FIRST SECTION
\nDECISION<\/p>\n
Application no. 31680\/12
\nMarija BJELIK and Others
\nagainst Croatia<\/p>\n
The European Court of Human Rights (First Section), sitting on 23\u00a0October 2018 as a Committee composed of:<\/p>\n
Armen Harutyunyan, President,
\nKsenija Turkovi\u0107,
\nPauliine Koskelo, judges,
\nand Abel Campos, Section Registrar,<\/p>\n
Having regard to the above application lodged on 24 April 2012,<\/p>\n
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,<\/p>\n
Having deliberated, decides as follows:<\/p>\n
THE FACTS<\/strong><\/p>\n 1.\u00a0\u00a0A list of the applicants is set out in the appendix.<\/p>\n 2.\u00a0\u00a0The Croatian Government (\u201cthe Government\u201d) were represented by their Agent, Ms \u0160. Sta\u017enik.<\/p>\n A.\u00a0\u00a0The circumstances of the case<\/strong><\/p>\n 3.\u00a0\u00a0The facts of the case, as submitted by the parties, may be summarised as follows.<\/p>\n 4.\u00a0\u00a0In 2000 the applicants\u2019 legal predecessor, Mr A.V.B., was employed by the \u201cH.T.\u201d company in Zagreb. On 10 March 2003 he concluded an agreement with H.T. on the termination of his employment with effect from 31\u00a0March 2003. Under that agreement, H.T. was obliged to pay A.V.B. severance pay.<\/p>\n 5.\u00a0\u00a0On 24 March 2003 A.V.B. died.<\/p>\n 6.\u00a0\u00a0On 28 May 2004 the applicants brought a civil action against H.T. in the Osijek Municipal Court (Op\u0107inski sud u Osijeku). As A.V.B.\u2019s legal successors, they claimed the unpaid severance pay stipulated in the agreement of 10 March 2003.<\/p>\n 7.\u00a0\u00a0On 16 June 2004 the defendant company replied to the applicants\u2019 civil action, contending that pursuant to the agreement of 10 March 2003 A.V.B.\u2019s employment was to be terminated, and the severance pay paid, on 31 March 2003. Since A.V.B. had died before that date, the parties\u2019 obligations stipulated in the agreement had never come into effect.<\/p>\n 8.\u00a0\u00a0At a hearing held on 17 June 2004 the applicants submitted that A.V.B.\u2019s employment had been terminated by the agreement of 10 March 2003, and not by his death. The defendant company was obliged by the agreement to pay the severance pay, and the fact that A.V.B. had died was irrelevant. The defendant company reiterated its arguments submitted in its reply to the applicants\u2019 civil action (see paragraph 7 above).<\/p>\n 9.\u00a0\u00a0By submissions of 5 July and 9 September 2004 the defendant company reiterated its arguments submitted on 16 June 2004 (see paragraph\u00a07 above).<\/p>\n 10.\u00a0\u00a0During the proceedings an expert report was obtained as regards the amount of severance pay due. As the parties objected to it, the Osijek Municipal Court ordered that a complementary report be obtained.<\/p>\n 11.\u00a0\u00a0By a submission of 26 November 2004 the applicants reiterated their arguments submitted on 17 June 2004 (see paragraph 8 above).<\/p>\n 12.\u00a0\u00a0On 15 December 2004 the Osijek Municipal Court ruled in the applicants\u2019 favour and ordered the defendant company to pay the applicants the amount of 1,369,138.10 Croatian kunas (HRK).[1] It held that pursuant to the agreement of 10 March 2003 the defendant company was obliged to pay the severance pay and the fact that A.V.B. had died on 24 March 2003 was irrelevant.<\/p>\n 13.\u00a0\u00a0The defendant company appealed against the first-instance judgment contending, inter alia, that pursuant to the agreement of 10 March 2003 A.V.B.\u2019s employment was to be terminated, and the severance pay paid, on 31 March 2003, whereas he had died on 24 March 2004. The Osijek Municipal Court had never established the date of termination of A.V.B.\u2019s employment.<\/p>\n 14.\u00a0\u00a0On 11 February 2005 the applicants replied to the defendant company\u2019s appeal, contending that A.V.B.\u2019s employment had been terminated by the agreement of 10 March 2003. On the same day the defendant company had become obliged to pay the severance pay. The fact that A.V.B. had died on 24 March 2003 was thus irrelevant.<\/p>\n 15.\u00a0\u00a0On 7 December 2006 the Osijek County Court (\u017dupanijski sud u Osijeku) dismissed the appeal as unfounded. It agreed with the first-instance court that pursuant to the agreement of 10 March 2003 the defendant company was obliged to pay the severance pay. The fact that A.V.B. had died on 24 March 2003 only meant that his employment had been terminated seven days earlier than it should have been. It finally held that the defendant company had become obliged to pay the severance pay on 31\u00a0March 2003.