Last Updated on October 3, 2020 by LawEuro
FIRST SECTION
DECISION
Application no. 5917/16
Darinka VRBANIĆ
against Croatia
The European Court of Human Rights (First Section), sitting on 25 September 2018 as a Committee composed of:
Kristina Pardalos, President,
Ksenija Turković,
Pauliine Koskelo, judges,
and Renata Degener, Deputy Section Registrar,
Having regard to the above application lodged on 18 January 2016,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Ms Darinka Vrbanić, is a Croatian national, who was born in 1963 and lives in Zagreb. She was represented before the Court by Mr A. Šooš Maceljski, a lawyer practising in Zagreb.
2. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. On 27 March 2009 the applicant was dismissed for alleged misconduct from her employment with the Croatian Pension Fund (Hrvatski zavod za mirovinsko osiguranje).
5. On 26 May 2009 she brought a civil action in the Zagreb Municipal Civil Court (Općinski građanski sud u Zagrebu), challenging the decision to dismiss her. Her action was dismissed on 27 May 2013, and the judgment became final on 9 June 2015.
6. Meanwhile, on 2 February 2010, the applicant and her former employer concluded a new employment contract following amendments to the Job Systemisation Regulations, which came into effect on 1 February 2010. Neither party has ever disputed the validity of that employment contract.
7. On 18 October 2012 the applicant returned to work after an extended period of sick leave. She was informed verbally that the contract of 2 February 2010 had been concluded just as a formality and that her employment had terminated on the expiry of the notice period, on 18 October 2012, in accordance with the dismissal decision of 27 March 2009.
8. The applicant brought a civil action in the Zagreb Municipal Labour Court (Općinski radni sud u Zagrebu). She claimed that by denying her to continue working, her employer had breached her rights under the employment contract of 2 February 2010. The defendant disputed the claim, alleging that its intention had not been to conclude a new contract, but rather to regulate the applicant’s employment status during the notice period.
9. In a judgment of 28 March 2013 the Zagreb Municipal Labour Court found for the applicant, holding that the employment contract concluded on 2 February 2010 contained all the basic elements required under the relevant provisions of the Labour Act. Moreover, it found that the contract was legally binding in view of the fact that neither party had ever challenged its validity. The relevant part of that judgment reads as follows:
“It is disputed between the parties whether the cancellation of the earlier employment contract by the decision of 27 March 2009 affects the existence and validity of the employment contract of 2 February 2010.
It appears from the employment contract of 2 February 2010, signed by the plaintiff on 18 March 2010, that the plaintiff commenced her employment with the defendant, and that, as of 1 February 2010, she was to perform the work of a control officer … at the Croatian Pension Fund…
It appears from the statement of claim and the reply to [it], as well as the observations of the parties given during the proceedings, that the plaintiff went to work, in accordance with clause 3 of the employment contract of 2 February 2010. However, the defendant did not allow her to perform her work, and sent her home.
This court finds that the employment contract of 2 February 2010 contains all the mandatory elements required under section 12 of the [Labour Act].
…
The fact that clause 1 of the contract provides that the parties [to the contract] agree that they concluded an indefinite employment contract before signing the one at issue, which means that the earlier contract exists, is irrelevant to this legal situation because, between the parties, the latest contract is in force. For that reason, it is irrelevant that the earlier employment contract was cancelled by the decision of 27 March 2009 because, afterwards, the defendant undisputedly offered a new contract which the plaintiff accepted and signed on 18 March 2010.
…
The objections made by the defendant concerning the reasons for the conclusion of the employment contract of 2 February 2010 are not legally relevant because the defendant did not challenge that contract, which is still in force and legally valid.”
