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BIONDIC v. CROATIA - 38355/05 [2007] ECHR 910 (8 November 2007)
URL: http://www.bailii.org/eu/cases/ECHR/2007/910.html
Cite as:
[2007] ECHR 910
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FIRST
SECTION
CASE OF BIONDIĆ v. CROATIA
(Application
no. 38355/05)
JUDGMENT
STRASBOURG
8
November 2007
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Biondić v. Croatia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Mr C.L. Rozakis, President,
Mr L.
Loucaides,
Mrs N. Vajić,
Mr K. Hajiyev,
Mr D.
Spielmann,
Mr S.E. Jebens,
Mr G. Malinverni, judges,
and Mr S. Nielsen, Section
Registrar,
Having
deliberated in private on 11 October 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 38355/05) 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, Mrs Ivanka Biondić
(“the applicant”), on 23 September 2005.
The
applicant was represented by Mr A. Šagovac, a lawyer
practising in Velika Gorica. The Croatian Government (“the
Government”) were represented by their Agent, Mrs Š.
StaZnik.
On
9 January 2007 the Court decided to communicate the complaint
concerning the applicant's right of access to a court to the
Government. Under the provisions of Article 29 § 3 of the
Convention, it decided to examine the merits of the application at
the same time as its admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1946 and lives in Velika Gorica.
The
applicant's husband, A.B., died on 13 October 1997. In the
inheritance proceedings after her husband's death the applicant and
their daughter were declared the only heirs, and A.B.'s estate was
distributed between them in equal parts by a decision of the Velika
Gorica Municipal Court of 10 November 1997.
However,
on 29 November 1997 K.D. brought a civil action in the Velika Gorica
Municipal Court (Općinski sud u Velikoj Gorici) against
the applicant and her daughter, claiming that he was A.B.'s
illegitimate son and seeking one third of A.B.'s estate.
On
27 February 1998 the applicant lodged a counterclaim seeking firstly
that K.D. be declared unsuitable to inherit and secondly that her
personal property acquired during her marriage to A.B. be excluded
from their joint matrimonial property and exempted from A.B.'s
estate. In respect of the latter, she argued that, since she herself
and her daughter were the only heirs known to her and were also
living together, she had not sought to have her personal property
acquired during her marriage to A.B. excluded from their joint
property and exempted from A.B.'s estate in the course of the
inheritance proceedings because the only parties to those proceedings
had been herself and her daughter, with whom she had been on good
terms and who was also the applicant's only heir. Therefore, she had
seen no reason to divide her property from her daughter's, bearing in
mind that the establishing of her separate property might be a
lengthy and costly undertaking.
At
a hearing held on 16 June 1998 the applicant made her statement, the
relevant parts of which read as follows:
“... the defendant states that in 1968 a woman
with a small child attacked her in the street and started to insult
her. When she came home she asked her husband about the woman and he
told her that it had been his past and that she had nothing to do
with it ... he also told her that a paternity claim had been lodged
against him in a court of law, but that he had not been the father of
the child ...
The defendant states that she had no knowledge of the
Zagreb County Court judgment no. P2-2954/65 [establishing her
husband's paternity of the plaintiff] ... and that during his illness
her husband had never even hinted that he had had any other child
other than their daughter Jadranka ...”
In
its judgment of 25 May 1999 the Velika Gorica Municipal Court upheld
K.D.'s claim and declared the applicant's counterclaim inadmissible.
It can be seen from the judgment that no arguments concerning the
merits of the applicant's counterclaim had been heard before the
court. The court found that the applicant had been prevented from
seeking the exemption of her personal property from the inheritance
because she had failed to file an objection to that effect in the
course of the inheritance proceedings. The relevant parts of the
first-instance judgment read as follows:
“... the [applicant's] counterclaim ... in the
part seeking that her property rights be established over the estate
which was subject to the inheritance proceedings in respect of the
late Ante Biondić, is not admissible.
It is undisputed between the parties that the
inheritance proceedings were conducted in respect of the late Ante
Biondić and that a decision on inheritance no. O-522/97,
identifying the inheritance and the heirs of the late Ante Biondić,
was adopted and became final on 10 November 1999.
... the estate of the late Ante Biondić was
identified by the final and binding decision on inheritance no.
