FIRST SECTION
DECISION
Application no. 61763/13
Alen KOVAČEVIĆ
against Croatia
The European Court of Human Rights (First Section), sitting on 30 June
2015 as a Chamber composed of:
Isabelle Berro, President,
Khanlar Hajiyev,
Mirjana Lazarova Trajkovska,
Julia Laffranque,
Paulo Pinto de Albuquerque,
Ksenija Turković,
Dmitry Dedov, judges,
and Søren Nielsen, Section Registrar,
Having regard to the above application lodged on 12 September 2013,
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 Alen Kovačević, is a Croatian national, who was
born in 1968 and lives in Zagreb. He was represented before the Court by
Mr I. Žurić, a lawyer practising in Zagreb.
2. The Croatian Government (“the Government”) were represented by
their Agent, Ms Š. Stažnik.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised
as follows.
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4. On 1 April 2008 the applicant was employed as a salesman (manager
for key buyers) in company I. (hereinafter: the “company”) on an indefinite
contract. The contract of employment conditioned his confirmation in the
post by a successful three-month probationary period.
5. By the company’s decision of 15 May 2008 the applicant’s
employment was terminated on the grounds that he had failed to satisfy the
requirements of the post. He was given seven days’ notice.
6. The applicant objected to the decision terminating his employment
arguing, inter alia, that it was incorrect that he had failed to satisfy the
requirements of the post and that the real reason for the cancellation of the
employment contract had been the overall financial austerity within the
company.
7. The company maintained its position reiterating the reasons for its
decision to terminate the applicant’s employment.
8. On 26 June 2008 the applicant lodged a civil action in the Zagreb
Municipal Civil Court (Općinski građanski sud u Zagrebu) challenging the
company’s decision. He argued that he had duly complied with all relevant
requirements of the post and that the real reason for the cancellation of his
employment contract had been the overall financial austerity within the
company. Accordingly, he contended that since the reason for the
cancellation of his employment contract had not been the one cited by the
company, namely his inadequate professional performance, but the
economic reasons related to the company’s business performance, the
termination of his employment had been unlawful. The applicant requested
that the relevant documents concerning his employment contract be
admitted into evidence and that two witnesses, H.B. and I.U., be questioned
in court.
9. During the proceedings the Zagreb Municipal Civil Court questioned
several witnesses, including H.B. and I.U., and examined the relevant
documents submitted by the parties. Throughout the proceedings the
applicant was represented by a lawyer who actively participated in the
questioning of witnesses and examination of evidence at the trial.
10. On 6 November 2009 the Zagreb Municipal Civil Court dismissed
the applicant’s civil action. It set out the scope of the case before it in the
following manner:
“The cancellation of an employment contract conditioned by a probationary period
should be assessed under the legal provisions concerning regular or extraordinary
[dismissal], that is to say, in the concrete case, under section 106 § 1(2) of the Labour
Act. This provision provides that an employer can cancel the employment contract in
case of a justified reason. Under section 112 § 1 of the Labour Act the burden of proof
of the existence of a justified reason is on the employer.
...
In these circumstances the defendant is required, under section 112 in conjunction
with section 106 §(2) of the Labour Act, to prove the existence of the justified reason
KOVAČEVIĆ v. CROATIA DECISION
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for a dismissal related to the [worker’s] personal circumstances, that is to say [to
prove] that the plaintiff failed to satisfy the requirements of the post of a manager for
key buyers. The objection of the plaintiff that his dismissal was based on some other
reasons, namely economic, is irrelevant since the plaintiff is not in a position to
demonstrate the existence of reasons which were not cited as the reasons for
dismissal. This court therefore dismissed the plaintiff’s request for obtaining of the
information from the [Croatian Social Insurance Fund] about the number of workers
in the [company] in the period between April and July 2008, as well as the
information from the [competent tax authority] concerning the financial reports about
the defendant’s business performance in 2007 and 2008, as well as the information
about the workers who were dismissed [from the company] in that period. This is
because this court finds such information irrelevant given that the grounds for
dismissal were not the economic reasons. It is not for the plaintiff to demonstrate [the
existence of these reasons] but the burden of proof is on the defendant who is required
to show the existence of the reasons cited in its decision on dismissal as that is the
subject matter of this dispute.”
