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MAJSKI v. CROATIA (no. 2) - 16924/08 [2011] ECHR 1125 (19 July 2011)
URL: http://www.bailii.org/eu/cases/ECHR/2011/1125.html
Cite as:
[2011] ECHR 1125
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FIRST
SECTION
CASE OF MAJSKI v. CROATIA (no. 2)
(Application
no. 16924/08)
JUDGMENT
STRASBOURG
19 July
2011
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 Majski v. Croatia
(no. 2),
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Anatoly
Kovler,
President,
Nina
Vajić,
Peer
Lorenzen,
Elisabeth
Steiner,
Khanlar
Hajiyev,
Julia
Laffranque,
Linos-Alexandre
Sicilianos,
judges,
and Søren Nielsen,
Section Registrar,
Having
deliberated in private on 28 June 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 16924/08) 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 Radovan Majski (“the
applicant”), on 17 March 2008.
The
Croatian Government (“the Government”) were represented
by their Agent, Mrs Š. StaZnik.
The
applicant alleged, in particular, that there had been a violation of
his right of access to court.
On
10 November 2010 the President of the First Section decided to
communicate the complaint concerning access to court to the
Government. It was also decided to rule on the admissibility and
merits of the application at the same time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant, who is of Serbian origin, was born in 1949 and lives in
Vukovar.
On
28 October 2004 the applicant submitted an application for the post
of deputy county state attorney in the Vukovar County State
Attorney's Office. He relied on section 22(2) of the Constitutional
Act on the Rights of National Minorities and section 63(2) of the
State Attorneys Act (see paragraphs 17 and 19 below).
On
11 January 2005 the State Attorneys Council (DrZavnoodvjetničko
vijeće), after a secret ballot, unanimously adopted a
decision appointing D.K.I. deputy county state attorney in the
Vukovar County State Attorney's Office. It found that both candidates
satisfied the statutory requirements to be appointed deputy state
attorney but gave priority to D.K.I., having regard to her extensive
experience of working on civil and administrative law cases. The
decision contained an information notice (pouka o pravnom lijeku)
to the effect that administrative dispute proceedings could be
instituted against it by bringing an action in the Administrative
Court (Upravni sud Republike Hrvatske) within thirty days of
its service. The information notice reads as follows:
“Against this decision an administrative dispute
may be instituted by bringing an action in the Administrative Court
within thirty days of the service of the decision.”
On
4 February 2005 the applicant instituted administrative dispute
proceedings in the Administrative Court by bringing an action under
section 23 of the Administrative Disputes Act (see paragraph 26
below) against the State Attorneys Council's decision of 11 January
2005. He again relied on section 22(2) of the Constitutional Act on
the Rights of National Minorities.
On
16 March 2005 the Administrative Court declared the applicant's
action inadmissible, finding that the contested decision did not
constitute an “administrative act” within the meaning of
section 6(2) of the Administrative Disputes Act (see paragraph 24
below). Therefore, instead of instituting administrative dispute
proceedings by bringing an action (against an administrative act),
the applicant should have lodged “a request for the protection
of a constitutionally guaranteed right” (zahtjev
za zaštitu ustavom zajamčenog prava), a remedy
provided in section 66 of the Administrative Disputes Act (see
paragraph 34 below). The Administrative Court also held that the
applicant's action could not have been, even in substance, regarded
as such a request, because he had not relied on any provision of the
Constitution, but only on the Constitutional Act on the Rights of
National Minorities.
On
18 July 2005 the applicant lodged a constitutional complaint with the
Constitutional Court (Ustavni sud Republike Hrvatske) against
the Administrative Court's decision. In so doing the applicant,
alleging a violation of his right of access to court, relied on
Article 6 § 1 of the Convention.
On
13 February 2008 the Constitutional Court dismissed the applicant's
constitutional complaint. The relevant part of that decision reads as
follows:
“The Constitutional Court finds that the
complainant's rights under Article 6 § 1 of the European
Convention on Human Rights and Fundamental Freedoms were not breached
in the proceedings before the Administrative Court because the
Administrative Court did not proceed contrary to the legal views
established by the European Court of Human Rights in the application
of that provision to individual cases.
...
The Constitutional Court notes that in its practice it
has established the rule that there is a remedy before the
Administrative Court (a request under section 66 of the
Administrative Disputes Act) against a decision on appointment of a
deputy state attorney, and that this remedy has to be used before a
constitutional complaint is lodged with the Constitutional Court
(decision no. U-III-4364/2005 of 19 December 2005).”
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. The Constitution
1. Relevant provisions
The
relevant provisions of the Constitution of the Republic of Croatia
(Ustav Republike Hrvatske, Official Gazette of the Republic of
Croatia nos. 56/1990, 135/1997, 8/1998 (consolidated text), 113/2000,
124/2000 (consolidated text), 28/2001 and 41/2001 (consolidated
text), 55/2001 (corrigendum) and 76/2010) read as follows:
Article 18
“The right to appeal against decisions adopted in
the first-instance proceedings before a court or other authorised
body shall be guaranteed.
