FIRST SECTION
CASE OF BUDIMIR v. CROATIA
(Application no. 44691/14)
 
 
JUDGMENT
 
Art 8 • Private life • Positive obligations • Protracted withdrawal of applicant’s professional licence and consequent inability to work as certified motor vehicle inspector entailing serious repercussions on his private life • Art 8 applicable following consequence-based approach • Failure to provide applicant with any solution pending establishment of his actual liability and an effective legal framework to claim equitable relief for damage sustained • Absence of comprehensive assessment of the applicant’s right to respect for his private life inconsistent with any acceptable margin of appreciation
 
STRASBOURG
16 December 2021
 
FINAL
 
09/05/2022
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Budimir v. Croatia,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
 Péter Paczolay, President,
 Ksenija Turković,
 Krzysztof Wojtyczek,
 Alena Poláčková,
 Gilberto Felici,
 Lorraine Schembri Orland,
 Ioannis Ktistakis, judges,
and Renata Degener, Section Registrar,
Having regard to:
the application (no. 44691/14) 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 Jovan Budimir (“the applicant”), on 10 June 2014;
the decision to give notice of the complaint concerning respect for the applicant’s private life to the Croatian Government (“the Government”) and to declare inadmissible the remainder of the application;
the parties’ observations;
Having deliberated in private on 15 June 2021 and 16 November 2021,
Delivers the following judgment, which was adopted on the latter date:
INTRODUCTION
1. The case concerns the revocation of the applicant’s professional licence, and his consequent inability to work as a certified motor vehicle inspector for a period of some five years. THE FACTS
2. The applicant was born in 1951 and lives in Beli Manastir. The applicant was represented by Mr K. Vukšić, a lawyer practising in Osijek. 3. The Government were represented by their Agent, Ms Š. Stažnik. 4. The facts of the case, as submitted by the parties, may be summarised as follows. Background to the case
5. The applicant, an ethnic Serb who is a car mechanic by profession, worked as a certified motor vehicle inspector for a private company in Beli Manastir, a town in Eastern Slavonia that had been peacefully reintegrated into Croatian territory in January 1998. In order that he could perform the duties of a certified motor vehicle inspector, on 29 May 1997 the applicant was issued with a special licence. 6. On 5 October 1998 the applicant carried out a standard vehicle inspection on a tractor and confirmed its roadworthiness. 7. On 15 October 1998 the same tractor was in collision with a police car. An extraordinary inspection to ascertain the roadworthiness of the tractor was carried out a day later by a colleague of the applicant; that inspection established that the tractor’s braking system had been defective. Criminal proceedings
8. In March 1999 the Ministry lodged a criminal complaint against the applicant for having allegedly falsified the vehicle inspection record in respect of the tractor at issue. 9. On 8 July 1999 the applicant was charged in the Beli Manastir Municipal Court (Općinski sud u Belom Manastiru) with falsifying the tractor’s vehicle inspection record. 10. On 23 May 2001 the Beli Manastir Municipal Court acquitted the applicant in criminal proceedings, since it could not establish that he had committed the criminal offence with which he had been charged. The court based its findings mainly on expert witness testimony stating that the tractor’s braking system could have become defective in the ten days that had elapsed between the standard vehicle inspection and the road accident. Administrative proceedings
11. Meanwhile, on 16 March 1999 the Ministry of the Interior (Ministarstvo unutrašnjih poslova – hereinafter “the Ministry”) issued a decision revoking the applicant’s licence to carry out vehicle inspections. The decision was deemed final and his employer immediately dismissed him from his post (see paragraph 17 below). 12. On 22 April 1999 the applicant lodged an administrative action with the Administrative Court of the Republic of Croatia (Upravni sud Republike Hrvatske – “the Administrative Court”) challenging the decision to revoke his licence. 13. By a judgment of 23 May 2001, the Administrative Court quashed the decision of 16 March 1999 for failure to establish all the facts of the case and remitted it. It ordered the Ministry to conduct an expert evaluation and, if possible, to obtain other evidence. 14. On 29 August 2001, in the course of the resumed administrative proceedings, the Ministry adopted a fresh decision revoking the applicant’s licence to carry out vehicle inspections. It based its decision on an expert opinion issued by the Ministry’s Centre for Forensics (Centar za kriminalistička vjestačenja Ministarstva unutarnjih poslova), which stated that the tractor’s brakes could not have become defective in the period between the standard vehicle inspection and the road accident. 15. On 4 December 2003, following a second administrative action brought by the applicant, the Administrative Court again quashed the Ministry’s decision of 29 August 2001 and remitted the case to the Ministry. The Administrative Court held that the Ministry had failed to provide the applicant with the opportunity to comment on the expert’s findings or to resolve the contradictions between the expert witness testimony given, respectively, in the criminal and in the administrative proceedings. 16. On 10 May 2004, in a fresh set of proceedings, the Ministry returned the applicant’s licence to him, having taken into consideration, inter alia, the fact that he had been acquitted during the criminal proceedings of any criminal offence. Labour dispute
17. Following revocation of his licence to carry out vehicle inspections, on 30 March 1999 the applicant was dismissed from work because the loss of his licence had been a particularly important fact without which the continuation of his employment had not been possible. 18. On 4 July 2005 the Zagreb Municipal Court (Općinski sud u Zagrebu) dismissed the applicant’s challenge of the dismissal, finding that the applicant’s dismissal had been lawful and that his employer had not been under the obligation to offer him another post until the criminal and administrative proceedings against him had been completed, because the applicant’s dismissal had been summary (izvanredni otkaz). 19. This judgment was upheld by the Zagreb County Court (Županijski sud u Zagrebu) on 2 May 2006. Civil proceedings for damages
