CASE OF MARAVIĆ MARKEŠ v. CROATIA
Violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Fair hearing;Equality of arms)
Dmitry Dedov;Elisabeth Steiner;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Ksenija Turković
5. The applicant was born in 1949 and lives in Zagreb. 6. In 1985 the applicant was employed as an inspector for Zagreb Municipal Council (Grad Zagreb). On 25 June 1991 the Executive Board (Izvršno vijeće) of the Municipal Council removed the applicant from her position and on 26 June 1991 she was made available for redeployment (stavljena na raspolaganje) and subsequently redeployed to the Municipal Council’s Secretariat for Planning, Public Utilities, Transport and Infrastructure (Gradski sekretarijat za prostorno uređenje, komunalne poslove, promet i veze – “the Secretariat”) until 30 September 1991, without being given a permanent role there. 7. On 30 September 1991 the Secretariat determined that the applicant could not be found a permanent position within the organisation and terminated her employment upon the expiry of her notice period on 31 March 1992. The applicant did not, at the time, receive any severance pay following her dismissal. 8. On 29 July 2006 the applicant requested payment of severance pay from Zagreb Municipal Council’s Office for Planning, Environmental Protection, Development, Construction, Public Utilities and Transport (Gradski ured za prostorno uređenje, zaštitu okoliša, izgradnju grada, graditeljstvo, komunalne poslove i promet – “the Municipal Office”). 9. On 10 October 2006 the Municipal Office found that the request for payment should have been submitted within three years of the applicant’s dismissal and rejected it as lodged out of time. The relevant part of the decision reads as follows: “... The request of Dragica Markeš is inadmissible, as the conditions for initiating proceedings have not been met... By the Secretariat’s decision... the applicant’s employment was terminated on 31 March 1992 in accordance with section 383 of the Public Administration Act. On 29 July 2006 the applicant requested the severance pay, relying on section 383(a) of the Public Administration Act. This Office finds that in the present case the conditions for initiating proceedings following the request of Dragica Markeš have not been met. Section 138 of the Labour Act... sets the statute of limitations for claims arising from employment at three years. Section 214 subsection 1 of the Obligations Act... provides that the right to claim fulfilment of an obligation ceases when the statutory limitation period expires... In the present case, the statute of limitations ran from 1 April 1992. It follows that the applicant lodged her request for severance pay out of time...” 10. The applicant appealed against this decision to the Chief of the Municipal Office and on 9 November 2006 he dismissed the appeal as without merit and upheld the first-instance decision. The relevant part of the decision reads as follows: “... The appeal is without merit. ... After an examination of the appeal and the entire case file, it was found that the first-instance body had fully and correctly established the factual background and had rendered a correct decision. There had been no breaches of procedural rules or errors in the application of the law to the detriment of the appellant... As regards the appellant’s allegations that, instead of provisions of the Labour Act and the Obligations Act, the provisions of the State Administration Act and Administrative Proceedings Act should have been applied to her case, [this authority finds them to be] unfounded... Section 371 of the Obligations Act provided that claims became time-barred after five years, if no other statutory limitation period was prescribed by law. Section 138 of the Labour Act provides that the statute of limitations for claims arising from employment, including severance pay, is three years. In the light of the above, it is apparent at the outset that under both the Obligations Act, relevant for determining the statute of limitations at the time the appellant’s employment was terminated, and under the Labour Act, relevant for determining the statute of limitations at the time of lodging the request, the appellant’s claim is time-barred. The validity of the decision of the first-instance authority is therefore clear...” 11. On 23 December 2006 the applicant brought an administrative action against the appeal decision in the Administrative Court (Upravni sud Republike Hrvatske). Subsequently, the Administrative Court forwarded the case for comment to the Municipal Office. 12. On 15 February 2007 the Municipal Office submitted its observations to the Administrative Court. In those observations the Municipal Office raised the issue of the applicant’s entitlement to severance pay for the first time and reiterated that the request for payment had been lodged out of time. These observations were not forwarded to the applicant. The relevant part of the observations reads as follows: “... II. It is further noted that even if the claimant had requested severance pay within the statutory time-limit, she would not have been entitled to it, as her employment was not terminated on the basis of section 383(a) of the State Administration Act, on which the claimant relied, but on the basis of section 383 of that Act.... Section 383 of the State Administration Act, on the basis of which the claimant’s employment was terminated, envisages the restructuring of units or individual posts as grounds for being made available for redeployment or termination of employment, and as such does not envisage severance pay... On the contrary, section 383(a) envisages the needs of the civil service as grounds for being made available for redeployment or termination of employment. It is further noted that section 383(a) of the State Administration Act, relied upon by the claimant, came into force on 8 October 1991, at the time when the decision setting the claimant’s notice period, on basis of section 383 of the State Administration Act, had been already rendered. Upon the expiry of that period, the claimant’s employment was terminated. ...” 13. On 26 September 2007 the applicant requested that the proceedings before the Administrative Court be expedited. On 7 February 2008 the applicant again requested that the proceedings be expedited and an oral hearing held in her case. On 24 May and 9 December 2008 the applicant requested that the Administrative Court expedite the proceedings and decide her case with or without holding an oral hearing. 