The right of appeal may exceptionally be excluded in
cases provided by law if other legal protection is ensured.”
Article 29(1)
“In the determination of his rights and
obligations or of any criminal charge against him, everyone is
entitled to a fair hearing within a reasonable time by an independent
and impartial court established by law.”
Article 44
“Every national of the Republic of Croatia shall
have the right, under equal conditions, to take part in the conduct
of public affairs, and to be admitted to public service.”
2. The Constitutional Court's jurisprudence
In
its decisions no. U-III-1733/2000 of 24 November 2004 (published in
the Official Gazette no. 179/2004 of 17 December 2004),
no. U-III-2808/2007 of 13 February 2008 (published in the
Official Gazette no. 26/2008 of 29 February 2008) and no.
U-III-3071/2006 (published in the Official Gazette no. 42/2009 of 6
April 2009) the Constitutional Court held that in cases where the
first-instance courts had wrongly informed parties on legal remedies
by indicating longer time-limits for lodging appeals against their
decisions than those provided in the relevant legislation, and the
parties lodged their appeals outside of the statutory time-limits but
within the time-limits indicated by the first-instance courts, those
appeals could not be declared inadmissible as lodged out of time. To
do so would run contrary to the constitutional right to appeal
guaranteed by Article 18(1) of the Constitution, and the
constitutional right to a fair hearing, in its part concerning access
to court, guaranteed by Article 29(1) of the Constitution (see
preceding paragraph).
3. The case-law of the Administrative Court
In
its judgment no. Zpa-5/2004-5 of 2 December 2004, following a request
for the protection of a constitutionally guaranteed right (see
paragraph 34 below) the Administrative Court quashed the decision of
the National Judicial Council on appointment of a municipal court
judge. It held that every candidate satisfying the statutory
requirements had the right to equal participation in a competition
for public office. Therefore, by appointing a candidate who did not
satisfy the statutory requirements for appointment as a judge of a
municipal court, the National Judicial Council violated the other
candidate's constitutional right to “equal access to public
service” guaranteed by Article 44 of the Constitution (see
paragraph 12 above).
B. The Constitutional Court Act
1. Relevant provisions
The
relevant provision of the 1999 Constitutional Act on the
Constitutional Court of the Republic of Croatia (Ustavni zakon o
Ustavnom sudu Republike Hrvatske, Official Gazette of the
Republic of Croatia no. 99/1999 of 29 September 1999 –
“the Constitutional Court Act”), as amended by the 2002
Amendments (Ustavni zakon o izmjenama i dopunama Ustavnog zakona o
Ustavnom sudu Republike Hrvatske, Official Gazette of the
Republic of Croatia no. 29/2002 of 22 March 2002), which entered
into force on 15 March 2002, reads as follows:
Section 62
“(1) Anyone may lodge a constitutional complaint
with the Constitutional Court if he or she deems that the decision of
a state authority, local or regional government, or a legal person
invested with public authority, on his or her rights or obligations,
or as regards suspicion or accusation of a criminal offence, has
violated his or her human rights or fundamental freedoms, or the
right to local or regional government, guaranteed by the Constitution
('constitutional right')...
(2) If another legal remedy is available in respect of
the violation of the constitutional right [complained of], a
constitutional complaint may be lodged only after this remedy has
been used.
(3) In matters in which an administrative action or, in
civil and non-contentious proceedings, an appeal on points of law
[revizija] is available, remedies shall be considered to have
been exhausted only after a decision on these legal remedies has been
given.”
2. The Constitutional Court's jurisprudence
In
its decision no. U-III-4364/2005 of 19 December 2005 (Official
Gazette no. 6/2006 of 13 January 2006) the Constitutional Court held
that a request for the protection of a constitutionally guaranteed
right under section 66 of the Administrative Disputes Act (see
paragraph 34 below) must be lodged against a decision of the State
Attorneys Council on appointment of a deputy state attorney before a
constitutional complaint under section 62 of the Constitutional Court
Act.
C. The Constitutional Act on the Rights of National
Minorities
1. Relevant provisions
The
relevant provisions of the Constitutional Act on the Rights of
National Minorities (Zakon o pravima nacionalnih manjina,
Official Gazette of the Republic of Croatia nos. 155/2002 and
80/2010), which entered into force on 23 December 2002, read as
follows:
Section 22(2) and (4)
“(2) The representation of members of national
minorities in the organs of State administration and judicial organs
shall be secured in accordance with special legislation, and taking
into account the proportion of members of national minorities in the
total population at the level in respect of which the organ of state
administration or judicial organ is established, and acquired rights.
(4) In filling the posts referred to in paragraphs 2 and
3 of this section, priority shall be given under the same conditions
to members of national minorities.”
