Basketball player and debts of his club. Impossibility of issuing a decision for the payment of the due sum due to contradictory court decisions. Lack of a fair trial, the inability to reach a “resolution” by a court
JUDGMENT
Gogić v. Croatia 08.10.2020 (app. no. 1605/14)
SUMMARY
Right of access to court and fair trial. Impossibility to issue a decision on the merits due to contradictory court decisions.
The plaintiff, a well-known basketball player, wanted to cancel the contract with the club he had signed and claim the amounts owed. He then appealed to the sports arbitration tribunal, which finally awarded the applicant the due sums. The tribunal refused to award the sum.
The applicant then brought an action before the civil courts to adjudicate the due sum. The civil court ruled that the action for damages was inadmissible on the ground that it simply had to comply with the decision of the sports court, which had the force of res judicata. The applicant attempted to obtain the dues in accordance with the decision of the civil court. The case was referred to the Supreme Court, which ruled that it should appeal to the civil courts and not enforce the decision.
The Court pointed out that Article 6§1 also guarantees the right to a “settlement” of the dispute by a court.
The ECtHR found that throughout the internal procedure the applicant had used all the legal avenues at his disposal. However, due to a series of omissions and uncertainties created by the national courts, his case ultimately remained without substantive judgment.
Consequently, the ECtHR found a violation of the fair trial under the more specific manifestation of access to court (Article 6 § 1) and awarded the applicant EUR 16,555 for damages, EUR 6,000 for non-pecuniary damage and EUR 6,560 for costs.
PROVISION
Article 6§1
PRINCIPAL FACTS
The applicant, Ivan Gogić, is a Croatian national who was born in 1985 and lives in Zagreb. In 2003,
he signed a contract as a professional basketball player with a basketball club.
The case concerned Mr Gogić’s complaint about a lack of access to a court to complain about not
being paid by the club what he had been owed for playing.
In 2005 Mr Gogić asked the basketball federation’s regulatory body to cancel his contract and that
he be paid what he was owed. The federation allowed the applicant’s request and ordered the club
to pay him 14,500 euros.
The club lodged an appeal against the federation’s decision with the Court of Arbitration of the
Croatian Basketball Federation, without success.
When the club failed to comply with the arbitration decision Mr Gogić brought a civil action in 2008
for payment of the sum owed. The lower courts ruled in 2012 that the action was inadmissible. They
found in particular that he should have instituted enforcement proceedings rather than ordinary civil
proceedings.
Mr Gogić went on to institute enforcement proceedings, but the Supreme Court eventually found
this to be an inappropriate procedural avenue. His constitutional complaint was ruled inadmissible in
2013 as manifestly ill-founded.
Relying in particular on Article 6 § 1 (right to a fair hearing), Mr Gogić complained that he had been
prevented from obtaining an examination of his case on the merits.
THE DECISION OF THE COURT….
Right to access to a court (Article 6§1)
The right of access to a court under Article 6 § 1 of the Convention guarantees not only the right to institute proceedings but also the right to obtain the “determination” of the dispute by a court.
In the present case, the Court notes that the applicant was able to institute proceedings in the relevant court by lodging a civil action against the club seeking payment of the amount due to him. However, he never succeeded in obtaining a resolution of his dispute with the club over his compensation claim. This is because the lower courts considered that he should have instituted enforcement proceedings rather than ordinary civil proceedings. However, after he complied with that instruction, the Supreme Court held that he should have in fact instituted ordinary civil proceedings and not enforcement proceedings.
It thus follows that the applicant was not able to obtain a final “determination” of his dispute with the club concerning his compensation claim. There has therefore been an interference with his right of access to a court. It remains to be seen whether that interference was justified.
In this connection, the Court notes that throughout the domestic proceedings the applicant properly used all legal avenues available to him. Indeed, he first claimed compensation from the club through civil proceedings; according to the subsequent finding of the Supreme Court, this was the appropriate procedural avenue to be taken, given the circumstances of the case. However, the Municipal Court and the County Court erroneously dismissed his claim, finding that the arbitration award had created a res judicata effect. They also suggested that he should institute enforcement proceedings, which, as already noted above, the Supreme Court eventually found to be an inappropriate procedural avenue.
It follows from the above that there is nothing that can be imputed to the applicant with regard to his conduct in the proceedings. He constantly pursued his case in a manner in accordance with the relevant law and the instructions given by the domestic courts. It is rather owing to a series of omissions and uncertainties created by the domestic courts that the applicant’s case eventually remained undetermined. Moreover, the Court notes that according to the applicant the relevant statutory limitation period expired. His claim thus became time-barred and cannot be pursued through civil proceedings (see paragraphs 23 and 32 above); the Government did not contest this in their submissions.
Given these circumstances, and in accordance with the Court’s case‑law regarding adverse consequences of errors made during proceedings, the Court finds that the burden of the errors made in the applicant’s case cannot be borne by him.
It therefore follows that the interference in question cannot be considered to be justified.
The Court accordingly rejects the Government’s objection and finds that there has been a violation of Article 6 § 1 of the Convention.
Just satisfaction: EUR 16,555.62 (pecuniary damage), EUR 6,000 (non-pecuniary damage) and EUR
6,560.60 (costs and expenses)