10. Following an appeal by the defendant, by a judgment of 9 October 2013 the Zagreb County Court (Županijski sud u Zagrebu) reversed the first-instance judgment, dismissing the applicant’s claim. It held that the contract of 2 February 2010 had been concluded just as a formality with a view to aligning the applicant’s employment status with the new systemisation of jobs during the notice period, that is to say it had no legal effect. It further held that the defendant had not violated the applicant’s employment rights by not allowing her to work. The relevant part of that judgment reads as follows:
“… the first-instance court, on the well-established facts, misapplied the relevant law when allowing the plaintiff’s claim.
That is to say, it appears from the employment contract of 2 [February] 2010 that the parties to the proceedings undisputedly agreed that they had already concluded an indefinite employment contract and that the contract [of 2 February 2010] was concluded in accordance with the amendments to the Job Systemisation Regulations of 18 January 2010.
Given that the earlier employment contract of 29 June 2001 was cancelled due to misconduct, that the proceedings concerning the legality of this dismissal are pending and that during the notice period [the plaintiff’s] employment had to be aligned with the new systemisation of jobs, while it is to be stressed that the indefinite employment had already started, the plaintiff’s employment rights were not violated when she was verbally informed that her employment had terminated on the expiry of the notice period.
After the notice period regarding the cancellation of the employment contract of 29 June 2001 had expired, the defendant informed the plaintiff that her employment had terminated because, at that time, her employment had really terminated. Such action was legally correct and the conclusion of the employment contract of 2 [February] 2010 was just a formality with a view to aligning the applicant’s employment status with the new systemisation of jobs during the notice period.”
11. In an appeal on points of law lodged subsequently, the applicant complained, inter alia, that the findings of the Zagreb County Court that the contract at issue had been concluded as a formality were legally unacceptable, arbitrary, with no legal basis, contrary to the mandatory provisions of the Labour Act and in breach of the principle of the rule of law. In addition, she referred to the judgment of 14 May 2013 in which the same court had ruled in favour of her colleague in factually and legally identical case.
12. By a decision of 13 January 2015 the Supreme Court (Vrhovni sud Republike Hrvatske) declared the applicant’s appeal on points of law inadmissible. The Supreme Court first stated:
“The present case does not concern [types of] judgments referred to in section 382(1) subparagraphs 2 and 3 of the Civil Procedure Act. Therefore, the financial criterion set out in section 382(1) subparagraph 1 of the Civil Procedure Act is relevant for determining the admissibility of the appeal on points of law.
The plaintiff’s claim concerns [the employer’s] refusal to allow her to [work pursuant to] the employment contract of 2 February 2010 and [her] reinstatement.
Since the plaintiff’s claim does not concern a sum of money and [she] failed to set the value of the subject matter of the dispute in [her] statement of claim … pursuant to section 40(5) of the Civil Procedure Act it is considered that the value of the subject matter of the dispute is 50,000 [Croatian] kunas.”
The Supreme Court then established that the applicant’s appeal on points of law neither met the statutory financial threshold for an ordinary appeal on points of law nor the formal requirements for an extraordinary appeal on points of law stipulated in section 382(3) of the Civil Procedure Act (see paragraph 15 below).
13. The applicant then lodged a constitutional complaint which the Constitutional Court (Ustavni sud Republike Hrvatske) declared inadmissible in a decision of 17 June 2015 on the grounds that the case raised no constitutional issue. That decision was served on the applicant on 23 July 2015.
B. Relevant domestic law
14. Section 382 of the Civil Procedure Act (Zakon o parničnom postupku, Official Gazette of the Socialist Federal Republic of Yugoslavia no. 4/77 with subsequent amendments, and Official Gazette of the Republic of Croatia no. 53/91, with subsequent amendments), which has been in force since 1 July 1977, provides for an appeal on points of law (revizija), a remedy allowing the parties to civil proceedings to contest second-instance judgments before the Supreme Court. Paragraph 1 of that section specifies the cases in which parties may lodge an (ordinary) appeal on points of law. Paragraphs 2 and 3 set out procedural requirements under which parties may nevertheless lodge an appeal on points of law (therefore called an “extraordinary appeal on points of law”) even if their case does not fall into any category of cases specified in paragraph 1. The relevant part of section 382 reads as follows:
Section 382
“(1) Parties may lodge an appeal on points of law (revizija) against a second‑instance judgment:
– if the value of the subject matter of the dispute of the contested part of the judgment exceeds HRK 200,000;
– if the judgment was delivered in a dispute instituted by an employee against the decision on the existence of the employment contract or termination of employment relationship, or with a view to establishing that the employment relationship exists;
– [if the second-instance court assessed the evidence and/or established the facts differently from the first-instance court or held a hearing].
