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FIRST
SECTION
CASE OF LELAS v. CROATIA
(Application
no. 55555/08)
JUDGMENT
STRASBOURG
20 May 2010
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 Lelas v. Croatia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos
Rozakis,
President,
Nina
Vajić,
Anatoly
Kovler,
Elisabeth
Steiner,
Khanlar
Hajiyev,
Giorgio
Malinverni,
George
Nicolaou,
judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 29 April 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 55555/08) 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 Čedo Lelas (“the
applicant”), on 6 November 2008.
- The
applicant was represented by Mr I. Škarpa, an advocate
practising in Split. The Croatian Government (“the Government”)
were represented by their Agent, Mrs Š. StaZnik.
- On
11 December 2008 the President of the First Section decided to
communicate the complaint concerning the right to peaceful enjoyment
of possessions to the Government. It was also decided to examine the
merits of the application at the same time as its admissibility
(Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant lives in Vrlika.
- He
is a serviceman employed by the Ministry of Defence (Ministarstvo
obrane Republike Hrvatske). In 1996, 1997 and 1998, as a member
of the 40th Engineering Brigade of the Croatian Army, the
applicant occasionally participated in demining operations in the
newly liberated territories in Croatia.
- On
the basis of the Decision of the Minister of Defence of 18 September
1995 (see paragraph 36 below), he was entitled to a special daily
allowance for such work.
- Since
the allowances had not been paid to him, on 21 May 2002 the applicant
brought a civil action against the State in the Knin Municipal Court
(Općinski sud u Kninu), seeking payment of the unpaid
allowances. He sought in total the sum of 16,142.83 Croatian kunas
(HRK) together with accrued statutory default interest.
- The
State responded that his action was time-barred because the
three-year limitation period for employment-related claims had
expired.
- In
reply, the applicant argued that on several occasions he had asked
his commanding officer why the allowances had not been paid. His
commanding officer had made enquiries of his superior, who had then
contacted the General Staff of the Croatian Armed Forces (Glavni
stoZer OruZanih snaga Republike Hrvatske). Eventually, the
applicant had been informed through his commanding officer that his
claims were not being disputed and that they would be paid once the
funds for that purpose had been allocated in the State budget.
Relying on that information, the applicant argued that the State had
acknowledged the debt within the meaning of section 387 of the
Obligations Act and that the running of the statutory limitation
period had thus been interrupted.
- The
court heard the applicant's commanding officer B.B. and the head of
the Split Regional Finance Department of the Ministry of Defence,
Brigadier I.P.
- B.B.,
who had been the commander of the 40th Engineering Brigade
between January 1996 and April 1999, testified that lists of
servicemen who carried out demining work, together with the number of
days worked and the corresponding amount of allowances, had been
submitted to him by platoon commanders within the brigade. As the
commander of the unit, he had signed them after checking them for
accuracy and had then submitted them for certification to the
commander of the 3rd Operational Zone. After the commander of the 3rd
Operational Zone had signed the lists, they had been submitted for
payment to the Regional Finance Department in Split. He had informed
the applicant that the lists had been submitted for payment. When the
allowances were not paid, the applicant and other members of the unit
had approached him, as their commanding officer and the only person
they were authorised to approach under internal regulations, asking
him when the payment would be made. In their name he had then
contacted the commander of the 3rd Operational Zone. Each time he had
been informed that the right to receive payment and its amount were
not being disputed and that payment would follow after the funds had
been allocated for that purpose. Each time he had transmitted that
information to the members of his unit, including the applicant.
- I.P.
had since 1996 been the head of the Split Regional Finance Department
of the Ministry of Defence, which was in charge of financial matters
for the 3rd Operational Zone. He testified that he had been aware
that members of the 40th Engineering Brigade had been
carrying out demining work up to April 1998 and that the commander of
the 3rd Operational Zone had been submitting lists of servicemen who
carried out demining work for payment. Since payment was not
forthcoming when the allowances fell due, the General Staff of the
Croatian Armed Forces had informed the relevant financial departments
that the allowances had not been paid because no funds had been
allocated in the budget for that purpose, whereas no instructions had
been given to dispute the right to receive allowances or their
amount.
- On
3 March 2003 the Knin Municipal Court ruled in favour of the
applicant and ordered the State to pay him the allowances he sought.
The relevant part of that judgment read as follows:
“[It] is undisputed that ... when each instalment
became due, up to 21 February 2002, the plaintiff asked his
commanding officer when the payment would be made, because according
to the internal organisation of [the Ministry of Defence] that was
the only person he was authorised to approach, and that [his]
commanding officer took this up on behalf of the plaintiff with the
Headquarters of the 3rd Operational Zone and that the commander of
the 3rd Operational Zone informed [the plaintiff's] commanding
officer that the right to receive payment and its amount were not in
dispute, and that payment would follow after the funds had been
allocated in the budget, because currently there were none; the
commanding officer passed this information on to the plaintiff.
The foregoing, in the view of this court, represents
acknowledgement of the debt within the meaning of section 387 of the
Obligations Act, because ... the plaintiff was informed by the person
authorised to act on behalf of the respondent that the right to
receive payment and its amount were not in dispute and that payment
would follow once funds had been allocated in the budget.”
- Following
an appeal by the State, on 22 April 2003 the Šibenik County
Court (Zupanijski sud u Šibeniku) quashed the
first-instance judgment and remitted the case. It held that the
first-instance court had failed to establish: (a) who in this case
was the person authorised to acknowledge the debt on behalf of the
Ministry of Defence, and (b) whether the signed and certified lists
of the members of the applicant's unit who had carried out demining
work, indicating the number of days on which they had done such work
and the corresponding amount of daily allowances, processed by the
Ministry's Finance Department, in fact constituted requests for
payment and therefore an indirect acknowledgment of the debt.
- In
the resumed proceedings, the Knin Municipal Court again heard the
head of the Split Regional Finance Department of the Ministry of
Defence, Brigadier I.P., who testified that the certified lists of
servicemen who had carried out demining work constituted requests for
payment of the allowances. He further stated that after receiving the
lists the Split Regional Finance Department had checked them for
accuracy and submitted them together with the requisite form, which
in fact constituted a request for payment, to the Central Finance
Department of the Ministry of Defence in Zagreb. According to I.P.,
the Central Finance Department had been authorised to check the lists
and could have returned them to the Regional Finance Department if
the request for payment of allowances or their amount had been
invalid, which they had not done. After the Split Regional Finance
Department had submitted the lists and request for payment, the head
of the Central Finance Department had informed him that payment would
follow once funds had been allocated in the budget for that purpose.
Had there been funds, no further action would have been required for
the amount requested to be transferred to the applicant's bank
account.
- In
these resumed proceedings, the respondent argued for the first time
that, in accordance with the internal regulations of the Ministry of
Defence, the person authorised to acknowledge the debt on behalf of
the Ministry was the head of its Finance Department before a court
action had been brought, and afterwards the head of the Legal
Department.
