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Cite as: [2010] ECHR 1613
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FIRST SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no.
61435/08
by SnjeZana LAZAREVIĆ
against Croatia
The European Court of Human Rights (First Section), sitting on 30 September 2010 as a Chamber composed of:
Christos
Rozakis,
President,
Nina
Vajić,
Khanlar
Hajiyev,
Dean
Spielmann,
Sverre
Erik Jebens,
Giorgio
Malinverni,
George
Nicolaou,
judges,
and André Wampach, Deputy
Section Registrar,
Having regard to the above application lodged on 24 November 2008,
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 FACTS
The applicant, Mrs SnjeZana Lazarević, is a national of Bosnia and Herzegovina of Serbian origin who was born in 1967 and lives in Ugrinovci (Serbia). She was represented before the Court by Mrs S. Petrović, an advocate practising in Beograd. The Croatian Government (“the Government”) were represented by their Agent, Mrs Š. StaZnik. The Government of Bosnia and Herzegovina, having been informed of their right to intervene (Article 36 § 1 of the Convention and Rule 44 § 2 (a) of the Rules of Court), did not avail themselves of this right.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
On 21 November 1991 the applicant's parents were awarded a house in Čeminac (Croatia) for temporary use by the occupying forces who, at that time, controlled Čeminac. The house was owned by Mrs M.G., who had been forced to leave Čeminac in August 1991 shortly before the village was taken by the occupying forces.
The applicant's parents moved out of the house between 13 and 16 March 1997 and went to live in Prijedor (Bosnia and Herzegovina).
On 26 March 1997 M.G. brought a civil action against the applicant's parents in the Beli Manastir Municipal Court (Općinski sud u Belom Manastiru). She claimed that they had looted her house when they moved out of it, and sought 252,000 Croatian kunas (HRK) in compensation, which was her estimate of the value of the household items allegedly stolen by the applicant's parents.
As the defendants' address was unknown, the court appointed Mr M.Š., an advocate from Osijek, to act as their temporary representative (privremeni zastupnik) in the proceedings.
On 21 September 1998 the applicant's mother died.
During the proceedings the court called three witnesses proposed by the plaintiff. At the request of the plaintiff, on 25 March 2002 the court decided to obtain an expert opinion on the value of the household items missing from the plaintiff's house and appointed Mr F.V., an expert witness in economics, for that purpose. On 14 June 2002 the expert witness prepared his opinion and submitted it to the court three days later. He assessed the value of the objects in question at HRK 97,427.
At a hearing held on 2 July 2002 the court called the expert witness.
On the same day, the court issued a judgment in which it found for the plaintiff and ordered the applicant's parents to pay M.G. HRK 97,427 in compensation for the looted property, together with accrued statutory default interest running from 26 March 1997. The relevant part of that judgment reads as follows:
“Having consulted the opinion of expert witness F.V., who was also heard in person, the court has established beyond dispute that the value of the household items appropriated from the plaintiff's house in 1991 amounted to 97,427 kunas.
...
In deciding the amount of pecuniary damages ... on the basis of the expert opinion, which the court accepted because it had been prepared meticulously and competently, the court considers that the plaintiff should be awarded ... the sum of 97,427 kunas ...”
In the absence of any appeal, the judgment became final on 3 October 2002.
On 29 September 2003 the applicant's father, represented by an advocate, lodged a petition to reopen the above-mentioned civil proceedings with the Beli Manastir Municipal Court.
On 13 May 2004 the applicant's father died. On 29 March 2005 the applicant was declared the sole heir of her parents.
On 9 May 2005 the applicant, as her father's heir, took over the proceedings from him. She gave a power of attorney to the same advocate who had represented her father in the proceedings.
On 28 November 2005 the court reopened the proceedings and set aside its previous judgment of 2 July 2002.