11. The Zagreb Municipal Civil Court further found that it followed
from the statements of several witnesses and the relevant evidence adduced
during the proceedings that the applicant had failed to meet the
requirements of the post and that therefore his dismissal by the company
had been justified and lawful. The Zagreb Municipal Civil Court in
particular stressed:
“In the case at issue the dismissal was based on the grounds that “the worker failed
to meet the requirements of the post”; that is therefore a dismissal related to the
worker’s personal circumstances. ...
The court’s assessment whether the justified reasons for such a dismissal existed is
based on the assumption that the communication skills, teamwork and personal
initiative are the relevant characteristics and skills for the position of a manager for
key buyers, and the plaintiff failed to demonstrate those characteristics and skills. As
already stated above, the purpose of the probationary period is to allow the employer
to verify the working skills of the worker, and the worker thereby assumes a certain
risk which he or she must be aware of when concluding such a contract of
employment. It should be also noted that the employer independently decides which
characteristics and skills of a worker are relevant for a particular post, that is to say
which are the characteristics and skills that [the employer] requires, given that [the
employer] is independent in organising and managing its business. In these
circumstances, and in view of the evidence adduced during the proceedings, this court
finds that the plaintiff was given an opportunity to demonstrate his skills, given that
he was invited to the meetings, he had free access to everything and everybody in the
company and essentially free space to demonstrate his skills. However, he failed to
show that he possessed the required characteristics and skills, which this court found
established from the cited witness statements.”
12. The applicant appealed to the Zagreb County Court (Županijski sud
u Zagrebu) arguing, inter alia, that, given the scope of the case set out by
the Zagreb Municipal Civil Court, he had not been given an opportunity to
challenge the real reasons for his dismissal which had been, in his view,
related to the company’s business performance.
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13. On 13 April 2010 the Zagreb County Court dismissed the applicant’s
appeal as ill-founded. With regard to the applicant’s specific arguments, and
in view of the evidence adduced during the proceedings before the firstinstance court, the Zagreb County Court noted:
“In view of these findings, the first-instance court correctly examined the lawfulness
of the impugned decision [on dismissal] under section 106 § 1(2) of the Labour Act.
In such a case, under section 112 of the same Act, the burden of proof for the
justification of the decision [on dismissal] is on the defendant. The plaintiff argued
that the reasons for the dismissal were false and fabricated and that the real reasons
for the termination of his employment contract had been of the economic nature,
whereas he had professionally, diligently and correctly performed the assignments of
his post.
...
Given the [relevant] factual findings, it undoubtedly follows that the reasons for the
impugned dismissal are truthful and justified and that the objection of the plaintiff that
these reasons are not real is unsupported by evidence and unfounded.”
14. The applicant further lodged an appeal on points of law with the
Supreme Court (Vrhovni sud Republike Hrvatske) reiterating his previous
arguments that he had not been able to demonstrate the real reasons for his
dismissal.
15. On 18 September 2012 the Supreme Court dismissed the applicant’s
appeal on points of law as ill-founded, upholding the decisions of the lower
courts.
16. The applicant then lodged a constitutional complaint before the
Constitutional Court (Ustavni sud Republike Hrvatske) reiterating his
arguments adduced before the lower courts.
17. On 28 February 2013 the Constitutional Court declared the
applicant’s constitutional complaint inadmissible as manifestly ill-founded.
The decision of the Constitutional Court was served on the applicant’s
representative on 14 March 2013.
B. Relevant domestic law and practice
1. Relevant domestic law
18. The relevant provision 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), 76/2010, 85/2010
and 05/2014) reads:
Article 29
“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.”
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19. At the material time the relevant part of the Labour Act (Zakon o
radu, Official Gazette no. 137/2004 – consolidated text; providing for an
amended enumeration of sections under the original text of the Labour Act,
Official Gazette no. 38/1995, which are noted below in the brackets)
provided:
Stipulation and length of the probationary period of work
Section 31 [Section 23]
“(1) At the moment of the conclusion of an employment contract a probationary
period of work may be stipulated.
(2) The probationary period of work under paragraph 1 of this section shall not be
longer than six months.
(3) If the probationary period of work has been stipulated, the notice period is at
least seven days.”
Cancellation of an employment contract
Section 112 [Section 105]
“The employer and the worker may cancel the employment contract.”
Regular cancellation of an employment contract
Section 113 [Section 106]
“(1) The employer may cancel the employment contract, observing the prescribed
or stipulated notice period (regular cancellation of an employment contract) if he or
she has justified reason in the case:
- there is no longer need for a particular work due to economic, technical or
organisational reasons (professionally conditioned dismissal);
- if the worker is unable to duly perform the assignments of his or her post due to
certain permanent characteristics or skills (personally conditioned dismissal);
- if the worker breaches his or her work assignments (dismissal conditioned by a
wrongful conduct of the worker).
