FIRST SECTION

DECISION

Application no. 54356/14 Ivica SPREICER against Croatia

The European Court of Human Rights (First Section), sitting on 22 May 2018 as a Committee composed of:

Aleš Pejchal, President, Armen Harutyunyan, Jovan Ilievski, judges, and Renata Degener, Deputy Section Registrar ,

Having regard to the above application lodged on 9 July 2014,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr Ivica Spreicer, is a Croatian national who was born in 1958 and lives in Zagreb. He was represented before the Court by Mr M. Čaržavec, a lawyer practising in Zagreb.

2. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik.

3. On 31 March 2016 the complaint concerning lack of access to a court was communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.

A. The circumstances of the case

4. The facts of the case, as submitted by the parties, may be summarised as follows.

5. The applicant was employed at the local office of an American investment fund as an assistant office manager. On 29 July 2004 he was dismissed from work.

6. On 25 October 2004 the applicant lodged a civil claim with the Zagreb Municipal Court ( Općinski sud u Zagrebu ) against his employer, challenging the notice of his dismissal ( odluka o otkazu ugovora o radu ), given that the employer had not acceded to an application on his part for the protection of his rights ( zahtjev za zaštitu zakonitosti ) within the prescribed deadline.

7. On 24 November 2004 the defendant company replied to the claim contesting, inter alia , that it had been lodged in a timely manner. The defendant company argued , inter alia , that the applicant had refused to be served with the notice of dismissal on its premises in July 2004.

8. At a hearing held on 6 June 2005 the first-instance court heard testimony from a witness, S.B., who worked as an accountant at the defendant company. The witness stated that the managing director had had a conversation with the applicant regarding the dismissal due to economic reasons and that the managing director had prepared a notice of dismissal that she (S.B.) had had to give to the applicant. However, the applicant had refused to receive the notice of dismissal. She had made a note of that fact. At the same hearing the court also heard evidence from the applicant, who stated that in May and June 2004 the managing director had informed him that he would have to leave the company and that he would be made redundant. One Thursday S.B. had wanted to hand him over some papers which he had declined to take from her because he had considered that S.B. had not been authorised for that task. He stated that he had said to S.B. that he had not wanted to receive anything from her and that he had wanted to officially receive the impugned notice.

9. On 23 December 2010 the first-instance court ruled in the applicant ’ s favour.

10. Following an appeal by the defendant company, on 18 September 2012 the Zagreb County Court ( Županijski sud u Zagrebu ) quashed the first ‑ instance judgment concerning the annulment of the notice of dismissal and declared the applicant ’ s claim as being lodged out of time. The relevant part of this judgment reads as follows:

“Contrary to what the first-instance court established, the assessment of [facts and] evidence shows that the [applicant], even before he was officially served with the notice of dismissal on 22 September 2004, learned of the notice in July 2004, more specifically on 29 July 2004, when he refused to receive it, [a fact] which is apparent from the testimony of the managing director of the defendant company [M.K.] ... and the witness [S.B.], as well as from the statement given by the [applicant] himself at the hearing held on 6 June 2005 ...

Therefore, bearing in mind that [the applicant] refused to receive the notice that the defendant company ’ s employee tried to give him, in which case it is deemed that the service had been effected, the deadline ... from section 126(1) of the Labour Act started to run at that moment.”

11. On 3 July 2013 the Supreme Court dismissed an appeal on points of law by the applicant and upheld the second-instance judgment of 18 September 2012.

12. The applicant ’ s subsequent constitutional complaint was declared inadmissible by the Constitutional Court ( Ustavni sud Republike Hrvatske ) .

B. Relevant domestic law and practice

1. Labour Act

13. The relevant provisions of the Labour Act ( Zakon o radu , Official Gazette nos. 38/1995, 54/1995 and 65/1995 ), as in force at the material time, provided:

XV. TERMINATION OF THE CONTRACT OF EMPLOYMENT

Section 111

Form, statement of reasons and delivery of notice of dismissal and course of notice period

“ (1) The notice of termination must be made in writing.

(2) The employer must provide a statement of reasons for termination in writing.

(3) A notice of termination must be submitted to the person being dismissed.

... “

XII. EXERCISE OF THE EMPLOYMENT-RELATED RIGHTS AND OBLIGATIONS

Judicial protection of employment-related rights

Section 126

“(1) An employee who considers that his or her employer has violated any of his or her rights arising 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, seek permission from the employer to exercise that right.

(2) If the employer does not accede to the worker ’ s request referred to in paragraph 1 of this section within fifteen days, the employee may within another fifteen days seek judicial protection from the court which has jurisdiction in respect of the right that has been violated.

(3) ...

(4) An 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 which has jurisdiction in respect of the right that has been violated.”

...

2. The Supreme Court case-law

14. The Government relied on the Supreme Court ’ s decisions nos. Revr ‑ 163/2002 of 23 April 2002, Re vr-4/2008 of 13 June 2008, Revr ‑ 183/2008 of 1 July 2008, Re vr-350/2010 of 5 May 2010, Revr ‑ 208/2011 of 6 April 2011, Revr-780/2011 of 17 January 2012, in which the Supreme Court had held that when an employee had refused to take a notice of dismissal, it had been deemed that it had been delivered on that day. In two other decisions, nos. Revr-475/2005 of 11 October 2005 and Revr-2/2014 of 29 April 2015, the Supreme Court had held that the time-limit for the protection of an allegedly violated employment-related right had started to run when an employee had learned of the existence and contents of the notice of dismissal, which in those cases had been when the employee had been informed about it over the phone or at a meeting.