O-522/97 of 10 November 1997 and the counter-claimant, as a party to
those inheritance proceedings, is bound by that decision, meaning
that all that has been established in that decision is for her res
judicata (section 231 of the Inheritance Act).
That is to say that the counter-claimant, as she herself
acknowledged, did not lodge such a request in the inheritance
proceedings, although she was a party to those proceedings and was in
a position to do so. Since she failed to seek [that her individual
property be exempted] she can no longer dispute the presumption of
the veracity of the content of that decision, in other words, she
cannot seek in the civil proceedings to alter the final decision
[adopted in the inheritance proceedings].
Under section 333(2) of the Civil Procedure Act, a court
shall of its own motion monitor during the entire civil proceedings
if the case at issue has been finally decided and if it finds that
the civil proceedings were instituted in connection with a claim that
has already been finally decided, it shall declare such a claim
inadmissible.
Since it is has been clearly established in the decision
on inheritance no. O-522/97 of 10 November 1997 that the property
issues concerning the assets which were the subject of the
inheritance proceedings have been finally decided, the counterclaim
in this part has to be declared inadmissible pursuant to section
333(2) of the Civil Procedure Act.”
The
applicant appealed to the Zagreb County Court (Zupanijski sud u
Zagrebu). She contested the first-instance judgment both in
respect of the part upholding K.D.'s claim and the part declaring her
counterclaim inadmissible. On 25 September 2001 the appellate court,
without holding a hearing, upheld the first-instance judgment in the
part concerning K.D.'s claim and set aside the part declaring the
applicant's counterclaim inadmissible so as to dismiss it as being
unfounded. However, the arguments of the appellate court concerning
the reasons for dismissal of the applicant's counterclaim were the
same as those of the Municipal Court. The relevant parts of the
appellate judgment read as follows:
“... the first-instance court's finding that the
counter-claimant cannot succeed with her counterclaim seeking [the
court] to establish her co-ownership of one half of the real estate
and movables which represent the estate of the late Ante Biondić,
because [the property comprising] his estate was identified in the
final decision on inheritance, including its scope, which binds the
counter-claimant Ivanka Biondić as a party to the inheritance
proceedings within the meaning of section 231 of the Inheritance Act,
is correct.
The conclusion in the impugned judgment that
counter-claimant Ivanka Biondić now cannot succeed with her
claim that [the courts] in these civil proceedings find that she, as
the spouse of the late Ante Biondić, is entitled to one half of
his estate on the basis that the estate was acquired during their
marriage since she failed to lodge such a claim in the inheritance
proceedings is correct.
Section 231 of the Inheritance Act provides that a final
decision on inheritance is binding on the parties to the inheritance
proceedings. [This rule] applies to the counter-claimant if [the
court ruling in the inheritance proceedings] did not establish her
right to present her claim in the civil proceedings.
Therefore, as the decision on inheritance has become
final, the counter-claimant Ivanka Biondić is not entitled to
lodge a civil claim seeking [the protection of] her property rights
over a part of the inheritance because she failed to seek exemption
of that part of the inheritance [in the inheritance proceedings]
under section 37 of the Inheritance Act. Therefore, her right to have
her claim examined in these civil proceedings cannot be recognised
(section 224 of the Inheritance Act).
...
However, the fact that the subject of the counterclaim
in these civil proceedings is the estate in respect of which a final
decision on inheritance, binding on the counter-plaintiff, has
already been given, cannot result in finding the counterclaim
inadmissible. Instead, it shall be dismissed on the merits ...”
The
applicant then lodged an appeal on points of law (revizija)
with the Supreme Court (Vrhovni sud Republike Hrvatske) which
was dismissed in respect of the part concerning K.D.'s claim and
declared inadmissible ratione valoris in the part concerning
the applicant's counterclaim.
On
26 April 2004 the applicant filed a constitutional complaint arguing,
inter alia, that by dismissing her counterclaim the lower
courts had violated her right of equality before the law, her right
to a fair trial by an independent tribunal, her right to an appeal
and to an effective remedy, her right to respect for her private and
family life and her property rights. On 10 March 2005 the
Constitutional Court (Ustavni sud Republike Hrvatske)
dismissed the complaint as being unfounded.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. The relevant legislation
The
relevant parts of the Inheritance Act (Official Gazette nos. 52/1971,
47/1978 and 56/2000 – Zakon o nasljeđivanju), as in
force at the material time, read as follows:
Section 172
Subject of the inheritance proceedings
In inheritance proceedings a court shall establish the
heirs, the deceased's estate and the rights of the heirs, legatees
and other persons.
