FIRST SECTION
\nCASE OF GREGURI\u0106 v. CROATIA
\n(Application no. 45611\/13)<\/p>\n
JUDGMENT
\nSTRASBOURG
\n15 March 2018<\/p>\n
This judgment is final but it may be subject to editorial revision.<\/p>\n
In the case of Greguri\u0107 v. Croatia,<\/strong><\/p>\n The European Court of Human Rights (First Section), sitting as a Committee composed of:<\/p>\n Kristina Pardalos, President, Having deliberated in private on 20 February 2018,<\/p>\n Delivers the following judgment, which was adopted on that date:<\/p>\n PROCEDURE<\/strong><\/p>\n 1.\u00a0\u00a0The case originated in an application (no. 45611\/13) against the Republic of Croatia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (\u201cthe Convention\u201d) by a Croatian national, Mr Zdravko Greguri\u0107 (\u201cthe applicant\u201d), on 4 July 2013.<\/p>\n 2.\u00a0\u00a0The applicant was represented by Mr B. Posav\u010di\u0107, a lawyer practising in Kutina. The Croatian Government (\u201cthe Government\u201d) were represented by their Agent, Ms \u0160. Sta\u017enik.<\/p>\n 3.\u00a0\u00a0On 18 March 2015 the application was communicated to the Government.<\/p>\n THE FACTS<\/strong><\/p>\n I.\u00a0\u00a0THE CIRCUMSTANCES OF THE CASE<\/p>\n 4.\u00a0The applicant lives in Kutina.<\/p>\n 5.\u00a0\u00a0From1 January 2001 the applicant concluded several consecutive fixed-duration contracts of employmentwith the company C.N.S. Ltd. concerning the same post. The contracts were for a continuous period which in total amounted to over seven years and seven months.<\/p>\n 6.\u00a0\u00a0On 5 June 2009 the applicant\u2019s employer returned the applicant\u2019s employment registration book to him, without any written or oral notification, showing that his employment had been terminated.<\/p>\n 7.\u00a0\u00a0On 20 July 2009 the applicant brought a civil action before the Ivani\u0107Grad Municipal Court (Op\u0107inski sud u Ivani\u0107 Gradu). He asked it to recognise that he had concluded an open-ended contract of employment, given that he had been in continuous employment with his employer for over three years, which was the time-limit for fixed-term employment contracts under the Labour Act. He also asked the Municipal Court to establish that his employment had not been terminated and to order his reinstatement.<\/p>\n 8.\u00a0\u00a0On 22 January 2010 the Ivani\u0107 Grad Municipal Court dismissed the applicant\u2019s claim as time-barred.<\/p>\n 9.\u00a0\u00a0Upon an appeal by the applicant, on 16 February 2011 the Velika Gorica County Court (\u017dupanijski sud u Velikoj Gorici) quashed the first\u2011instance decision and remitted the case for fresh consideration. It held that the first-instance court should have declared the applicant\u2019s claims inadmissible as time-barred, without examining it on themerits.<\/p>\n 10.\u00a0\u00a0In the fresh proceedings, the Ivani\u0107 Grad Municipal Courton\u00a06\u00a0May\u00a02011 declared the applicant\u2019s action inadmissible as having been lodged outside the prescribed time-limit. The first-instance court, relying on section 133 of the Labour Act, held that the applicant and his employer had concluded a fixed-term contract lasting until 31 May 2009 and that the applicant must have known that his contract would end on that day. He had not concluded a new contract of employment with his employer andhe had therefore been obliged to lodge anapplication for the protection of his rights with his employer within the fifteen-day time-limit, starting from 1\u00a0June\u00a02009.However, he had failed to do so and consequently his claim had been lodged out of time. Rejecting the applicant\u2019s argument, the first\u2011instance court also heldthat the defendant company had not been obliged to adopt a formal decision on terminating his employment or to send him any other kind of notification, given that he must have known that his contract would come to an end on 31 May 2009.<\/p>\n 11.\u00a0\u00a0On 12 May 2011 the applicant lodged an appeal with the Velika Gorica County Court.<\/p>\n 12.\u00a0\u00a0On 26 July 2011 the Velika Gorica County Court upheld the first\u2011instance decision.<\/p>\n 13.\u00a0\u00a0On 14 November 2011 the applicant lodged an appeal on points of law (revizija) with the Supreme Court (Vrhovni sud Republike Hrvatske),which was dismissed as ill-founded on 25 September 2012. The Supreme Court also held that the applicant had failed to seek the protection of his rightsin respect of his employer within the deadlines prescribed by section 133 of the Labour Act. Accordingly, his claim had been lodged out of time.