At a hearing held on 3 October 2006 in the reopened proceedings, the court provided the applicant's representative with the plaintiff's statement of claim (tuZba) dated 26 March 1997, its prior judgment of 2 July 2002 and a transcript of the previous proceedings. At subsequent hearings held on 21 February, 19 March, 16 April, 16 May and 2 July 2007, the court called the defendant, the plaintiff, four witnesses for the defendant, one witness for the plaintiff that it had already heard in the previous proceedings and three new witnesses for the plaintiff. However, in the reopened proceedings, the court did not call the expert witness or two other witnesses for the plaintiff whom it had called in the previous proceedings. Instead, at a hearing held on 7 February 2007, the court read out the transcripts of the testimony given by those witnesses in the previous proceedings.
On 12 July 2007 the Beli Manastir Municipal Court again ruled for the plaintiff. It ordered the applicant to pay HRK 97,427 to M.G. in compensation for the property appropriated from M.G., together with accrued statutory default interest running from 26 March 1997. The relevant part of the judgment reads as follows:
“... The court accepted the opinion of the expert economic witness in its entirety because it considers that it was prepared meticulously and competently.
...
In deciding the amount of the plaintiff's claim, the court considers that on the basis of the expert opinion the plaintiff should be awarded ... the sum of 97,427 kunas ...”
On 4 August 2007 the applicant appealed. In her appeal she argued, inter alia, that the value of the property she had inherited from her parents was less than the amount of the award of damages she had been ordered to pay. The applicant also argued that the first-instance court had merely deferred to the expert opinion of 14 June 2002 without critically examining it. In her appeal the applicant wrote, inter alia:
“The defendant [i.e. the appellant] primarily emphasises that she entered the proceedings as an heir of her deceased parents ... The defendant as an heir is liable for the debts of her parents only up to the value of the inherited property.
It cannot be disputed that the value of the property inherited from the deceased, M.T. and R.M., is significantly less than the sum the defendant was ordered to pay by the [contested] judgment ...
Namely, the defendant SnjeZana Lazarević, inherited practically worthless plots of land from her parents...
...[A] total of 4.5 hectares of scattered and worthless land is [her] inherited property, whereas the court obliges the defendant to pay a sum, the principal amount of which already exceeds the value of the inherited property by several times.
...
Furthermore, the manner in which the first-instance court determined the value of the plaintiff's claim is unacceptable, and the defendant considers that the manner [in which the court of first instance] established the facts is contrary to the principle of free evaluation of evidence provided for in section 8 of the Civil Procedure Act.
The first-instance court's bases its decision on the amount of pecuniary damage exclusively on the expert opinion, whereas it [i.e. the court] did not critically assess that evidence in any way, as it was obliged to do in accordance with the principle of seeking the material truth [i.e. its fact-finding role].
The duty of the expert economic witness was to determine the real market value of the appropriated household items ... in accordance with prices [pertaining] at the time the judicial decision was rendered.
From the expert opinion it cannot be discerned what were the prices used to assess the value of the household items. The expert did not have at his disposal photographs which were subsequently submitted. Had he had them, it is likely that the value of [those] items would have been [assessed] significantly lower. The state of [repair of] [those] objects, their age and quality is significantly below average, let alone better than average as assessed by the expert.
The defendant considers that the main reason for the flaws in the expert opinion is the fact that the decision of the court to obtain an expert opinion was not sufficiently clear and specific. Thus, it did not give the expert clear instructions ..., which in the defendant's view, significantly affected the lawfulness and correctness of the contested judgment.”
On 25 October 2007 the Osijek County Court (Zupanijski sud u Osijeku) dismissed the applicant's appeal in respect of the part of the first-instance judgment ordering the applicant to pay the plaintiff HRK 97,427. It allowed her appeal and reversed the first-instance judgment only in respect of the award of statutory default interest, finding that interest should run from 12 July 2007 and not from 26 March 1997. The court held that during the course of the proceedings before the court of first instance, the applicant had not submitted any evidence as regards the value of the property inherited by her and that she had never objected to the expert opinion. The relevant part of the County Court's judgment reads as follows:
“The defendant correctly notes that under the Inheritance Act an heir is liable for the debts of the decedent up to the value of the inherited property. It is uncontested that the defendant inherited the immovable property listed in the enclosed decision on inheritance. However, a court in civil proceedings does not determine the value of that immovable property of its own motion, and in the [instant] proceedings the defendant did not indicate the value of the inherited immovable property nor propose evidence to determine that value.