Section 215
Exclusion of property from the inheritance
Where the law allows for the exclusion of certain
property from the inheritance, the court shall, on a request lodged
by an authorised person, order the exemption of such property ...
Section 231
Effect of a final decision on inheritance
A final decision on inheritance is binding on the
parties to the proceedings, unless their right to file a claim in
separate civil proceedings has been established.
Section
428(a) of the Civil Procedure Act (Zakon o parničnom
postupku) enables an applicant in respect of whom the European
Court of Human Rights has found a violation of the Convention or its
Protocols to request, within 30 days of the Court's judgment becoming
final, the re-opening of the domestic proceedings in question. In the
new proceedings the domestic courts are obliged to follow the reasons
given in the Court's judgment.
B. The Supreme Court's practice
In
a series of decisions (for example, in cases nos. Rev-727/1990,
Rev-1232/1991-2, Rev-2276/1992-2, Rev-288/1993-2, Rev-559/1993-2,
Rev-3127/1993-2, Rev – 2173/1994-2, Rev-212/03-2, and Rev –
436/03-2), the Supreme Court interpreted the binding effects of a res
iudicata in respect of a decision on inheritance as follows:
Rev. 727/1990:
“A decision on inheritance is res iudicata
in respect of all parties to the inheritance proceedings and in
respect of all the facts that were known to the court conducting
those proceedings and the facts which were not contested when a
decision on inheritance was adopted.”
Rev. 2276/1992-2:
“An heir who was not a party to the inheritance
proceedings is not bound by a decision on inheritance. Such a
decision likewise has no binding effect on the other heirs who,
despite having been parties to the inheritance proceedings, claim
rights in respect of an heir who was not a party to those
proceedings”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
The
applicant complained that her right to a fair trial had been violated
because she had had no access to a court in respect of her claim for
the separation of her individual property from the matrimonial
property. She relied on Article 6 § 1 of the Convention, the
relevant part of which reads as follows:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a fair ... hearing ... by
[a] ... tribunal...”
The
Government contested that argument.
A. Admissibility
The Government submitted that the applicant had failed
to exhaust domestic remedies because in the inheritance proceedings
she had not submitted a request that her share of the matrimonial
property be exempted from the estate.
The applicant contested that argument.
The Court considers that the arguments of the parties
concerning the exhaustion of domestic remedies are closely linked to
the merits of the case and the Court therefore finds it necessary to
join the Government's objection to the merits of the applicant's
complaint concerning her lack of access to a court.
The Court notes that this complaint is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
B. Merits
The applicant submitted that she had had no knowledge
of K.D.'s existence prior to the civil proceedings instituted by him
after her husband's death. She argued that the decision on
inheritance could not have been binding in respect of the claims made
by K.D. since he had not been a party to the inheritance proceedings.
Therefore, she could not have known that there would be any reason to
seek exclusion of her individual share from the matrimonial property.
The
Government argued that the applicant had known about the existence of
K.D. and that she should have assumed that he was going to seek his
inheritance rights. Therefore, she should already have requested
exemption of her share from the matrimonial property in the course of
the inheritance proceedings. Since she had failed to do so, she had
been precluded from advancing such a claim in the course of civil
proceedings instituted by K.D. It followed that the applicant had had
access to a court in respect of her claim, but had failed to make
proper use of her right of access.
The
Court reiterates 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 in civil matters, constitutes
one aspect (see Golder v. the United Kingdom, judgment of 21
February 1975, Series A no. 18, pp. 13-18, §§ 28-36, and
Dubinskaya v. Russia, no. 4856/03, § 39,
13 July 2006). The right is not however absolute; it is subject to
limitations permitted by implication, in particular where the
conditions of admissibility of an application are concerned, since by
its very nature it calls for regulation by the State, which enjoys a
certain margin of appreciation in this regard (see, among other
authorities, Levages Prestations Services v. France, judgment
of 23 October 1996, Reports of Judgments and Decisions 1996-V,
p. 1543, § 40; Yagtzilar and Others v. Greece,
no. 41727/98, § 23, ECHR 2001 XII; and Truhli v.
