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FIRST
SECTION
CASE OF TOMLJENOVIĆ v. CROATIA
(Application
no. 35384/04)
JUDGMENT
STRASBOURG
21 June
2007
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Tomljenović v. Croatia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Mr C.L. Rozakis, President,
Mr L.
Loucaides,
Mrs N. Vajić,
Mr K. Hajiyev,
Mr D.
Spielmann,
Mr S.E. Jebens,
Mr G. Malinverni, judges,
and
Mr S. Nielsen, Section Registrar,
Having
deliberated in private on 31 May 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 35384/04) 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 Mate
Tomljenović (“the applicant”), on 21 September 2004.
- The
applicant was represented by Mr T. Houška, a lawyer practising
in Zagreb. The Croatian Government (“the
Government”) were represented by their Agent, Mrs Š.
StaZnik.
- On
2 May 2006 the Court
decided to communicate the complaint concerning the length of the
proceedings to the Government. Applying Article 29 § 3 of the
Convention, it decided to rule on the admissibility and merits of the
application at the same time.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1934 and lives in Zagreb.
- The
applicant was teaching biology and chemistry and was the headmaster
of V.N. Elementary School in Zagreb. By its decision of 22 December
1995 the Ministry of Education and Sport (Ministarstvo prosvjete i
športa) relieved the applicant of his post of headmaster
and dismissed him from work on account that he had reached the
retirement age.
- On
3 January 1996 the applicant brought an action in the Administrative
Court (Upravni sud Republike Hrvatske) against that decision.
- On
9 October 1997 the Administrative Court declined its jurisdiction in
the matter, and on 6 May 1998 forwarded the case to the Zagreb
Municipal Court (Općinski sud u Zagrebu).
- On
4 September 1998 the Municipal Court invited the applicant to
supplement his claim, which the applicant did within the time-limit
indicated. The court held hearings on 20 November 2000 and 5 February
2001.
- On
17 December 2001 the Municipal Court, considering that it lacked
jurisdiction in the matter, made an application to the Supreme Court
(Vrhovni sud Republike Hrvatske) with a view to resolving the
negative conflict of jurisdictions.
- On
22 January 2002 the Supreme Court ruled that the Administrative Court
was competent to hear the applicant's case.
- Following
the transfer of the case back to the Administrative Court, on
31 October 2002 that court ruled in favour of the applicant. It
quashed the impugned decision of 22 December 1995 and remitted
the case to the Ministry.
- Since
the Ministry failed to give a new decision within the statutory
time-limit of 30 days, on 5 November 2003 the applicant
requested the Administrative Court to do so (see paragraph 16 below).
In their reply to his request, the Ministry submitted that it was no
longer competent to issue such a decision owing to the change in
legislation governing primary education. On 6 May 2004 the
Administrative Court, acting as a court of full jurisdiction, issued
a decision entirely substituting for that of the Ministry. It
dismissed the applicant's request by accepting that the Ministry no
longer had competence in the matter. However, it found that in those
circumstances the Ministry should have forwarded the case-file to a
body authorised under the new legislation to issue such a decision –
the school board of the V.N. Elementary School. The Ministry did so
on 26 June 2006.
- It
appears that the case is currently pending before the school board.
- Meanwhile,
on 8 March 2004 the applicant lodged a constitutional complaint about
the length of the proceedings. On 1 July 2004 the Constitutional
Court (Ustavni sud Republike Hrvatske) dismissed the
applicant's complaint. It examined only the
length of the proceedings in their part between the introduction of
the applicant's request to the Administrative Court on 5 November
2003 and the lodging of the constitutional
complaint. The Constitutional Court dismissed the constitutional
complaint finding that the proceedings had lasted only four months
and three days.
II. RELEVANT DOMESTIC LAW
A. The Constitutional Court Act
- 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 competent court fails to decide a claim concerning
the individual'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 competent court 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.”
B. The Administrative Disputes Act
- The
relevant provisions of the Administrative Disputes Act (Zakon o
upravnim sporovima, Official Gazette nos. 53/1991, 9/92
and 77/92) provide as follows:
Section
64(1) provides that, in the execution of the Administrative Court's
judgment, the administrative authority shall issue its decision
immediately but at the latest within 30 days. Otherwise, a party may
by a special submission request it to do so. If the authority does
not issue a decision within seven days following that request, a
party may apply to the Administrative Court.
