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Cite as: [2007] ECHR 501

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FIRST SECTION

CASE OF TOMLJENOVIĆ v. CROATIA

(Application no. 35384/04)

JUDGMENT

STRASBOURG

21 June 2007

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Tomljenović v. Croatia,

The European Court of Human Rights (First Section), sitting as a Chamber composed of:

Mr C.L. Rozakis, President,
Mr L. Loucaides,
Mrs N. Vajić,
Mr K. Hajiyev,
Mr D. Spielmann,
Mr S.E. Jebens,
Mr G. Malinverni, judges,
and Mr S. Nielsen, Section Registrar,

Having deliberated in private on 31 May 2007,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

The case originated in an application (no. 35384/04) against the Republic of Croatia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Croatian national, Mr Mate Tomljenović (“the applicant”), on 21 September 2004.

The applicant was represented by Mr T. Houška, a lawyer practising in Zagreb. The Croatian Government (“the Government”) were represented by their Agent, Mrs Š. StaZnik.

On 2 May 2006 the Court decided to communicate the complaint concerning the length of the proceedings to the Government. Applying Article 29 § 3 of the Convention, it decided to rule on the admissibility and merits of the application at the same time.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

The applicant was born in 1934 and lives in Zagreb.

The applicant was teaching biology and chemistry and was the headmaster of V.N. Elementary School in Zagreb. By its decision of 22 December 1995 the Ministry of Education and Sport (Ministarstvo prosvjete i športa) relieved the applicant of his post of headmaster and dismissed him from work on account that he had reached the retirement age.

On 3 January 1996 the applicant brought an action in the Administrative Court (Upravni sud Republike Hrvatske) against that decision.

On 9 October 1997 the Administrative Court declined its jurisdiction in the matter, and on 6 May 1998 forwarded the case to the Zagreb Municipal Court (Općinski sud u Zagrebu).

On 4 September 1998 the Municipal Court invited the applicant to supplement his claim, which the applicant did within the time-limit indicated. The court held hearings on 20 November 2000 and 5 February 2001.

On 17 December 2001 the Municipal Court, considering that it lacked jurisdiction in the matter, made an application to the Supreme Court (Vrhovni sud Republike Hrvatske) with a view to resolving the negative conflict of jurisdictions.

On 22 January 2002 the Supreme Court ruled that the Administrative Court was competent to hear the applicant's case.

Following the transfer of the case back to the Administrative Court, on 31 October 2002 that court ruled in favour of the applicant. It quashed the impugned decision of 22 December 1995 and remitted the case to the Ministry.

Since the Ministry failed to give a new decision within the statutory time-limit of 30 days, on 5 November 2003 the applicant requested the Administrative Court to do so (see paragraph 16 below). In their reply to his request, the Ministry submitted that it was no longer competent to issue such a decision owing to the change in legislation governing primary education. On 6 May 2004 the Administrative Court, acting as a court of full jurisdiction, issued a decision entirely substituting for that of the Ministry. It dismissed the applicant's request by accepting that the Ministry no longer had competence in the matter. However, it found that in those circumstances the Ministry should have forwarded the case-file to a body authorised under the new legislation to issue such a decision – the school board of the V.N. Elementary School. The Ministry did so on 26 June 2006.

It appears that the case is currently pending before the school board.

Meanwhile, on 8 March 2004 the applicant lodged a constitutional complaint about the length of the proceedings. On 1 July 2004 the Constitutional Court (Ustavni sud Republike Hrvatske) dismissed the applicant's complaint. It examined only the length of the proceedings in their part between the introduction of the applicant's request to the Administrative Court on 5 November 2003 and the lodging of the constitutional complaint. The Constitutional Court dismissed the constitutional complaint finding that the proceedings had lasted only four months and three days.

II. RELEVANT DOMESTIC LAW

A. The Constitutional Court Act

The relevant part of section 63 of the Constitutional Act on the Constitutional Court (Ustavni zakon o Ustavnom sudu Republike Hrvatske, Official Gazette no. 49/2002 of 3 May 2002 – “the Constitutional Court Act”) reads as follows:

“(1) The Constitutional Court shall examine a constitutional complaint whether or not all legal remedies have been exhausted if the competent court fails to decide a claim concerning the individual's rights and obligations or a criminal charge against him or her within a reasonable time ...

(2) If a constitutional complaint ... under paragraph 1 of this section is upheld, the Constitutional Court shall set a time-limit within which the competent court must decide the case on the merits...