2. The case-law of the Administrative Court
On
23 March 2006 the Administrative Court delivered its judgment in case
no. Zpa-39/2005, where an aggrieved candidate, member of a national
minority, lodged a request for the protection of a constitutionally
guaranteed right under section 66 of the Administrative Disputes Act
(see paragraph 34 below) against a decision of the National Judicial
Council on appointment of a municipal court judge. He argued that the
contested decision had breached his right guaranteed by Article 44
of the Constitution (see paragraph 12 above) in conjunction with
section 22(4) of the Constitutional Act on the Rights of National
Minorities (see paragraph 17 above). The Administrative Court
dismissed his request (only) because in his application for the post
of a municipal court judge he had not expressed the wish to be
treated as a member of a national minority and had not relied on
section 22(4) of the Constitutional Act on the Rights of National
Minorities.
D. The State Attorneys Act
1. Relevant provisions
The
relevant provision of the State Attorneys Act (Zakon o drZavnom
odvjetništvu, Official Gazette of the Republic of
Croatia nos. 51/2001, 16/2007, 20/2007 (corrigendum), 146/2008),
as in force at the material time, provided as follows:
a) Appointment
of deputy state attorneys
Section 62
“(1) Deputy state attorneys shall be
appointed in a manner, under the conditions and according to a
procedure that guarantees they possess the expertise, independence
and moral standing necessary to discharge the duty of a state
attorney.
(2) Any Croatian national who holds a law
degree and has passed the bar exam may be appointed a deputy state
attorney.”
Section 63(2)
“A person may be appointed a deputy state attorney
in a county state attorney's office if he or she has, as a holder of
public office in the judiciary, exercised judicial duties, or has
been an advocate, notary public or notary public's assessor, or
lecturer of law courses at a law faculty for at least ten years, or
has worked in another legal profession for at least twenty years
after passing the bar exam.”
The
State Attorneys Act provided that decisions of the State Attorneys
Council rendered in disciplinary proceedings (section 114) and
decisions on removal from the office of a state attorney (section
118(5)) could be challenged by instituting administrative disputes
proceedings before the Administrative Court in the form of an action
under section 23 of the Administrative Disputes Act. However, the
State Attorneys Act had no provisions on remedies available against
decisions of the State Attorneys Council on appointment of state
attorneys.
2. The case-law of the Administrative Court
In
its decision no. Us-6683/2004 of 17 November 2004 the Administrative
Court held for the first time that a decision of the State Attorneys
Council on appointment of a deputy state attorney was not an
administrative act within the meaning of section 6(2) of the
Administrative Disputes Act. It also held that such a decision could
only be contested before that court by lodging a request for the
protection of a constitutionally guaranteed right under section 66 of
the Administrative Disputes Act (see paragraph 34 below).
E. The Administrative Disputes Act
1. Relevant provisions
The
Administrative Disputes Act (Zakon o upravnim sporovima,
the Official Gazette of the Socialist Federal Republic of
Yugoslavia no. 4/1977, and the Official Gazette of the Republic of
Croatia nos. 53/1991, 9/1992 and 77/1992) in its relevant part
provides as follows:
Section
6(1) provides that administrative dispute proceedings may be
initiated only against an administrative act.
Section
6(2) provides that an administrative act, within the meaning of the
Act, is an act whereby a State organ, in the exercise of public
authority, decides on a right or obligation of an individual or an
organisation in an administrative matter.
Section
10(1) provides that an administrative act may be challenged for: (a)
misapplication of substantive law, (b) lack of jurisdiction, or (c)
procedural errors or incorrect findings of fact.
Section
23 provides that administrative dispute proceedings are instituted by
bringing an action.
Section
24(1) provides that the action has to be brought within thirty days
from the service on the plaintiff of the administrative act (that is,
a decision) being contested by the action.
Section
27(1) provides that a statement of claim must contain: (a) the first
and last name, or the name and the seat, of the plaintiff; (b) the
administrative act being contested by the action; (c) a brief
statement of the cause of action; as well as (d) to which direction
and to what extent it is proposed to quash the administrative act,
and (e) the signature of the plaintiff. The statement of claim must
be accompanied by the original or a copy of the contested act.
Section
29(1) provides that if the action is incomplete or incomprehensible,
the president of the panel shall invite the plaintiff to rectify the
shortcomings within a certain time-limit. In doing so, the president
should instruct the plaintiff as to what has to be done and how and
warn him or her of the consequences of failing to comply with the
court's request.
Section
29(2) provides that if the plaintiff does not rectify the
shortcomings in his action within the time-limit fixed, and they are
of such a nature as to prevent the court proceeding with the case,
the court shall declare the action inadmissible as deficient.
Section
30 provides that the Administrative Court must declare an action
inadmissible if, inter alia, the contested decision does not
constitute an administrative act within the meaning of section 6 of
that Act.
Sections
52-59 provide for the remedy of reopening of proceedings before the
Administrative Court and regulate the procedure following a petition
for reopening.
Section 60 provides that if the Administrative Disputes Act does not
contain specific provisions on the procedure before the
Administrative Court (that is, in administrative disputes), the
provisions of the Civil Procedure Act should apply mutatis
mutandis.
