CASE OF LONČAR v. BOSNIA AND HERZEGOVINA
Remainder inadmissible;No violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court)
Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney
5. The applicant was born in 1934 and lives in Sarajevo. 6. He was an employee of Unioninvest Holdings d.d., a company based in Sarajevo (“the company”). In 1991 the applicant was appointed head of its Frankfurt office. 7. On 3 December 1993 the applicant was dismissed because of an alleged breach of duty. The notice of dismissal was sent by facsimile from the company’s headquarters in Sarajevo. An appeal against that decision to the competent court in Sarajevo was possible within fifteen days of the date of its delivery. It should be noted, however, that the relevant legislation at the time provided that before submitting a claim to a court an employee had to complain to his or her employer within fifteen days of the date he or she received the impugned decision (see paragraph 28 below). 8. The applicant attempted to send an appeal through the company’s Frankfurt office by a facsimile, requesting that the appeal be transferred to the competent court in Sarajevo, but it was refused. It would appear that he did not make any further attempts at that time. 9. After his dismissal the applicant was granted refugee status in Germany. 10. On 18 December 1993 he initiated proceedings against the company before the Frankfurt Labour Court (Arbeitsgerichts Frankfurt am Main), in accordance with the Agreement on Secondments between the Socialist Federal Republic of Yugoslavia and Germany, seeking reinstatement and payment of salary arrears. By a court offered settlement concluded on 24 August 1994 the company agreed to pay the applicant his outstanding salary for October, November and December 1993. 11. In the meantime, on 10 August 1994 criminal proceedings were initiated against the applicant before the Sarajevo Municipal Court (“the Municipal Court”) for the alleged breach of duty. It was alleged that the applicant acted in contravention of the Agreement on Secondments by enabling certain persons, who were neither the employees of the company nor the citizens of Bosnia and Herzegovina, to obtain residence and work permits in Germany. 12. On 16 October 1995 the Frankfurt Labour Court declared that it lacked jurisdiction to deal with the applicant’s request for reinstatement. The applicant appealed against that decision to the Hesse District Court (Hessisches Landesarbeitsgericht und Arbeitsgericht). 13. On 8 March 1996 the applicant returned to Sarajevo. 14. After his unsuccessful attempt to obtain the original notice of dismissal of 3 December 1993 (see paragraph 7 above), on 13 June 1996 the applicant initiated proceedings against the company before the Municipal Court seeking reinstatement and payment of outstanding salary from December 1993 onwards. As regards the timeliness of his claim, the applicant submitted that he had been unable to approach the Municipal Court earlier because of the war in Bosnia and Herzegovina and he informed the court about the pending proceedings before the courts in Germany. 15. On 31 July 1996 the company asked the Hesse District Court to discontinue the proceedings on the applicant’s appeal (see paragraph 12 above), in view of the new proceedings before the Municipal Court. It would appear that those proceedings were discontinued. 16. On 29 April 1998 the applicant complained to the Human Rights Chamber (a domestic human-rights body set up under Annex 6 to the 1995 General Framework Agreement for Peace in Bosnia and Herzegovina) about the length of the proceedings before the Municipal Court. On 9 March 2001 the Human Rights Chamber found that the applicant’s right to a hearing within a reasonable time had been violated, awarded him approximately 500 euros (EUR) as just satisfaction, and ordered the Federation of Bosnia and Herzegovina (one of the constitutent Entities of Bosnia and Herzegovina) to secure a prompt resolution of his case before the Municipal Court by 31 July 2001 at the latest. 17. On 14 December 1999 the criminal proceedings against the applicant (see paragraph 11 above) were terminated pursuant to the Amnesty Act 1999. 18. On 13 November 2001 the Municipal Court allowed the applicantʼs claim and held that he had been unlawfully dismissed. It did not, however, examine the timelines of the applicantʼs claim although the company had raised this issue in their submissions to the court. 19. On 7 March 2002 the Sarajevo Cantonal Court (“the Cantonal Court”) quashed that judgment and remitted the case for a retrial. 20. On 7 April 2003 the Municipal Court rejected the applicant’s claim finding that his dismissal had been lawful. In view of such ruling, the court did not find it relevant to separately examine the issue of the timelines of the applicant’s claim. That judgment was upheld by the Cantonal Court on 25 October 2004. 21. On 9 March 2006 the Supreme Court of the Federation of Bosnia and Herzegovina (“the Supreme Court”) dismissed an appeal by the applicant on points of law. It held that the lower courts had misapplied domestic law in rejecting the applicant’s claim, as it should have been dismissed as out of time: it was submitted outside the statutory time-limit prescribed by the labour legislation in force at the time of his dismissal (fifteen days of the date of delivery of the decision). It was also submitted outside the statutory time-limit prescribed by the new labour legislation (one year of the date of delivery of the decision). As regards the applicant’s argument that he was unable to reach the courts in Sarajevo because of the war, the Supreme Court held that the applicant could have submitted his claim to any other court in Bosnia and Herzegovina under the relevant legislation at the time (see paragraphs 25 and 27 below). In that connection, the court noted that other cities in Bosnia and Herzegovina, with a few exceptions, had not been under a total blockade throughout the war as was Sarajevo. However, since the legal consquences for the applicant were the same, the Supreme Court did not amend the lower courtsʼ judgments („nije mijenajo nižestepene presude“). 22. On 8 November 2007 the Constitutional Court of Bosnia and Herzegovina upheld that decision. In so doing, it essentially endorsed the reasons given by the Supreme Court and noted further that the applicant could have sent his claim by post or could have authorised someone in Bosnia and Herzegovina to lodge a claim on his behalf.