- On
18 June 2003 the Municipal Court again ruled in favour of the
plaintiff. The relevant part of that judgment read as follows:
“The Split Regional Finance Department certified
the above-mentioned payment lists ... by first checking that the
payment and its amount were justified, and then sent it, together
with the [requisite] form, namely the payment request form, to the
Central Finance Department ... in Zagreb. [That Department], by not
returning the lists and the request for payment to the Split Regional
Finance Department, accepted them as justified and well-founded. [The
Central Finance Department] had to pay the amounts [sought] because
the Split Regional Finance Department did not have ready money. After
receiving those [lists and] the request for payment, the Central
Finance Department had informed the Split Department that payment
would follow once funds had been allocated in the State budget, of
which the plaintiff was notified and which was explained to him by
his commanding officer between the [time the instalments] became due
and 21 February 2002.
The foregoing, in view of this court, represents
acknowledgement of the debt because, by certifying the payment lists
with the payment request form and informing the plaintiff thereof as
well as of the fact that payment would follow once funds had been
allocated in the State budget, the plaintiff, as the creditor, was
informed by the respondent, as the debtor, in a clear and unequivocal
manner, that the claim at issue, that is, the respondent's debt, was
being acknowledged.”
- Following
an appeal by the State, on 8 March 2004 the Šibenik County
Court again quashed the first-instance judgment and remitted the
case. It held that from the case file it followed that in accordance
with the internal regulations of the Ministry of Defence the person
authorised to acknowledge the debt on behalf of the Ministry had been
the head of its Finance Department before the action was brought, and
afterwards the head of the Legal Department. Therefore, the
applicant's commanding officer could not have acknowledged the debt
on behalf of the Ministry.
- In
the resumed proceedings, the Knin Municipal Court, in order to
establish who was the person authorised to acknowledge the debt on
behalf of the Ministry of Defence, heard the head of the Central
Finance Department of the Ministry of Defence, and examined the
internal regulations of the Ministry.
- The
head of the Ministry's Central Finance Department, I.H., testified
that the person authorised to acknowledge the debt on behalf of the
Ministry had indeed been the head of its Central Finance Department
before the action was brought and the head of its Legal Department
afterwards. He also testified that the Split Regional Finance
Department's request for payment of daily allowances for demining
work had been deemed invalid by a letter of 29 October 1998 because
the Decision of the Minister of Defence of 18 September 1995 applied
only to the Danube region of Croatia.
- On
19 April 2005 the Municipal Court ruled for the third time in favour
of the plaintiff. The relevant part of that judgment read as follows:
“In line with the internal organisation of [the
Ministry], the plaintiff, after [the daily allowances had become due
but] payment had not been forthcoming, had been addressing his
requests for payment to his immediate superior, that is to the
commander of his unit, whereupon he [the commander] had on behalf of
the plaintiff been contacting the commander of the 3rd Operational
Zone of the Croatian Armed Forces. The commander of the 3rd
Operational Zone had been forwarding such requests to the General
Staff of the Croatian Armed Forces, which had been replying that the
right to receive payment and its amount were being acknowledged, and
that payment would follow once funds had been allocated for that
purpose. The commander of the 3rd Operational Zone had been sending
that information to the commander of the [plaintiff's] unit, who had
been notifying the plaintiff of this between June 1998 and May 2002,
when the commander of the unit received the last information from the
commander of the 3rd Operational Zone.
In this way authorised and responsible persons and the
department [within the Ministry], in particular the commander of the
40th Engineering Brigade, the commander of the 3rd
Operational Zone ... and the competent Regional Finance Department,
which certified and acknowledged the amounts of daily allowances as
costs of [the Ministry], and in the form of a request for transfer of
funds corresponding to the amounts sought ..., submitted them to [the
Ministry's Central Finance Department], acknowledged the debt to the
plaintiff in a clear and unequivocal manner.
Accordingly, the respondent's argument raised in the
course of the proceedings that only the head of [the Central Finance
Service] or the head of the Legal Department were authorised to
acknowledge the debt on behalf of the Ministry, is unfounded because
this does not follow from the evidence taken, especially from the
documents provided by the respondent, in particular from [the
internal regulations of the Ministry of Defence], and [because] the
time-limits fixed by the court at the request of the respondent's
representative for furnishing evidence [in support of that argument]
had expired.
...
... from the letter of 29 October 1998 it does not
follow that the request of the [Split] Regional Finance Department
had been regarded as invalid. [Rather], it was only returned to the
[Split Regional Finance] Department for additional examination and
checking, and it was suggested that afterwards the Regional Finance
Department should decide on the right to receive payment of the
allowances at issue.
Consequently, in the light of the foregoing, this court
indisputably established that authorised persons of the respondent
had continued, throughout the entire period in dispute, that is, from
the time the claims had become due until May 2002, to inform the
plaintiff in a clear and unequivocal manner that the respondent did
not dispute [his] right to receive daily allowances in the amount
sought. [T]hereby, the respondent acknowledged the debt to the
plaintiff within the meaning of section 387 of the Obligations Act,
so it is clear that the statutory limitation period did not expire,
because its running was interrupted by the acknowledgment of the
debt.”
- Following
an appeal by the State, on 24 October 2005 the Šibenik County
Court reversed the first-instance judgment by dismissing the
applicant's action. The relevant part of that judgment read as
follows:
“On the basis of the evidence taken, the
first-instance court established the following relevant facts:
- that the plaintiff, as a member of the 40th
Engineering Brigade of the Croatian Army at the material time, under
the command of the 3rd Operational Zone of the Croatian Armed Forces,
had occasionally carried out demining work during 1996, 1997 and
1998;
- that the Decision [of the Minister of Defence of 18
September 1995] had established the right of the ... members of the
Croatian Armed Forces to a special daily allowance for demining work;
- that, in accordance with the [above] Decision, the
commander of the 40th Engineering Brigade had been
compiling monthly lists of members of the unit who in a particular
month had carried out demining work, and had specified the number of
days spent on demining work and the corresponding amounts of daily
allowances due, and that [those lists] had been certified and
co-signed by the commander of the 3rd Operational Zone of the
Croatian Armed Forces and submitted to the Split Regional Finance
Department of the [Ministry of Defence];
- that the plaintiff, when the special daily allowances
were not paid, on numerous occasions approached the commander of his
unit, in accordance with the hierarchical organisation of the
[Ministry] ... with a query as to when the payment would be made, and
that [his commander], after making enquiries of the command of the
3rd Operational Zone, informed him that his claims were not in
dispute... and that payment would follow after funds had been
allocated for that purpose.
Relying on these facts, the first-instance court found
that that the authorised persons of the respondent (the commander of
the 40th Engineering Brigade, the commander of the 3rd
Operational Zone of the Croatian Armed Forces, as well as the Split
Regional Finance Department – which had certified and
acknowledged the amount of the plaintiff's special daily allowances
as costs of the respondent and had submitted it in the form of a
request to the [Central] Finance Department of the [Ministry for
transfer of the amount sought]) – had, throughout the entire
period in dispute, until May 2002, unequivocally informed the
plaintiff that the respondent did not dispute [his] right to receive
daily allowances in the amount sought, and that the respondent had
thereby acknowledged the debt to the plaintiff within the meaning of
section 387 of the Obligations Act, so the statutory limitation
period had not expired.