<\/p>\n 16.\u00a0\u00a0The defendant company then lodged an appeal on points of law with the Supreme Court (Vrhovni sud Republike Hrvatske), contesting the lower courts\u2019 judgments and urging the court to dismiss the applicants\u2019 claim. It argued in particular that A.V.B.\u2019s employment had been terminated by his death on 24 March 2003 and that consequently it had not been obliged to pay the severance pay.<\/p>\n 17.\u00a0\u00a0On 15 March 2007 the applicants submitted a reply to the defendant company\u2019s appeal on points of law, disputing its arguments and urging the court to dismiss it as unfounded. They submitted that A.V.B.\u2019s employment had been terminated by the agreement of 10 March 2003. The fact that he had died on 24 March 2003 was irrelevant. Pursuant to the agreement the defendant company was obliged to pay the severance pay.<\/p>\n 18.\u00a0\u00a0On 23 December 2008 the Supreme Court accepted the defendant company\u2019s appeal on points of law, reversed the lower courts\u2019 judgments and dismissed the applicants\u2019 claim as unfounded. In so doing, it stated that the applicants had not submitted a reply to the defendant company\u2019s appeal on points of law. It then held that the lower courts had wrongfully applied the relevant law to the facts of the case. It explained that pursuant to the agreement of 10\u00a0March 2003, A.V.B.\u2019s employment was supposed to be terminated on 31 March 2003. On that day A.V.B. would have become entitled to the severance pay. Since he had died on 24 March 2003, his employment had been terminated not by the agreement, but by his death. Consequently, the applicants were not entitled to receive the severance pay.<\/p>\n 19.\u00a0\u00a0The applicants then complained to the Constitutional Court (Ustavni sud Republike Hrvatske) that, in reversing the lower courts\u2019 judgments on the basis of the defendant company\u2019s appeal on points of law, the Supreme Court had not considered their reply. Moreover, the Supreme Court had stated that they had not submitted a reply to the defendant company\u2019s appeal on points of law. They had therefore not had a fair hearing.<\/p>\n 20.\u00a0\u00a0On 10 November 2011 the Constitutional Court dismissed the applicants\u2019 constitutional complaint. It found that on 15 March 2007 the applicants had indeed submitted a reply to the defendant company\u2019s appeal on points of law and that the reply had been in the case-file. It further considered that the fact that the Supreme Court had stated that a reply had not been submitted had not violated the applicants\u2019 right to a fair hearing.<\/p>\n B.\u00a0\u00a0Relevant domestic law<\/strong><\/p>\n 21.\u00a0\u00a0The relevant provisions of the Civil Procedure Act (Zakon o parni\u010dnom postupku, Official Gazette nos. 53\/1991, 91\/1992, 112\/1999, 129\/2000, 88\/2001 and 117\/2003), as in force at the material time, provided:<\/p>\n Section 390<\/p>\n \u201c(1)\u00a0\u00a0A single judge or the presiding judge of the first-instance court\u2019s panel shall send a copy of a timely, complete and admissible appeal on points of law to the opposing party, which may submit a reply to the appeal on points of law within fifteen days of receiving it.<\/p>\n (2)\u00a0\u00a0A reply to the appeal on points of law which has been submitted out of time shall not be declared inadmissible, but shall be delivered to the Supreme Court, which shall take it into consideration if that is still possible.<\/p>\n …\u201d<\/p>\n 22.\u00a0\u00a0The relevant provisions of the Courts Act (Zakon o sudovima, Official Gazette nos. 150\/2005; 16\/2007; and 113\/2008), as in force at the material time, provided:<\/p>\n Section 13<\/p>\n \u201c(4)\u00a0\u00a0The Supreme Court of the Republic of Croatia is the highest court in Croatia.\u201d<\/p>\n Section 24<\/p>\n \u201cThe Supreme Court of the Republic of Croatia:<\/p>\n 1.\u00a0\u00a0ensures uniform application of laws…;<\/p>\n …\u201d<\/p>\n COMPLAINT<\/strong><\/p>\n 23.\u00a0\u00a0The applicants complained, under Article 6 \u00a7 1 of the Convention, that they had not had a fair hearing in that the Supreme Court, when deciding on the opposing party\u2019s appeal on points of law, reversed the lower courts\u2019 judgments and dismissed their civil claim without considering their reply.