CEDH · CASELAW;DECISIONS;ADMISSIBILITYCOM;ENG — 12 juin 2018

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s2EF17D91 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s7E985A65 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; font-size:1pt } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sB9D5CABB { width:28.35pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s72C8F48C { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; 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 } .sAADB120E { margin-top:6pt; margin-left:28.35pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .s6810A943 { margin-top:6pt; margin-left:36pt; margin-bottom:6pt; font-size:10pt } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .s4B243ECC { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; page-break-inside:avoid; page-break-after:avoid } .s5F897A7E { margin-top:12pt; margin-left:14.2pt; margin-bottom:0pt } .sF7A4323 { margin-top:36pt; margin-bottom:0pt; text-align:left } .sFCAD7A46 { width:199.27pt; display:inline-block } .sA2E62387 { width:204.97pt; display:inline-block }     FIRST SECTION DECISION Application no. 50564/14 Milan GRIZELJ against Croatia   The European Court of Human Rights (First Section), sitting on 12 June 2018 as a Committee composed of:   Aleš Pejchal, President,   Krzysztof Wojtyczek,   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 Milan Grizelj, is a Croatian national who was born in 1957 and lives in Dugi Rat. His application was lodged on 9   July 2014. He was represented before the Court by Mr V. Fabjanović, a lawyer practising in Split. 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.     By a decision of the board of management of the applicant’s then employer, the joint-stock company Dalmacija d.d. (hereinafter “the defendant company”), adopted on 1 April 1997, approximately 100   employees of that company, including the applicant, were made redundant. The notice of dismissal ( odluka o otkazu ugovora o radu ) cited 30   April 1997 as the date employment was to be terminated. It was given to the applicant on 17 April 1997. 6.     On 21 April 1997 the applicant lodged an application for the protection of his rights ( zahtjev za zaštitu prava ) with his employer, contesting the amount of severance pay, and on 29 April 1997 he lodged a supplementary application, contesting his dismissal. 7.     Since the application for the protection of his rights was not resolved in his favour, the applicant brought a civil action before the Makarska Municipal Court ( Općinski sud u Makarskoj ) on 26 May 1997 seeking, inter alia , the annulment of the notice of dismissal. 8.     At a hearing held on 2 September 2005, the first-instance court heard oral evidence from A.G., an administrator employed at the defendant company’s department for human resources who had been in charge of preparing the notices of dismissal. She testified that the applicant had come to her office, seeking information on his dismissal, which she had given to him. The witness stated that when she had wanted to give the first applicant the notice of dismissal, he had refused to accept it. According to the witness, the majority of employees had come to her office and received their notices of dismissal. 9.     Further to this, at a hearing held on 24 April 2007, S.R., who at a relevant time had been working as a cashier with the defendant company and had been in charge of payment of severance pay, testified, inter alia , that on 16 April 1997 the applicant had come to her office and that he had refused to sign for and take the notice of dismissal from her. Later that day, she had met the applicant and advised him to take the notice of dismissal, and consequently the severance pay, because the company had been in a very difficult financial situation and the employees had not received their salaries for months. The following day the applicant had come to her office and taken the impugned notice from her, as well as signing the agreement concerning the payment of severance pay. 10.     On 29 September 2008 the Makarska Municipal Court, relying on section 126 of the Labour Act, declared the applicant’s claim inadmissible as being lodged out of time. It held that the deadline for seeking judicial protection had started to run when the applicant had learned of his notice of dismissal, namely on 2 April 1997 when he had refused to accept it, and not on the day he had effectively received it. The first-instance court based its findings, inter alia , on the testimony given by A.S. and the note she had made on the event of 2 April 1997, which, according to it, had not been disputed by any other evidence in the proceedings. 11.     The first instance judgment was upheld by the Split County Court on 29 September 2008 and by the Supreme Court on18 April 2013. 12.     The applicant’s subsequent constitutional complaint was declared inadmissible by the Constitutional Court ( Ustavni sud Republike Hrvatske ) on 15 January 2014. 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 on 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 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.     Supreme Court case-law 14.     The Government relied on the Supreme Court’s decisions nos.   Revr ‑ 163/2002 of 23 April 2002, Revr-350/2010 of 5 May 2010 and 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 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. 3.     Zagreb County Court case-law 15.     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 notice of dismissal had been given on that day. COMPLAINT 16.     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 17.     The applicant complained that his right of access to 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 18.     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. 19.     They further asserted that the time-limit for seeking protection of allegedly violated employee’s rights started to run not only from the date of formal receipt of the notice of dismissal, but also, alternatively, from the day when an employee in fact learned of the notice. The employees were not entitled to choose between two times and to seek judicial redress with the time more favourable to them. The Government argued that if the only relevant criterion was the time the notice of dismissal was given, employees would have been able to intentionally obstruct the acceptance of the notice and delay the commencement of the time-limit for legal redress. 20.     The Government stressed that in the instant case the domestic courts had established that the applicant had become aware, in substance, of the content of the impugned notice of dismissal even before 2 April 1997, and that the applicant had refused to take the relevant notice on that day. B.     The applicant’s submissions 21.     The applicant argued that the domestic courts had based their conclusions solely on the false oral testimony given by the witness A.G., the defendant company’s employee, and a forged document submitted by the defendant company, whereas they had completely ignored the fact that the union had not been involved in the dismissal procedure, which had been contrary to the relevant provisions of the Labour Act. 22.     As to the case-law referred to by the Government, the applicant pointed out that it was in no way connected with his case. Moreover, in all of the above-mentioned cases, unlike in his case, the employees had been familiar with the content of the decisions on their dismissals. C.     The Court’s assessment 23.     Turning to the circumstances of the present case, the Court notes that the national courts declared the applicant’s claim as being lodged out of time. In that regard, they held that the deadline for seeking judicial protection of allegedly violated employment-related rights had started to run when the applicant had learned of the notice of dismissal, namely on 2 April 1997 when he had refused to accept 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 deadlines for the protection of violated rights start following the receipt of a decision violating that right, or the day after an employee became aware of such a violation (see paragraph 13 above). 24.     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). 25.     In this connection, the Court is also mindful of section 111 of the Labour Act which provides 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 devise arguments to properly challenge the dismissal because it would be very difficult to act in such a manner without having knowledge of the reasons for that dismissal. 26.     However, the Court cannot disregard the fact that the applicant refused 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 might risk having his claim declared time-barred. The Court sees no special circumstances which can justify the applicant’s refusal to take the notice of dismissal, or for which the applicant should not be held responsible. In this connection, the Court shares the view of the respondent Government that employees are not allowed to choose between the two time-limit starting times provided in section 126 of the Labour Act (see paragraphs 23 and 30 above). 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 domestic courts based their findings on a forged document and a false testimony by the witness A.G. (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 7-11 above), which might be subject to 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 5 July 2018. Renata Degener   Aleš Pejchal Deputy Registrar   President