<\/p>\n 14.\u00a0\u00a0On 14 March 2013 the applicant lodged a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske). He complained that the courtshad wrongly declared his claim inadmissible because it had been of a declaratory natureand as such had not been subject to deadlines. He relied on a decision by the Velika Gorica County Court of 16 January 2013 in the case of a colleagueof his, who for the same reasons as the applicanthad also sought to have the court recognise that he had concluded an open-ended contract of employment. Inthat decisionthe Velika Gorica County Court, in accordance with instructions given in the Supreme Court\u2019s decision no. Revr-1697\/11 of 6 June 2012,had dismissed the defendant\u2019s(the employer\u2019s) objection that the claim was time-barred. Namely,the Supreme Courthad held that the claim had been of a declaratory nature and as such was not subject to deadlines.<\/p>\n 15.\u00a0\u00a0On 6 May 2013 the Constitutional Court dismissed the applicant\u2019s constitutional complaint as manifestly ill-founded.<\/p>\n II.\u00a0\u00a0RELEVANT DOMESTIC LAW AND PRACTICE<\/p>\n A.\u00a0\u00a0The Civil Procedure Act<\/strong><\/p>\n 16.\u00a0\u00a0The relevant provisions of the Civil Procedure Act(Zakon o\u00a0parni\u010dnom postupku, Official Gazette nos. 53\/1991, 91\/1992, 112\/1999, 81\/2001, 117\/2003, 88\/2005, 84\/2008, 96\/2008, 123\/2008 and 57\/2011), as in force at the material time, provided:<\/p>\n Section 187<\/p>\n \u201c(1)\u00a0\u00a0A claimant may ask the court to recognise the existence or absence of a right or legal relations or the authenticity … of a document.<\/p>\n (2)\u00a0\u00a0This form of claim may be lodged when separate regulations so prescribe, when the claimant has a legal interest in the court establishing the existence or absence of a right or legal relations or …, or when the claimant has some other legal interest in bringing this form of claim.<\/p>\n …\u201d<\/p>\n Section 428a<\/p>\n \u201c(1)\u00a0\u00a0When the European Court of Human Rights has found a violation of a human right or fundamental freedom guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms or the additional Protocols thereto ratified by the Republic of Croatia, a party may, within thirty days of the judgment of the European Court of Human Rights becoming final, lodge an application with the court in the Republic of Croatia which adjudicated in the first instance in the proceedings in which the decision violating the human right or fundamental freedom was rendered, to set aside the decision by which the human right or fundamental freedom was violated.<\/p>\n (2)\u00a0\u00a0The proceedings referred to in paragraph 1 of this section shall be conducted by applying, mutatis mutandis, the provisions on the reopening of proceedings.<\/p>\n (3)\u00a0\u00a0In the reopened proceedings the courts are required to respect the legal opinions expressed in the final judgment of the European Court of Human Rights finding a violation of a fundamental human right or freedom.\u201d<\/p>\n B.\u00a0\u00a0The Labour Act<\/strong><\/p>\n 17.\u00a0\u00a0The relevant provisions of the consolidated text of the Labour Act – (Zakon o radu \u2013 pro\u010di\u0161\u0107eni tekst, Official Gazette no. 137\/2004), as in force at the material time, provided:<\/p>\n Section 15<\/p>\n \u201c(1)\u00a0\u00a0As an exception, a contract of employment may be concluded for a definite period (\u2018a fixed-term contract\u2019) in cases of employment where termination has been previously determined by objective factors, i.e. by a specific time-limit, the performance of a specific task or the occurrence of a specific event.<\/p>\n (2)\u00a0\u00a0An employer must not conclude one or more consecutive fixed-term contracts of employment under which employment commences with respect to the same work for a continuous period exceeding three years, except in order to substitute a temporarily absent employee or if permitted by law or a collective agreement.<\/p>\n …<\/p>\n (5)\u00a0\u00a0If a fixed-term contract of employment has been concluded contrary to the provisions of this Act or if the employee continued working for the employer after the expiration of the period for which the contract was originally made, the employee shall be considered to have concluded an open-ended contract of employment.