...”
Form, reasoning and delivery of the dismissal and the running of the notice period
Section 118 [Section 111]
“(1) A dismissal must be in a written form.
(2) The employer must provide reasons for the dismissal in a written form.
(3) The [decision on] dismissal must be served on the dismissed person.
(4) The notice period starts running from the moment of the service of the [decision
on] dismissal.
...”
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The burden of proof
Section 119 [Section 112]
“(1) If the employer cancels the employment contract, and this Act requires the
existence of a justified reason, he or she must prove the existence of the justified
reason for dismissal.
...”
20. The relevant part of the Civil Procedure Act (Zakon o parničnom
postupku, Official Gazette no. 148/2011 – consolidated text) provides:
Proceedings concerning the employment disputes
Section 434
“(1) In the proceedings concerning the employment disputes, in particular with
regard to the scheduling of hearings, the court shall always bear in mind the necessity
of expeditious resolution of the employment disputes.
...”
2. Relevant practice
21. In the judgment no. Revr-190/07-2 of 18 April 2007, concerning
extraordinary cancellation of an employment contract, with regard to the
scope of the case in the employment disputes the Supreme Court noted:
“Under section 119 (section 112 [in the enumeration of the original text]) of the
Labour Act the burden of proof concerning the existence of the justified reason for
dismissal is on the employer. The court determines the operative facts of the case
within the scope of the reasons cited for the dismissal.”
22. In the judgment no. Revr-835/10-2 of 9 June 2010, concerning the
cancellation of an employment contract during the probationary period, the
Supreme Court held the following:
“Under section 106 § 1 (section 113 § 1 of the consolidated text of the Labour Act)
the employer may cancel the employment contract observing the prescribed or
stipulated notice period (regular cancellation of an employment contract) if he or she
has justified reason for that.
Accordingly, by relying on the cited provision, and given that the plaintiff and the
defendant had concluded an employment contract under the probationary period, the
plaintiff was allowed to cancel the plaintiff’s employment contract if it had justified
reason for the dismissal.
This court accepts the conclusion of the lower courts according to which the
defendant, upon whom the burden of proof rested under section 112 of the Labour
Act, that is to say section 119 § 1 of the consolidated text of the Labour Act, proved
during the proceedings that it had had a justified reason for the dismissal (section 106
§ 1 of the Labour Act) given that the plaintiff had failed to meet the requirements of
the post during her probationary period.”
KOVAČEVIĆ v. CROATIA DECISION
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COMPLAINTS
23. The applicant complained, under Articles 6 and 13 of the
Convention, that given the scope of the case set out by the domestic courts
he had not had access to a court competent to examine all the factual and
legal issues relevant to his employment dispute.
THE LAW
24. Complaining of a lack of access to a court the applicant relied on
Articles 6 and 13 of the Convention which, in so far as relevant, read as
follows:
Article 6
“In the determination of his civil rights and obligations ... everyone is entitled to a
fair ... hearing ... by [a] ... tribunal ...”
Article 13
“Everyone whose rights and freedoms as set forth in [the] Convention are violated
shall have an effective remedy before a national authority notwithstanding that the
violation has been committed by persons acting in an official capacity.”
A. The parties’ arguments
1. The Government
25. The Government contended that the applicant had had access to
three instances of domestic courts which had duly secured all relevant
procedural guarantees when examining his case. Thus, accordingly, he had
been provided with an effective remedy at the domestic level concerning his
complaints. The Government explained that in general the relevant legal and
factual issues of an employment dispute were set out by the decision on
dismissal by which the employer should cite one of the reasons provided
under section 113 of the Labour Act. The decision on dismissal should be in
a written form and it should be reasoned in a manner showing the legal
qualification of the dismissal which could then allow the courts, in the case
of a dispute, to expeditiously and easily verify the justification of the
dismissal. Accordingly, in the court proceedings the employer, upon whom
the burden of proof rested, should demonstrate the existence of reasons cited
for the dismissal. He or she could not cite or demonstrate some other
possible reasons, just as the employee, as a plaintiff, could not challenge the
dismissal with regard to those other possible unrelated reasons that had not
been cited for the dismissal. The purpose of this procedural arrangement
KOVAČEVIĆ v. CROATIA DECISION
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was to secure expeditious and effective resolution of employment disputes
by narrowing the scope of the case only to a set of specific legal and factual
questions, with a consequential benefit for the rights of workers.