(2) In cases where the parties are not entitled to lodge an appeal on points of law under paragraph 1 of this section, they may [nevertheless] do so if a decision in the dispute depends on the resolution of a substantive or procedural legal issue [that is] important for ensuring uniform application of the law and equality of citizens, for example:
– if the Supreme Court has not yet ruled on that issue … in respect of which there is divergent case-law of the second-instance courts;
…
(3) In an [extraordinary] appeal on points of law … the appellants must specify the legal issue about which they are lodging the appeal and give reasons as to why they find that issue important for ensuring uniform application of the law and equality of citizens.
… ”
COMPLAINT
15. The applicant complained under Article 6 § 1 of the Convention of a violation of her right to a fair hearing on account of divergent case-law of domestic courts.
THE LAW
16. The applicant complained that the fact that the Zagreb County Court’s judgment in her case was contrary to second-instance judgments adopted in factually and legally identical cases, had rendered the proceedings unfair. The applicant referred, in particular, to an earlier judgment of the same court, of 14 May 2013, and to the judgment of the Split County Court of 4 December 2013. She relied on Article 6 § 1 of the Convention, which in its relevant part reads as follows:
“In the determination of his civil rights and obligations … everyone is entitled to a fair hearing … by [a] … tribunal …”
17. The Government disputed the admissibility of the application, arguing that the applicant had failed to exhaust domestic remedies and that the application was, in any event, manifestly ill-founded.
A. Exhaustion of domestic remedies
1. The parties’ arguments
18. The Government argued that the applicant had failed to properly exhaust the available domestic remedies, for the following reasons. One of the mechanisms for overcoming inconsistencies in the case-law was an extraordinary appeal on points of law. Although the applicant had lodged such an appeal with the Supreme Court, that court could have not examined inconsistencies in the case-law because she had failed to meet the requirements set out in section 382 of the Civil Procedure Act. Consequently, the Constitutional Court could have only examined the part of her constitutional complaint relating to the Supreme Court decision, because the complaint concerning the second-instance judgment had been lodged out of time. According to the Government, the applicant could have simultaneously lodged an appeal on points of law and a constitutional complaint against the second-instance judgment, another mechanism for overcoming inconsistencies in the case-law. In that situation, the Constitutional Court would have adjourned the examination of her constitutional complaint until the Supreme Court had decided on the appeal on points of law. Therefore, the applicant had failed to provide both the Supreme Court and the Constitutional Court with a genuine opportunity to examine the complaint she was now raising before the Court.
19. The applicant argued that, under the Courts Act, it was the obligation of every court, not only the Supreme Court, to ensure uniform interpretation and application of the law and equality of all before the law.
2. The Court’s assessment
20. The Court notes that, in the Government’s own admission, an extraordinary appeal on points of law is only one of the mechanisms under Croatian law for addressing case-law inconsistencies (see paragraph 18 above). Another such mechanism is an ordinary appeal on points of law as nothing prevents the parties who are entitled to lodge it to flag case-law inconsistencies when lodging that remedy.
21. The Court further notes:
– that under section 382(1) subparagraph 2 of the Civil Procedure Act an (ordinary) appeal on points of law is always allowed, inter alia, in disputes instituted by an employee “with a view to establishing that the employment relationship exists” (see paragraph 14 above), and
– that in the present case the central issue in the civil proceedings complained of was whether the applicant’s employment relationship with the Croatian Pension Fund existed at the relevant time, having regard to the employment contract of 2 February 2010 (see paragraphs 6-10 above).