<\/p>\n (6)\u00a0\u00a0The employer shall inform employees working for him or her under fixed-term contracts about the available jobs in respect of which those workers might conclude open-endedcontracts of employment, and provide them with further training and education under the same conditions as those provided to employees working under fixed-term contracts.\u201d<\/p>\n Section 16<\/p>\n \u201c(1)\u00a0\u00a0A contract of employment shall be concluded in writing.<\/p>\n (2)\u00a0\u00a0A failure on the part of the parties to the contract to conclude a contract of employment in writing shall not affect the existence and validity of that contract.<\/p>\n (3)\u00a0\u00a0If a contract of employment was not concluded in writing, the employer shall give a written certificate to the employee on the conclusion of the contract before the work commences.<\/p>\n (4)\u00a0\u00a0If the employer fails to conclude a contract of employment inwriting with the employee within the time-limit referred to in paragraph 3 of this Article, or fails to give him or her a written certificate on the conclusion of the contract, it shall be deemed that the employer has concluded an open-ended labour contract with the worker.<\/p>\n …\u201d<\/p>\n Section 133<\/p>\n \u201c(1)\u00a0\u00a0Anemployee who considers that his or her employer has violated any of his or her rightsarising from employment may, within fifteen days following the receipt of a decision violating that right, or the day after he or she became aware of such a violation, seekpermission from the employer to exercise that right.<\/p>\n (2)\u00a0\u00a0If the employer does not accede to the worker\u2019s request referred to in paragraph 1 of thissection within fifteen days, the employee may within another fifteen days seek judicial protection from the court having jurisdiction in respect of the right that has been violated.<\/p>\n (3)\u00a0\u00a0…<\/p>\n (4)\u00a0\u00a0An employee who has failed to submit a request of the kind referred to in paragraph 1 of this Article,may not seek judicial protection from the court having jurisdiction in respect of the right that has been violated.<\/p>\n …\u201c<\/p>\n 18.\u00a0\u00a0 Section 133 of the consolidated text of the Labour Act – (Zakon o radu \u2013 pro\u010di\u0161\u0107eni tekst, Official Gazette no. 137\/2004) corresponds to section 126 of the Labour Act (Zakon o radu, Official Gazette nos. 38\/1995 with its subsequent amendments).<\/p>\n C.\u00a0\u00a0The Constitutional Court\u2019s jurisprudence<\/strong><\/p>\n 19.\u00a0\u00a0The Government relied on Constitutional Court decisionsnos.\u00a0U\u2011III\u20113893\/2007 of 11 March 2010, U-III-374\/2008 of 27\u00a0October\u00a02010, U-III-3256\/2011 of 1 December 2014 and U-III-736\/2005 of 8 July 2013. In those decisions the Constitutional Court held that inconsistency in a court\u2019s case-law breached the principle of legal certainty and thus violated the constitutional right to a fair hearing. In all those cases the applicants clearly stated that the courts had departed from their previous case-law, thus violating their right to a fair hearing.<\/p>\n D.\u00a0\u00a0The Supreme Court\u2019s jurisprudence<\/strong><\/p>\n 20.\u00a0\u00a0The applicant relied on theSupreme Court\u2019sdecision in case no.\u00a0Revr-1697\/11 of 6 June 2012, which was delivered in a case brought by his colleague and which was identical to his. The Supreme Court quashed a decision by the Velika Gorica County Court of 7 September 2011 and remitted the case for fresh consideration. The relevant part of the decision reads as follows:<\/p>\n \u201cThe first-instance court established that the claimant had concluded an open-ended contract with the defendant…, that the claimant\u2019s employment had not been terminated on 31 March 2009and that the defendant was obliged to reinstate the claimant …<\/p>\n The second-instance court rendered a judgment which allowed the defendant\u2019s appeal, quashed the first-instance judgment and declared the claim inadmissible.