representative on 9 May 2012. E. Administrative proceedings for reimbursement of the unemployment benefit
21. On 21 November 2008 the Slavonski Brod Bureau found that the applicant had not been due unemployment benefit from 21 November 2000 to 31 March 2008. Given that the applicant had already reimbursed part of the unduly received sum, it ordered him to reimburse the rest within 15 days of receipt of the decision at issue. 22. On 16 July 2013 the Central Bureau upheld the decision of the Slavonski Brod Bureau, save in the part concerning the start of the deadline for the applicant having to pay back the money. In particular, it ordered him to reimburse the funds within 15 days of the receipt of his compensation for lost salary. 23. On 12 September 2014 the Osijek Administrative Court dismissed an administrative claim by the applicant and upheld the administrative authorities’ decisions. It found that according to the civil courts’ rulings in the labour dispute the applicant had not been entitled to unemployment benefit for the period up to 23 January 2007. It further found that his unemployment benefit claim for the period after that day had already been dismissed in another set of proceedings. 24. A constitutional complaint by the applicant was dismissed by the Constitutional Court on 17 July 2015. F. Administrative proceedings for early retirement pension
25. In June 2008 the applicant applied to the Croatian Pension Fund (Hrvatski zavod za mirovinsko osiguranje, hereinafter “the Fund”), to obtain an early retirement pension. 26. On 18 August 2008 the Fund granted him an early retirement pension of HRK 1,890.53 per month[2] from 11 July 2008. The applicant has been receiving that pension since. II. RELEVANT DOMESTIC LAW AND PRACTICE
A. The Job Placement and Unemployment Insurance Act
27. The relevant provisions of the Job Placement and Unemployment Insurance Act (Zakon o posredovanju pri zapošljavanju i pravima za vrijeme nezaposlenosti, Official Gazette nos. 32/02, 86/02, 114/03 and 151/03), as in force at the material time, provided as follows:
Section 31
“(1) An unemployed person shall be entitled to financial compensation when he or she reports to the Croatian Employment Bureau and submits a request within 30 days of the day of the termination of his or her employment, or the termination of sick leave or maternity leave after the termination of employment. (2) Where the time-limit set out in paragraph 1 of this Section is missed for a justified reason, an unemployed person may report and submit a request to the Croatian Employment Bureau within 8 days of the day that the reason for missing the time-limit ceased to exist, but no later than 60 days from the expiry of the time-limit set out in paragraph 1 of this Section.”
Section 54
“An unemployed person who exercises the entitlements set out in this Act and in the provisions based on this Act is obliged to report within 15 days to the Croatian Employment Bureau any circumstance which causes a change to or the termination of the entitlement.”
B. The Labour Act
28. The relevant provisions of the Labour Act (Zakon o radu, Official Gazette nos. 38/95, 54/95 and 65/95), as in force at the material time, provided as follows:
Judicial termination of employment
Section 116
“(1) When the court establishes that the dismissal effected by the employer was unlawful, and the employee finds it unacceptable to continue in that employment, the court shall, upon a request by the employee, establish a day for the termination of employment and award him damages ...
(2) The court may also render the decision referred to in paragraph 1 of this Section at the request of the employer, if there are circumstances which reasonably demonstrate that, in view of all the circumstances and in the interests of both parties, the continuation of employment is not possible. (3) Both the employer and the employee may submit a request for a termination of employment in the manner referred to in paragraphs 1 and 2 of this Section, until the first-instance court’s hearing is concluded.”
C. The Administrative Court case-law
29. The Government referred to cases nos. Us-13087/2007-4 of 17 March 2010, Us-6387/2007-6 of 14 April 2010 and Us-2288/2011-4 of 15 October 2014, in which the Administrative Court had held that if the day of the termination of employment was established by the courts in a labour dispute, the time-limit for making an unemployment benefit claim was to be calculated from the day of the termination of employment, and not from the day the judgment rendered in the labour dispute became final, or from any other day. THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
30. The applicant complained that he had been unable to obtain an effective determination of his claim for unemployment benefit given that the administrative authorities, including the Administrative Court, had calculated the time-limit for lodging the claim in an excessively formalistic manner and had thereby violated his right of access to court. He 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 ... hearing within a reasonable time by [a] ... tribunal ...”