Section
66 reads as follows:
“A request for the protection of a
constitutionally guaranteed right or freedom ... if such a right or
freedom has been violated by a final individual act [that is, a
decision], and no other judicial protection is ensured, shall be
decided by the [Administrative Court], by applying the provisions of
this Act mutatis mutandis.”
2. The case-law of the Administrative Court
According
to the conclusion reached at the plenary session of judges of the
Administrative Court held on 26 October 1987, an action against an
administrative act is to be considered a request for judicial
protection within the meaning of section 66 of the Administrative
Disputes Act if from the content of the action it transpires that it
may concern a breach of rights or freedoms guaranteed by the
Constitution. In such cases the Administrative Court could not review
every breach of procedural or substantive law but only those that
amount to breaches of constitutionally guaranteed rights or freedoms.
According
to the Administrative Court's case-law (judgment no. Zpa-5/2004-5
of 2 December 2004), the requirements for affording judicial
protection under section 66 of the Administrative Disputes Act, which
must be met in their totality, are: (a) the request has to concern
rights or freedoms expressly guaranteed by the Constitution, (b)
those rights or freedoms were allegedly breached by a final decision
which does not have the characteristics of an administrative act, and
(c) the legal system does not provide for another judicial avenue of
redress. If the request lodged under section 66 of the Administrative
Disputes Act does not concern a right or freedom guaranteed by the
Constitution, it should be declared inadmissible (decision no.
Zpa-4/2003 of 15 December 2004). The time-limit for lodging such a
request is the same as the time-limit for bringing an action against
an administrative act under section 23 of the Administrative Disputes
Act (see paragraphs 26-27 above), that is, thirty days from the
service of the contested decision (Zpa-9/05 of 13 April 2005).
F. The Administrative Procedure Act
1. Relevant provisions
The
relevant provisions of the Administrative Procedure Act (Zakon o
općem upravnom postupku, the Official Gazette
of the Socialist Federal Republic of Yugoslavia 47/1986 (consolidated
text), and the Official Gazette of the Republic of Croatia no.
53/1991) provide as follows:
Section 210(1), (3) and (4)
“(1) By notice on legal remedies a party is
informed whether he or she may lodge an appeal against the decision
or institute administrative dispute proceedings or other judicial
proceedings.
(3) Where administrative dispute proceedings may be
instituted against the decision, the notice shall indicate in which
court and within what time-limit the action should be brought. Where
other judicial proceedings may be instituted, it [the notice] shall
indicate before which court and within what time-limit the
proceedings should be instituted.
(4) When incorrect information has been given, a party
may follow the legislation in force or the notice. A party which
followed the incorrect information shall not suffer any adverse
consequences as a result.”
2. The case-law of the Administrative Court
In
its decision no. Zpa-9/2005-4 of 13 April 2005 the Administrative
Court held that an incorrect information as regards the remedies
available against a decision of the State Attorneys Council did not
give rise to the rights stipulated in section 210 of the
Administrative Procedure Act (see preceding paragraph).
G. The Civil Procedure Act
The
relevant provision of the Civil Procedure Act (Zakon o parničnom
postupku, Official Gazette of the Socialist Federal Republic of
Yugoslavia nos. 4/1977, 36/1977 (corrigendum), 36/1980, 69/1982,
58/1984, 74/1987, 57/1989, 20/1990, 27/1990 and 35/1991, and Official
Gazette of the Republic of Croatia nos. 53/1991, 91/1992, 58/1993,
112/1999, 88/2001, 117/2003, 88/2005, 2/2007, 84/2008 and 123/2008)
reads as follows:
5.a. Reopening of proceedings following a
final judgment of the European Court of Human Rights in Strasbourg
finding a violation of a fundamental human right or freedom
Section 428a
“(1) When 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 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, file a petition 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.
(2) The proceedings referred to in paragraph 1 of this
section shall be conducted by applying, mutatis mutandis, the
provisions on the reopening of proceedings.
(3) In 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.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION ON ACCOUNT OF THE LACK OF ACCESS TO COURT
The
applicant complained that despite the fact that the State Attorneys
Council had wrongly informed him on the legal remedies available
against its decision of 11 January 2005, the Administrative Court had
refused to review his action on its merits and thereby violated his
right of access to court. He relied on 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.
A. Admissibility
The
Government disputed the admissibility of this complaint on two
grounds. They argued that Article 6 was inapplicable and that, in any
event, the applicant had failed to exhaust domestic remedies.
1. Applicability
(a) The arguments of the parties
The
Government first referred to the Court's case-law, according to which
the right of access to court extended only to “contestations”
(disputes) over (civil) “rights and obligations” which
were, at least on arguable grounds, recognised under domestic law
(see James and Others v. the United Kingdom, 21 February 1986,
§ 81, Series A no. 98). When it was clear that that right did
not exist in the domestic legal system, Article 6 was not applicable,
and the Court, when interpreting that Article, could not create a
right which had no foundation in the domestic legal system.