26. The Government further stressed that in the applicant’s particular
case the reason cited by the company for his dismissal related to the fact that
he had failed to satisfy the requirements of the post in the probationary
period. The domestic courts had therefore duly examined the available
evidence concerning the existence of reasons cited by the company and
found those reasons sufficiently established and justified. It thus followed
that there was no reason to examine the applicant’s further arguments
concerning the business performance of the company as that would only
unnecessary prolong the examination of the case without any effect on its
outcome, which had depended solely on the questions related to the
applicant’s personal performance. The Government therefore considered
that the domestic courts had adequately and sufficiently examined all the
relevant questions pertinent to the applicant’s case.
2. The applicant
27. The applicant argued in particular that the domestic courts had failed
to appropriately examine the question whether his dismissal had been based
on his inadequate personal performance or the economic reasons related to
the company’s business performance. In other words, they had failed to
assess whether the reasons cited for his dismissal had existed in reality or
they had been falsely cited so as to justify a dismissal related to some other
reasons unrelated to his personal performance. This had been a consequence
of the manner in which the scope of the case had been determined, which
had limited his access to a court capable of examining all legal and factual
questions pertinent to his case. The applicant also contended that the reason
cited by the company for his dismissal had been the most simple ground for
them to justify in court. At the same time he had not been given an
appropriate opportunity to challenge those reasons by showing that they had
been false and that the real reason for his dismissal related to the overall
austerity in the company. In his view, the Government’s reliance on the
necessity to secure effectiveness and expeditious resolution of the
employment disputes was misleading as in his case the dispute had neither
been resolved expeditiously nor fairly. In any case, the requirement of an
expeditious resolution of a dispute should not have been constructed to the
detriment of the requirement of fairness in the examination of a case. The
applicant also challenged the manner in which the domestic courts had
established the relevant facts and applied the relevant standards in assessing
his professional performance.
KOVAČEVIĆ v. CROATIA DECISION
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B. The Court’s assessment
28. The Court has held on many occasions that Article 6 § 1 embodies
the “right to a court”, of which the right of access, that is, the right to
institute proceedings before a court, constitutes one aspect only; however, it
is an aspect that makes it in fact possible to benefit from the further
guarantees laid down in paragraph 1 of Article 6. The fair, public and
expeditious characteristics of judicial proceedings are indeed of no value at
all if such proceedings are not first initiated. And in civil matters one can
scarcely conceive of the rule of law without there being a possibility of
having access to the courts (see, among many other authorities, Golder
v. the United Kingdom, 21 January 1975, §§ 34 in fine and 35-36, Series A
no. 18; Z. and Others v. the United Kingdom [GC], no. 29392/95, §§ 91-93,
ECHR 2001-V; and Kreuz v. Poland, no. 28249/95, § 52, ECHR 2001-VI).
29. For the right of access to be effective, an individual must have a
clear, practical opportunity to challenge any act interfering with his or her
rights (see, for example, Bellet v. France, 4 December 1995, § 36, Series A
no. 333-B). Indeed, the sole fact that an applicant was able to lodge a civil
action in the domestic courts does not necessarily satisfy the requirements
of Article 6 § 1 of the Convention since the degree of access afforded by the
national legislation must also be sufficient to secure the individual’s “right
to a court”, having regard to the principle of the rule of law in a democratic
society (see Yagtzilar and Others v. Greece, no. 41727/98, § 26, ECHR
2001-XII).
30. The right of access to court is not, however, absolute. It may be
subject to legitimate restrictions (see Stubbings and Others v. the United
Kingdom, 22 October 1996, §§ 51-52, Reports of Judgments and Decisions
1996-IV; Tolstoy Miloslavsky v. the United Kingdom, 13 July 1995,
§§ 62-67, Series A no. 316-B; and Golder, cited above, § 39). Where the
individual’s access is limited either by operation of law or in fact, the Court
will examine whether the limitation imposed impaired the essence of the
right and, in particular, whether it pursued a legitimate aim and whether
there was a reasonable relationship of proportionality between the means
employed and the aim sought to be achieved (see Ashingdane v. the United
Kingdom, 28 May 1985, § 57, Series A no. 93; Związek Nauczycielstwa
Polskiego v. Poland, no. 42049/98, § 29, ECHR 2004-IX; and SzwagrunBaurycza v. Poland, no. 41187/02, § 49, 24 October 2006). If the restriction
is compatible with these principles, no violation of Article 6 will arise (see
Z and Others, cited above, §§ 92-93).