(3) In a decision issued under paragraph 2 of this section, the Constitutional Court shall assess appropriate compensation for the applicant for the violation of his or her constitutional rights ... The compensation shall be paid out of the State budget within three months from the date a request for payment is lodged.”

B. The Administrative Disputes Act

The relevant provisions of the Administrative Disputes Act (Zakon o upravnim sporovima, Official Gazette nos. 53/1991, 9/92 and 77/92) provide as follows:

Section 64(1) provides that, in the execution of the Administrative Court's judgment, the administrative authority shall issue its decision immediately but at the latest within 30 days. Otherwise, a party may by a special submission request it to do so. If the authority does not issue a decision within seven days following that request, a party may apply to the Administrative Court.

Section 64(2) provides that if such an application was made, the Administrative Court shall first ask the administrative authority to give reasons for its omission. The authority shall reply immediately but at the latest within seven days. If the authority fails to do so, or if the reasons given do not justify the failure to decide, the Administrative Court shall give a decision entirely substituting for the decision of the administrative authority.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

The applicant complained that the length of the proceedings had been incompatible with the “reasonable time” requirement, laid down in Article 6 § 1 of the Convention, which reads as follows:

“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”

The Government contested that argument.

The Court considers that the period to be taken into consideration began on 6 November 1997, the day after the entry into force of the Convention in respect of Croatia. However, in assessing the reasonableness of the time that elapsed after that date, account must be taken of the state of proceedings at the time. In this connection the Court notes that the proceedings commenced on 3 January 1996, when the applicant brought an action in the Administrative Court challenging his dismissal. Consequently, they were already pending for one year and ten months before the ratification.

The period in question has not yet ended. It has so far lasted more than nine and a half years after the ratification during which the case has been examined on the merits before two levels of jurisdiction.

A. Admissibility

The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Cocchiarella v. Italy [GC], no. 64886/01, § 68, to be published in ECHR 2006; and Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII). It further reiterates that special diligence is necessary in employment disputes (Ruotolo v. Italy, judgment of 27 February 1992, Series A no. 230-D, p. 39, § 17).

The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to the one in the present case (see, for example, Šundov v. Croatia, no. 13876/03, 13 April 2006; and Pitra v. Croatia, no. 41075/02, 16 June 2005).

Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. Having regard to its case-law on the subject, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement.

There has accordingly been a breach of Article 6 § 1.

II. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION

The applicant also complained under Article 5 § 1 that his right to liberty and security of person had been violated because he had lost his job, which had left him without means of subsistence.

In the light of all the material in its possession, and in so far as the matter complained of is within its competence, the Court considers that the present case does not disclose any appearance of a violation of the Article of the Convention relied on. It follows that this complaint is inadmissible under Article 35 § 3 as manifestly ill-founded and must be rejected pursuant to Article 35 § 4 of the Convention.

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

Article 41 of the Convention provides:

“If 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.”

A. Damage

The applicant claimed 254,774.19 Croatian kunas (HRK) in respect of pecuniary damage on account of the loss of earnings, and 15,000 euros (EUR) in respect of non-pecuniary damage.

The Government contested these claims.

The Court does not discern any causal link between the violation found and the pecuniary damage alleged. It therefore rejects this claim. On the other hand, it awards the applicant EUR 6,000 in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount.

B. Costs and expenses

The applicant also claimed HRK 13,420 for the costs and expenses incurred before the Court.

The Government contested the claim.

According to the Court's case-law, an applicant is entitled to reimbursement of his costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case, regard being had to the information in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 1,000 for the proceedings before the Court, plus any tax that may be chargeable on that amount.

C. Default interest

The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT UNANIMOUSLY

Declares the complaint concerning the excessive length of the proceedings admissible and the remainder of the application inadmissible;

Holds that there has been a violation of Article 6 § 1 of the Convention;

3. Holds

(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, the following amounts which are to be converted into the national currency of the respondent State at a rate applicable at the date of settlement:

(i) EUR 6,000 (six thousand euros) in respect of non-pecuniary damage;

(ii) EUR 1,000 (one thousand euros) in respect of costs and expenses;

(iii) any tax that may be chargeable on the above amounts;

(b) that 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;

Dismisses the remainder of the applicant's claim for just satisfaction.

Done in English, and notified in writing on 21 June 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Søren Nielsen Christos Rozakis
Registrar President