In
that connection the Government first submitted that in Croatian law
there was no substantive (civil) right to employment or appointment
to the civil service. In particular, they explained that in order to
acquire the right to be appointed to the position of deputy county
state attorney it was not sufficient for a candidate to meet the
formal statutory requirements set forth in sections 62(2) and 63(2)
of the State Attorneys Act (see paragraph 19 above). It was also
necessary that a candidate had the required expertise and
independence, as provided in section 62(1) of the State Attorneys Act
(see paragraph 19 above), and received a sufficient number of votes
from the members of the State Attorneys Council. Therefore, even if
all candidates met the formal statutory requirements, the post of
deputy county state attorney could remain vacant if none of them
received the required number of votes. In assessing the expertise and
independence of the candidates in the present case, after holding a
secret ballot the State Attorneys Council appointed Mrs D.K.I., and
not the applicant, deputy county state attorney in the Vukovar County
State Attorney's Office. It followed that the applicant had not had
the right to be appointed to that post.
The
Government further argued that, even if the Administrative Court had
quashed the impugned decision of the State Attorneys Council, the
applicant would not have been appointed instead of Mrs D.K.I.;
rather, the position would have remained vacant. A new advertisement
would have been published and a new selection procedure conducted.
That fact was a strong indication that: (a) as already stated above,
the applicant had not had the right to be appointed to the post of
deputy county state attorney in the Vukovar County State Attorney's
Office (see, mutatis mutandis, Sultana v. Malta
(dec.), no. 970/04, 11 December 2007), and (b) even if he had
had that right, the proceedings in question had not been directly
decisive for his “rights and obligations” (see, mutatis
mutandis, Revel and Mora v. France (dec.), no.
171/03, 15 November 2005).
Lastly,
the Government submitted that in Croatian law there was no right to
challenge an appointment to the civil service either. In particular,
decisions of the State Attorneys Council on appointments could only
be reviewed, under section 66 of the Administrative Disputes Act, if
they were not in accordance with constitutionally guaranteed rights
or freedoms (see paragraph 21 above). However, in the Sultana
case, the Court had already held that the right to lodge a similar
remedy had no features of private law and thus had no elements which
could make it akin to a “civil” right, which would be
required to make Article 6 applicable (see Sultana, cited
above).
Having
regard to the above, the Government considered that Article 6
was not applicable in the present case.
The
applicant argued that the domestic courts failed to protect his right
to access to public service. In his view, that right was a “civil
right” within the meaning of Article 6 § 1 of the
Convention.
(b) The Court's assessment
The
Court reiterates that Article 6 § 1 of the Convention secures
to everyone the right to have any claim relating to his civil rights
and obligations brought before a court or tribunal. The right
of access, namely the right to institute proceedings before a court
in civil matters, constitutes one aspect of this “right to a
court” (see, notably, Golder v. the United Kingdom, 21
February 1975, §§ 28-36, Series A no. 18). This right
extends only to “civil rights and obligations” which can
be said, at least on arguable grounds, to be recognised under
domestic law (see James and Others, loc. cit.). Therefore, in
order to establish whether the civil head of Article 6 is
applicable in the present case, and, consequently, whether the
applicant could rely on the right of access to court, the Court
should first examine whether he had a “right” which could
arguably be said to be recognised under Croatian law, and secondly,
whether that right was a “civil” one.
(i) Existence of a right
The
Court notes in this connection that according to the Administrative
Court's case-law, every candidate satisfying the statutory
requirements has the right to equal participation in a competition
for a public office, which right is a corollary of the right to equal
access to public service guaranteed by Article 44 of the Constitution
(see paragraphs 12 and 14 above). Having regard to the findings of
the State Attorneys Council in the present case, according to which
both the applicant and Mrs D.K.I. satisfied the statutory
conditions for appointment to the post of deputy county state
attorney in the Vukovar County State Attorney's Office (see paragraph
7 above), the Court considers that the applicant had a “right”
which could arguably be said to be recognised under Croatian law
(see, for example, Kübler v. Germany, no. 32715/06,
§ 46, 13 January 2011; Lombardi Vallauri v. Italy,
no. 39128/05, § 62, ECHR 2009 ... (extracts); and Fiume
v. Italy, no. 20774/05, § 35, 30 June 2009).
(ii) Civil nature of the right
As
regards the “civil” nature of the right, the Court held
that the approach developed in the case of Vilho Eskelinen and
Others v. Finland ([GC], no. 63235/00, ECHR 2007 IV,
see paragraph 53 below) also applied to the right of access to a
public office (see, notably, Kübler, cited above,
§ 45; and, implicitly, Josephides v. Cyprus,
no. 33761/02, § 54, 6 December 2007; Lombardi Vallauri,
cited above, loc. cit.; and Penttinen v. Finland (dec.),
no. 9125/07, 5 January 2010).