However, having regard to the evidence taken before the
first-instance court, this court considers the above finding of the
first-instance court erroneous. [This is so] because, contrary to the
view of the first-instance court, and in accordance with the
hierarchical organisation of the [Ministry], the persons authorised
to acknowledge the debt on behalf of the [Ministry] were the head of
[its Central] Finance Department – which Department, in
accordance with the [Ministry's] internal regulations, was authorised
to ultimately process and check the requests for payment of the
plaintiff's claims submitted by the Split Regional Finance Department
(until the action was brought in this case) – and the head of
the [Ministry's] Legal Department (during the present proceedings),
as the respondent correctly argued ... as well as the other
authorised persons who were, in accordance with the hierarchical
organisation of the [Ministry], superior to [them].
That being so, and having regard to the facts
established in the proceedings before the first-instance court, it
does not follow that it was precisely those authorised persons
mentioned above who acknowledged the debt by making a declaration to
the plaintiff as the creditor, nor that the debt was acknowledged in
some indirect manner within the meaning of paragraph 2 of section 387
of the Obligations Act. [O]n the contrary, the request of the Split
Regional Finance Department to transfer funds [corresponding to the
amounts of daily allowances sought] (which request, together with
signed and certified lists compiled by the 40th
Engineering Brigade, cannot be considered an acknowledgement of the
debt within the meaning of section 387 of the Obligations Act) ...
was regarded as invalid by the Central Finance Department and
returned to the Split Regional Finance Department for further
checking and additional examination (...). [T]herefore, in the
instant case the respondent did not acknowledge the plaintiff's
claims in any manner prescribed by law that would lead to an
interruption of the statutory limitation period. [S]ince the last
monthly instalment of special daily allowances had become due in
April 1998, and the action in this case had been brought on 21 May
2001, the [respondent's] plea that the claims at issue were
statute-barred, ... is well-founded because the three-year statutory
limitation period set forth in section 131 of the Labour Act in
respect of the plaintiff's claims, which arose from his employment
relationship with the respondent, had expired in the instant case.”
- The
applicant then lodged a constitutional complaint against the
second-instance judgment, alleging violations of his constitutional
rights to equality before the courts and to a fair hearing. He argued
that his claim for special daily allowances for demining work was not
statute-barred, because the Ministry of Defence had on several
occasions acknowledged the debt, thereby interrupting the running of
the statutory limitation period, and that the Šibenik County
Court had not relied on any provision of substantive law which would
justify dismissal of his action.
- On
10 April 2008 the Constitutional Court (Ustavni sud Republike
Hrvatske) dismissed the applicant's constitutional complaint and
served its decision on his representative on 8 May 2008.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. The Constitution
1. Relevant provisions
- The
relevant part of the Constitution of the Republic of Croatia (Ustav
Republike Hrvatske, Official Gazette 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))
provides as follows:
Article 26
“All citizens of the Republic of Croatia and
foreigners shall be equal before the courts and other state or public
authorities.”
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 48
“1. The right of ownership shall be guaranteed.
2. Ownership implies duties. Owners and users of
property shall contribute to the general welfare.”
Article 50
“1. Ownership may be restricted or taken in
accordance with the law and in the interest of the Republic of
Croatia subject to payment of compensation equal to the market value.
2. The exercise ... of the right of ownership may, on
an exceptional basis, be restricted by law for the protection of the
interests and security of the Republic of Croatia, nature, the
environment or public health.”
Article 140
“International agreements in force, which were
concluded and ratified in accordance with the Constitution and made
public, shall be part of the internal legal order of the Republic of
Croatia and shall have precedence over the [domestic] statutes. ...”
2. The Constitutional Court's jurisprudence
- In
its decisions nos. U-I-892/1994 of 14 November 1994 (Official Gazette
no. 83/1994) and U-I-130/1995 of 20 February 1995 (Official Gazette
no. 112/1995) the Constitutional Court held
that all rights guaranteed in the Convention and its Protocols were
also to be considered constitutional rights having legal force equal
to the provisions of the Constitution.
B. The Constitutional Court Act
1. Relevant provisions
- The
relevant part of the 1999 Constitutional Act on the Constitutional
Court of the Republic of Croatia (Ustavni zakon o Ustavnom sudu
Republike Hrvatske, Official Gazette 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 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 self-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 right to local or regional self-government, guaranteed
by the Constitution (“constitutional right”)...
2. If another legal remedy is available in respect of
the violation of the constitutional rights [complained of], the
constitutional complaint may be lodged only after this remedy has
been exhausted.
3. In matters in which an administrative action or, in
civil and non-contentious proceedings, an appeal on points of law
[revizija] are available, remedies shall be considered
exhausted only after the decision on these legal remedies has been
given.”
Section 65 (1)
“A constitutional complaint shall contain ... an
indication of the constitutional right alleged to have been violated
[together] with an indication of the relevant provision of the
Constitution guaranteeing that right...”
Section 71 (1)
“ ... [t]he Constitutional Court shall examine
only the violations of constitutional rights alleged in the
constitutional complaint.”
2. The Constitutional Court's jurisprudence
- On
9 July 2001 the Constitutional Court delivered a decision, no.
U-III-368/1999 (Official Gazette no. 65/2001) in a case where the
complainant relied in her constitutional complaint on Articles 3 and
19(1) of the Constitution, neither of which, under that court's
jurisprudence, contained constitutional rights. The Constitutional
Court nevertheless allowed the constitutional complaint, finding
violations of Articles 14, 19(2) and 26 of the Constitution, on which
the complainant had not relied, and quashed the contested decisions.
In so deciding it held as follows:
“Therefore, a constitutional complaint cannot be
based on either of the constitutional provisions stated [by the
complainant in her constitutional complaint].
However, the present case concerns, as will be explained
further, a specific legal situation as a result of which this court,
despite [its] finding that there are not, and cannot be, violations
of the constitutional rights explicitly relied on by the complainant,
considers that there are circumstances which warrant quashing [the
contested] decisions.
...
Namely, it is evident from the constitutional complaint
and the case file that there have been violations of [constitutional]
rights, in particular those guaranteed by Article 14 (equality,
equality before the law), Article 19 paragraph 2 (the guarantee of
judicial review of decisions of state and other public authorities)
and Article 26 (equality before the courts and other state or public
authorities) of the Constitution ...”
C. The Obligations Act
1. Relevant provisions
- Section
387 of the Obligations Act (Zakon o obveznim odnosima,
Official Gazette of the Socialist Federal Republic of Yugoslavia
nos. 29/1978, 39/1985 and 57/1989, and the Official Gazette of
the Republic of Croatia no. 53/1991 with subsequent amendments)
provided as follows:
STATUTE OF LIMITATIONS
GENERAL PROVISIONS
General rule
Section 360
“(1) The right to request performance of an
obligation shall be extinguished on the expiration of a statutory
limitation period.
(2) ...
(3) A court shall not take a statutory limitation
period into account of its own motion if the debtor did not plead
it.”
INTERRUPTION OF A STATUTORY LIMITATION PERIOD
Acknowledgement of a debt
Section 387
“(1) The running of a statutory limitation period
shall be interrupted when the debtor acknowledges his or her debt.
(2) A debt may be acknowledged not only by a statement
[that is, a declaration] to the creditor but also in an indirect
manner, such as by making a payment, paying interest or providing
security...”
