CASE OF ČIKANOVIĆ v. CROATIA
Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court)
Erik Møse;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque;Ksenija Turković
5. The applicant was born in 1952 and lives in Vukovar. 6. The applicant worked for the Borovo Municipality until 16 January 1991, when he was made redundant. 7. On 28 March 1991 the applicant brought a civil action against the Borovo Municipality in the Vukovar Municipal Court (Općinski sud u Vukovaru), seeking reinstatement and salary arrears. 8. By a partial judgment (djelomična presuda) of 15 October 1996, the Vukovar Municipal Court annulled the decision on the applicant’s dismissal as unlawful and ordered his reinstatement within eight days of the judgment becoming final. At the same time, the court decided to wait until the partial judgment became final before examining the applicant’s claim for salary arrears. The relevant part of the partial judgment in question reads as follows: “The decision of the defendant, the Borovo Municipality, ... of 16 January 1991 on the termination of the plaintiff’s [the applicant’s] employment is hereby annulled, ... the defendant, the Borovo Municipality, is ordered to reinstate the plaintiff in his post ... and to acknowledge his employment-related rights ..., and to do so within eight days of this judgment becoming final ... On the remaining part of the claim and the [claim for] costs and expenses [the court] shall decide by a definitive [i.e. later] judgment.” The judgment was served on the applicant’s representative on the same day, and on the defendant on 13 November 1996. 9. On 5 December 1996 the defendant, represented by the Zagreb State Attorney’s Office, appealed against the partial judgment. The applicant received a copy of that appeal on 27 January 1997. 10. In the meantime, after having submitted several written requests for reinstatement to the Borovo Municipality without success, on 17 December 1996 the applicant wrote to the President of the Vukovar County Court (Županijski sud u Vukovaru) seeking help in that regard. In particular, he submitted that on 26 November and 16 December 1996 he had requested the Vukovar Municipal Court to certify that its partial judgment had become final (see paragraph 8 above) by adding a stamped endorsement to that effect (klauzula pravomoćnosti – “certificate of finality”). He alleged that his requests had been refused orally with the explanation that the defendant’s appeal of 5 December 1996 had prevented the judgment from becoming final. 11. On 6 February 1997 the applicant lodged a response to the defendant’s appeal, arguing, inter alia, that the Vukovar Municipal Court should declare the appeal inadmissible as it had been lodged out of time. 12. By a decision of 28 March 1997 the Vukovar Municipal Court declared the defendant’s appeal inadmissible as having been lodged outside the statutory time-limit, finding that the last day for lodging the appeal had been 28 November 1996. The defendant appealed against that decision. 13. On 30 September 1997 the applicant took early retirement on grounds of disability. 14. By a decision of 2 July 1998 the Vukovar County Court dismissed the defendant’s appeal against the Vukovar Municipal Court’s decision of 28 March 1997 (see paragraph 12 above). 15. On 13 October 1998 the Vukovar Municipal Court stamped the applicant’s copy of its partial judgment of 1996 (see paragraph 8 above) to indicate that it had become final. The stamp indicated that the partial judgment had become final on 29 November 1996. 16. In the resumed proceedings concerning the salary arrears (see paragraph 8 above), by a judgment of 28 April 2004 the Vukovar Municipal Court found for the applicant and ordered the defendant to pay him salary arrears for the period between 1 March 1991 and 1 October 1997, that is, 110,226.19 Croatian kunas (HRK) in total, together with the accrued statutory default interest. 17. However, following an appeal by the defendant, on 16 June 2004 the Vukovar County Court reversed the first-instance judgment, dismissing the applicant’s action in its entirety. That court noted, inter alia, that under section 238 of the Enforcement Act (see paragraph 30 below) an employee could apply for the enforcement of a judgment ordering his reinstatement within thirty days of its becoming final. The partial judgment (see paragraph 8 above) had become final on 29 November 1996 (see paragraph 15 above and paragraph 27 below) but the applicant had never applied for its enforcement, and he should have done so by 29 December 1996. The County Court therefore held that the applicant had not only lost the right to seek reinstatement but consequently also the right to receive salary arrears. 18. On 23 July 2004 the applicant lodged an appeal on points of law (revizija) against the second-instance judgment. He argued that he could not possibly have applied for enforcement of the partial judgment (see paragraph 8 above) by 29 December 1996 because at that time the defendant’s appeal of 5 December 1996 (see paragraph 9 above) against the partial judgment had still been pending and he had consequently been unaware that the partial judgment had become final. That the partial judgment had actually become final on 29 November 1996 had become apparent to him only on 13 October 1998, when it had been confirmed by the stamped endorsement of the Vukovar Municipal Court. However, since he had retired on 30 September 1997 (see paragraph 13 above), he had not been able to apply for enforcement of the partial judgment and seek reinstatement. 