...
The value of household items appropriated from the plaintiff was determined according to the expert opinion ... Following a petition by the defendant, the first-instance court allowed the reopening of the previous civil proceedings... and the final judgment obliging M.T. and R.T. to pay an amount of money was set aside. Therefore, the defendant was aware of [the expert opinion] and she did not object to [it].”
On 8 December 2007 the applicant lodged a constitutional complaint against the County Court's judgment, alleging violations of her constitutional rights to equality before the law and to a fair hearing. She argued, inter alia, that the amount of the award of damages had been established on the basis of the expert opinion of 14 June 2002. However, as she had not been served with the opinion, she had not therefore had a chance to submit her comments on the expert's findings, including those relevant to the value of the plaintiff's claim. In her constitutional complaint the applicant wrote, inter alia:
“The complainant has never received a decision of the court [of first instance] ordering an expert opinion, appointing an expert and instructing him in respect of which circumstances the opinion should be prepared. The expert opinion was obtained in the initial proceedings, it has never been served on the complainant or read out [before the court] at the main hearing [during the reopened proceedings]. Nor did the parties consent that evidence should be taken by reading out the expert opinion at the main hearing.
In this way, the complainant was not given an opportunity to comment on the expert opinion, to object to it or to examine the expert. Nor is she aware in respect of which circumstances the report was prepared, or which household items were the subject of, his report.
...
Furthermore, the manner in which the first-instance court determined the value of the plaintiff's claim is unacceptable. Its decision as to the sum of pecuniary damages the first-instance court bases exclusively on the expert opinion, which was not obtained during the [reopened] proceedings nor read out [in court].
The expert did not have at his disposal photographs which were subsequently submitted [when compiling the report]. Had he had them, it is likely that the value of the household items [in question] would have been [assessed at a] lower [price]. The state of [repair of those] objects, their age and quality is below average, let alone better than average as assessed by the expert.”
On 23 April 2008 the Constitutional Court (Ustavni sud Republike Hrvatske) dismissed the applicant's complaint and served its decision on her representative on 29 August 2008.
B. Relevant domestic law
1. The Constitution
The relevant Articles of the Constitution of the Republic of Croatia (Ustav Republike Hrvatske, Official Gazette nos. 56/1990, 135/1997, 8/1998 (consolidated text), 113/2000, 124/2000 (consolidated text), 28/2001 and 41/2001 (consolidated text), 55/2001 (corrigendum)) provide as follows:
Article 14 (2)
“All shall be equal before the law.”
Article 29 (1)
“In the determination of his rights and obligations or of any criminal charge against him, everyone is entitled to a fair hearing within a reasonable time by an independent and impartial court established by law.”
Article 48
“1. The right of ownership shall be guaranteed.
2. Ownership implies duties. Owners and users of property shall contribute to the general welfare.”
Article 50
“1. Ownership may be restricted or taken in accordance with the law and in the interests of the Republic of Croatia, subject to payment of compensation equal to the market value.
2. The exercise ... of the right of ownership may, on an exceptional basis, be restricted by law for the protection of the interests and security of the Republic of Croatia, nature, the environment or public health.”
