CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 13 mars 2008

.s800EAC49 { font-size:12pt } .s523616E0 { margin-top:0pt; margin-bottom:12pt; text-align:center; font-size:14pt } .sBB9EE52A { font-family:Arial } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sB9D5CABB { width:28.35pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .s76CF415B { page-break-before:always; clear:both } .s967D43C6 { margin-top:36pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s7EE1C8F0 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s9D48DD53 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .sC702907E { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s34D46E87 { margin-top:12pt; margin-bottom:6pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s8AB83B9 { width:147.82pt; display:inline-block } .s88A92475 { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sDD165512 { margin-top:12pt; margin-left:14.2pt; margin-bottom:0pt; text-align:justify } .s7CB9076 { margin-top:36pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid } .s2DF49AA6 { width:24.54pt; display:inline-block } .s61E420C2 { font-family:Arial; font-variant:small-caps } .sD79BB263 { width:196.1pt; display:inline-block } .s7602FED2 { width:18.21pt; display:inline-block } .sC1AC44A4 { width:228.11pt; display:inline-block } FIRST SECTION DECISION AS TO THE ADMISSIBILITY OF Application no. 33277/06 by Jasna FERENČIĆ-STOILOVA against Croatia The European Court of Human Rights (First Section), sitting on 13   March   2008 as a Chamber composed of:   Christos Rozakis, President,   Nina Vajić,   Anatoly Kovler,   Elisabeth Steiner,   Khanlar Hajiyev,   Dean Spielmann,   Sverre Erik Jebens, judges, and Søren Nielsen, Section Registrar , Having regard to the above application lodged on 1 August 2006, Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together. 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 The applicant, Ms Jasna Ferenčić-Stoilova, is a Croatian national who lives in Zagreb. She was represented before the Court by Mr M. Sučević, a lawyer practising in Zagreb. The Croatian Government (“the Government”) were represented by their Agent, Mrs Š. Stažnik. A.     The circumstances of the case The facts of the case, as submitted by the parties, may be summarised as follows. Following her dismissal from work in 1991, the applicant brought a civil action in the Zagreb Municipal Court ( Općinski sud u Zagrebu ) against her former employer, “Alkaloid” Skopje, a pharmaceutical company with its headquarters in the Former Yugoslav Republic of Macedonia, seeking her reinstatement and payment of her salary for the period of her unemployment. At a hearing held on 24 January 1992 the counsel for the defendant company refuted the applicant’s submissions, relying, inter alia , on the defendant company’s Collective Agreement (hereafter “the Agreement”). The relevant part of the transcript of the hearing reads as follows: “... The existing Collective Agreement between the firm ‘Alkaloid’ Skopje and its employees allows the employer to dismiss an employee who has not attained 85% of [required] working results.” On 7 February 1992 the defendant company submitted a copy of the Agreement written in Macedonian and a translation into Croatian of pages 1, 13, 14, 37, 38 and 41. These pages contained translations of sections 1, 44, 45, 46, 47, 11, 112, 113, 119, 120, 121 and 122 of the Agreement. At a hearing held on 30 June 1992 the Municipal Court issued a decision, the relevant part of which read as follows: “... Counsel for the plaintiff is invited to consult the original copy of the Collective Agreement, which was submitted as enclosure 5A in the case file no. PR-5149/91.” It appears that neither the applicant nor her counsel made any comments on the Agreement. On 1 March 1994 the applicant’s claims were accepted. However, upon an appeal by the defendant company, on 10 October 1995 the Zagreb County Court ( Županijski sud u Zagrebu ) quashed the part of judgment concerning payment of salary and upheld the part concerning the applicant’s reinstatement. The original proceedings were thus divided into two sets of separate proceedings. 1.     Proceedings concerning the applicant’s claim for her reinstatement In respect of the appellate judgment upholding the applicant’s reinstatement, the defendant company lodged an appeal on points of law ( revizija ) with the Supreme Court on 12 February 1996 challenging the lower courts’ judgment on the grounds of procedural defects and errors in applying the relevant substantive law, without relying in any respect on its Collective Agreement. The applicant filed her reply on 17 April 1996. The Supreme Court dismissed the defendant company’s appeal on points of law on 26 September 1996. However, upon a constitutional complaint by the defendant company, on 28 November 2001 the Constitutional Court quashed the Supreme Court’s decision and remitted the case to the Supreme Court. On 15 October 2003 the Supreme Court reversed its previous decision and upheld the applicant’s dismissal. The relevant part of the Supreme Court’s judgment reads as follows: “... section 123 paragraph 2 of the defendant’s Collective Agreement expressly provides that provisions [of the Employment Rights Act] concerning dismissal are not to be applied in cases where the employment has been terminated due to [the employee’s] inability to perform the duties of a certain post or failure to achieve the required working results.” In a subsequent constitutional complaint the applicant argued, inter alia , that the Supreme Court had relied on the defendant company’s Collective Agreement although it had not been discussed in the proceedings before the lower courts (the trial and the appellate court) and she had therefore never had an opportunity to submit any comments on it, since the Supreme Court decided cases in closed sessions. A copy of the complete text of the Agreement had never been sent to her. On 8 December 2005 the Constitutional Court rejected the applicant’s complaint finding, inter alia , that the Agreement had been submitted by the defendant company in another set of proceedings between the same parties. 2.     