A. Admissibility
1. The parties’ arguments
31. The Government argued that shortly after dismissing his claim for unemployment benefit, the applicant had been granted an early retirement pension double the unemployment benefit he had been receiving after the decision of the Slavonski Brod Bureau of 6 December 2000. He had therefore not suffered any pecuniary damage. 32. The applicant asserted that his employment had been terminated on 23 January 2007, whereas he had been granted early retirement pension from 11 July 2008. He had therefore suffered significant pecuniary damage. 2. The Court’s assessment
33. The Court notes that the question of whether the applicant has suffered any significant disadvantage represents the main element of the criterion set forth in Article 35 § 3 (b) of the Convention (see Adrian Mihai Ionescu v. Romania (dec.), no. 36659/04, 1 June 2010, and Korolev v. Russia (dec.), no. 25551/05, 1 July 2010). The Court has held that the absence of any significant disadvantage can be based on criteria such as the financial impact of the matter in dispute or the importance of the case for the applicant (see Konstantin Stefanov v. Bulgaria, no. 35399/05, § 44, 27 October 2015). 34. Turning to the present case, the Court notes that although the applicant was granted an early retirement pension from 11 July 2008, he had to repay the unemployment benefit he had received from 21 November 2000 to 31 March 2008 and he was not entitled to benefit after 23 January 2007 due to the rejection of his new claim as out of time. 35. It therefore follows that in the period between 23 January 2007 and 11 July 2008 the applicant clearly sustained losses for which the new pension could not compensate. It thus cannot be concluded that he did not suffer any significant disadvantage. The Government’s objection must accordingly be dismissed. 36. The Court notes that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits
1. The parties’ arguments
(a) The applicant
37. The applicant submitted that the termination of his employment in the labour dispute had only been established by the Slavonski Brod County Court, which had set the day of termination as being more than one year beforehand. It had therefore been objectively impossible for him to lodge an unemployment benefit claim within the time-limit set by section 31 of the Job Placement Act, if that time-limit was calculated from the day of the termination of employment. 38. The applicant further asserted that during the labour dispute he had already been receiving unemployment benefit under the Slavonski Brod Bureau’s decision of 6 December 2000. Given that the Nova Gradiška Municipal Court had ordered his reinstatement, he had had no reason to lodge another unemployment benefit claim at that time. The applicant added that as soon as he had learned about the Slavonski Brod County Court judgment establishing the date for the termination of his employment, he had contacted the Slavonski Brod Bureau and informed its officials of that new circumstance. He therefore argued that it was only logical that the time-limit for lodging the unemployment benefit claim should be calculated from the day he had learned about the Slavonski Brod County Court judgment. (b) The Government
39. The Government argued that the applicant ought to have been aware of the possibility that the civil courts would set the day of the termination of his employment retroactively in the labour dispute, and about the repercussions of such a decision on his ability to lodge a timely unemployment benefit claim. Firstly, the Government explained that the relevant provisions of the Labour Act afforded the courts a certain amount of discretion when establishing the day of the termination of employment (see paragraph 28 above). Secondly, the Government contended that the provisions of the Job Placement Act governing the time-limit for lodging an unemployment benefit claim (see paragraph 27 above) had been accessible to the applicant and clear. Moreover, the Government noted that the Administrative Court’s practice of calculating the time-limit for lodging a claim from the day of the termination of employment, regardless of that day being set by the courts in a labour dispute (see paragraph 29 above), had made the application of the rules foreseeable in practice. 