2. The Constitutional Court Act
The relevant part of the 1999 Constitutional Act on the Constitutional Court of the Republic of Croatia (Ustavni zakon o Ustavnom sudu Republike Hrvatske, Official Gazette no. 99/1999 of 29 September 1999 – “the Constitutional Court Act”), as amended by the 2002 Amendments (Ustavni zakon o izmjenama i dopunama Ustavnog zakona o Ustavnom sudu Republike Hrvatske, Official Gazette no. 29/2002 of 22 March 2002), which entered into force on 15 March 2002, reads as follows:
Section 62
“1. Anyone may lodge a constitutional complaint with the Constitutional Court if he or she deems that the decision of a state authority, local or regional government, or a legal person invested with public authority, on his or her rights or obligations, or as regards suspicion or accusation of a criminal offence, has violated his or her human rights or fundamental freedoms, or the right to local or regional government, guaranteed by the Constitution ('constitutional right')...
2. If another legal remedy is available in respect of the violation of the constitutional rights [complained of], the constitutional complaint may be lodged only after this remedy has been exhausted.
3. In matters in which an administrative action or, in civil and non-contentious proceedings, an appeal on points of law [revizija] is available, remedies shall be considered exhausted only after the decision on these legal remedies has been given.”
Section 65 (1)
“A constitutional complaint shall contain ... an indication of the constitutional right alleged to have been violated [together] with an indication of the relevant provision of the Constitution guaranteeing that right...”
Section 71 (1)
“ ... [t]he Constitutional Court shall examine only the violations of constitutional rights alleged in the constitutional complaint.”
3. The Inheritance Act
Section 139(3) of the Inheritance Act (Zakon o nasljeđivanju, Official Gazette 48/2003 and 163/2003), which entered into force on 3 March 2003 and was applicable as of 3 October 2003, provides as follows:
“An heir shall be liable for the debts of the decedent up to the value of the inherited property. The court shall take into account the value of the inherited property and the value of the decedent's debts that the heir has already paid only if the heir raises [that issue].”
COMPLAINTS
THE LAW
A. Alleged violation of Article 6 § 1 of the Convention
The applicant complained of the unfairness of the above civil proceedings. She submitted, in particular, that in determining the level of damages she had eventually been ordered to pay, the first-instance court had relied on the expert opinion of 14 June 2002 – which she had been unable to comment upon as it had never been served on her. 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.
1. The arguments of the parties
(a) The Government
The Government submitted that the applicant had known about the expert opinion of 14 June 2002 and had had an opportunity to comment on it.
Firstly, the applicant, who had been represented by a qualified representative of her own choosing throughout the proceedings, had undeniably been familiar with the Beli Manastir Municipal Court's judgment of 2 July 2002 in which the court had clearly stated that the value of the property taken from the plaintiff's house had been determined on the basis of the expert opinion (which had been included in the case file) and the expert's statement given before the court.
Secondly, the Government noted that once the proceedings had been reopened, all of the relevant documents from the case file had been given to the applicant's representative at the hearing held on 3 October 2006. According to the Government, the transcript of that hearing clearly indicated that the applicant's representative had received all court transcripts of the previous proceedings, including the transcript of the hearing held on 2 July 2002 at which the expert had given evidence. In any event, the Government submitted that the applicant and her representative had at all times had unimpeded and unrestricted access to the entire case file containing the expert opinion of 14 June 2002.
Thirdly, at the hearing held on 7 February 2007, the transcript of evidence taken during the previous proceedings had been read out, which also included the transcript of the hearing of 2 July 2002 at which the expert had given evidence. The applicant had attended the hearing of 7 February 2007 in person and signed the transcript thereof.
Fourthly, at the hearing held on 2 July 2007 which the applicant had also attended and at which she had given her statement, the parties had clearly stated that they had no further submissions to make in relation to evidence, upon which the Municipal Court had closed the main hearing.
Lastly, the applicant's representative had not commented on the expert opinion until the appeal against the first-instance judgment of 12 July 2007 was lodged. However, in the appeal he had not complained that he had been unaware of the expert opinion or that he had been unable to comment on it. Rather, he had only objected that the first-instance court had not properly reviewed it. The court of appeal had correctly rejected this argument for the reason that during the proceedings the applicant had not objected to the expert's opinion in any way, nor had she asked to examine the expert. Moreover, the fact that the applicant's representative had been fully aware of the content of the expert opinion was evident from the appeal, in which he had referred to the opinion in detail.