20. On 21 September 2006 the applicant brought a civil action in the Osijek Municipal Court (Općinski sud u Osijeku) seeking damages from the State under section 13 of the State Administration Act (Zakon o sustavu državne uprave) for unlawful or wrongful conduct of the administrative authorities (nezakonit ili nepravilan rad tijela državne uprave; see paragraph 29 below). He stressed that the allegedly unlawful acts of the authorities had caused him pecuniary damage in that, due to the withdrawal of his license, he had been dismissed from work and had remained unemployed. 21. Following a remittal, on 26 February 2009 the Osijek Municipal Court dismissed the applicant’s action. It held that the Ministry’s decisions had not amounted to unlawful acts undertaken by a State authority. 22. Following an appeal by the applicant, on 5 May 2011, the Osijek County Court (Županijski sud u Osijeku) upheld the first-instance judgment. 23. The applicant lodged an appeal on points of law (revizija), but on 4 September 2013 the Supreme Court dismissed it as ill-founded. The relevant part of that judgment reads as follows:
“The primary pre-requisite for the Republic of Croatia to be held liable for damages under section 13 of the State Administration Act is the [occurrence] of unlawful or wrongful conduct. Unlawful conduct is defined as any act contrary to the law, another legal provision or regulation, or a failure to act in line with the law, another legal provision or regulation. This court accepts the conclusion of the lower courts that the [relevant authority] had not acted unlawfully when it adopted the decision to revoke the [applicant’s] licence ... to undertake vehicle inspection duties, because the Ministry of the Interior of the Republic of Croatia had acted in line with section 277(2) of the Road Safety Act; in other words there was a reasonable doubt that the [applicant] had certified the technical roadworthiness of a tractor that [in fact] had had a defective braking system, and [accordingly,] on the basis of section 277(2) of the Road Safety Act, his licence to undertake vehicle inspection duties was revoked. [This court cannot accept the applicant’s] assertion that every case in which a State administrative body wrongly applies substantive law or takes the wrong decision, or wrongly establishes the relevant facts (as in the present case) should be treated as unlawful conduct [on the part of that authority]. Accordingly, this court accepts that the case does not involve any unlawful conduct, given that the primary condition – the liability of the defendant on the basis of section 13 of the State Administration Act – has not been met. The [applicant] is correct in claiming that the defendant’s actions caused him damage and that there is a causal link between the conduct on the part of the State authority and the damage incurred, but he is not correct in claiming that the quashing of an administrative decision [taken] by the Administrative Court of the Republic of Croatia for reasons provided for in the Administrative Disputes Act ... would imply that there has been unlawful conduct on the part of the State administrative authorities. The ... [applicant’s] claim is therefore ill-founded.”
24. The applicant then lodged a constitutional complaint alleging, inter alia, that his right to a fair hearing, as guaranteed by Article 29 of the Constitution, had been violated because the Supreme Court had not explained why the administrative authorities’ actions in respect of his case had not amounted to wrongful conduct within the meaning of the relevant domestic legislation. He also alleged a violation of his constitutionally guaranteed right to work under Article 55 of the Constitution, stating as follows:
“As a result of the unlawful... decision on withdrawal of [his] license..., [the applicant] was summarily dismissed form work... With no fault or will of his own, all due to the unlawful acts and harassment by the [authorities] (due to the applicant’s national origin), [the applicant] was put in a situation whereby he was unable to enjoy his constitutional right to work, because he lost his job due to the withdrawal of his license, he is not working or receiving a salary for his work, and he has sustained damage in the form of loss of employment, livelihood and other employment-related benefits...
... As a result of the unlawful withdrawal of [his] licence... the applicant was dismissed from post in which he had been for over 20 years, and he was thereafter unable to find new employment, which has violated his constitutionally guaranteed right to work...”
25. By a decision of 6 March 2014, the Constitutional Court declared the applicant’s constitutional complaint inadmissible on the grounds that the case raised no constitutional issue. That decision was served on the applicant’s representative on 17 March 2014. RELEVANT LEGAL FRAMEWORK
26. The relevant provisions of the Constitution of the Republic of Croatia (Ustav Republike Hrvatske, Official Gazette no. 56/90, with subsequent amendments) read as follows:
Article 35
“Respect for and the legal protection of each person’s private and family life, dignity, and reputation shall be guaranteed.”
Article 55
“1. Everyone shall have the right to work and freedom of work. 2. Everyone shall be free to choose his or her vocation and occupation, and shall have access to every workplace and post under equal conditions.”
27. The relevant provision of the Labour Act (Zakon o radu, Official Gazette no. 38/1995 with subsequent amendments), as in force at the material time, provided as follows:
Section 107
“(1)  The employer and the employee have justified grounds for terminating the employment contract concluded for a definite or indefinite duration, without observing the prescribed or stipulated notice period (summary dismissal), if, due to a particularly grave breach of the employee’s duties or some other particularly serious incident, with due regard to all the circumstances and the interests of the contracting parties, the continuation of the employment is no longer possible....”
28. The relevant provision of the Road Traffic Safety Act (Zakon o sigurnosti prometa na cestama, Official Gazette no. 59/96), as in force at the material time, read as follows:
Section 277
“2. If a supervisor ... certifies the roadworthiness of a vehicle [even though its] braking, steering or liquid-gas fuel system [is defective] the Ministry of the Interior shall withdraw [his or her] authorisation (licence) to carry out vehicle inspections.”
29. Section 13 of the State Administration Act (Zakon o ustrojstvu državne uprave, Official Gazette no. 75/1993 with subsequent amendments), as in force at the material time, read as follows:
“The Republic of Croatia shall afford compensation for damage caused to a citizen, legal entity or other party through the unlawful or wrongful conduct on the part of a State administration body, or a body of local self-government or administration ...”
THE LAW
ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
30. The applicant complained that he had not been able to obtain compensation for damage sustained as a consequence of the Ministry of the Interior’s unlawful decision to revoke his licence, which had resulted in his instant dismissal from work, leaving him for a prolonged period of time unemployed and with no income. 31. The Court considers that the applicant’s complaint falls to be examined under Article 8 of the Convention, which, in so far as relevant, reads as follows:
“1. Everyone has the right to respect for his private ... life.... 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
AdmissibilityThe parties’ arguments