<\/p>\n THE LAW<\/strong><\/p>\n 24.\u00a0\u00a0Article 35 \u00a7 3 (b) of the Convention provides:<\/p>\n \u201c3.\u00a0\u00a0The Court shall declare inadmissible any individual application submitted under Article 34 if it considers that:<\/p>\n …<\/p>\n (c)\u00a0\u00a0the applicant has not suffered a significant disadvantage, unless respect for human rights as defined in the Convention and the Protocols thereto requires an examination of the application on the merits and provided that no case may be rejected on this ground which has not been duly considered by a domestic tribunal.\u201d<\/p>\n A.\u00a0\u00a0The parties\u2019 arguments<\/strong><\/p>\n 1.\u00a0\u00a0The Government<\/em><\/p>\n 25.\u00a0\u00a0The Government submitted that in the proceedings at issue the applicants, who had been represented by a lawyer, had benefited from all the guarantees of Article 6 \u00a7 1 of the Convention. In particular, their case had been decided on the merits by three domestic courts; they had had cognisance of and had been able to comment on all the documents in the file, and had had the opportunity to put forward all their relevant arguments.<\/p>\n 26.\u00a0\u00a0The Government contended that the Supreme Court, when deciding on the defendant company\u2019s appeal on points of law, had had before it the entire domestic case-file, which also included the applicants\u2019 reply to the appeal on points of law. The fact that in its decision that court had stated that the applicants had not submitted a reply could not have rendered the proceedings unfair.<\/p>\n 27.\u00a0\u00a0The Government further contended that in their reply the applicants had not put forward any fact, evidence or argument which they had not already submitted to the lower courts. Moreover, the Supreme Court had only found that the lower courts had wrongfully applied the relevant law, but that the facts of the case had been correctly established.<\/p>\n 28.\u00a0\u00a0The Government finally noted that in its decision the Supreme Court had not elaborated on the arguments submitted by the defendant company in its appeal on points of law. Thus, as neither party\u2019s submission had impacted the Supreme Court\u2019s decision, the applicants had not been put in a disadvantaged position vis-\u00e0-vis their opponent.<\/p>\n 2.\u00a0\u00a0The applicants<\/em><\/p>\n 29.\u00a0\u00a0The applicants submitted that they had not had a fair hearing because the Supreme Court, when ruling on the defendant company\u2019s appeal of points of law, had not considered their reply. Their subsequent constitutional complaint had been to no avail.<\/p>\n 30.\u00a0\u00a0The Government\u2019s contention that the Supreme Court had in fact taken into consideration their reply was unacceptable; in its decision that court had clearly stated that a reply had not been submitted.<\/p>\n 31.\u00a0\u00a0According to the applicants, any argument by the Government that the defendant company\u2019s appeal on points of law had not influenced the Supreme Court\u2019s decision had been a mere speculation. It was precisely on the basis of that appeal on points of law that the Supreme Court had reversed the lower courts\u2019 judgments and ruled against them.<\/p>\n 32.\u00a0\u00a0The applicants finally submitted that in their reply they had put forward arguments as to why the defendant company\u2019s views on the application of law had been erroneous. It could therefore not be said that their reply was irrelevant. In any event, the Supreme Court had no right to disregard it.<\/p>\n B.\u00a0\u00a0The Court\u2019s assessment<\/strong><\/p>\n 1.\u00a0\u00a0General principles<\/em><\/p>\n 33.\u00a0\u00a0As pointed out in previous case-law (see, for example, Mura v.\u00a0Poland (dec.), no. 42442\/08, \u00a7 20, 2 June 2016; see also C.P. v. the United Kingdom (dec.), no. 300\/11, \u00a7 41, 6 September 2016), the purpose of the admissibility rule in Article 35 \u00a7 3 (b) of the Convention is to enable more rapid disposal of unmeritorious cases and thus to allow the Court to concentrate on its central mission of providing legal protection of human rights at the European level (see the Explanatory Report to Protocol No. 14, CETS No. 194, \u00a7\u00a7 39 and 77-79). The High Contracting Parties clearly wished the Court to devote more time to cases which warrant consideration on the merits, whether seen from the perspective of the legal interest of the individual applicant or considered from the broader perspective of the law of the Convention and the European public order to which it contributes (ibid., \u00a7 77).