AS TO THE ADMISSIBILITY OF
Application no. 59109/00
by Želimir JOVANOVIĆ
The European Court of Human Rights, sitting on 28 February 2002 as a Chamber composed of
Mr C.L. Rozakis, President,
Mrs F. Tulkens,
Mrs N. Vajić,
Mr E. Levits,
Mrs S. Botoucharova,
Mr A. Kovler,
Mr V. Zagrebelsky, judges,
and Mr S. Nielsen, Deputy Section Registrar,
Having regard to the above application lodged on 3 April 2000 and registered on 19 July 2000,
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 applicant, Mr Želimir Jovanović, is a Croatian citizen of Serbian national origin, who is born in 1959 and lives in Požega, Croatia. He is represented before the Court by Mr Nikola Bastaić, a lawyer practising in Zagreb. The respondent Government are represented by their Agent Ms Lidija Lukina-Karajković.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant was employed as an agricultural technician in the Požega Penitentiary and Rehabilitation Home - a State prison for young offenders - (Kazneno popravni dom Požega). On 21 January 1992 the director of the prison dismissed the applicant and four other employees, as a disciplinary penalty, for allegedly having voted for the formation of the so called Serbian Autonomous Territory of Western Slavonia (Srpska Autonomna Oblast “Zapadna Slavonija”) and the secession of that Territory from Croatia, in the Referendum for Serbian Autonomy in Croatia in August 1990 (hereinafter the “Referendum”). The decision of the applicant's dismissal stated that the Referendum was part of the efforts to change the State frontiers by secession of parts of the Croatian territory and their annexation to another State, which amounted to a criminal offence under Section 236 (b) of the Penal Code. The Referendum was found to be contrary to the Croatian Constitution, thus illegal and participation in it was declared incompatible with service in State organs. The decision was, in addition, based on the Enforcement of Penalties Decree, enacted in 1991.
The applicant appealed against his dismissal. On 25 March 1992 the Disciplinary Board of the Požega Penitentiary and Rehabilitation Home (Disciplinski sud pri Kazneno popravnom domu u Požegi) dismissed the appeal.
On 3 March 1992 the applicant filed an action challenging his dismissal in the Požega Municipal Court (Općinski sud u Požegi). He claimed that he did not take part in the Referendum. He also claimed that the Enforcement of Penalties Decree was enacted after his alleged participation in the Referendum and should not have been retroactively applied.
On 14 October 1992 the Požega Municipal Court upheld the decision of the applicant's dismissal. It found the applicant’s participation in the Referendum incompatible with his service in the Požega Penitentiary and Rehabilitation Home.
On 13 November 1992 the applicant lodged an appeal against the above judgment with the Požega County Court (Okružni sud u Požegi), reiterating his previous arguments.
On 22 December 1992 the appellate court dismissed the appeal and upheld the first instance judgment.
On 19 February 1993 the applicant filed a request for revision with the Supreme Court (Vrhovni sud Republike Hrvatske). On 20 December 1995 the Supreme Court upheld the lower courts’ judgments.
On 2 May 1996 the applicant filed a constitutional complaint. He claimed that he had not taken part in the Referendum. He argued that the Enforcement of Penalties Decree provision, prescribing that an employee in the prison may be dismissed if he was not fit for working in that institution, lacked sufficient clarity and, therefore, was inconsistent with the requirement of foreseeability. In his opinion the decision of his dismissal on account of his alleged participation in the Referendum violated his right to freedom of expression.
On 20 October 1999 the applicant’s constitutional complaint was rejected. The Constitutional Court (Ustavni sud Republike Hrvatske) found the applicant’s dismissal to be a consequence of his participation in the Referendum which it found incompatible with the applicant’s employment in the Požega Penitentiary and Rehabilitation Home, pursuant to Section 8 (3) of the Enforcement of Penalties Decree.
B. Relevant domestic law
Section 8 (3) of the Decree on the enforcement of penalties for crimes, economic offences and misdemeanours committed during the state of war or the state of immediate danger for the independence and unity of the Republic of Croatia (the Enforcement of Penalties Decree - Uredba o izvršenju sankcija izrečenih za krivična djela, privredne prijestupe i prekršaje za vrijeme ratnog stanja ili u slučaju neposredne ugroženosti neovisnosti i jedinstvenosti Republike Hrvatske, Official Gazette no. 55/91) provides that the director of an institution may decide to dismiss an employee who is not fulfilling his duties or when it is established that he is not fit (podoban) to work in that institution.
The applicant claims that the termination of his employment on account of his alleged participation in the Referendum violated his right to freedom of expression. He invokes Articles 9 and 10 of the Convention.
The applicant maintains that his dismissal from work following his alleged participation in the Referendum for Serbian political autonomy in Croatia violated his right to freedom of expression secured under Article 10 of the Convention, which reads as follows:
“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”
The Government submit that the application is incompatible ratione temporis with the provisions of the Convention. They argue that the events complained of, i. e. the applicant's dismissal from work took place in January 1992 while the Convention entered into force in respect of Croatia on 5 November 1997.
The applicant argues that the proceedings concerning his dismissal ended by the Constitutional Court’s decision of 20 October 1999 and that, therefore, the facts complained of do fall within the Court’s competence ratione temporis.
In the alternative, the Government invite the Court to declare the application inadmissible as being manifestly ill-founded. They contend that the crucial issue is the question of the applicant's compatibility with his service. They argue that at the critical time there was an armed conflict taking place in Croatia and that the integrity of the State was endangered. In these circumstances the conditions required for employment in State organs were different from these conditions in normal circumstances. An additional duty of political loyalty was imposed on all employees in State organs.