Section
64(2) provides that if such an application was made, the
Administrative Court shall first ask the administrative authority to
give reasons for its omission. The authority shall reply immediately
but at the latest within seven days. If the authority fails to do so,
or if the reasons given do not justify the failure to decide, the
Administrative Court shall give a decision entirely substituting for
the decision of the administrative authority.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that the length of the proceedings had been
incompatible with the “reasonable time” requirement, laid
down in 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...”
- The
Government contested that argument.
- The
Court considers that the period to be taken into consideration began
on 6 November 1997, the day after the entry into force of the
Convention in respect of Croatia. However, in assessing the
reasonableness of the time that elapsed after that date, account must
be taken of the state of proceedings at the time. In this connection
the Court notes that the proceedings commenced on 3 January 1996,
when the applicant brought an action in the Administrative Court
challenging his dismissal. Consequently, they were already pending
for one year and ten months before the ratification.
- The
period in question has not yet ended. It has so far lasted more than
nine and a half years after the ratification during which the case
has been examined on the merits before two levels of jurisdiction.
A. Admissibility
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
- The
Court reiterates that the reasonableness of the length of proceedings
must be assessed in the light of the circumstances of the case and
with reference to the following criteria: the complexity of the case,
the conduct of the applicant and the relevant authorities and what
was at stake for the applicant in the dispute (see, among many other
authorities, Cocchiarella v. Italy [GC], no. 64886/01,
§ 68, to be published in ECHR 2006; and Frydlender v.
France [GC], no. 30979/96, § 43, ECHR 2000-VII). It
further reiterates that special diligence is necessary in employment
disputes (Ruotolo v. Italy, judgment of 27 February 1992,
Series A no. 230-D, p. 39, § 17).
- The
Court has frequently found violations of Article 6 § 1 of the
Convention in cases raising issues similar to the one in the present
case (see, for example, Šundov v. Croatia,
no. 13876/03, 13 April 2006; and Pitra v. Croatia,
no. 41075/02, 16 June 2005).
-
Having examined all the material submitted to it, the Court considers
that the Government have not put forward any fact or argument capable
of persuading it to reach a different conclusion in the present case.
Having regard to its case-law on the subject, the Court considers
that in the instant case the length of the proceedings was excessive
and failed to meet the “reasonable time” requirement.
There
has accordingly been a breach of Article 6 § 1.
II. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE
CONVENTION
- The
applicant also complained under Article 5 § 1 that his right to
liberty and security of person had been violated because he had lost
his job, which had left him without means of subsistence.
- In
the light of all the material in its possession, and in so far as the
matter complained of is within its competence, the Court considers
that the present case does not disclose any appearance of a violation
of the Article of the Convention relied on. It follows that this
complaint is inadmissible under Article 35 § 3 as
manifestly ill-founded and must be rejected pursuant to
Article 35 § 4 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article
41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed 254,774.19 Croatian kunas (HRK) in respect of
pecuniary damage on account of the loss of earnings, and
15,000 euros (EUR) in respect of non-pecuniary damage.
- The
Government contested these claims.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged. It therefore rejects this claim. On
the other hand, it awards the applicant EUR 6,000 in respect of
non-pecuniary damage, plus any tax that may be chargeable on that
amount.
B. Costs and expenses
- The
applicant also claimed HRK 13,420 for the costs and expenses incurred
before the Court.
- The
Government contested the claim.
- According
to the Court's case-law, an applicant is entitled to reimbursement of
his costs and expenses only in so far as it has been shown that these
have been actually and necessarily incurred and were reasonable as to
quantum. In the present case, regard being had to the information in
its possession and the above criteria, the Court considers it
reasonable to award the sum of EUR 1,000 for the proceedings before
the Court, plus any tax that may be chargeable on that amount.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint concerning the excessive
length of the proceedings admissible and the remainder of the
application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
3. Holds
(a) that
the respondent State is to pay the applicant,
within three months from the date on which the judgment
becomes final according to Article 44 § 2 of the
Convention, the following amounts which are to be converted
into the national currency of the respondent State at a rate
applicable at the date of settlement:
(i) EUR
6,000 (six thousand euros) in respect of non-pecuniary damage;
(ii) EUR
1,000 (one thousand euros) in respect of costs and expenses;
(iii) any
tax that may be chargeable on the above amounts;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 21 June 2007, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