Croatia, no. 45424/99, § 25, 28 June 2001, with
further references).
The
Court observes that in the course of civil proceedings instituted by
a third person against the applicant, the applicant brought a
counterclaim seeking that her individual share of the matrimonial
property be exempted from her late husband's estate. The Zagreb
Municipal Court declared the applicant's claim inadmissible since she
had failed to bring it in the course of the inheritance proceedings
instituted after her late husband. The Zagreb County Court, accepting
the same reasoning, dismissed the applicant's claim, without any
further examination.
The
Court notes further that in the present case it is undisputed that
the applicant and her daughter were the only parties to the
inheritance proceedings and that a claim brought against the
applicant after the decision adopted in those proceedings had become
final was lodged by a new heir who had not been a party to the
inheritance proceedings.
The
Court notes also that the Supreme Court found the applicant's appeal
on points of law concerning her counter-claim inadmissible ratione
valoris and thus declined its function of ensuring that the lower
courts' interpretation of the relevant substantive and procedural law
be in line with its case-law. However, despite the fact that the
domestic courts with supervisory power, namely the Supreme Court and
the Constitutional Court, allowed that decision to exist, the Court
notes that it is obvious that the interpretation endorsed by the
Municipal Court and the County Court in the applicant's case was in
contravention to the Supreme Court's practice (see § 15
above).
The
position of the Supreme Court as to the extent of the binding effect
of decisions adopted in inheritance proceedings clearly shows that
the substance of the applicant's counter-claim should have been
examined by the lower courts. Since that was not the case, the Court
has no choice other than to conclude that the applicant did not have
the right of access to the extent required under the relevant
domestic law as interpreted by the Supreme Court in analogous
situations.
In
these circumstances the Court rejects the Government's objection as
to the exhaustion of domestic remedies and finds that there has been
a violation of the applicant's right of access to a court under
Article 6 § 1 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION AND
ARTICLE 1 OF PROTOCOL No. 1
The
applicant also complained that her right to respect for her home and
her property rights had been violated. She relied on Article 8 of the
Convention and Article 1 of Protocol No. 1, which read as follows:
Article 8
“1. Everyone has the right to respect
for his private and family life, his home and his correspondence.
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.”
Article 1 of Protocol No. 1
“Every natural or legal person is entitled to the
peaceful enjoyment of his possessions. No one shall be deprived of
his possessions except in the public interest and subject to the
conditions provided for by law and by the general principles of
international law.
The preceding provisions shall not, however, in any way
impair the right of a State to enforce such laws as it deems
necessary to control the use of property in accordance with the
general interest or to secure the payment of taxes or other
contributions or penalties.”
Having
regard to its findings concerning Article 6 § 1 of the
Convention, the Court considers that it cannot speculate as to
whether or not the applicant had any justified claim for the
separation of her individual share of the matrimonial property. In
this connection the Court notes that the applicant now has an
opportunity to request the reopening of the proceedings in accordance
with section 428(a) of the Civil Procedure Act, which would allow for
a fresh examination of her claim. In these circumstances the Court
considers that these complaints are premature and should be rejected
in accordance with Article 35 §§ 3 and 4 of the Convention.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
Lastly,
the applicant complained under Article 13 of the Convention that she
had no effective remedy at her disposal and also alleged that her
right of equality before the law had been violated.
In
the light of all the material in its possession, and in so far as the
matters complained of are within its competence, the Court considers
that this part of the application does not disclose any appearance of
a violation of the Convention. It follows that this part of the
application is inadmissible under Article 35 § 3 as
manifestly ill-founded and must be rejected pursuant to
Article 35 § 4 of the Convention.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
The
applicant did not submit a claim for just satisfaction or for costs
and expenses. Accordingly, the Court considers that there is no call
to award her any sum on that account.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Joins to the merits the Government's objection
as to the exhaustion of domestic remedies, and rejects it:
Declares the complaint concerning the right of
access to a court admissible and the remainder of the application
inadmissible;
Holds that there has been a violation of Article
6 § 1 of the Convention;
Holds that there is no call to award just
satisfaction.
Done in English, and notified in writing on 8 November 2007, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