40. The Government submitted that the applicant could have lodged a timely unemployment benefit claim. In the Government’s view, the applicant should have lodged the claim as soon as he had learned that his employer had submitted a counterclaim in the labour dispute, bearing in mind the possibility that the courts would set the day of the termination of his employment retroactively. The Government argued that the applicant had in any event been required to report that circumstance to the Employment Bureau, pursuant to section 54 of the Job Placement Act. If the applicant had done so, the Employment Bureau’s officials would have instructed him to lodge a claim in order to ensure its timeliness, regardless of the outcome of the labour dispute. The Government added that the Employment Bureau would have decided on the applicant’s claim only after a final judgment had been rendered in the labour dispute. 41. Lastly, the Government noted that the applicant had contacted the Employment Bureau’s officials on 27 March 2008 and 2 April 2008, when it had already been too late to lodge a timely request. 2. The Court’s assessment
(a) General principles
42. The general principles concerning the right of access to a court are set out in the case of Lupeni Greek Catholic Parish and Others v. Romania ([GC], no. 76943/11, §§ 84-90, 29 November 2016). In the case at issue the following general principles are of relevance. 43. Article 6 § 1 secures to everyone the right to have a claim relating to his civil rights and obligations brought before a court (see Lupeni Greek Catholic Parish and Others, cited above, § 84; see also Roche v. the United Kingdom [GC], no. 32555/96, § 116, ECHR 2005‐X, and Z and Others v. the United Kingdom [GC], no. 29392/95, § 91, ECHR 2001-V). 44. The right of access to a court includes not only the right to institute proceedings but also the right to obtain a determination of the dispute by a court (see Lupeni Greek Catholic Parish and Others, cited above, § 86; Kutić v. Croatia, no. 48778/99, § 25, ECHR 2002‐II; Multiplex v. Croatia, no. 58112/00, § 45, 10 July 2003, and Yanakiev v. Bulgaria, no. 40476/98, § 68, 10 August 2006). It would be illusory if a Contracting State’s domestic legal system allowed an individual to bring a civil action before a court without ensuring that the case would be determined by a final decision in the judicial proceedings. 45. The right of access to the courts is not absolute but may be subject to limitations; these are permitted by implication since the right of access by its very nature calls for regulation by the State, regulation which may vary in time and in place according to the needs and resources of the community and of individuals (see Lupeni Greek Catholic Parish and Others, cited above, § 89, and Stanev v. Bulgaria [GC], no. 36760/06, § 230, ECHR 2012). Nonetheless, the limitations applied 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 (see Lupeni Greek Catholic Parish and Others, cited above, § 89). 46. It is primarily for the national authorities, notably the courts, to resolve problems of interpretation of domestic legislation (see Edificaciones March Gallego S.A. v. Spain, judgment of 19 February 1998, § 33, Reports of Judgments and Decisions 1998-I). This applies in particular to the interpretation by courts of rules of a procedural nature such as time-limits governing the filing of documents or lodging of appeals (see, among other authorities, Pérez de Rada Cavanilles v. Spain, 28 October 1998, § 43, Reports 1998-VIII). The Court’s role is confined to ascertaining whether the effects of such an interpretation are compatible with the Convention. The Court will not therefore question under Article 6 § 1 the judgment of the national courts, unless their findings can be regarded as arbitrary or manifestly unreasonable (see Lupeni Greek Catholic Parish and Others, cited above, § 90). (b) Application of those principles to the present case
47. The Court is of the view that when under the national legislation an applicant has to exhaust an administrative procedure before having recourse to a court, the rules governing the time-limit for lodging a claim with the administrative authority may affect the right of access to a court as secured by Article 6 § 1 of the Convention (see, mutatis mutandis, König v. Germany, 28 June 1978, § 98, Series A no. 27, and Kiurkchian v. Bulgaria, no. 44626/98, § 51, 24 March 2005). 