EHRM, 20-05-2010, nr. 55555/08

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.

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.

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.

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.

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.

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:

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.

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.

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.

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.