Last Updated on November 4, 2019 by LawEuro
FIRST SECTION
DECISION
Application no. 9440/12
Zlatko GODLER
against Croatia
The European Court of Human Rights (First Section), sitting on 20 February 2018 as a Committee composed of:
Aleš Pejchal, President,
Armen Harutyunyan,
Jovan Ilievski, judges,
and Renata Degener, Deputy Section Registrar,
Having regard to the above application lodged on 24 January 2012,
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, Mr Zlatko Godler, is a Croatian national who was born in 1949 and lives in Zagreb. He was represented before the Court by Ms G. Vodopivec, 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.
1. Background to the case
4. The applicant was an employee of T., an association that operated in Croatia.
5. On 30 June 1986 he was dismissed from work owing to alleged misconduct.
6. The applicant challenged his dismissal before the Zagreb Municipal Court (Općinskisud u Zagrebu). On 16 March 1995 that court annulled the above-mentioned decision on the applicant’s dismissal as unlawful and ordered his reinstatement.
7. On 22 December 1996 the judgment became final. The applicant applied for its enforcement, seeking his reinstatement and salary arrears.
8. On 27 January 1997 the Zagreb Municipal Court issued an enforcement order as requested by the applicant. The applicant’s employer failed to comply with the enforcement order.
9. In 1999 the applicant reported his employer’s conduct to the Ministry of Justice, Administration and Local Government Administration (Ministarstvopravosuđa, upraveilokalnesamouprave – hereinafter “the Ministry”).
10. The Ministry informed the applicant that T. had failed to comply with the provisions of the relevant law on associations and that, acting e propriomotu, it had decided to institute the proceedings to strike it off the register of associations.
11. On 26 March 1999 the Ministry adopted a decision on the dissolution of T. and opened the proceedings for its liquidation, of which the applicant was informed on 24 June 1999.
12. On 20 September 1999 the Ministry enforced its decision on the dissolution of T.
13. On 9 November 1999, after the decision on dissolution became final, the Ministry sought to institute insolvency proceedings in respect of T. before the Zagreb Commercial Court (Trgovačkisud u Zagrebu). The applicant also sought to institute insolvency proceedings in respect of T. as his employer.
14. The Zagreb Commercial Court joined the above-mentioned applications and on 27 September 2000 adopted a decision to open the insolvency proceedings in respect of T., which was upheld by the High Commercial Court.
15. On 4 October 2000 the insolvency trustee found that the applicant’s employment with T. had ended on 27 September of that year with the opening of the insolvency proceedings.
16. In the meantime, in June 1999 the Pension Fund (Hrvatskizavodzamirovinskoosiguranje) opened the relevant proceedings with a view to establishing the period of the applicant’s employment for the purpose of determining his pension rights. After the case had been returned several times by the Administrative Court (UpravnisudRepublikeHrvatske), on 12 February 2007 the Pension Fund recognised the period between 1 July 1986 and 27 September 2000 as the applicant’s years of service at T. This decision became final on 26 March 2007.
2. Proceedings concerning unemployment benefit
17. In parallel to the above-mentioned proceedings before the Pension Fund, on 15 June 1999 the applicant lodged a request to be recorded as an unemployed person with the Zagreb office of the Unemployment Bureau (Hrvatskizavodzazapošljavanje, Područnaslužba u Zagrebu – hereinafter “the Bureau”) and to be granted unemployment benefit, as provided for in the relevant domestic law.
18. The Bureau registered the applicant as an unemployed person as of 15 July 1999, but refused to grant him unemployment benefit on the grounds that he had been dismissed from work on 30 June 1986 and that his application for unemployment benefit had been lodged outside of the thirty‑day time-limit. This decision was confirmed by the central office of the Unemployment Bureau (Hrvatskizavodzazapošljavanje, Središnjaslužba – hereinafter “the Central Office”), acting as the second-instance administrative body.
19. On 2 April 2003, following an application by the applicant, the Administrative Court quashed the second-instance decision and ordered a fresh examination of the case. It instructed the administrative bodies to determine the exact date on which the applicant’s employment had been terminated.