Before
the judgment in the Vilho Eskelinen case, the Court held that
employment disputes between the authorities and public servants whose
duties typified the specific activities of public service, in so far
as the latter was acting as the depositary of public authority
responsible for protecting the general interests of the State, were
not “civil” and were excluded from the scope of Article 6
§ 1 of the Convention (see Pellegrin v. France [GC],
no. 28541/95, § 66, ECHR 1999 VIII). Likewise,
employment disputes involving state attorneys (solicitors general)
were also excluded from the scope of Article 6 § 1
(see Mickovski v. the former Yugoslav Republic of Macedonia
(dec.), no. 68329/01, 10 November 2005).
In
the Vilho Eskelinen case the Court revisited the
applicability of Article 6 § 1 and held that it was for the
Contracting States, in particular the competent national legislature,
and not the Court, to identify expressly those areas of public
service involving the exercise of the discretionary powers intrinsic
to State sovereignty where the interests of the individual must give
way. If a domestic system barred access to court, the Court would
verify that the dispute was indeed such as to justify the
application of the exception to the guarantees of Article 6. If it
did not, then there was no issue and Article 6 § 1 would apply
(see Vilho Eskelinen and Others, cited above, § 61).
Following
the Vilho Eskelinen case, the Court found Article 6 to be
inapplicable to proceedings concerning recruitment (see Apay v.
Turkey, no. 3964/05, 11 December 2007) and
(disciplinary) proceedings concerning the termination of employment
of public prosecutors (see Nazsiz v. Turkey, no. 22412/05 26
May 2009) but only because the domestic law expressly
excluded access to court. However, turning to the
circumstances of the present case, the Court first notes that section
66 of the Administrative Disputes Act provides for “a request
for the protection of a constitutionally guaranteed right”, a
judicial remedy open to anyone who considers that his or her rights
or freedoms guaranteed by the Constitution have been violated by a
decision of a public authority in a situation where no other judicial
remedy is available (see paragraph 34 above).
It further notes that in the present case the applicant was entitled
to contest the impugned decision of the State Attorneys
Council of 11 January 2005 before the
Administrative Court by lodging such a request in
so far as that decision was contrary to his constitutional right to
equal access to the public service (see paragraphs 9, 14, 16 and 21
above).
(iii) Conclusion
In
the light of the foregoing, the Court finds that Article 6 of the
Convention under its civil head is applicable to the present case
(see, mutatis mutandis, Josephides, cited above, §
55; Penttinen, cited above; Kravchenko and Others (military
housing) v. Russia, nos. 11609/05, 12516/05, 17393/05, 20214/05,
25724/05, 32953/05, 1953/06, 10908/06, 16101/06, 26696/06, 40417/06,
44437/06, 44977/06, 46544/06, 50835/06, 22635/07, 36662/07, 36951/07,
38501/07, 54307/07, 22723/08, 36406/08 and 55990/08, § 23, 16
September 2010; and Kübler, cited above,
§ 46) and, consequently, that the applicant should
have had access to court in respect of his right to equal access to
public service guaranteed by Article 44 of the Constitution.
It
follows that the Government's objection to the applicability of
Article 6 of the Convention must be dismissed.
2. Non-exhaustion of domestic remedies
(a) The arguments of the parties
The
Government further argued that, after the Administrative Court
declared his administrative action inadmissible on 16 March 2005, the
applicant should have lodged a request for the protection of a
constitutionally guaranteed right under section 66 of the
Administrative Disputes Act. According to the Government, that
followed from the Administrative Court's decision of 16 March 2005.
That would have enabled the Administrative Court to decide on the
merits of the applicant's request regardless of the fact that it
would have been submitted outside of the statutory time-limit, and
having regard to the Constitutional Court's jurisprudence, according
to which a party which followed an incorrect information on legal
remedies should not suffer any adverse consequences as a result. Even
if the Administrative Court had declared such a request inadmissible
as lodged out of time, the applicant could have lodged a
constitutional complaint against such a decision relying on the
above-mentioned jurisprudence of the Constitutional Court.
In
addition, the Government submitted that in his administrative action
of 4 February 2005 the applicant had not relied on any of the
constitutionally guaranteed rights, in particular the right to equal
access to public service guaranteed by Article 44 of the
Constitution. Had he done so, the Administrative Court would not have
declared his action inadmissible but it would have treated it as a
request for the protection of a constitutionally guaranteed right and
examined it on its merits. However, since he had not done so, his
action could not, either in form or in substance, be viewed as a
request for the protection of a constitutionally guaranteed right
within the meaning of section 66 of the Administrative Disputes Act,
and therefore had to be declared inadmissible.
The
applicant did not comment on this issue.