2. The Supreme Court's practice
- In
interpreting section 387 of the Obligations Act the Supreme Court has
consistently held that acknowledgement of a debt capable of
interrupting a statutory limitation period, regardless of whether it
has been made in a direct or indirect manner, has to be done
unequivocally and by the persons authorised to act on behalf of the
debtor (see, for example, decisions nos. Rev 3053/1999-2 of 23
January 2002, Rev 271/03-2 of 12 April 2005, Rev 347/04-2 of 21 June
2005, Revt 97/03-2 of 22 December 2005, and Revt 156/2006-2 of 29
November 2006).
- On
25 May 2000 the Supreme Court delivered a judgment,
no. Rev 1401/1999-2, in a case in which the plaintiffs sued
the State seeking payment of unpaid salaries for the period during
which they had been receiving medical treatment and held captive by
the enemy, respectively. The question arose whether the letter of the
Ministry of Defence, in particular, the General Staff of the Croatian
Armed Forces, of 9 February 1998, confirming that the plaintiffs had
been members of their military unit and had appeared on its payroll
but had not collected their salaries in the above-mentioned period,
constituted acknowledgment of the debt. The lower courts dismissed
the plaintiffs' action, finding that the letter had not constituted
acknowledgement of a debt capable of interrupting the statutory
limitation period. In dismissing an appeal on points of law
(revizija) by the plaintiffs and upholding the lower courts'
judgments, the Supreme Court held as follows:
“From [the letter of 9 February 1998] it only
follows that the plaintiffs were members of a certain unit at a
certain time and that they did not receive a salary for that period.
Such [a letter] cannot per se constitute an acknowledgment of
the debt within the meaning of section 366 of the Obligations Act and
interruption of the statutory limitation period. That is a general
statement which cannot be considered as an acknowledgment of the
debt. The ... letter indicates that the debt may exist but it does
not constitute an acknowledgement by the debtor that the debt
[indeed] exists, that is, acknowledgment that the debtor has [an
obligation] to settle the debt or that the debtor will settle it. The
statement of facts by the debtor, on the basis of which it could be
concluded that the debt exists, does not constitute acknowledgment of
the debt [capable of] interrupting the statutory limitation period.
For the acknowledgement of the debt to result in the interruption of
the statutory limitation period, it has to be explicit and specific
so that the debtor's will to settle the existing debt is
unequivocally expressed.”
- On
27 September 2007 the Supreme Court delivered a decision, no.
Rev-427/2006-2, in a case where the plaintiff company sued the State
seeking payment of a certain amount of money. The question arose
whether a letter of 15 May 1996 signed on behalf of the Finance
Department of the Ministry of Defence by the head of its Bookkeeping
Division informing the plaintiff that its claim had been recorded
with the Ministry's Finance Department but that funds had not been
allocated to satisfy that claim, as well as a letter of 6 November
1997 signed on behalf of the Finance Department of the Ministry of
Defence by the head of its Payment Operations Division notifying the
plaintiff that the Ministry would settle its debt by transferring the
money to the plaintiff company's giro account upon transfer of the
funds to the Ministry from the State budget, amounted to
acknowledgment of the debt. The lower courts ruled in favour of the
plaintiff, finding that the above-mentioned letters had constituted
acknowledgement of a debt capable of interrupting the statutory
limitation period. The Supreme Court allowed an appeal on points of
law by the State, quashed the lower courts' judgments and remitted
the case. In so deciding the Supreme Court held as follows:
“In the contested judgments no reasons were given
for the finding that the head of the Bookkeeping Division, who had
signed the letter of 15 May 1996, would be authorised to acknowledge
the debt (even assuming that the mere recording of the claim and its
amount with the Finance Department of the Ministry of Defence could
be considered an acknowledgment of the debt).
... the letter of 6 November 1997 [containing] the
statement that its [the Ministry's] debt would be settled by
transferring the money to the [plaintiff company's] giro account, but
without establishing the amount of the debt that the respondent
considered well-founded, and without establishing whether ... the
head of the Payment Operations Division (who signed the letter) was
authorised to give such a statement, cannot, at least for the time
being, be considered an acknowledgment of the debt.
In this court's view, an acknowledgement of a debt
within the meaning of section 387 paragraph 2 of the Obligations Act
can be made by the debtor personally or through an authorised person
(if the debtor is a legal entity). It follows from the foregoing that
declarations of unauthorised persons acknowledging a debt on behalf
of a debtor cannot produce for the debtor any legal effects of a
valid acknowledgement of a debt. It also has to be noted that an
acknowledgement of a debt must not be contrary to peremptory norms
[jus cogens].
For these reasons, until it is established whether, and
on the basis of which legal document, the head of the Bookkeeping
Division and the head of the Payment Operations Division were persons
authorised to acknowledge the debt, there can be no conclusions as to
the legal significance of the letters of 15 May 1996 and 6 November
1997.”
3. The doctrine
- According
to the views expressed in Croatian legal doctrine, a right is not
extinguished by the expiration of a statutory limitation period.
Rather, the creditor only loses the right to seek its enforcement
through the courts. Therefore, a debtor remains a debtor even after a
statutory limitation period has expired. For that reason, if a debtor
pays a creditor after the expiry of a statutory limitation period, he
or she cannot claim the amount paid back (on account of unjust
enrichment) because he or she paid an existing debt
D. The Labour Act
- Section
131 of the Labour Act (Zakon o radu, Official Gazette nos.
38/95, 54/95 (corrigendum), 65/95 (corrigendum), 17/01, 82/01,
114/03, 123/03, 142/03 (corrigendum) and 30/04) provides as
follows:
Statutory limitation period for an employment-related
claim
Section 131
“Unless otherwise provided in this or another
statute, an employment-related claim expires after three years.”
E. The Civil Procedure Act
- The
relevant part 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 the
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) provides as follows:
Section 186 (3)
“The court shall proceed on an action even if the
plaintiff has not indicated the legal basis for his or her claim; and
if the plaintiff has indicated the legal basis the court shall not be
bound by it.”
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.”
F. The Decision of the Minister of Defence of 18
September 1995
- Decision
of the Minister of Defence on Payment of Special Daily Allowances for
Carrying Out Mining and Demining Works (Odluka
o isplatama posebnih dnevnica za vrijeme izvođenja radova na
miniranju i deminiranju, unpublished)
of 18 September 1995 reads as follows:
“1. Permanent and reserve members of
the Armed Forces of the Republic of Croatia carrying out mining and
demining works shall have the right to special daily allowances.
2. Special allowances shall be calculated in
the amounts prescribed by the Decision on the Amount of Daily
Allowance for Official Journeys and the Amount of Compensation for
Users Financed from the State Budget [that is, 123 Croatian kunas
(HRK) at the time], and so from the time of departure to [carry out]
mining and demining works, according to the following criteria:
(a) the entire daily allowance for every
twenty-four hours spent on mining and demining works, including
periods of twelve to twenty-four hours [that is, between twelve and
twenty-four hours];
(b) half the daily allowance for periods of
eight to twelve hours.
3. The lists of persons entitled to special
daily allowances, with details, shall be compiled by the commander at
independent battalion level or higher, and shall be certified by the
commander of the operational zone ... The certified list shall be
submitted for payment to the regional finance department on whose
territory mining and demining works have been carried out, at the
latest on the third day of the month in respect of the preceding
month.