The applicant's dismissal was a consequence of his participation in the Referendum. The promoters of the Referendum, one of many events creating a situation of instability and civic unrest at the time, sought to achieve the secession of certain parts of Croatia and thus to change its borders. Participation in such a Referendum represented a clear act of political disloyalty on the part of the applicant.
The Government submit further that access to civil service in specific circumstances of armed conflict had been at the heart of the issue submitted to the Court. The matter of access to civil service, when it concerns State security, was deliberately omitted from the Convention, and left for the regulation by the States. In this respect they rely on the Glasenapp and Kosiek judgments (see the Glasenapp v. Germany judgment of 28 August 1986, Series A no. 104 and the Kosiek v. Germany judgment of 28 August 1986, Series A no. 105).
Furthermore, the conditions for access to civil service were tightened due to the specific circumstances, which distinguishes the present case from the cases of Vogt v. Germany and Wille v. Liechtenstein (see the Vogt v. Germany judgment of 26 September 1995, Series A no. 323 and the Wille v. Liechtenstein judgment of 28 October 1999, Reports of Judgments and Decisions 1999-VII).
While in these cases the Court examined whether the civil servants’ dismissal violated their Convention rights, in the present case the crucial question is compatibility for civil service in time of war where independence and unity of the State are endangered.
Accordingly, in the Government’s opinion, there has been no interference with the applicant's rights protected under Article 10 of the Convention.
The Government further argue that, even if the Court finds that there has been an interference with the applicant's right to freedom of expression, such interference was provided for in law, and particularly Section 8 (3) of the Enforcement of Penalties Decree, as lex specialis, which empowered the director of a State prison to terminate the employment of an employee who was not fit for service.
As for the purpose of such interference, the Government contend that it was intended to protect the State’s security and territorial integrity in time of war. They rely on the Zana and Sürek judgments (see the Zana v. Turkey judgment of 25 November 1997, Reports 1997-VII and Sürek v. Turkey (no. 3) [GC], no. 24735/94, 8 July 1999, unreported).
In the Government’s opinion the interference with the applicant's rights secured by the Convention was necessary in a democratic society. In this respect they rely on the Vogt and Rekvényi judgments (see the Vogt v. Germany judgment, cited above, and the Rekvényi v. Hungary judgment of 20 May 1999, Reports 1999-III). They contend that the need for an exception from the rights guaranteed in Article 10 § 1 was necessary for the protection of State security and territorial integrity in circumstances where vital interests of the State were at stake. They argue further that the means employed were proportionate to the legitimate interests to be protected.
The applicant replies that he was not a civil servant but an agricultural technician employed by the State prison. He claims that the Enforcement of Penalties Decree would not apply to his case because the state of war had not been formally proclaimed in Croatia, therefore, there was no legal justification for the application of war time laws. Furthermore, his alleged participation in the Referendum would have taken place prior to the enactment of the Enforcement of Penalties Decree which served as a basis for his dismissal. He also claims that the provision giving power to the prison director to dismiss employees who were not fit for service lacks sufficient clarity and is inconsistent with the requirement of foreseeability.
He submits further that even if he had participated in the Referendum that would not have made him unfit for cultivating farmland, his job at the State prison.
The Court first has to ascertain whether, and to what extent, it is competent ratione temporis to deal with the application. It recalls that in accordance with the generally recognised rules of international law, the Convention only governs, for each Contracting Party, facts subsequent to its entry into force with regard to that Party (see, for example, X. v. Portugal, application no. 9453/81, Commission decision of 13 December 1982, Decisions and Reports (DR) 31 pp. 204, 208 and Kadikis v. Latvia (dec.), no. 47634/99, 29 June 2000).
The Court recalls that Croatia recognised the competence of the Court to receive applications “from any person, non-governmental organisation or group of individuals claiming to be a victim of a violation by Croatia of the rights recognised in the Convention through any act, decision or event occurring after 5 November 1997.” Accordingly, the Court is not competent to examine the present application in so far as it refers to facts occurring before the date of the ratification of the Convention.
The Court notes that the applicant was dismissed from work on 21 January 1992. The final decision was given by the Constitutional Court on 20 October 1999, i.e. after the Convention had entered into force in respect of Croatia. This decision addressed in substance the same issue that is now before the Court - the applicant's right to freedom of expression. However, divorcing the Constitutional Court’s decision from the events which gave rise to the present proceedings would amount to giving retroactive effect to the Convention which would be contrary to general principles of international law. At the same time it would render Croatia's declaration recognising the Court’s competence to receive individual applications nugatory (see Kadikis v. Latvia, cited above, and the Stamulakatos v. Greece judgment of 30 September 1993, Series A no. 271, p. 14, § 33).
The Court considers that the applicant's dismissal was an instantaneous act, which does not give rise to any possible continuous situation of a violation of the Convention. Furthermore, as to the proceedings before the Constitutional Court, in so far as they do fall within the Court’s competence ratione temporis, the applicant does not make any separate complaints.
It follows that the present application is incompatible ratione temporis with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.
For these reasons, the Court unanimously
Declares the application inadmissible.
Søren Nielsen Christos
Deputy Registrar President
JOVANOVIĆ v. CROATIA DECISION
JOVANOVIĆ v. CROATIA DECISION