14. On 31 March 2009 the applicant asked the Administrative Court and the President of the Supreme Court (Vrhovni sud Republike Hrvatske) to exclude the assigned judge and the President of the Administrative Court from her case. She expressed concerns that her case had been deliberately delayed. 15. On 16 April 2009 the President of the Supreme Court dismissed the applicant’s request for exclusion of the President of the Administrative Court as groundless. 16. On 23 April 2009 the President of the Administrative Court dismissed the applicant’s request for exclusion of the assigned judge as unsubstantiated. 17. On 6 May 2009 the Administrative Court dismissed the applicant’s action. The relevant part of the judgment reads as follows: “ ... The complaint is without merit. ... It transpires from the above-mentioned statutory provisions that the claimant’s employment was terminated on the basis of section 383, and not section 383(a) of the State Administration Act, and that the claimant’s claim is unfounded because her employment was terminated due to the restructuring of units or individual posts, and not due to redeployment for the needs of the civil service, as prescribed by section 383(a) of the Act. In the light of the above, the claimant has no grounds for severance pay. However, the defendant authority did not entertain the claimant’s severance pay entitlement. Instead, it declared her request inadmissible as time-barred... Given that the claimant lodged her request after the expiry of the statutory time-limit, the defendant authority correctly dismissed the claimant’s appeal against its decision ...” 18. On 10 July 2009 the applicant lodged a constitutional complaint before the Constitutional Court (Ustavni sud Republike Hrvatske) complaining, inter alia, of a lack of adversarial proceedings before the Administrative Court. On 30 March 2011 the Constitutional Court declared the applicant’s complaint inadmissible as manifestly ill-founded. The relevant part of the decision reads as follows: “The constitutional complaint is declared inadmissible. 1. The constitutional complaint was lodged against the decision of the Administrative Court... of 6 May 2009 whereby [that court] dismissed the complainant’s administrative complaint and upheld the decision of the Municipal Office... of 9 November 2006. By that decision the complainant’s appeal against the first-instance decision whereby her request for severance pay had been declared inadmissible was dismissed. 2. The complainant considers that her rights guaranteed by Articles 14 § 2, 19 § 1, 29 § 1 and 48 § 1 of the Constitution were violated by the contested decisions. She also cites Articles 6, 13 and 14 of the European Convention on Human Rights... The conditions for examining the merits of the case have not been met. 3. ... Section 32 of the Constitutional Court Act provides: “The Constitutional Court shall declare inadmissible any request or complaint in respect of which it has no jurisdiction; which is lodged out of time; and in other situations where the conditions for examining the merits of the case are not met. By “examining the merits of the case”, section 32 of the Constitutional Court Act refers to scrutinising the constitutional law aspects of the case. 4. In accordance with the Constitution and the Constitutional Court Act, the Constitutional Court does not form part of the regular judicial system, does not conduct court proceedings and does not decide on the merits of judicial matters. The Constitutional Court is a separate body established under the Constitution for the protection of individual human rights and fundamental freedoms (constitutional rights) in proceedings instituted by a constitutional complaint. 5. A constitutional complaint is not a regular or extraordinary remedy within the system of domestic legal remedies. It is a special, constitutional remedy for the protection of constitutional rights in individual cases. It is therefore not sufficient to base a constitutional complaint on breaches resulting from alleged unlawful acts committed by a competent body or a court. The legal protection against such unlawfulness is provided by general and specialised courts in proceedings taking place before several levels of jurisdiction. They can exceptionally be examined before the Constitutional Court, but only in so far as they can [be argued to have] violated human rights and fundamental freedoms protected by the Constitution. It is also not sufficient to repeat the submissions from the appeal or cassation proceedings or to merely enumerate constitutional rights that have allegedly been violated. The constitutional complaint must contain specific and reasoned claims of a breach of a constitutional right. 6. In the present case, the Administrative Court accepted the findings of the administrative bodies that the complainant’s claim had been time-barred, as her employment had been terminated on 31 March 1992 and she had submitted her request for severance pay on 29 July 2006. The Constitutional Court finds the claims in the constitutional complaint to be a repetition of the claims in the administrative complaint. In her constitutional complaint, the complainant was unable to show that the Administrative Court had acted contrary to the constitutional provisions concerning human rights and fundamental freedoms or had arbitrarily interpreted the relevant statutory provisions. The Constitutional Court therefore finds that the present case does not raise an issue of the complainant’s constitutional rights. Thus, there is no constitutional law issue in the case for the Constitutional Court to decide on. ...” 19. Meanwhile, on 28 November 2008 the applicant lodged a complaint with the Supreme Court (Vrhovni sud Republike Hrvatske) about the length of the administrative proceedings. 20. On 30 October 2009 her complaint was dismissed. The Supreme Court found that the proceedings had lasted for two years, eight months and fifteen days at two levels of jurisdiction, which was not deemed to be excessive. 21. The applicant appealed against this decision and on 7 February 2011 a panel of judges of the Supreme Court dismissed her appeal. 22. On 18 April 2011 the applicant lodged a constitutional complaint before the Constitutional Court against the decisions of the Supreme Court. 23. On 2 June 2011 the Constitutional Court declared the applicant’s constitutional complaint inadmissible on the grounds that the contested decisions were not susceptible to constitutional review.