4. This Decision shall enter into force on
the day of its adoption, and shall be applicable from 1 June 1995.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO THE
CONVENTION
- The
applicant complained that the refusal of the domestic courts to grant
his claims for special daily allowances for demining work infringed
his right to peaceful enjoyment of his possessions. He relied on
Article 1 of Protocol No. 1 to the Convention, which reads as
follows:
“Every natural or legal person is entitled to the
peaceful enjoyment of his possessions. No one shall be deprived of
his possessions except in the public interest and subject to the
conditions provided for by law and by the general principles of
international law.
The preceding provisions shall not, however, in any way
impair the right of a State to enforce such laws as it deems
necessary to control the use of property in accordance with the
general interest or to secure the payment of taxes or other
contributions or penalties.”
- The
Government contested that argument.
A. Admissibility
- The
Government disputed the admissibility of this complaint on two
grounds, namely, that it was incompatible ratione materiae
with the provisions of the Convention and that the applicant had
failed to exhaust domestic remedies.
1. Compatibility ratione
materiae
(a) The arguments of the parties
- The
Government first emphasised that the applicant's
complaint related to his claims for special daily allowance for
demining work the applicant had carried out as a military serviceman.
They further noted that in the Baneković case (see
Baneković v. Croatia (dec.), no. 41730/02, 23 September
2004), the Court had established that employment disputes between the
authorities and public servants whose duties typify the specific
activities of the public service, in so far as the latter is acting
as the depository of public authority responsible for protecting the
general interests of the State, were excluded from the scope of the
Convention. The Court had further noted that a manifest example of
such activities was provided by the armed forces and the police.
Bearing in mind the fact that the applicant's complaint in the
present case related to his work in active military service, the
Government deemed that the provisions of the Convention were not
applicable to it.
- The
applicant replied that the Government's reference to the Baneković
case in support of their argument that the present complaint was
incompatible ratione materiae was rather superficial. In that
case the Court had not held, as the Government suggested, that
employment disputes between the authorities and public servants were
excluded “from the scope of the (entire) Convention” but
only from the scope of Article 6 § 1 thereof. For
that reason, in the Baneković case the Court had declared
inadmissible, as incompatible ratione materiae, the
applicant's complaint under Article 6 § 1 of the
Convention. The present complaint however concerned the right to
peaceful enjoyment of possessions guaranteed by Article 1 of Protocol
No. 1 to the Convention.
(b) The Court's assessment
- The
Court notes that in the Baneković case to which the
Government referred, the applicant, a police officer, complained
under Article 6 § 1 of the Convention of the unfairness and the
excessive length of civil proceedings in which he had sought payment
of a salary increase. It was precisely the complaint under that
Article (together with related complaints under Articles 13 and 14)
that the Court, applying the principles enunciated in the Pellegrin
case (see Pellegrin v. France [GC], no. 28541/95, ECHR
1999 VIII), declared inadmissible ratione materiae in the
Baneković case. Given that the applicant in the present
case, in complaining about the refusal of the domestic courts to
award him special daily allowances for demining work, relied on
Article 1 of Protocol No. 1 to the Convention, the Government's
argument appears misconceived.
- What
is more, the Court reiterates that in the case of Vilho Eskelinen
and Others (see Vilho Eskelinen and Others v. Finland
[GC], no. 63235/00, ECHR 2007 IV) it revisited and abandoned the
Pellegrin jurisprudence. Therefore, the Government's reliance
on the Baneković case is not relevant even to the
applicant's complaint under Article 6 § 1 of the Convention (see
paragraphs 80-82 below).
- It
follows that the Government's objection as to incompatibility ratione
materiae must be dismissed.
2. Non-exhaustion of domestic remedies
(a) The arguments of the parties
- The
Government further argued that the applicant had not complained of a
violation of his right to peaceful enjoyment of his possessions in
the proceedings before the domestic courts. In particular, in his
constitutional complaint the applicant had only complained of
violations of his constitutional rights to equality before the courts
and a fair hearing, which corresponded in substance to Article 6 of
the Convention.
- The
applicant replied that his complaint before the domestic courts had
in essence always been the same, as he had always sought payment of
special daily allowances for demining work. Referring to the
principle of iura novit curia embodied in section 186(3) of
the Civil Procedure Act (see paragraph 35 above), he argued that it
had been for the domestic courts, including the Constitutional Court,
to legally qualify his claim.
(b) The Court's assessment
- The
Court notes that under Croatian law, in particular section 186(3) of
the Civil Procedure Act (see paragraph 35 above), civil courts are
under an obligation to consider all relevant rules of law which could
support a plaintiff's claim. This includes the Convention and its
Protocols, which in Croatia not only takes precedence over domestic
statutes but the rights enshrined therein are considered
constitutional rights (see paragraphs 25 and 26 above).
- However,
it would appear that the principle of iura novit curia does
not apply in the proceedings before the Constitutional Court because,
under section 71(1) of the Constitutional Court Act, the
Constitutional Court examines only the violations of the
constitutional rights alleged in the constitutional complaint (see
paragraph 27 above). From the applicant's constitutional complaint
(see paragraph 23 above), it appears that he did not rely on Article
48 and/or 50 of the Constitution (see paragraph 25 above), which are
the provisions that arguably correspond to Article 1 of
Protocol No. 1 to the Convention. Nor did he rely on
Article 1 of Protocol No. 1 directly. Instead, he referred
principally to Articles 26 and 29(1) 33 (2) of the Constitution (see
paragraph 25 above), which are the provisions that correspond to
Article 6 § 1 of the Convention.
- Admittedly,
section 65(1) of the Constitutional Court Act requires
complainants to indicate in their constitutional complaints the
constitutional right which has allegedly been violated as well as the
relevant provision of the Constitution guaranteeing that right (see
paragraph 27 above). Likewise, section 71(1) of the same Act
provides that the Constitutional Court examines only the violations
of the constitutional rights alleged in the constitutional complaint
(see paragraph 27 above). This rule, however, is not as absolute as
the Government suggested. From the Constitutional Court's decision
no. U-III-363/1999 of 9 July 2001 (see paragraph 28 above) it follows
that in certain cases it is not necessary to plead the relevant
Article of the Constitution, as it may be sufficient that a violation
of a constitutional right is apparent from the complainant's
submissions and the case file (see, mutatis mutandis,
Glasenapp v. Germany, 28 August 1986, § 45, Series A
no. 104).
- Therefore,
while it is true that in his constitutional complaint the applicant
did not explicitly rely on Article 1 of Protocol No. 1 to the
Convention or the corresponding provisions of the Constitution, he
did complain about the refusal of the Šibenik County Court to
grant his claim for daily allowances for demining work (see paragraph
23 above) .
- In
these circumstances, the Court considers that the applicant, having
raised the issue in substance in his constitutional complaint, did
ventilate before the domestic courts the grievance which he has
submitted to the Court. He thereby provided the national authorities
with the opportunity which is in principle intended to be afforded to
Contracting States by Article 35 § 1 of the
Convention, namely of putting right the violations alleged against
them (see Glasenapp, cited above, § 44, and X v.
Germany, no. 9228/80, Commission decision of 16 December 1982,
Decisions and Reports (DR) 11, pp. 142-43).