<\/p>\n …<\/p>\n The second-instance court … held that the claimant was not entitled to seek judicial protection of his rights…given that he had failed to lodge anapplication for the protection of his rights with the employer, as envisaged by section 133(4) of the Labour Act …<\/p>\n In the instant case the claimant brought a claim, asking the court to recognise that he had concluded an open-ended contract, that his employment had not been terminated on 31 March 2009, and to order the defendant to reinstate the claimant … It follows that theclaim [in the present case] is a declaratory claim and that the right to lodge such a claim should be assessed in accordance with section 187(1)(2) of the CPA [the Civil Procedure Act], which provides that a claimant may ask [the court] to establish the existence or absence of a right or legal relations or the authenticity or otherwise of a document before the expiry of the claim for performance based on that relationship, or when the plaintiff has some other legal interest for lodging that form of claim.<\/p>\n …<\/p>\n A declaratory claim is neither subject to a deadline, nor dependent on whether has a claimantlodged anapplication for the protection of his rights with his employer. The requirement for lodging such a claim is, inter alia, the existence of a legal interest. Such a claim could only have been declared inadmissible if such a legal interest had not existed.<\/p>\n …\u201d<\/p>\n 21.\u00a0\u00a0In decisions nos. Rev-412\/1995 of 15 April 1998, Rev-3017\/1999 of 20 July 2000, Rev-538\/02 of 10 December 2002, Rev-1391\/01 of 10\u00a0December 2003, Revr-902\/11 of 21 March 2012, Revr-116\/13 of 7\u00a0October 2014 and Revr-211\/13 of 12 November 2014, the Supreme Court held that when an employeeseeksto have a court recognise that he or she hasconcluded an open-ended contract of employment, then such a claim is not subject to deadlines because it is of a declaratory nature. For example, Rev-3017\/1999 of 20 July 2000 states:<\/p>\n \u201cThe claim that was declared inadmissible … reads as follows:<\/p>\n \u2018The claimant …shall berecognised as a Croatian language teacher employed … on the basis of an open-ended contract,which fact the defendant shall recognise and then reinstate the claimant … \u2018<\/p>\n …<\/p>\n … the [claimant] claims that a declaratory claim in a labour dispute is not subject to deadlines and that the courts, by examining whether [her] claim was lodged in a timely manner, … applied the law incorrectly…<\/p>\n [The claimant] considers that she has a legal interest in lodging a declaratory claim …<\/p>\n It is clear from the content of the claimthat it is a declaratory claim brought on the basis of section 187(1) of the CPA[the Civil Procedure Act]…<\/p>\n … the claimant was not obliged to lodge a declaratory claim within [prescribed] deadlines … thus, the courts wrongly declared [her] claim inadmissible as time-barred …<\/p>\n In the fresh proceedings the [first-instance] court shall … establish whether the [procedural] requirements for bringing a declaratory claim [before the court] exist, namely, whether … the legal interest exists, and after that it shall examine the claim on the merits.<\/p>\n …\u201d<\/p>\n Rev-902\/11 of 21 March 2012 states:<\/p>\n \u201cThe subject matter of the dispute is a claim for establishingthat the parties [to the proceedings] concluded an open-ended contract…from 1 June 2009 (namely, the existence of working… status) and a condemnatory claim for reinstatement.<\/p>\n …<\/p>\n … in the instant case the claimant did not seek to protect his employment rights with a claim of the type provided for by section 126 of the Labour Act but with a claim to recognise that he had concluded an open-ended contract, within the meaning of section 187(1) of the CPA [the Civil Procedure Act]…<\/p>\n The declaratory claim provided for by section 187(1)(2) of the CPA [the Civil Procedure Act] is not subject to any deadlines, but to …[the existence of] a legal interest to seek such a determination, which is a procedural requirement for the admissibility of a declaratory claim.<\/p>\n …<\/p>\n By wrongly applying section 126(1)(2) of the LA [the Labour Act], instead of section 187(1)(2) of the CPA [the Civil Procedure Act], the courts wrongly declared the declaratory claim inadmissible.<\/p>\n In that connection, they also wrongly dismissed the condemnatory claim (reinstatement) given that the merits of that claim were examined on the background of [the lower courts\u2019] misunderstanding about the admissibility of the declaratory claim.