20. On 29 January 2004 the Central Office stayed the proceedings until the administrative proceedings concerning the determination of the exact date on which the applicant’s employment had been terminated and entry of his years of service into his employment record pending before the Pension Fund were concluded (see paragraph 16 above).
21. Upon the completion of the proceedings before the Pension Fund, on 13 June 2007 the Central Office dismissed the applicant’s request for unemployment benefit on the grounds that he had lodged his request on 15 July 1999 whereas his employment, as found by the Pension Fund, had terminated a year later, specifically on 27 September 2000.
22. On 10 July 2007 the applicant challenged this decision before the Administrative Court.
23. On 27 October 2010 the Administrative Court dismissed the applicant’s action as unfounded and upheld the decision of the Central Office. It stressed that the Pension Fund had recognised the period of the applicant’s employment between 1 July 1986 and 27 September 2000, which meant that within that period he could not obtain unemployment benefit as an unemployed person.
24. On 14 January 2011 the applicant lodged a constitutional complaint with the Constitutional Court (UstavnisudRepublikeHrvatske) against the judgment of the Administrative Court and the decisions of the administrative authorities. He argued that he had been discriminated against in the enjoyment of his rights and that he had not been treated equally before the courts and other authorities, contrary to Article 14 §§ 1 and 2 and Article 26 of the Constitution; that the judicial control of the administrative authorities’ acts had not been effective, as required under Article 19 § 2 of the Constitution; and that he had not had a fair trial, as guaranteed by Article 29 § 1 of the Constitution. The relevant part of his application to the Constitutional Court reads as follows:
“Against the above [considerations], the [applicant] considers that the Administrative Court and [the administrative authorities] did not properly establish his status and that, by the incorrect interpretation of the [relevant] provisions of law, they have [incorrectly] applied the law to his detriment.
In view of the fact that thereby the [applicant] has been discriminated against in comparison to other insured persons, and the obvious fact that the judicial control of lawfulness [of the administrative authorities’ acts] has failed given that the Administrative Court failed to give him judicial protection, it follows that there has been a breach of all the constitutional rights indicated in the introduction [to this constitutional complaint], and in particular the right to a fair trial …”
25. On 5 October 2011 the Constitutional Court declared the applicant’s constitutional complaint inadmissible as manifestly ill-founded.
B. Relevant domestic law and practice
26. The relevant provision of the Constitution of the Republic of Croatia (UstavRepublikeHrvatske, Official Gazette no. 56/1990, with further amendments) reads as follows:
Article 48
“The right of ownership shall be guaranteed …”
27. The relevant part of section 62 of the Constitutional Court Act (Ustavnizakon o UstavnomsuduRepublikeHrvatske, Official Gazette no. 99/1999, with further amendments) reads as follows:
Section 62
“1. Anyone may lodge a constitutional complaint with the Constitutional Court if he or she deems that an individual act of a State body, a body of local and regional self-government, or a legal person with public authority, concerning his or her rights and obligations, or a suspicion or an accusation of a criminal act, has violated his or her human rights or fundamental freedoms or his or her right to local and regional self-government guaranteed by the Constitution (hereinafter: a constitutional right) …”
28. In its decision no. U-I-988/1998 of 17 March 2010 (para. 14.4) the Constitutional Court stressed that pension rights and other related social benefits were to be considered property rights protected under the Constitution. The same case-law was followed, inter alia, in cases: U‑I‑3610/2010, 15 December 2010; U-I-381/2014, 12 June 2014; and U‑III‑5989/2013, 9 February 2016.
COMPLAINT
29. The applicant complained that the State authorities had unjustifiably declined his application for unemployment benefit, contrary to Article 1 of Protocol No. 1 to the Convention.
THE LAW
30. Complaining of an unjustified dismissal of his application for unemployment benefit, the applicant relied on Article 1 of Protocol No. 1, which reads as follows:
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
31. The Government contested this submission.
A. The parties’ arguments
32. The Government pointed out that in his constitutional complaint the applicant had failed to rely on the relevant provision of the Constitution guaranteeing the right to property and had failed to raise any arguments concerning the alleged breach of his property rights. They therefore considered that the applicant had failed to exhaust the domestic remedies. The Government also considered that the applicant had not had legitimate property expectations concerning his claim for unemployment benefit and that his claim had been justifiably refused by the domestic authorities.