- It
follows that the Government's objection concerning non-exhaustion of
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 of the Convention. It also
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. As to whether the applicant's claims constituted
'possessions'
(a) The arguments of the parties
- The
Government first submitted that the applicant's claims did not amount
to “possessions” within the meaning of Article 1 of
Protocol No. 1 to the Convention. Relying on the case of Vilho
Eskelinen and Others (cited above, § 94), they argued that
the Convention did not guarantee the right to a salary of a
particular amount and noted that the applicant's claim related in
substance to the level of his salary, a right not covered by the
Convention. Moreover, at the time he had brought his action his
claims had already been statute-barred, so he could not have had a
legitimate expectation that they would be granted. As a result,
Article 1 of Protocol No. 1 was not applicable to the case.
- The
applicant replied that the existence of his claims for special daily
allowances for demining work and their amounts had never been
disputed by the domestic authorities. What had been disputed was why
they had not been paid. He therefore argued that his claims did
constitute “possessions” within the meaning of Article 1
of Protocol No. 1 to the Convention and the Court's case-law. The
applicant also added that his claims had been based on the Decision
of the Minister of Defence of 18 September 1995 and that therefore
his case was distinguishable from the case of Vilho Eskelinen and
Others, relied on by the Government.
(b) The Court's assessment
- The
Court reiterates that an applicant may allege a violation of Article
1 of Protocol No. 1 only in so far as the impugned decisions relate
to his or her “possessions” within the meaning of that
provision. “Possessions” can be “existing
possessions” or claims that are sufficiently established to be
regarded as “assets”. Where, as in the present case, a
proprietary interest is in the nature of a claim, it may be regarded
as an “asset” only if there is a sufficient basis for
that interest in national law (for example, where there is settled
case-law of the domestic courts confirming it), that is, when the
claim is sufficiently established to be enforceable (see Kopecký
v. Slovakia [GC], no. 44912/98, §§ 49 and 52,
ECHR 2004 IX, and Stran Greek Refineries and Stratis
Andreadis v. Greece, 9 December 1994, § 59, Series A
no. 301 B).
- Turning
to the present case, the Court first notes that the Decision of the
Minister of Defence of 18 September 1995 provided for a special
daily allowance for the members of the Croatian Army carrying out
mining and demining work. It follows from the findings of the
domestic courts (see paragraphs 21-22 above) that it was uncontested:
(a) that during 1996, 1997 and 1998 the applicant, as a serviceman,
occasionally carried out demining work; (b) that his name figured on
the monthly lists of members of the 40th Engineering Brigade who
carried out demining work, which lists were compiled by the commander
of that unit indicating the number of days spent on demining works
and related amounts of daily allowances; (c) that those lists were
signed by the applicant's commanding officer, then co-signed and
certified by the commander of the 3rd Operational Zone of the
Croatian Armed Forces, and eventually submitted for payment to the
Split Regional Finance Department of the Ministry of Defence. It
would therefore appear that all the conditions for acquiring the
right to special daily allowances for demining work set forth in the
Decision of the Minister of Defence of 18 September 1995 (see
paragraph 36 above) were met in the applicant's case. The Court thus
considers that the applicant's claims had a sufficient basis in
national law to qualify as “assets” protected by Article
1 of Protocol No. 1 to the Convention (see, for example, Cazacu v.
Moldova, no. 40117/02, § 43, 23 October 2007).
- As
to the Government's arguments to the contrary, the Court first notes
that in its judgment in the case of Vilho Eskelinen and Others
it held that there is no right under the Convention to continue to be
paid a salary of a particular amount (see Vilho Eskelinen and
Others, cited above, § 94), and not, as the Government
suggested, the right to a salary of a particular amount. On the
contrary, the Convention organs have consistently held that income
that has been earned does constitute a “possession”
within the meaning of Article 1 of Protocol No. 1 to the Convention
(see, for example, Bahçeyaka v. Turkey, no. 74463/01, §
34, 13 July 2006; Erkan v. Turkey (dec.), no. 29840/03,
24 March 2005; Schettini and others v. Italy (dec.),
no. 29529/95, 9 November 2000; and Størksen v. Norway,
no. 19819/92, Commission decision of 5 July 1994). The Court further
notes that under Croatian law, in
particular section 360(1) of the Obligations Act, a pecuniary
right can no longer be enforced through the courts upon the
expiration of a statutory limitation period but the right itself is
not extinguished (see paragraphs 29 and 33 above). It follows that,
even assuming that the statutory limitation period had indeed expired
in the applicant's case, it could not be argued that his claims for
special daily allowances for demining work did not qualify as
“assets” and thus did not constitute “possessions”
within the meaning of Article 1 of Protocol No. 1 to the Convention.
2. Whether there was an interference with the peaceful
enjoyment of “possessions”
(a) The arguments of the parties
- The
Government submitted that the case did not disclose any interference
with the applicant's right to peacefully enjoy his possessions and
that therefore there had been no deprivation or control of
possessions by the state authorities.
- The
applicant submitted that non-payment of his daily allowances for
demining work constituted deprivation of possessions.
(b) The Court's assessment
- In
the light of the above finding that the applicant's claims for daily
allowances for demining work were sufficiently established to qualify
as an “asset” attracting the protection of Article 1 of
Protocol No. 1, the Court considers that the refusal of the domestic
courts to grant those claims undoubtedly constituted interference
with his right to peaceful enjoyment of possessions (see Cazacu,
cited above, § 43).
- The
Court must further examine whether that interference was justified.
2. Whether the interference was “provided for by
law”
(a) The arguments of the parties
(i) The Government
- The
Government argued that the interference had been provided for by law
as it had been based on section 131 of the Labour Act, which provided
for a three-year statutory limitation period for employment-related
claims.
64. The
Government noted that the key issue in the proceedings
before the domestic courts had been whether the Ministry of Defence
had acknowledged the debt, and thereby interrupted the running of the
statutory limitation period. In this connection the Government first
reiterated that under the Court's case-law its power to review
compliance with domestic law was limited and that it was in the first
place for the national authorities, notably the courts, to interpret
and apply the domestic law. They further submitted that under the
case-law of the Supreme Court acknowledgment of a debt was an express
and specific declaration which, in the case of a legal entity, must
be given by an authorised person. In the proceedings before the
domestic courts the applicant had maintained that on several
occasions his superiors had informed him that his claims were not in
dispute and that the payment would follow once the funds had been
allocated in the budget. The domestic courts had taken into account
all the arguments of the applicant, examined numerous items of
evidence, including the internal regulations of the Ministry of
Defence, and heard key witnesses, in particular the head of the
Ministry's Central Finance Department, I.H. The domestic courts had
clearly explained that from the internal organisation of the Ministry
of Defence it followed that the head of the Central Finance
Department was superior to the Split Regional Finance Department.
Since the applicant's claims had only been acknowledged by the Split
Regional Finance Department, while the Central Finance Department had
considered them invalid, the domestic courts had held that the
Ministry of Defence had not acknowledged the debt to the applicant.
- The
Government considered that the above finding of the domestic courts
was not arbitrary or unreasonable, but based on the evidence examined
in the proceedings. In deciding as they did the domestic courts had
acted within their margin of appreciation.
(ii) The applicant
- The
applicant argued that there had been unlawful interference with his
right to peaceful enjoyment of his possessions, as the interference
had either been arbitrary or failed to meet the criteria of
accessibility and foreseeability.