Proceedings concerning the applicant’s claim for payment of salary On 3 June 1998 the Zagreb Municipal Court gave a fresh judgment accepting the applicant’s claim. The first-instance judgment was upheld by the Zagreb County Court on 7 March 2000. In the course of those proceedings, on 5 April 2000 the defendant company filed a copy of the Agreement, translated into Croatian. A subsequent appeal on points of law by the defendant company was declared inadmissible by the Supreme Court on 16 May 2002. On 13 July 2004 the defendant company requested the Municipal Court to annul the stamped endorsement certifying final adjudication (hereinafter “the final adjudication endorsement” - klauzula pravomoćnosti ) as well as the certificate on enforceability ( potvrda ovršnosti ) of the judgment of 3 June 1998. On 18 October 2004 the Municipal Court annulled the certificate on enforceability, but dismissed the request concerning the final adjudication endorsement. The applicant filed an appeal and on 27 March 2007 the County Court upheld the part of the first-instance decision dismissing the request that the final adjudication endorsement be annulled and quashed the part where the annulment of the certificate on enforceability had been granted. It remitted the case to the Municipal Court where the proceedings are still pending. B.     Relevant domestic law The relevant parts of the Civil Procedure Act (Official Gazette nos. Official Gazette nos. 53/91, 91/92 and 112/99 – Zakon o parničnom postupku ) read as follows: Section 388 An appeal on points of law ( revizija ) shall be lodged with the court that adjudicated at first instance ... Section 390 The president of the first-instance court chamber shall forward a copy of a timely, complete and admissible appeal on points of law to the opponent, who shall file his or her reply within fifteen days ... ... After the reply has been filed, or after the time-limit has expired, the first-instance court judge ... shall forward the appeal on points of law and the reply, if filed, together with the case file directly to the Supreme Court. ... Section 391 An appeal on points of law shall be decided upon without a hearing by the Supreme Court. COMPLAINT   The applicant complained under Article 6 § 1 of the Convention that the civil proceedings concerning her claim for reinstatement had been unfair. THE LAW The applicant complained that the civil proceedings whereby she has sought her reinstatement to her previous post had been unfair, relying 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...” The applicant argued that she had had no opportunity to comment on the defendant company’s Collective Agreement, relied upon in the Supreme Court’s judgment of 15 October 2003, because it had not been submitted in the proceedings before the lower courts and the Supreme Court had decided in closed session. The only copy of the Agreement had been submitted in Macedonian, written in Cyrillic script, which the applicant and her counsel had no understanding of. Furthermore, a copy of the complete text of the Agreement had been submitted by the defendant company on 5 April 2000 in the other set of proceedings between the same parties, but had not been forwarded to her. Even assuming that she could have made her own copy from the case file, she pointed out that it had been submitted after the trial and appellate stage of the proceedings concerning her dismissal and that she had had no opportunity to make any further arguments in the proceedings before the Supreme Court, once she had submitted her reply to the defendant company’s appeal on points of law. The Government argued that the applicant had had an opportunity to submit her comments on the Agreement as early as at the trial stage of the proceedings, since the trial court had expressly invited her counsel to consult the agreement in question and submit his comments, which he had failed to do. As to the nature of the Agreement, the Court notes at the outset that it was a collective agreement of the defendant company regulating employment conditions, including dismissal. The company has its headquarters outside Croatia and the Agreement has never been published in Croatia. Furthermore, it was in a foreign language and a copy of its translation into Croatian was filed by the defendant company. Against this background, the Court considers that the Agreement shall be regarded as evidence submitted by one of the parties to the proceedings. The Court reiterates that the principle of equality of arms – one of the elements of the broader concept of fair trial – requires each party to be given a reasonable opportunity to present his or her case under conditions that do not place that party at a substantial disadvantage vis-à-vis his or her opponent (see, among other authorities, Ankerl   v. Switzerland , judgment of 23 October 1996, Reports of Judgments and Decisions 1996 ‑ V, pp. 1567-68, § 38). Furthermore, the concept of fair trial also implies in principle the right for the parties to a trial to have knowledge of and comment on all evidence adduced or observations filed (see Lobo Machado   v. Portugal , judgment of 20 February 1996, Reports of Judgments and Decisions 1996 ‑ I, p.   206, §   31; Vermeulen   v. Belgium , judgment of 20 February 1996, Reports 1996 ‑ I, p. 234, § 33; and Nideröst-Huber v. Switzerland , judgment of 18 February 1997, Reports 1997-I, pp. 107-108, §§ 23 and 24). As to the question whether the applicant in the instant case had an opportunity to comment on the Agreement, the Court observes that as early as the hearing held on 24 January 1992 the defendant company’s counsel refuted the applicant’s assertions by relying on the Agreement in question. Furthermore, at the hearing held on 30 June 1992 the Zagreb Municipal Court invited the applicant’s counsel to consult a copy of the original Agreement submitted in another case file and to comment on it. The applicant has failed to show that either she or her counsel made any comments or objections about the Agreement. Thus, the Court cannot accept the applicant’s submission that a copy of the Agreement had been filed as late as April 2000, that is to say after the appellate proceedings had ended, in 1996. In these circumstances the Court considers that the applicant was clearly given an opportunity to comment on the Agreement and raise any objections she might have had in this connection, such as the arguments she now submits to the Court. In this connection the Court reaffirms its subsidiary role, according to which applicants firstly have to address their grievances to the relevant national authorities. Thus, the applicant failed to use the opportunity to submit her comments on and objections to the evidence submitted by her opponent at the trial stage of the proceedings. Owing to that failure, her further arguments as to the alleged unfairness of the proceedings as set out above bear no significance as to her right to a fair trial. It follows that the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. In view of the above, it is appropriate to discontinue the application of Article 29 § 3 of the Convention. For these reasons, the Court by a majority Decides to discontinue the application of Article 29 § 3 of the Convention; Declares the application inadmissible.   Søren Nielsen   Christos Rozakis   Registrar   President