<\/p>\n Therefore, the case is to be remitted for fresh consideration and in the new proceedings the first-instance court shall establish the existence of a legal interest by the claimant to lodge a declaratory claim.<\/p>\n If [the first-instance court] establishes [that the claimant has a legal interest], upon which the admissibility of the claim depends, it shall decide on the merits of that claim.\u201d<\/p>\n THE LAW<\/strong><\/p>\n I.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 6 \u00a7 1 OF THE CONVENTION<\/p>\n 22.\u00a0\u00a0The applicant complained that his right of access to a courthad been violated on account of the fact that the domestic courts had declared his claim inadmissiblefor having been lodged out of time. He relied on Article\u00a06 \u00a7 1 of the Convention which reads as follows:<\/p>\n \u201cIn the determination of his civil rights and obligations … everyone is entitled to a fair … hearing … by [a] … tribunal …\u201d<\/p>\n A.\u00a0\u00a0Admissibility<\/strong><\/p>\n 1.\u00a0\u00a0The parties\u2019 arguments<\/em><\/p>\n 23.\u00a0\u00a0The Government argued that the applicant had not exhausted domestic remedies because he had not raised any such complaint in his constitutional complaint. They argued that in his application before the Court the applicant had complained that the Supreme Court had upheld the lower courts\u2019 decisions, contrary to its own well-established case-law. His application to the Court was therefore a complaint of a lack of legal certainty caused by inconsistent Supreme Court case-law. However, he had not made those arguments before the Constitutional Court. It was the applicant\u2019s responsibility to state clearly and to substantiate the manner in which his human rights had been violated. Moreover, he had failed to complain that his right to a fair hearing, guaranteedby Article 29 of the Constitution, had been violated.<\/p>\n 24.\u00a0\u00a0The applicant argued that it could be seenfrom the arguments made in his constitutional complaint that he had complained about unfairness in the proceedings.<\/p>\n 2.\u00a0\u00a0The Court\u2019s assessment<\/em><\/p>\n 25.\u00a0\u00a0In accordance with Article 35 \u00a7 1 of the Convention, the Court may only deal with a matter after all domestic remedies have been exhausted. The purpose of Article 35 is to afford the Contracting States the opportunity of preventing or putting right violations alleged against them before those allegations are submitted to the Court (see, for example, Gherghina v.\u00a0Romania [GC] (dec.), no. 42219\/07, \u00a7 84, 9 July 2015; Arps v. Croatia, no.\u00a023444\/12, \u00a7 19, 25 October 2016; Hentrich v. France, 22 September 1994, \u00a7 33, Series A no. 296-A; and Remli v. France, 23\u00a0April 1996, \u00a7 33, Reports of Judgments and Decisions 1996-II). Thus, a complaint submitted to the Court should first have been made to the appropriate national courts, at least in substance, in accordance with the formal requirements of domestic law and within the prescribed time-limits (see Vu\u010dkovi\u0107 and Others v. Serbia (preliminary objection) [GC], nos.\u00a017153\/11 and 29 others, \u00a7 72, 25March 2014, and Arps, cited above, \u00a7 19).<\/p>\n 26.\u00a0\u00a0The Court notes that in the applicant\u2019s complaint to the Constitutional Court he alleged, inter alia, that the courts had wrongly applied the relevant law when declaring his claim inadmissible as out of time. In substantiating his arguments, the applicant submitted the Velika Gorica County Courtdecision, which had been taken in a case brought by his colleague and which was identical to his. In that case the court, in accordance with the instructions and opinion given in Supreme Court decision no. Revr-1697\/11 of 6 June 2012, had held that the claim aimed at establishing that the claimant had concluded an open-ended contract of employment,that it was of a declaratory nature and as such was not subject to deadlines (see paragraphs 13 and 18 above). The Court considers that in the circumstances of the present case, the applicant, having put forward the issue in substance in his constitutional complaint, did thus raise the complaint which he has submitted to the Court before the domestic courts (see Ja\u0107imovi\u0107 v. Croatia, no. 22688\/09, \u00a7 40, 31 October 2013).The applicant thereby provided the national authorities with the opportunity which is in principle intended to be afforded to Contracting States by Article 35 \u00a7 1 of the Convention, namely of putting right the violations alleged against them (seeG\u00e4fgen v.