(a)   The Government
32. The Government claimed that the applicant had failed to exhaust domestic remedies, in that he had never complained – either expressly or in substance – of a violation of the right to respect for his private life before lodging his application with the Court. In particular, the applicant’s constitutional complaint had been formulated as a typical fourth-instance complaint, simply replicating the arguments that he had submitted during the proceedings before the lower-instance courts; as a result, the constitutional complaint had been ruled inadmissible. The Government emphasised that in his constitutional complaint the applicant had not referred to Article 35 of the Constitution, which was equivalent to Article 8 of the Convention. Instead, he had referred to Articles 19, 29 and 55 of the Constitution, alleging that the lower-instance courts had, when rendering their respective decisions, violated the principle of lawfulness (Article 19), his rights to a fair trial (Article 29) and his right to work (Article 55). Moreover, the applicant had also not complained in substance of a violation of his right to respect for his private life, since he had limited himself to an analysis of the proceedings for damages and had simply reiterated arguments he had already submitted before the lower-instance courts. For those reasons, the Government concluded that the mere fact that the applicant had lodged a constitutional complaint had not been sufficient to meet the requirement under Article 35 § 1 of the Convention that the available domestic remedies be exhausted. 33. The Government furthermore argued that Article 8 of the Convention was not applicable to the present case, since the applicant’s complaints, as set out in the application form, did not fall within the scope of the right to respect for private life referred to in Article 8 of the Convention – specifically, the consequences of not awarding the applicant compensation for the damage caused to him by the withdrawal of his authorisation to pursue his profession were not, by their nature or quality, covered by Article 8 of the Convention. Moreover, the right to exercise a profession was not relevant to the proceedings for damages complained of; it could only have been covered had the applicant brought an action seeking reinstatement and salary arrears in the labour dispute, which he had failed to pursue. 34. The Government maintained that the applicant had not argued (or delivered any evidence to prove) that his personal life had been affected in any way by the fact that he had not been awarded compensation for damage. The applicant had also failed to prove that losing his licence had adversely affected his reputation or that it had resulted in an inability on his part to develop professional relationships (specifically, to an extent that would significantly hinder him from securing appropriate employment that reflected his professional qualifications and work experience). (b)   The applicant
35. The applicant argued that, although he had not explicitly relied on Article 8 of the Convention or the corresponding provision of the Croatian Constitution in his constitutional complaint, he had clearly raised those complaints in substance by stating that his employment had been arbitrarily and unlawfully terminated as a result of the unlawful revocation of his professional licence. Furthermore, he had relied on Article 55 of the Constitution, which protected the right to work and also encompassed aspects of the right to respect for private life in respect of which he had complained. 36. Moreover, the applicant pointed out that the revocation of his licence had resulted in his losing his job, had negatively affected his reputation and had resulted in his being unable to develop relationships of a professional nature. The applicant also emphasised the fact that, after his licence had been returned to him, he had asked his former employer for his job back and he had regularly reported to the local branch of the Croatian Employment Bureau in an effort to find employment, but without any success. In addition, he submitted that his financial situation had worsened, resulting in him becoming dependent on close family members. Furthermore, the applicant submitted that his physical and mental health condition had deteriorated.

Article of the Convention at issue: Article 8
Outcome: violation