<\/p>\n 34.\u00a0\u00a0The question whether the applicant has suffered any \u201csignificant disadvantage\u201d represents the main element of the rule set forth in Article 35 \u00a7\u00a03 (b) of the Convention (see Adrian Mihai Ionescu v. Romania (dec.), no.\u00a036659\/04, 1 June 2010; see also Korolev v. Russia (dec.), no.\u00a025551\/05, ECHR 2010). Inspired by the general principle de minimis non curat praetor, this first criterion of the rule rests on the premise that a violation of a right, however real from a purely legal point of view, should attain a minimum level of severity to warrant consideration by an international court (see Ladygin v. Russia (dec.), no. 35365\/05, 30 August 2011). The assessment of this minimum level is, in the nature of things, relative and depends on all the circumstances of the case (see Gagliano Giorgi v. Italy, no.\u00a023563\/07, \u00a7 55, ECHR 2012 (extracts)). The severity of a violation should be assessed taking into account both the applicant\u2019s subjective perceptions and what is objectively at stake in a particular case (see Korolev, cited above; and Eon v. France, no. 26118\/10, \u00a7 34, 14 March 2013). In other words, the absence of any \u201csignificant disadvantage\u201d can be based on criteria such as the financial impact of the matter in dispute or the importance of the case for the applicant (see Adrian Mihai Ionescu, cited above). However, the applicant\u2019s subjective perception cannot alone suffice to conclude that he or she has suffered a significant disadvantage. The subjective perception must be justified on objective grounds (see, inter alia, Mura v. Poland, cited above, \u00a7\u00a7 21 and 24; and C.P. v. the United Kingdom, cited above, \u00a7 42).<\/p>\n 2.\u00a0\u00a0Application of the general principles to the present case<\/em><\/p>\n (a)\u00a0\u00a0Have the applicants suffered a \u201csignificant disadvantage\u201d?<\/p>\n 35.\u00a0\u00a0The Court notes that the Supreme Court, when deciding on the opposing party\u2019s appeal on points of law, reversed the lower courts\u2019 judgments and dismissed the applicants\u2019 claim (see paragraph 18 above). The applicants\u2019 grievances relate to the fact that in so doing, the Supreme Court failed to consider their reply to the appeal on points of law.<\/p>\n 36.\u00a0\u00a0The Court observes that the issue to be addressed by the Supreme Court strictly concerned the application of law to the facts of the case. In particular, that court had to assess whether, in view of the fact that the applicants\u2019 legal predecessor A.V.B. died on 24 March 2003, the applicants were entitled to receive the severance pay stipulated in the agreement concluded on 10 March 2003 between A.V.B. and the defendant company (see paragraph 18 above). Naturally, the parties in the proceedings had opposing views in that respect. However, having regard to the fact that ensuring uniform application of law is primarily the task of the Supreme Court as the highest court in Croatia (see paragraph 22 above), the parties\u2019 views cannot be seen as decisive for the issue to be addressed by the Supreme Court.<\/p>\n 37.\u00a0\u00a0Moreover, the Court observes that the issue of application of law was extensively discussed by the parties during the proceedings before the first- and second-instance courts. The applicants submitted their point of view (see paragraphs 6, 8, 11 and 14 above), and the defendant company maintained its point of view (see paragraphs 7, 9 and 13 above). The Court further observes that the parties\u2019 submissions to the Supreme Court did not contain any new argument which they had not in substance already submitted to the lower courts (see paragraph 16 for the defendant company and paragraph 17 for the applicants).<\/p>\n 38.\u00a0\u00a0Consequently, in view of the fact that the Supreme Court had before it the entire domestic case-file, and therefore also the applicants\u2019 arguments as regards the issue of the case, the Court does not consider that the applicants\u2019 reply to the defendant party\u2019s appeal on points of law could have influenced the decision of the Supreme Court (see a contrario BENet Praha, spol.s r.o.v. the Czech Republic, no. 33908\/04, \u00a7 142, 24 February 2011).