\u00a0Germany [GC], no. 22978\/05, \u00a7\u00a7\u00a0144\u2011146, ECHR 2010; Lelas v. Croatia, no. 55555\/08, \u00a751, 20\u00a0May\u00a02010; Tarbuk v.\u00a0Croatia, no.\u00a031360\/10, \u00a7 32, 11\u00a0December 2012;Bjedov v.\u00a0Croatia, no. 42150\/09, \u00a7 48, 29 May 2012; and Ja\u0107imovi\u0107 v.\u00a0Croatia, cited above, \u00a7 51;).<\/p>\n 27.\u00a0\u00a0The Government\u2019s objection must therefore be rejected.<\/p>\n 3.\u00a0\u00a0Conclusion<\/em><\/p>\n 28.\u00a0\u00a0The Court considers that the application is not manifestly ill-founded within the meaning of Article 35 \u00a7 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.<\/p>\n B.\u00a0\u00a0Merits<\/strong><\/p>\n 1.\u00a0\u00a0The parties\u2019 arguments<\/em><\/p>\n 29.\u00a0\u00a0The applicant argued that the national courts had declared his claim inadmissible as lodged out of time, although it had been of a declaratory nature and as such had not been subject to deadlines. Heargued that such a conclusion had been contrary to Supreme Court\u2019s opinions given in cases which had concerned identical issues. He relied on the Supreme Court\u2019s decision in case no. Revr-1697\/11 of 6 June 2012,which had been adopted in his colleague\u2019s case, which had been identical to his own.<\/p>\n 30.\u00a0\u00a0The Government submitted that the applicant had failed to contact his employer by 15 June 2009 at the latest and had thereby failed to bring a claim in a timely manner. They stressed that the purpose of the limitation prescribed in section 133 of the Labour Act was to ensure promptness and the efficiency of court proceedings and to protect the legitimate interests of employers in being able to quickly resolve a dispute with anemployee.<\/p>\n 31.\u00a0\u00a0The Government furthersubmitted that there had been no breach of the principle of legal certainty in relation to the applicant\u2019s right of access to court. In that connection, they maintained their arguments concerning admissibility of the complaint(see paragraph23 above).<\/p>\n 2.\u00a0\u00a0The Court\u2019s assessment<\/em><\/p>\n (a)\u00a0\u00a0General principles<\/p>\n 32.\u00a0\u00a0The Court reiterates that Article 6 \u00a7 1 of the Convention secures for everyone the right to have any claim relating to his or her civil rights and obligations brought before a court or tribunal. The right of access to a court includes not only the right to institute proceedings, but also the right to obtain a judicial \u201cdetermination\u201d of the dispute(see, for example, Kuti\u0107\u00a0v.\u00a0Croatia, no. 48778\/99, \u00a7 25, ECHR 2002-II; Multiplex v.\u00a0Croatia,no.\u00a058112\/00, \u00a7 45, 10 July 2003; Menshakova v. Ukraine, no.\u00a0377\/02, \u00a7\u00a052, 8 April 2010; and \u0160imecki v. Croatia, no. 15253\/10, \u00a7 42, 30 April 2014).<\/p>\n 33.\u00a0\u00a0However, this right is not absolute, but may be subject to limitations. These are permitted by implication, since the right of access by its very nature calls for regulation by the State. However, these limitations must not restrict or reduce the access which remains to an individual in such a way or to such an extent that the very essence of the right is impaired (see, for example, Ashingdane v. the United Kingdom, 28 May 1985, \u00a7 57, Series\u00a0A no.\u00a093, and Stubbings and Others v. the United Kingdom, 22 October 1996, \u00a7\u00a050, Reports of Judgments and Decisions 1996\u2011IV).<\/p>\n 34.\u00a0\u00a0What the Court needs to ascertain in a given case is whether the nature of the limitation in question and\/or the manner in which it was applied are compatible with the Convention (see, mutatis mutandis, Vrbica v. Croatia, no. 32540\/05, \u00a7 66, 1 April 2010). This means, in particular, that the Court must satisfy itself that the application of such a limitation could be regarded as foreseeable for the applicants, having regard to the relevant legislation and case-law and the particular circumstances of the case (see\u00a0Osu v. Italy, no. 36534\/97, \u00a7 35, 11 July 2002;Lupa\u015f and Others v.\u00a0Romania, nos. 1434\/02 and 2 others, \u00a7 67, ECHR 2006\u2011XV (extracts); Vrbica, cited above, \u00a7 72; Majski v. Croatia(no. 2), no. 16924\/08, \u00a7 69, 19\u00a0July 2011; and Petko Petkov v. Bulgaria, no. 2834\/06, \u00a7 30, 19\u00a0February\u00a02013).