15. The applicant relied on two Supreme Court decisions. In its decision no. Revr-661/2012 of 10 October 2012 the Supreme Court held that the employer had failed to prove that it had tried to give the claimant the notice of her dismissal and that therefore she had learned of the notice when she had been deregistered from the health and pension insurance scheme. In decision no. Revr-433/2007 of 6 September 2007 the Supreme Court held that, even though the claimant had failed to inform human resources department about the change of his address, he had done so in his application for the protection of his rights. Therefore, the employer should have sent its decision, by which it had dismissed the claimant ’ s application for the protection of his rights, to the address indicated in the application, following the rules of service from the Civil Procedure Act.

3. Zagreb County Court case-law

16. In its decision no. Gžr-1969/2008 of 10 February 2009, relied by the Government, the Zagreb County Court ( Županijski sud u Zagrebu ) held that when an employee had refused to take a notice of dismissal after he or she had learned of its content, it had been deemed that the service had been given on that day.

COMPLAINT

17. The applicant complained under Article 6 § 1 of the Convention that he had been deprived of access to court in the civil proceedings concerning his dismissal from work.

THE LAW

18. The applicant complained that his right of access to a court was violated when the national courts declared his civil action inadmissible as being lodged out of time. 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 fair ... hearing ... by [a] ... tribunal ...”

A. The Government ’ s submissions

19. The Government averred that the purpose of the time-limit prescribed in Article 126 of the Labour Act was to enable a decision of an employer that could have resulted in immediate violation of an employee ’ s rights to be discussed without delay, with the employer itself involved, within fifteen days of receiving the decision or learning of its existence. This allowed the employer to amend and correct its decision.

20. The Government further argued that it was clear from the documents in the case file that the applicant had been familiar with the fact that his redundancy had been due to lack of new investment and that he had refused to receive the notice of dismissal.

B. The applicant ’ s submissions

21. The applicant argued that the Supreme Court had based its decision solely on the testimony given by the defendant company ’ s employee thus completely disregarding the fact that he had been officially given the notice of dismissal on 22 September 2004. Before that, he could not have known the content of the notice. He further argued that the case-law submitted by the Government concerned different facts and situations that were not applicable to his case. In addition, he emphasised that the first-instance court had established that it had been apparent from the testimonies of the witnesses that he had not been served with the notice, which S.B. had wanted to deliver him. Therefore, there had been a violation of his right of access to a court.

C. The Court ’ s assessment

22. The Court notes that the national courts declared the applicant ’ s claim inadmissible as being lodged out of time because they held that the deadline for seeking judicial protection of allegedly violated rights from the employment had started to run when the applicant had learned of the notice of dismissal, namely on 29 July 2004 when he had refused to receive that notice, and not on the day it had effectively been given to him (see paragraphs 10-11 above). In doing so the national courts relied on section 126 of the Labour Act, which prescribes that the deadline for the protection of violated rights starts running from the receipt of a decision violating that right, or the day after an employee becomes aware of such a violation (see paragraph 13 above).

23. The Court reiterates that it is in the first place for the national authorities, and notably the courts, to interpret and apply domestic law. This applies in particular to the interpretation by the courts of rules of a procedural nature (see Tejedor García v. Spain , 16 December 1997, § 31, Reports of Judgments and Decisions 1997 ‑ VIII). The Court ’ s role is limited to that of verifying compatibility with the Convention of the effects of such interpretation (see, mutatis mutandis , Vrbica v. Croatia , no. 32540/05, § 66, 1 April 2010).

24. In this connection, the Court is also mindful of section 111 of the Labour Act which prescribes that a notice of dismissal has to be in writing, with reasons for dismissal stated (see paragraph 13 above). The rationale behind such provision is to provide an employee with a realistic and effective opportunity to prepare arguments to challenge properly the dismissal because it would be very difficult to act in such manner without having knowledge of the reasons for that dismissal.

25. However, the Court cannot disregard the fact that the applicant refused to take the notice of dismissal the first time his employer tried to give it to him (see paragraphs 8 and 10 above), thus creating a situation in which he risked having his claim declared time-barred. The Court sees no special circumstances which can justify the applicant ’ s refusal to take the impugned notice, or for which the applicant should not be held responsible, regardless of the formal qualifications of the person in charge of handing the document over (see paragraph 8 above).

26. It therefore finds that the primary responsibility for having his claim declared inadmissible as being lodged out of time lies with the applicant.

27. As to the applicant ’ s allegations that the Supreme Court based its decision solely on testimony given by the defendant company ’ s employee (see paragraph 21 above), the Court reiterates that it is in the first place for the national authorities to evaluate the evidence adduced before them in a particular case; the Court ’ s task is to review under the Convention the decisions of those authorities (see, for example, Winterwerp v. the Netherlands , 24 October 1979, § 40, Series A no. 33). If it were otherwise, the Court would be acting as a court of third or fourth instance, which would be to disregard the limits imposed on its action (see Kemmache v. France (no. 3) , 24 November 1994, § 44, Series A no. 296 ‑ C).

28. In view of the above considerations, irrespective of the time taken by the domestic courts to establish whether the applicant met procedural requirements for lodging his claim (paragraphs 6 and 10 above), which might be subject to a certain criticism, the Court considers that it cannot be said that the manner in which the procedural requirement for seeking judicial protection provided for in section 126 of the Labour Act was applied impaired the very essence of the applicant ’ s right of access to a court.

29. Accordingly, the applicant ’ s 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.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 14 June 2018 .

             Renata Degener AleÅ¡ Pejchal              Deputy Registrar President