31. In the case at issue the Court must examine whether the applicant’s
right of access to a court was unduly restricted by the domestic courts’
decision to limit the scope of the employment dispute to the matters
adduced by the employer in the reasons given for terminating the
applicant’s employment, and thus, consequently, by their refusal to deal
10
KOVAČEVIĆ v. CROATIA DECISION
further with the matters which the applicant saw as the real reasons for his
dismissal.
32. The Court would firstly reiterate that it is in the first place for the
national authorities, and notably the courts, to interpret and apply the
domestic law. This applies in particular to the interpretation by courts of
rules of a procedural nature. The Court’s role is confined to ascertaining
whether the effects of such an interpretation are compatible with the
Convention (see, for example, Tejedor García v. Spain, 16 December 1997,
§ 31, Reports 1997‑VIII; and Pérez de Rada Cavanilles v. Spain,
28 October 1998, § 43, Reports 1998‑VIII).
33. The Court notes that under the relevant provisions of the domestic
labour law and the established practice of the domestic courts, when
dismissing an employee, the employer is obliged to provide a written
decision on dismissal citing the exact reason and grounds for such a
decision. When, and if, such a decision is challenged in court, the burden of
proof is on the employer who is obliged to adduce evidence demonstrating
the real existence of the reasons relied upon for the dismissal. The evidence
adduced and the reasons put forward by the employer are then open to
adversarial argument by the dismissed employee. If the employer failed in
showing the real existence of reasons cited for the dismissal, the decision on
the dismissal is invalid. At the same time, all other arguments adduced by
the parties are out of the scope of the employment dispute given that the
scope of the case is determined by the initial decision on the employee’s
dismissal (see paragraphs 19, and 21-22 above).
34. The reason for setting such a scope of the case is, according to the
Government, lies in securing an effective protection of the labour rights by
providing expeditious and efficient court proceedings, which is, in the
Court’s view, a legitimate demand to be met by the national authorities in
the administration of justice (see Gladkiy v. Russia, no. 3242/03, § 112,
21 December 2010 in fine). Moreover, it essentially allows the employee to
put the reasons adduced for his or her dismissal to an adversarial argument
and thus to effectively challenge the decision terminating his or her
employment with a possibility to have that decision declared invalid if the
reasons cited for the dismissal did not exist in reality.
35. It thus follows from the domestic arrangement of employment
disputes that if the reasons adduced by the employer do not stand to the
evidence adduced for a dismissal, the decision on the dismissal is invalid,
whereas, if the dismissal is justified for the reasons relied upon by the
employer, the dismissal is valid. In the Court’s view, it logically follows
from this arrangement that some possible other arguments by the parties,
other than those relevant for the reasons relied upon for the dismissal,
indeed appear obsolete and as such may unnecessary burden the
effectiveness of the administration of justice in an employment dispute.
There is no need to deal with further arguments of any of the parties to the
KOVAČEVIĆ v. CROATIA DECISION
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dispute as to the existence of some other possible reasons for a dismissal if
the reasons cited for the dismissal are, in the circumstances, demonstrated as
valid or invalid.
36. Accordingly, the Court considers that it cannot be said that under
such procedural arrangement, when given an adequate opportunity to
participate in the proceedings, the parties do not have access to a court
capable to determine their dispute, as required under Article 6 § 1 of the
Convention.
37. In this connection the Court notes that the applicant effectively
participated in the proceedings before the domestic courts concerning his
civil action against the company’s decision cancelling his employment
contract on the grounds that he had failed to satisfy the requirements of the
post in the probationary period. Throughout the proceedings before the
domestic courts he was legally represented and given an opportunity to put
forward such evidence and arguments as well as to challenge the evidence
adduced by the other party, which were relevant for the case (see
paragraph 9 above). The Court also notes that the domestic courts provided
sufficient reasons for their decisions concerning the applicant’s specific
arguments (see paragraphs 10-11 and 13 above).
38. The Court therefore, in view of its findings above (see
paragraph 36), rejects the applicant’s complaints as being manifestly illfounded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 23 July 2015.
Søren Nielsen
Registrar
Isabelle Berro
President