In the light of the above, the Government submitted in conclusion that the applicant had been familiar with the existence and contents of the expert opinion throughout the reopened proceedings and that she had been given a reasonable opportunity to comment on it. Accordingly, the Government invited the Court to declare the applicant's complaint inadmissible as manifestly ill-founded.
(b) The applicant
The applicant emphasised that the expert opinion had been prepared, and the expert who had prepared it had been called to give evidence, during the previous proceedings in which neither she nor her parents had participated. She maintained that she had received neither a copy of the decision of 25 March 2002 whereby the first-instance court had appointed the expert nor the expert opinion itself. Nor had the expert opinion been read out in the reopened proceedings. In these circumstances, the applicant submitted that it was difficult to accept the Government's argument that she had undeniably been familiar with the expert opinion and had had an opportunity to comment on it.
2. The Court's assessment
The Court reiterates that the concept of a fair hearing also implies the right to adversarial proceedings. That right means that the parties to criminal or civil proceedings must in principle have the opportunity not only to make known any evidence needed for their claims to succeed, but also to have knowledge of, and comment on, all evidence adduced or observations filed, with a view to influencing the court's decision (see, for example, Lobo Machado v. Portugal, 20 February 1996, § 31, Reports of Judgments and Decisions 1996 I; Vermeulen v. Belgium, 20 February 1996, § 33, Reports of Judgments and Decisions 1996 I; and Krčmář and Others v. the Czech Republic, no. 35376/97, § 40, 3 March 2000). This position is not altered when the observations are neutral on the issue to be decided by the court or, in the opinion of the court concerned, they do not present any fact or argument which has not already appeared in the impugned decision (see Kukkonen v. Finland, no. 57793/00, § 20, 7 June 2007; and Sharomov v. Russia, no. 8927/02, § 44, 15 January 2009).
The Court considers that the expert opinion of 14 June 2002, which was ordered by the Beli Manastir Municipal Court, was manifestly aimed at influencing that court's decision (see, mutatis mutandis, Nideröst-Huber v. Switzerland, 18 February 1997, § 26, Reports of Judgments and Decisions 1997 I, and Krčmář and Others, cited above, § 41).
The Court further observes that the expert opinion in question was prepared in the previous proceedings in which the applicant or her parents did not participate. However, the Court also notes that the transcript of the hearing held on 3 October 2006 in the reopened proceedings indicates that the plaintiff's statement of claim together with all the transcripts made of the previous proceedings, including those of the hearing held on 2 July 2002 at which the court had taken evidence from the expert, were given to the applicant's representative. Furthermore, the transcript of the hearing held on 7 February 2007 suggests that the first-instance court read out the transcript of the evidence taken in the previous proceedings. The applicant's representative signed the transcripts of the hearings held on both 3 October 2006 and 7 February 2007 and thereby certified their authenticity. The Court is also mindful of the Government's argument that the expert opinion had been included in the case file and that the applicant could therefore have consulted it at any time.
Moreover, the Court notes that before the applicant lodged her constitutional complaint she had never complained that the expert opinion at issue had not been available to her or that she had been unable to comment on it. On the contrary, both in her appeal and in her constitutional complaint the applicant contested the expert's findings while referring in detail to the expert opinion.
In the light of the foregoing, the Court considers that, even though the expert opinion in question was not served on the applicant, it is clear that she was familiar with its contents and had an opportunity to comment on it, of which she availed herself in both the appellate proceedings and the proceedings before the Constitutional Court. Accordingly, it cannot be argued that her right to adversarial proceedings was breached.
As there is no evidence to suggest that the proceedings were otherwise unfair, it follows that this complaint is inadmissible under Article 35 § 3 as manifestly ill-founded and must therefore be rejected pursuant to Article 35 § 4 of the Convention.