48. It is clear that in the instant case the applicant was not prevented from making a claim for unemployment benefit, but that does not suffice, as the right of access to a court includes not only the right to institute proceedings but also the right to obtain a determination of the dispute by a court. In the present case the administrative authorities, including the Administrative Court, rejected the applicant’s unemployment benefit claim, finding that he had lodged it outside the time-limit provided by section 31 of the Job Placement Act. 49. The Court notes that section 31 of the Job Placement Act lays down that the thirty-day time-limit for lodging an unemployment benefit claim runs from the day of the termination of employment, and that an additional, sixty-day time-limit runs from the expiry of the thirty-day limit (see paragraph 27 above). The Court further notes that the Administrative Court’s case-law submitted by the Government expresses the view that the time-limit for lodging a claim is to be calculated from the day of the termination of employment, regardless of how that day was set (see paragraph 29 above). 50. The Court reiterates that its task is not normally to review the relevant law and practice in abstracto, but to determine whether the manner in which they were applied to, or affected, the applicant gave rise to a violation of the Convention (see, among other authorities, Roman Zakharov v. Russia [GC], no. 47143/06, § 164, ECHR 2015). In the present case the domestic authorities calculated the time-limit for lodging the claim from the day of the termination of the applicant’s employment. However, it is undisputed that the day of the termination of his employment, namely 23 January 2007, was established in the labour dispute only on 15 February 2008, thus inevitably after the time-limit set out in section 31 of the Job Placement Act had expired. It is also undisputed that the applicant only found out about the day of the termination of his employment on 5 March 2008 when he received the Slavonski Brod County Court judgment (see paragraph 13 above). 51. In that connection, the Court has already held that parties must be able to avail themselves of the right to bring an action or to lodge an appeal from the moment they can effectively apprise themselves of court decisions imposing a burden on them or which may infringe their legitimate rights or interests (see Miragall Escolano and Others v. Spain, nos. 38366/97 et al., § 37, ECHR 2000‐I). To hold otherwise could substantially reduce the time-limit for lodging an action, or even render its timeliness impossible. 52. In light of this the Court considers that to calculate the time-limit for lodging the unemployment benefit claim from the day the court established as the day of termination of the applicant’s employment (23 January 2007) instead of from the date the applicant learned about the day of the termination of his employment (5 March 2008) could in the present case constitute an unreasonable construction of a procedural requirement which would prevent a claim being examined on the merits. 53. However, the Court notes that the applicant lodged his unemployment benefit claim after the expiry of the thirty-day time-limit even if 5 March 2008 is taken as a starting date for its running (see paragraph 14 above). Since the applicant did not submit any reason whatsoever for missing that time-limit he would not have been entitled to the additional, sixty-day time-limit provided by section 31(2) of the Job Placement Act (see paragraph 27 above). Therefore, irrespective of the findings of the domestic authorities which might be subject to some criticism (see paragraph 51 above), the applicant in any event did not comply with the time-limit for lodging his unemployment benefit claim. 54. In the light of the foregoing considerations, the Court finds that there has been no violation of Article 6 § 1 of the Convention. II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
55. The applicant, without relying on any Article of the Convention, complained for the first time in his reply of 24 February 2016 to the Government’s observations about the decisions of the administrative authorities ordering him to reimburse the unemployment benefit he had received from 30 September 2005 to 31 March 2008. 56. The Court notes that this complaint is substantially the same as the one raised by the applicant in application no. 3912/16, which was declared inadmissible by the Court on 25 February 2016, and that it contains no relevant new information. 57. It follows that this part of the application must be rejected in accordance with Article 35 §§ 2 (b) and 4 of the Convention. FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Declares the complaint concerning the applicant’s right of access to court admissible and the remainder of the application inadmissible;

2. Holds that there has been no violation of Article 6 § 1 of the Convention. Done in English, and notified in writing on 30 May 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Stanley NaismithIşıl KarakaşRegistrarPresident

[1] Approximately 119 euros (EUR) at the time. [2]Approximately EUR 261 at the time.