<\/p>\n 39.\u00a0\u00a0In the light of the foregoing considerations, the Court cannot discern objective grounds to hold that in the circumstances of the case at hand the applicants suffered a \u201csignificant disadvantage\u201d on account of the fact that the Supreme Court failed to consider their reply on the defendant party\u2019s appeal on points of law.<\/p>\n (b)\u00a0\u00a0Does respect for human rights compel the Court to examine the case?<\/p>\n 40.\u00a0\u00a0The second element contained in Article 35 \u00a7 3 (b) compels the Court to examine the case in any event if respect for human rights so requires. This would apply where a case raises questions of a general character affecting the observance of the Convention, for instance whether there is a need to clarify the States\u2019 obligation under the Convention or to induce the respondent State to resolve a structural deficiency.<\/p>\n 41.\u00a0\u00a0In this regard, the Court points to the plethora of judgments which it has given in cases concerning the right to a fair trial (see, for instance, Pavlovi\u0107 and Others v. Croatia, no. 13274\/11, \u00a7 48, 2 April 2015; \u0160imecki v. Croatia, 15253\/10, \u00a7 45, 30 April 2014; Omerovi\u0107 v. Croatia(no. 2), no.\u00a022980\/09, \u00a744, 5 December 2013; and \u010camovski v. Croatia, no.\u00a038280\/10, \u00a7\u00a043, 23 October 2012). In those judgments the Court has given appropriate guidance on the issue of conducting a proper and reasonable examination of the applicants\u2019 submissions in order to ensure their right to a fair trial. This being so, an examination of the present complaint would add nothing of significance to the existing body of case-law and application or interpretation of the Convention. Consequently respect for human rights, as defined in the Convention and the Protocols thereto, does not require an examination of this case.<\/p>\n (c)\u00a0\u00a0Has the case been \u201cduly considered by a domestic tribunal\u201d?<\/p>\n 42.\u00a0\u00a0Finally, the third criterion under Article 35 \u00a7 3 (b) does not allow the rejection of an application if the case has not been \u201cduly considered by a domestic tribunal\u201d. The purpose of this criterion is to ensure that every case receives a judicial examination whether at the national level or at the European level, in other words to avoid a denial of justice (see Korolev (dec.), cited above).<\/p>\n 43.\u00a0\u00a0In the present case the Court notes that the applicants\u2019 grievances have been examined by the Constitutional Court. That court found that the applicants had indeed submitted a reply to the defendant company\u2019s appeal on points of law which had been present in the case-file, and considered that their right to a fair hearing had not been violated by the fact that the Supreme Court had stated that a reply had not been submitted (see paragraph 20 above). The Court thus concludes that the applicants\u2019 case was \u201cduly considered by a domestic tribunal\u201d within the meaning of Article 35 \u00a7\u00a03 (b).<\/p>\n (d)\u00a0\u00a0Conclusion<\/p>\n 44.\u00a0\u00a0The three stated criteria for inadmissibility therefore being present on the facts of the present case, the application must be declared inadmissible pursuant to Article 35 \u00a7\u00a7 3 (b) and 4 of the Convention.<\/p>\n For these reasons, the Court, unanimously,<\/p>\n Declares the application inadmissible.<\/p>\n Done in English and notified in writing on 15 November 2018.<\/p>\n Abel Campos\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Armen Harutyunyan _____________<\/p>\n Appendix<\/p>\n 1.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Marija BJELIK is a Croatian national who was born in 1943 and lives in Osijek.<\/p>\n 2.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Igor BJELIK is a Croatian national who was born in 1972 and lives in Zagreb.<\/p>\n 3.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Mirta BJELIK ENGLER is a Croatian national who was born in 1970 and lives in Munich.<\/p>\n All three applicants are represented by Mr D. Re\u0161etar, a lawyer practising in Osijek.<\/p>\n _____________<\/p>\n [1].\u00a0\u00a0Approximately 175,490 euros at the time.<\/p>\n
\nRegistrar\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 President<\/p>\n