<\/p>\n (b)\u00a0\u00a0Application of these principles in the present case<\/p>\n (i)\u00a0\u00a0As to whether there was a restriction of the applicant\u2019s right to a court<\/p>\n 35.\u00a0\u00a0Turning to the circumstances of the present case, the Court observes at the outset that the sole reason relied on by the domestic courts for dismissing the applicant\u2019s claim was that he had failed to meet the fifteen\u2011day time-limit under section 133 of the Labour Act to seek the protection of his rights before his employer and had thus, in their view, failed to meet the procedural requirement to bring his claim before a court in a timely manner (see paragraphs 10, 12 and 13 above).<\/p>\n 36.\u00a0\u00a0The Court must therefore examine whether the procedural restriction applied by the domestic courts pursued a legitimate aim and whether it was proportionate to that aim (compare with Lupa\u015f and Others cited above, \u00a7\u00a067, andPetko Petkov, cited above, \u00a7 30).<\/p>\n (ii)\u00a0\u00a0As to whether the restriction pursued a legitimate aim<\/p>\n 37.\u00a0\u00a0The Court reiterates that the rules on time-limits for bringing judicial claims are undoubtedly designed to ensure the proper administration of justice and compliance with, in particular, the principle of legal certainty (see P\u00e9rez de Rada Cavanilles v. Spain, 28 October 1998, \u00a7 45, Reports 1998-VIII; Miragall Escolano and Others v. Spain, no. 38366\/97, \u00a7 33, ECHR 2000-I; and Mizzi v. Malta, no. 26111\/02, \u00a7 83, ECHR 2006\u2011I (extracts)).<\/p>\n (iii)\u00a0\u00a0As to whether the restriction was proportionate to the legitimate aim pursued<\/p>\n 38.\u00a0\u00a0The Court must next examine whether there was a reasonable relationship of proportionality between the means employed and the legitimate aim pursued by the State (see, for example, Z and Others v. the United Kingdom [GC], no. 29392\/95, \u00a7 93, ECHR 2001\u2011V, and Mom\u010dilovi\u0107 v. Croatia, no. 11239\/11, \u00a7 47, 26 March 2015).<\/p>\n 39.\u00a0\u00a0In that connection, the Court firstly notes that the applicant\u2019s claim was aimed at obtaining recognition of the fact that he had concluded an open-ended contract of employment and his reinstatement and that the domestic courts declared his claim inadmissible on the grounds that he had failed to observe the requirement laid down in section 133 of the Labour Act (see paragraphs 7-13 above). However, that finding contradicts the established case-law of the Supreme Court developed in the application of that provision. The Supreme Court\u2019sjurisprudence shows that when an employee asks a court to recognise that he or shehas concluded an open\u2011ended contract of employment, such a claim is of a declaratory nature within the meaning of section 187 of the Civil Procedure Act and, as such,is not subject to deadlines. Namely, the procedural requirement for lodging a declaratory claim is the existence of a legal interest in bringingsucha claim before a court and not an obligation to lodge anapplicationwith the employer for the protection of the right that has allegedly been violated (see\u00a0paragraphs 20 and 21 above).<\/p>\n 40.\u00a0\u00a0However, in the applicant\u2019s case,the domestic courts, contrary to the above-citedinterpretation and application of the relevant domestic law, in particularsection 133 of the Labour Act,in cases that were identical to that of the applicant, dismissed his claim on the grounds of alleged non\u2011compliance with the time-limitunder that provision. In doing so, neither the lower courts, nor the Supreme Court providedany arguments capable of justifying their departure from conclusions reached in casesidentical to theapplicant\u2019s.<\/p>\n 41.\u00a0\u00a0The foregoing considerations are sufficient for the Court to conclude that the manner in which the domestic courts appliedthe relevant domestic law was not foreseeable for the applicant, who could have reasonably expected that his claim would be examined on the merits. That situation, which was contrary to the well-established case-law of the highest court in the State,infringed the principle of legal certainty andamounted to a denial of justice which impaired the very essence of the applicant\u2019s right of access to a court as secured by Article 6 \u00a7 1 of the Convention.<\/p>\n 42.