- The
applicant first pointed out that in its judgment of
24 October 2005 the Šibenik County Court had not
referred to any provision of substantive law in support of its
finding that the only persons authorised to acknowledge the debt on
behalf of the Ministry of Defence had been the head of its Central
Finance Department, the head of its Legal Department and their
superiors. Instead, that court had only vaguely referred to internal
regulations of the Ministry without specifying from which provision
or provisions of those regulations it had inferred its above finding.
That being so, the Šibenik County Court, in the applicant's
view, had indirectly admitted that no such provision had in fact
existed, so its judgment could only be considered arbitrary.
- Even
assuming that the Šibenik County Court's finding had not been
arbitrary and that it was supported by the Ministry's internal
regulations, the applicant claimed that those regulations had been
submitted to the first-instance court for the first time at the
hearing held on 14 December 2004 and had been classified as a
military secret. In the applicant's view, that meant that the County
Court had relied on regulations that had not been accessible to him.
- What
is more, even assuming that the Ministry's internal regulations had
been accessible to him, it had been impossible to infer from these
that only the head of the Ministry's Central Finance Department had
been authorised to acknowledge the debt on behalf of the Ministry.
Accordingly, the interference with his right to peaceful enjoyment of
his possessions had not been foreseeable.
-
Lastly, regardless of the above considerations, the applicant
submitted that in accordance with military hierarchy, he had been
authorised to address his request for payment of his daily allowances
for demining work only to his immediate superior, who, after making
enquiries of his own superiors, had informed him that his claim had
not been disputed and that the payment would follow after funds had
been allocated in the budget. For the
applicant, in these circumstances it was difficult to argue that
those persons had not been authorised to acknowledge the debt to him
on behalf of the Ministry.
(b) The Court's assessment
- The
Court reiterates that the first and most important requirement of
Article 1 of Protocol No. 1 to the Convention is that any
interference by a public authority with the peaceful enjoyment of
possessions should be lawful (see Iatridis v. Greece [GC], no.
31107/96, § 58, ECHR 1999 II).
- The
Court takes note of the Government's argument that the decisions of
the domestic courts in the present case had a legal basis in domestic
law, as their refusal to grant the applicant's claims was based on
section 131 of the Labour Act (see paragraph 34 above). However, the
Court also notes that the application of that provision by the
domestic courts followed from their prior finding that the Ministry
of Defence did not acknowledge the debt to the applicant within the
meaning of section 387 of the Obligations Act – an action that
would have otherwise interrupted the running of the statutory
limitation period – as the debt was not acknowledged by
authorised persons within the Ministry. In particular, the Šibenik
County Court held in its judgment of 24 October 2005 that the
only person authorised to acknowledge the debt on behalf of the
Ministry before the applicant had brought his action was the head of
its Central Finance Department and his superiors. Therefore, the
repeated declarations of the applicant's commanding officer to the
applicant, after making enquiries of his superiors up to the level of
the General Staff of the Croatian Armed Forces, that his claims were
not in dispute and that the allowances would be paid once funds had
been allocated in the budget for that purpose, had not had the effect
of acknowledging the debt (see paragraph 22 above).
- In
this connection the Court notes, as correctly pointed out by the
applicant, that the Šibenik County Court in its judgment of
24 October 2005, did not rely on any specific legal provision
that would support its finding that the debt could have been
acknowledged on behalf of the Ministry exclusively by the head of its
Central Finance Department.
- The
Court considers that an individual acting in good faith is,
in principle, entitled to rely on statements
made by state or public officials who appear to have the
requisite authority to do so, and that internal rules
and procedures were complied with, unless it clearly follows
from publicly accessible documents (including primary or subordinate
legislation), or an individual was otherwise aware, or should have
been aware, that a certain official lacked the authority to legally
bind the State. It should not be incumbent on an individual to ensure
that the state authorities are adhering to their own internal rules
and procedures inaccessible to the public and which are primarily
designed to ensure accountability and efficiency within a state
authority. A State whose authorities failed to observe their own
internal rules and procedures should not be allowed to profit from
their wrongdoing and escape their obligations. In other words, the
risk of any mistake made by state authorities must be borne by the
State and the errors must not be remedied at the expense of the
individual concerned, especially where no other conflicting private
interest is at stake (see Trgo v. Croatia,
no. 35298/04, § 67, 11 June 2009; Gashi v. Croatia,
no. 32457/05, § 40, 13 December 2007; and
Radchikov v. Russia, no. 65582/01, § 50, 24 May 2007).
- The
Court accepts that sometimes the authority of a particular official
to legally bind the State may be inferred from the nature of his or
her office and requires no explicit rule or provision. In view of
that possibility, in their observations on the admissibility and
merits of the application of 3 April 2009 the Government, instead of
relying, explicitly or by reference, on some domestic legal provision
on which the above-mentioned finding of the Šibenik County
Court could be based, simply argued that the court's finding had been
inferred from the internal organisation of the Ministry of Defence
(see paragraph 64 above). The Court will accordingly examine whether
that finding was foreseeable for the applicant in the circumstances
of the case (see, mutatis mutandis, Sun
v. Russia, no. 31004/02, §
29).
- In
this connection the Court first reiterates that the principle of
lawfulness also presupposes that the applicable provisions of
domestic law are sufficiently accessible, precise and foreseeable in
their application. An individual must be able – if need be with
appropriate advice – to foresee, to a degree that is reasonable
in the circumstances, the consequences which a given action may
entail (see, for example, Sun, cited above, § 27, and
Adzhigovich v. Russia, no.
23202/05, § 29, 8 October 2009). The principle of
lawfulness also requires the Court to verify whether the way in which
the domestic law is interpreted and applied by the domestic courts
produces consequences that are consistent with the principles of the
Convention (see, for example, Apostolidi and Others v. Turkey,
no. 45628/99, § 70, 27 March 2007, and Nacaryan and Deryan
v. Turkey, nos. 19558/02 and 27904/02, § 58, 8 January
2008).
- In
this connection the Court notes that the domestic courts established
beyond doubt that the applicant had been repeatedly informed by his
commanding officer that his claims for daily allowances for demining
work were not in dispute and that they would be paid once funds had
been allocated in the budget for that purpose (see paragraphs 21-22
above). For the Court the question to be answered is not whether it
was plausible, as the Šibenik County Court found, that only
the head of the Central Finance Department of the Ministry of Defence
was authorised to acknowledge the debt. Rather, the question is
whether, in the absence of a clear legal provision or a publicly
available document that would support that finding, it was equally
plausible for the applicant – who, under the rules of the
military hierarchy, could have addressed his request only to his
immediate superior – to assume that the information repeatedly
communicated to him by his commanding officer came from a person or
persons within the Ministry who had the authority to acknowledge the
debt. In this respect the Court notes that the applicant was aware
that his commanding officer had made enquiries of his own superiors
and that the information eventually conveyed to him came, through the
commander of the 3rd Operational Zone, from the General Staff of the
Croatian Armed Forces. In the Court's view, in the absence of a clear
legal provision or publicly accessible documents as to who was
authorised to acknowledge the debt on behalf of the Ministry of
Defence, it was quite natural for the applicant to believe that the
General Staff of the Croatian Armed Forces was an authority of
sufficient rank whose statements could be binding on the Ministry.