33. The applicant conceded that he had not relied in his constitutional complaint on the relevant provision guaranteeing the right to the protection of property, namely Article 48 of the Constitution. However, the applicant considered that the matter should have been addressed under the provision of the Constitution guaranteeing the right to a fair trial. In the applicant’s view and his understanding of the Constitutional Court’s case-law, Article 48 of the Constitution had not been applicable to the pecuniary claims arising out of social benefits. In any event, it was clear from the facts set out in his constitutional complaint that his property rights had been breached.
B. The Court’s assessment
34. The Court finds it unnecessary to address all of the Government’s arguments as the application is in any event inadmissible for the following reasons.
35. The Court reiterates that Article 35 § 1 requires that the complaints intended to be made subsequently before it should have been made to the appropriate domestic body, at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law and, further, that any procedural means that might prevent a breach of the Convention should be used. Where an applicant has failed to comply with these requirements, his or her application should in principle be declared inadmissible for failure to exhaust domestic remedies (see Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, § 72, 25March 2014).
36. With regard to the question of exhaustion of domestic remedies in Croatia, the Court has held that before bringing complaints to it, in order to comply with the principle of subsidiarity, applicants should present their arguments before the national authorities, in particular the Constitutional Court as the highest Court in Croatia, and thus give them the opportunity of remedying the situation (see Habulinec and Filipović v. Croatia (dec.), no. 51166/10, § 31, 4 June 2013, and Pavlovićand Others v. Croatia, no. 13274/11, § 32, 2 April 2015, with further references).
37. In this connection, the Court notes that at the domestic level the applicant never invoked Article 1 of Protocol No. 1. Nor did he rely on the protection of property under Article 48 of the Constitution, which corresponds to Article 1 of Protocol No. 1. In this connection, it should be noted that, according to the Constitutional Court’s consistent case-law, social benefits were to be considered property rights under the Constitution, and there was therefore no reason for the applicant not to invoke this provision. Instead, in his constitutional complaint the applicant referred to Articles 14 §§ 1 and 2, 19 § 2, 26 and 29 § 1 of the Constitution, which are essentially not pertinent to his present Convention complaints (see paragraph 24 above).
38. Moreover, the applicant did not complain about the violation of his right to respect for his property, even in substance, before the Constitutional Court (compare Merotd.o.o. and StoritveTird.o.o. v. Croatia (dec.), nos. 29526/08 and 29737/08, § 36, 10 December 2013). Instead, he confined himself to challenging the domestic authorities’ interpretation of the relevant domestic law and argued that he had been discriminated against in that connection, that the judicial control of the administrative authorities’ acts had failed and that his right to a fair trial had been breached.
39. However, as the Court stressed in the Merotd.o.o. and StoritveTird.o.o. case (ibid., § 36), it is clear from its case-law that the mere fact that an applicant has submitted his or her case to the various competent courts does not of itself constitute compliance with the requirements of Article 35 § 1 of the Convention, as even in those jurisdictions where the domestic courts are able, or even obliged to examine the case of their own motion, applicants are not dispensed from the obligation to raise before them the complaint subsequently made to the Court. In order to properly exhaust domestic remedies it is not sufficient that a violation of the Convention is “evident” from the facts of the case or applicants’ submissions. Rather, they must actually complain (expressly or in substance) of it in a manner which leaves no doubt that the same complaint that was subsequently submitted to the Court has indeed been raised at the domestic level.
40. In these circumstances, the Court considers that the applicant did not properly exhaust domestic remedies and thus did not provide the national authorities with the opportunity, which is in principle intended to be afforded to Contracting States by Article 35 § 1 of the Convention, of addressing, and thereby preventing or putting right, the particular Convention violation alleged against them.
41. It follows that the applicant’s complaint must be rejected as inadmissible under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 15 March 2018.
Renata Degener AlešPejchal
Deputy Registrar President
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