(b) The Court's assessment
The
Court first notes that there is nothing in the text of the
Administrative Court's decision of 16 March 2005 that would
indicate, as suggested by the Government (see paragraph 57 above),
that the applicant should have re-submitted his action brought under
section 23 of the Administrative Disputes Act as a request for the
protection of a constitutionally guaranteed right under section 66 of
the same Act (see paragraph 9 above). Had he done so, his request
would have been declared inadmissible for failure to comply with the
statutory time-limit of thirty days. The Court further notes that the
Constitutional Court dismissed the applicant's subsequent
constitutional complaint lodged against the Administrative Court's
decision (see paragraph 11 above). This suggests that the
Constitutional Court considered the contested decision not to be
contrary to its jurisprudence, according to which a party which
followed an incorrect information on legal remedies should not suffer
any adverse consequences as a result. Moreover, that jurisprudence
was developed in respect of cases where the first-instance courts
wrongly informed parties by indicating longer time-limits for lodging
appeals against their decisions than those provided in the relevant
legislation. In such cases the Constitutional Court held that their
appeals could not be declared inadmissible as lodged out of time if
they had been lodged within the time-limits indicated by the
first-instance courts (see paragraph 13 above). However, the present
case concerns a situation where the applicant was informed to use a
different remedy from the one actually available under the relevant
legislation, and the Court is unaware of any decision of the
Constitutional Court that would sanction such erroneous information
on legal remedies.
Furthermore,
the Court is not convinced by the Government's argument that in his
administrative action the applicant should have relied on a
constitutionally guaranteed right, such as, for example, the right to
equal access to public service guaranteed by Article 44 of the
Constitution, in which case the Administrative Court would have
decided on the merits of his action, treating it, in substance, as a
request under section 66 of the Administrative Disputes Act. In this
connection the Court notes that while the case-law of the
Administrative Court requires claimants to specify in their requests
lodged under section 66 of the Administrative Disputes Act the
constitutional right which has allegedly been violated by the
contested decision (see paragraph 36 above), the same or similar
requirement (see paragraph 28 above) does not exist in respect of
administrative actions instituting administrative dispute proceedings
brought under section 23 of the same Act, to which the applicant
resorted to. Given that in the present case the State Attorneys
Council had informed the applicant to bring such an action against
its decision of 11 January 2005, instead of informing him to lodge a
request for the protection of a constitutionally guaranteed right,
the Court considers that he was not obliged to comply with the
above-mentioned requirement.
It
follows, in the light of the foregoing, that the Government's
objection of failure to exhaust domestic remedies must also be
dismissed.
The
Court further notes that this complaint is not manifestly ill-founded
within the meaning of Article 35 § 3 (a) of the Convention. It
also notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. The arguments of the parties
The
Government maintained that the applicant's right of access to court
had not been violated. In so doing they relied on the same arguments
summarised in paragraph 58 above.
The
applicant maintained his view that by declaring his action
inadmissible, despite the fact that the State Attorneys Council had
wrongly informed him to resort to that remedy, the Administrative
Court had violated his right of access to court.
2. The Court's assessment
The
Court reiterates that the right of access to court 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. In this respect, the Contracting States enjoy a certain
margin of appreciation, although the final decision as to the
observance of the Convention's requirements rests with the Court.
However, these limitations must not restrict or
reduce the access left 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, § 57, Series A no. 93).
Turning
to the circumstances of the present case, the Court notes that the
State Attorneys Council had wrongly informed the applicant on the
legal remedies available against its decision of 11 January 2005. In
particular, it informed him that administrative dispute proceedings
could be instituted by bringing an action in the Administrative Court
under section 23 of the Administrative Disputes Act (see paragraph 7
above), whereas the (only) available remedy was in fact a request for
the protection of a constitutionally guaranteed right under section
66 of the same Act (see paragraphs 9 and 21 above). When the
applicant eventually brought the action as informed, the
Administrative Court declared it inadmissible and refused to review
the contested decision on the merits. It did so because: (a) the
contested decision did not constitute an administrative act within
the meaning of section of 6(2) the Administrative Disputes Act, and
(b) in his action the applicant had not relied on any right or
freedom guaranteed by the Constitution and thereby prevented the
Administrative Court from viewing his action, in substance, as a
request for the protection of a constitutionally guaranteed right
under section 66 of the Administrative Disputes Act (see paragraph 9
above).
The
Court reiterates that it is
in the first place for the national authorities, and notably the
courts, to interpret and apply the domestic law.
This applies in particular to the interpretation by courts of rules
of a procedural nature. The Court's role is confined to ascertaining
whether the effects of such an interpretation are compatible with the
Convention (see, for example, Tejedor García v.
Spain, 16 December 1997, § 31, Reports of Judgments and
Decisions 1997 VIII, and Pérez de Rada Cavanilles
v. Spain, 28 October 1998, § 43, Reports 1998 VIII).
In order to satisfy itself that the very essence of the applicant's
right of access to court was not impaired, the Court must examine
whether the Administrative Court's decision to declare his action
inadmissible could be regarded as foreseeable having regard to the
relevant legislation and the case-law and given the fact that the
applicant was wrongly informed on legal remedies (see, mutatis
mutandis, Levages Prestations Services v. France, 23
October 1996, § 42, Reports 1996 V, and Osu v.
Italy, no. 36534/97, § 35, 11 July 2002).