19. On 8 December 2004 the Supreme Court (Vrhovni sud Republike Hrvatske) quashed the second-instance judgment in part and upheld it in part. In particular, it quashed the second-instance judgment in the part dismissing the applicant’s claim for salary arrears for the period between 1 March 1991 and 29 December 1996 (that is, for HRK 76,477.7, together with the accrued statutory default interest) and in that part remitted the case to the first-instance court. However, it upheld the second-instance judgment in the part dismissing the applicant’s claim for salary arrears for the period between 29 December 1996 and 1 October 1997 (that is, for HRK 33,748.42, together with the accrued statutory default interest). The relevant part of that judgment reads as follows: “In dismissing the plaintiff’s claim for payment of salary arrears for the period between 1 March 1991 and 29 December 1996 [the County Court] misapplied the substantive law. In the proceedings it was established that the defendant’s decision on the termination of the plaintiff’s employment ... had been annulled by the final partial judgment of the Vukovar Municipal Court of 15 October 1996, [whereby] the defendant had [also] been ordered to reinstate the plaintiff ... It was [further] established that the [partial] judgment in question had become final on 29 November 1996, and that the plaintiff had not instituted enforcement proceedings for reinstatement within the thirty-day time-limit laid down in section 238 of the Enforcement Act. Given that the [partial] judgment in question is final, the plaintiff is entitled to the rights he would have acquired had the annulled decision never been rendered. Therefore, the defendant has to pay the plaintiff the salary arrears ... as if the unlawful decision on dismissal had never existed. ... Since the lower courts erred in law, the factual background was not properly established. The appeal on points of law is therefore allowed [in part] and the impugned judgment quashed in the part whereby the plaintiff’s claim for salary arrears for the period between 1 March 1991 and 29 December 1996 was dismissed. In that part the case is remitted to the first-instance court. ... As regards the [part of the contested] judgment whereby the plaintiff’s claim for salary arrears for the period after 29 December 1996 was dismissed, it is to be noted that the lower courts correctly applied the substantive law in dismissing the plaintiff’s claim as unfounded. In particular, the plaintiff failed to institute enforcement proceedings for reinstatement within the strict thirty-day time-limit set forth in section 238 of the Enforcement Act ... It follows that the plaintiff did not work from 29 December 1996 onwards owing to his own omission. He is therefore not entitled to salary arrears for that period. For these reasons the appeal on points of law has to be dismissed ... in so far as it contests that part of the impugned judgment ...” 20. On 8 December 2004 the applicant lodged a constitutional complaint against the Supreme Court’s judgment, alleging a violation of his constitutional right to a fair hearing. In so doing he repeated the argument raised in his appeal on points of law. 21. On 20 November 2006 the Constitutional Court (Ustavni sud Republike Hrvatske) dismissed the applicant’s constitutional complaint, serving its decision on the applicant’s representative on 29 November 2006. The relevant part of that decision reads as follows: “... The constitutional complaint is unfounded. ... As regards the complainant’s argument that he could not have obtained a certificate of finality and thus observed [the statutory time-limit laid down in] section 238 of the Enforcement Act, the Constitutional Court finds ... ... that this [argument] cannot be raised for the first time in a constitutional complaint. Rather, it should have been raised in proceedings before the ordinary courts. Moreover, the complainant’s submissions suggest that he never instituted enforcement proceedings for reinstatement, but only unsuccessfully contacted the defendant on several occasions requesting to be returned to work. The complainant therefore lost the right to salary arrears from 29 December 1996 onwards owing to his own failure to undertake the procedural steps required by section 238 of the Enforcement Act ...” 22. Meanwhile, in the resumed proceedings following the part of the Supreme Court’s decision of 8 December 2004 remitting the case (see paragraph 19 above), by a judgment of 27 January 2006 the Vukovar Municipal Court ordered the Borovo Municipality to pay the applicant salary arrears for the period between 1 March 1991 and 29 December 1996. 23. By a judgment of 13 July 2007 the Vukovar County Court dismissed an appeal by the defendant and upheld the first-instance judgment.