\u00a0\u00a0There has consequently been a violation of that provision.<\/p>\n II.\u00a0\u00a0APPLICATION OF ARTICLE 41 OF THE CONVENTION<\/p>\n 43.\u00a0\u00a0Article 41 of the Convention provides:<\/p>\n \u201cIf the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.\u201d<\/p>\n A.\u00a0\u00a0Damage<\/strong><\/p>\n 44.\u00a0\u00a0The applicant claimed 737,932.73 Croatian kunas (HRK; approximately 97,600 euros (EUR)) on the grounds of lost net salaries, or HRK 1,461,265.49 (approximately EUR 194,000) on the grounds of lost gross salaries,in respect of pecuniary damage. He also claimed EUR 6,000in respect of non-pecuniary damage.<\/p>\n 45.\u00a0\u00a0The Government objected and argued that the amounts claimed were excessive, unfounded and unsubstantiated as there was no causal link between the violation complained of and the applicant\u2019s financial claims.<\/p>\n 46.\u00a0\u00a0The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects that claim. Onthe other hand, the Court finds that the applicant must have sustained non-pecuniary damage. In that connection, the Court first reiterates that the most appropriate form of redress in cases where it finds that an applicant has not had the kind of fair hearing required by Article 6 \u00a7 1 of the Convention would, as a rule, be to reopen the proceedings in due course and re\u2011examine the case in keeping with all the requirements of a fair hearing (see, for example, Lungoci v. Romania, no. 62710\/00, \u00a7 56, 26\u00a0January\u00a02006; Yanakiev v.\u00a0Bulgaria, no. 40476\/98, \u00a7 90, 10 August 2006; Lesjak v.\u00a0Croatia, no.\u00a025904\/06, \u00a7 54, 18 February 2010; and Kardo\u0161 v. Croatia, no.\u00a025782\/11, \u00a7\u00a067, 26 April 2016). In that connection, the Court notes that under section 428a of the Civil Procedure Act (see paragraph 17 above), the applicant can now lodge an application to reopen the proceedings which were brought before the Ivani\u0107 Grad Municipal Court and in respect of which the Court has found a violation of Article 6 \u00a7 1 of the Convention. In those circumstances, ruling on an equitable basis, the Court awards the applicant EUR 2,500 in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount.<\/p>\n B.\u00a0\u00a0Costs and expenses<\/strong><\/p>\n 47.\u00a0\u00a0The applicant also claimed HRK11,780 (approximately EUR 1,550 at the material time), for the costs and expenses incurred before the domestic courts, and HRK 12,500 (approximately EUR 1,650 at the material time) for those incurred before the Court.<\/p>\n 48.\u00a0\u00a0The Government contested this claim.<\/p>\n 49.\u00a0\u00a0According to the Court\u2019s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 850 for the costs and expenses incurred in the proceedings before the domestic courts and EUR 1,650 for those incurred in the proceedings before the Court, plus any tax that may be chargeable to the applicant.<\/p>\n C.\u00a0\u00a0Default interest<\/strong><\/p>\n 50.\u00a0\u00a0The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.<\/p>\n FOR THESE REASONS, THE COURT, UNANIMOUSLY,<\/strong><\/p>\n 1.\u00a0\u00a0Declaresthe application admissible;<\/p>\n 2.\u00a0\u00a0Holdsthat there has been a violation of Article 6 \u00a7 1 of the Convention;<\/p>\n 3.\u00a0\u00a0Holds<\/p>\n (a)\u00a0\u00a0that the respondent State is to pay the applicant, within three months, the following amounts,to be converted into the currency of the respondent State at the rate applicable at the date of settlement:<\/p>\n (i)\u00a0\u00a0EUR 2,500 (two thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;<\/p>\n (ii)\u00a0\u00a0EUR 2,500 (two thousand five hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;<\/p>\n (b)\u00a0\u00a0that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;<\/p>\n 4.\u00a0\u00a0Dismisses the remainder of the applicant\u2019s claim for just satisfaction.<\/p>\n Done in English, and notified in writing on 15 March 2018, pursuant to Rule\u00a077\u00a0\u00a7\u00a7\u00a02 and 3 of the Rules of Court.<\/p>\n Renata Degener\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\u00a0\u00a0\u00a0\u00a0\u00a0 Kristina Pardalos
\nKsenija Turkovi\u0107,
\nPauliine Koskelo, judges,
\nand Renata Degener, Deputy Section Registrar,<\/p>\n
\nDeputy Registrar\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\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 President<\/p>\n