In
this connection the Court first notes that the State Attorneys Act
had no provisions on remedies available against decisions of the
State Attorneys Council on appointment of deputy state attorneys (see
paragraph 20 above), and that therefore from its text it was not
certain what the right remedy to be used was. This uncertainty was
remedied by judicial interpretation on 17 November 2004 when the
Administrative Court held for the first time that such decisions
could only be challenged by a request for the protection of a
constitutionally guaranteed right under section 66 of the
Administrative Disputes Act (see paragraph 21 above). While it is
true that the above-mentioned decision of the Administrative Court
was rendered some two months before the applicant brought his action
in the same court, the Court does not consider that the applicant
should have been aware of it and disregarded the explicit information
on legal remedies contained in the decision of the State Attorneys
Council he was contesting. This is so because in cases like the
present one, where the remedy in question was the result of
interpretation by the courts, it normally takes six months for such a
development of the case-law to acquire a sufficient degree of legal
certainty before the public may be considered to be effectively aware
of the domestic decision which had established the remedy and the
persons concerned be enabled and obliged to use it (see, mutatis
mutandis, Depauw v. Belgium (dec.), no. 2115/04, ECHR
2007 V (extracts), and Provide S.r.l. v. Italy,
no. 62155/00, § 18, ECHR 2007 VIII (extracts).
In
these particular circumstances the applicant might have reasonably
expected, having regard to section 29(1) and (2) in conjunction with
section 66 of the Administrative Disputes Act (see paragraphs 29-30
and 34 above), from the Administrative Court to first inform him that
his action could only be examined as a request for a protection of a
constitutionally guaranteed right, and to invite him to specify which
constitutional right he considered to have been violated. Instead,
the Administrative Court declared his action inadmissible outright.
As a result, the applicant found himself in a
situation, where he was prevented, through no fault of his
own, from having the impugned decision of the State Attorneys Council
examined on its merits (see, mutatis
mutandis, Société
Anonyme Sotiris and Nikos Koutras Attee v. Greece, no. 39442/98,
§§ 21-23, ECHR 2000 XII; and Platakou v.
Greece, no. 38460/97, §§ 39 and 49, ECHR 2001 I).
In the Court's view, that situation impaired the very essence of the
applicant's right of access to court as secured by Article 6 § 1
of the Convention.
There
has accordingly been a violation of Article 6 § 1 of the
Convention in the present case.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION ON ACCOUNT OF THE EXCESSIVE LENGTH OF THE PROCEEDINGS
The
applicant also complained that the length of the above proceedings
had been incompatible with the “reasonable time”
requirement laid down in Article 6 § 1 of the Convention.
The
Court notes that the proceedings complained of lasted some three
years and three months, during which period the case was examined at
three levels of jurisdiction. That being so, the Court considers, in
the light of the criteria established in its case-law on the question
of “reasonable time” (the complexity of the case, the
applicant's conduct and that of the competent authorities), and
having regard to all the information in its possession, that such a
period cannot be considered excessive. Consequently, the length of
the proceedings in the present case was not unreasonable.
It
follows that this complaint is inadmissible under Article 35 § 3
(a) of the Convention as manifestly ill-founded and must be rejected
pursuant to Article 35 § 4 thereof.
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 243,896.37 euros (EUR) in respect of pecuniary
damage sustained on account of loss of earnings. He also claimed EUR
60,000 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, the Court finds that the applicant must have
sustained non-pecuniary damage. In this connection the Court first
reiterates that the most appropriate form of redress in cases where
it finds that an applicant has not had access to court in breach of
Article 6 § 1 of the Convention would, as a rule, be
to reopen the proceedings in due course and re examine the case
in keeping with all the requirements of a fair hearing (see, for
example, Lungoci v. Romania, no. 62710/00, §
56, 26 January 2006; Yanakiev v. Bulgaria,
no. 40476/98, § 90, 10 August 2006; and Lesjak v. Croatia,
no. 25904/06, § 54, 18 February 2010). In this connection the
Court notes that, having regard to section 60 of the Administrative
Disputes Act (see paragraph 33 above), the applicant can now, relying
on sections 25-59 of the same Act (see paragraph 32 above) in
conjunction with section 428a of the Civil Procedure Act (see
paragraph 39 above), file a petition for the reopening of the above
proceedings in respect of which the Court has found a violation of
Article 6 § 1 of the Convention. In these circumstances,
ruling on an equitable basis, the Court awards the applicant EUR
3,000 in respect of non-pecuniary damage, plus any tax that may be
chargeable on that amount.
B. Costs and expenses
The
applicant did not submit any claim for costs and expenses incurred in
the proceedings before the domestic courts or before this Court. The
Court therefore considers that there is no call to award him any sum
on that account.
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 access to
court admissible and the remainder of the application inadmissible;
Holds that there has been a violation of Article
6 § 1 of the Convention;
Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 3,000
(three thousand euros), plus any tax that may be chargeable, in
respect of non-pecuniary damage, to be converted into Croatian kunas
at the rate applicable at the date of settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount 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 19 July 2011, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Anatoly
Kovler
Registrar President