B. Alleged violation of Article 1 of Protocol No. 1 to the Convention
The applicant also complained that her right to property had been breached because the amount she had to pay in compensation for the alleged plundering of another's property by her parents was greater than the value of the property she had inherited from them. She relied on Article 1 of Protocol No. 1 to the Convention, which reads as follows:
“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.”
The Government contested that argument.
1. The arguments of the parties
The Government argued that the applicant had failed to exhaust domestic remedies because, inter alia, in her constitutional complaint she had not complained, explicitly or in substance, that in its judgment of 12 July 2007 the Beli Manastir Municipal Court had ordered her to pay the plaintiff an amount that exceeded the value of the property she had inherited from her parents.
The applicant argued that a constitutional complaint was not an effective remedy in her case because the Constitutional Court did not answer all the arguments she had raised.
2. The Court's assessment
The Court reiterates that the rule of exhaustion of domestic remedies normally requires that the complaints intended to be made subsequently at the international level should have been raised before the domestic courts, at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law. The object of the rule on exhaustion of domestic remedies is to allow the national authorities (primarily the judicial authorities) to address an allegation that a Convention right has been violated and, where appropriate, to afford redress before that allegation is submitted to the Court. In so far as there exists at national level a remedy enabling the national courts to address, at least in substance, the argument as to the alleged violation of the Convention right, it is that remedy which should be exhausted (see Azinas v. Cyprus [GC], no. 56679/00, § 38, ECHR 2004 III).
In this connection the Court notes that in her constitutional complaint the applicant only complained of violations of her constitutional rights to equality before the law and a fair hearing, which correspond in substance to Article 6 of the Convention. She did not explicitly rely on Article 1 of Protocol No. 1 to the Convention or the corresponding provisions of the Croatian Constitution, that is, its Articles 48 and 50. Nor did she complain in substance (see, in contrast, Lelas v. Croatia, no. 55555/08, §§ 50-51, 20 May 2010) that the value of the property she had inherited from her parents was less than the amount she was obliged to pay pursuant to the judgment of the Beli Manastir Municipal Court of 12 July 2007. In these circumstances, the Court considers that the applicant did not raise the complaint which she has submitted to the Court before the domestic courts and thus did not provide 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 the opportunity of addressing, and thereby preventing or putting right, the particular Convention violation alleged against them (see Azinas, cited above, § 41).
It follows that this complaint is inadmissible under Article 35 § 1 of the Convention for non-exhaustion of domestic remedies and must therefore be rejected pursuant to Article 35 § 4 thereof.
C. Other alleged violations of the Convention
Lastly, the applicant complained that the right of her parents' right to respect for their home had been violated because they had been forced to leave it and, in addition, that she had been discriminated against on the basis of her Serbian origin. She relied on Articles 8 and 14 of the Convention, which in their relevant parts read as follows:
Article 8
“1. Everyone has the right to respect for ... his home ...
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 14
“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
As regards the complaint concerning the right to respect for home, even assuming that the house in Čeminac was the applicant's parents' home and that she is entitled to lodge the application on their behalf, the Court notes that they left the house in question between 13 and 16 March 1997 – that is, before the Convention entered into force in respect of Croatia on 5 November 1997. It follows that this complaint is incompatible ratione temporis with the provisions of the Convention within the meaning of Article 35 § 3 thereof and must therefore be rejected pursuant to Article 35 § 4.
As regards the complaint concerning alleged discrimination, the Court refers to its above findings according to which the applicant's complaints under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 thereto are inadmissible as manifestly ill-founded and for non-exhaustion of domestic remedies respectively. The Court has found no evidence which would support the applicant's allegation of discrimination. It follows that her related complaint under Article 14 of the Convention is also inadmissible under Article 35 § 3 thereof as manifestly ill-founded and under Article 35 § 1 for non-exhaustion of domestic remedies and must therefore be rejected pursuant to Article 35 § 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
André Wampach Christos Rozakis
Deputy
Registrar President