22. It would therefore appear that the applicant was entitled to lodge an ordinary appeal on points of law. She thus did not have to resort to an extraordinary appeal on points of law and comply with its rather strict formal requirements, as the Government suggested. It is true that the Supreme Court nevertheless declared the applicant’s appeal on points of law inadmissible. However, it did so by merely stating that her case did not fall into the category of disputes specified in section 382(1) subparagraph 2 of the Civil Procedure Act, without any further explanation (see paragraphs 12 and 14 above).
23. In these circumstances, and given that in her (ordinary) appeal on points of law the applicant had specifically complained that the Zagreb County Court’s judgment in her case contradicted that court’s earlier judgment in factually and legally identical case (see paragraph 11 above), that is, made the same complaint she later on raised in her application to the Court, it is to be concluded that she had properly exhausted domestic remedies.
24. The Government’s objection as to the exhaustion of domestic remedies must therefore be dismissed.
B. Whether the application is manifestly ill-founded
1. The parties’ arguments
25. The Government, without disputing that the facts of the cases concerning the applicant’s colleagues were identical, argued that there was nothing to suggest that the Zagreb County Court judgment was arbitrary or that the applicant had not had a fair hearing. According to Government, that judgment was sufficiently reasoned and was based on the employment contract in question. The central issue of the present case was inconsistency of the applicant’s case with two other factually and legally similar cases. In this connection, the Government reiterated their above arguments that under Croatian law there was a mechanism for overcoming case-law inconsistencies, which the applicant had failed to use (see paragraph 18 above).
26. The applicant argued that the Zagreb County Court had decided contrary to its previous judgment, as well as the judgment of the Split County Court of 4 December 2013 (see paragraph 16 above), in the factually and legally identical cases concerning her colleagues. In doing so, it had provided no reasons. This had resulted in a breach of rule of law and the principle of legal certainty, which had violated her right to a fair hearing.
2. The Court’s assessment
27. The relevant principles regarding alleged violations of Article 6 § 1 of the Convention on account of divergent case-law of domestic courts are summarised in the cases of Nejdet Şahin and Perihan Şahin v. Turkey ([GC], no. 13279/05, §§ 49-58, 20 October 2011); and Lupeni Greek Catholic Parish and Others v. Romania ([GC], no. 76943/11, § 116, ECHR 2016 (extracts)). The Court’s assessment of such complaints includes establishing whether “profound and long-standing differences” exist in the relevant case-law, whether the domestic law provides for machinery for overcoming these inconsistencies, whether that machinery has been applied and, if appropriate, to what effect (see Nejdet Şahin and Perihan Şahin, cited above, § 53; and Lukežić v. Croatia (dec.), no. 24660/07, § 52, 10 September 2013).
28. In the present case the applicant alleged that the impugned Zagreb County Court’s judgment of 9 October 2013 (see paragraph 10 above) was contrary to that court’s earlier judgment of 14 May 2013, and the judgment of the Split County Court of 4 December 2013, both adopted in factually and legally identical cases brought by her colleagues (see paragraphs 16 and 26 above).
29. Given that all three judgments were adopted in a rather short period between May and December 2013, the Court considers that the judgment in the applicant’s case, which may seem to contradict the other two second‑instance judgments, is not sufficient for a conclusion that there were “profound and long-standing differences” in the case-law of the domestic courts.
30. The Court also finds that the contested judgment of the Zagreb County Court of 9 October 2013 is satisfactorily reasoned and cannot be considered arbitrary. Moreover, there is nothing to suggest that the proceedings leading to it were otherwise unfair.
31. It follows that the present application is inadmissible under Article 35 § 3 (a) of the Convention as manifestly ill-founded and must be rejected pursuant to Article 35 § 4 thereof.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 18 October 2018.
Renata Degener Kristina Pardalos
Deputy Registrar President
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