- Therefore,
having regard to the Šibenik County Court's failure to
indicate a legal provision that could be construed as the basis for
its finding that the debt could have been acknowledged only by the
head of the Central Finance Department of the Ministry of Defence,
the Court finds the impugned interference was incompatible with the
principle of lawfulness and therefore contravened Article 1 of
Protocol No. 1 to the Convention (see, mutatis mutandis,
Frizen v. Russia, no. 58254/00, § 35, 24 March 2005;
Adzhigovich, cited above,
§ 34; and Cazacu, cited above, §§
46-47), because the manner in which that court interpreted and
applied the relevant domestic law, in particular section 387 of the
Obligations Act, was not foreseeable for the applicant, who could
reasonably have expected that his commanding officer's statements to
the effect that his claims were not in dispute and that payment was
to follow once funds had been allocated, constituted acknowledgement
of the debt capable of interrupting the running of the statutory
limitation period (see, for example and mutatis
mutandis, Nacaryan and
Deryan, cited above, §§ 51-60, and
Fokas v. Turkey, no. 31206/02,
§§ 42-44, 29 September 2009).
Accordingly, the applicant could reasonably have expected that the
statutory limitation period had not expired. This finding that the
interference was not in accordance with the law makes it unnecessary
to examine whether a fair balance has been struck between the demands
of the general interest of the community and the requirements of the
protection of the individual's fundamental rights.
- There
has therefore been a violation of Article 1 of Protocol No. 1 to the
Convention.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant also complained that the aforementioned civil proceedings
had been unfair, alleging that the domestic courts had erred in the
application of the relevant provisions of substantive law and that
the judgment of the second-instance court had not been duly reasoned.
He relied on Article 6 § 1 of the Convention, the relevant
part of which reads:
“In the determination of his civil rights and
obligations ... everyone is entitled to a fair ... hearing ...”
- The
Court notes that the applicant complained about the outcome of the
proceedings, which, unless it was arbitrary, the Court is unable to
examine under Article 6 § 1 of the Convention. The applicant did
not complain, and there is no evidence to suggest, that the domestic
courts lacked impartiality or that the proceedings were otherwise
unfair. In the light of all the material in its possession, the Court
considers that in the present case the applicant was able to submit
his arguments before courts which offered the guarantees set forth in
Article 6 § 1 of the Convention and which
addressed those arguments in decisions that were duly reasoned and
not arbitrary.
- It
follows that this complaint is inadmissible under Article 35 §
3 as manifestly ill-founded and must be rejected pursuant to
Article 35 § 4 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed 2,250 euros (EUR) in respect of pecuniary and
non-pecuniary damage.
- The
Government contested this claim.
- The
Court reiterates that a judgment in which it finds a breach imposes
on the respondent State a legal obligation to put an end to the
breach and make reparation for its consequences. If the national law
does not allow – or allows only partial – reparation to
be made, Article 41 empowers the Court to afford the injured party
such satisfaction as appears to it to be appropriate (see Iatridis
v. Greece (just satisfaction) [GC], no. 31107/96, §§
32-33, ECHR 2000-XI). In this connection the Court notes that under
section 428a of the Civil Procedure Act (see paragraph 35 above), an
applicant may file a petition for reopening of the civil proceedings
in respect of which the Court has found a violation of the
Convention. Given the nature of the applicant's complaint under
Article 1 of Protocol No. 1 to the Convention and the reasons for
which it has found a violation of that Article, the Court considers
that in the present case the most appropriate way of repairing the
consequences of that violation is to reopen the proceedings
complained of. As it follows that the domestic law allows such
reparation to be made, the Court considers that there is no call to
award the applicant any sum in respect of pecuniary damage (see Trgo,
cited above, § 75).
- On
the other hand, the Court finds that the applicant must have
sustained non-pecuniary damage. It therefore awards the applicant
under that head EUR 2,250, that is, the amount sought by the
applicant, plus any tax that may be chargeable on that amount.
B. Costs and expenses
- The
applicant further claimed EUR 3,500 for costs and expenses incurred
before the domestic courts. He also claimed costs and expenses
incurred before the Court but in doing so he only specified the
amount of postal expenses and sought HRK 100 on that account.
- The
Government contested these claims.
- According
to the Court's case-law, an applicant is entitled to reimbursement of
his costs and expenses only in so far as it has been shown that these
have been actually and necessarily incurred and are reasonable as to
quantum.
- In
the present case, regard being had to the information in its
possession and the above criteria, the Court considers it reasonable
to award the sum of EUR 833 for costs and expenses in the domestic
proceedings, plus any tax that may be chargeable to the applicant on
that amount.
- As
regards the applicant's claim for costs and expenses incurred before
it, the Court notes that pursuant to Rule 60 § 1 of the Rules of
Court an applicant who wishes to obtain an award of just satisfaction
under Article 41 of the Convention in the event of the Court finding
a violation of his or her Convention rights must make a specific
claim to that effect. Since in the present case, apart from postal
expenses, the applicant did not make a specific claim for costs and
expenses before the Court, he failed to comply with the above
requirement set out in Rule 60 § 1 of the Rules of Court. The
Court therefore makes no award in respect of that part of his claim
(Rule 60 § 3). On the other hand, it awards the
applicant EUR 14 for postal expenses, plus any tax that may be
chargeable to the applicant on that amount.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint concerning the right to
peaceful enjoyment of possessions admissible and the remainder of the
application inadmissible;
- Holds that there has been a violation of Article
1 of Protocol No. 1 to 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 according to
Article 44 § 2 of the Convention, the following
amounts, to be converted into Croatian kunas at the rate applicable
at the date of settlement:
(i) EUR
2,250 (two thousand two hundred and fifty euros), plus any tax that
may be chargeable, in respect of non-pecuniary damage;
(ii) EUR
847 (eight hundred and forty-seven euros), plus any tax that may be
chargeable to the applicant, in respect of costs and expenses;
(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 unanimously the remainder of the
applicant's claim for just satisfaction.
Done in English, and notified in writing on 20 May 2010,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the separate opinion of Judge
Malinverni is annexed to this judgment.
C.L.R.
S.N.
CONCURRING OPINION OF JUDGE MALINVERNI
In
paragraph 86, the Court reiterates that “... a judgment in
which it finds a breach imposes on the respondent State a legal
obligation to put an end to the breach and make reparation for its
consequences. If the national law does not allow – or allows
only partial – reparation to be made, Article 41 empowers the
Court to afford the injured party such satisfaction as appears to it
to be appropriate (see Iatridis v. Greece (just
satisfaction) [GC], no. 31107/96, §§ 32-33, ECHR
2000-XI).”
In
this connection the Court notes that “... under section 428a of
the Civil Procedure Act ... an applicant may file a petition for
reopening of the civil proceedings in respect of which the Court has
found a violation of the Convention.” Given the nature of the
applicant's complaint under Article 1 of Protocol No. 1 to the
Convention and the reasons for which it has found a violation of that
Article, the Court considers that “... in the present case the
most appropriate way of repairing the consequences of that violation
is to reopen the proceedings complained of.”
For
reasons I have explained on many occasions, either alone or together
with other judges, in particular Judge Spielmann,
I would very much have liked this principle, on account of its
importance, to have been reflected in the operative part of the
judgment.
That
requirement appears to me to be all the more necessary in the present
case in view of the Court's finding that “as it follows
that the domestic law allows such reparation to be made, the Court
considers that there is no call to award the applicant any sum in
respect of pecuniary damage ...”
