European Court of Human Rights

 

 

 

FIRST SECTION

 

 

 

 

 

 

CASE OF EZGETA v. CROATIA

 

(Application no. 40562/12)

 

 

 

 

 

 

 

 

 

 

 

 

JUDGMENT

 

 

 

STRASBOURG

 

 

7 September 2017

 

 

 

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 Ezgeta v. Croatia,

The European Court of Human Rights (First Section), sitting as a Chamber composed of:

          Linos-Alexandre Sicilianos, President,
          Kristina Pardalos,
          Krzysztof Wojtyczek,
          Ksenija Turković,
          Armen Harutyunyan,
          Pauliine Koskelo,
          Jovan Ilievski, judges,
and Abel Campos, Section Registrar,

Having deliberated in private on 4 July 2017,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1.  The case originated in an application (no. 40562/12) 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, Ms Iva Ezgeta (“the applicant”), on 24 May 2012.

2.  The applicant was represented by Mr B. Škarda, a lawyer practising in Umag. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik.

3.  The applicant alleged, in particular, that her case had not been heard and decided by a tribunal established by law as required by Article 6 § 1 of Convention. She also complained that she had been deprived of access to the Supreme Court when it had declared her appeal on points of law inadmissible ratione valoris.

4.  On 20 May 2015 the above complaints were communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

5.  The applicant was born in 1956 and lives in Novigrad.

6.  By a contract concluded in 1971 between a company, G.P. (hereinafter “the claimant”), and the Novigrad Municipality certain plots of land were given to the former for its permanent use with a view to the construction of residential buildings thereon. These plots of land were registered in the land register as being publicly owned. In accordance with the contract, the claimant built residential buildings and sold all of them.

7.  During and after the construction of the residential buildings, the claimant instituted several sets of land register correction proceedings with regard to the land at issue in order to harmonise the record in the land register with the new situation. In one of the land register correction proceedings the Novigrad Municipality objected to the claimant’s application for a correction and therefore on 2 October 2000 the Land Registry Department of the Buje Municipal Court instructed the parties to initiate civil proceedings.

8.  On 6 October 2000 the claimant brought a civil action before the Buje Municipal Court (Općinski sud u Bujama) against the Novigrad Municipality (hereinafter “the defendant”), seeking that the data concerning the size of certain plots of land be corrected in the land register of that court. Specifically, it complained that during the delineation - that is to say the process of subdividing the larger parcels into smaller ones - one part of the plots of land at issue had been registered as a public good (javno dobro). In its civil action the claimant indicated the value of the claim as 5,000 Croatian kunas (HRK).

9.  Meanwhile, on 27 December 1999, the applicant and the claimant had concluded a purchase agreement in respect of the plots of land that surrounded the residential buildings the claimant had built and that were the subject of the proceedings instituted on 6 October 2000.

10.  On 23 October 2000 the applicant asked to join the claimant in the proceedings as an intervener since she had bought some of the plots of land at issue.

11.  At the hearing held on 14 June 2001 the Buje Municipal Court established that the claimant had raised the value of the claim to HRK 105,000 in its submissions of 4 June 2001. The defendant did not object to that valuation. After that, the defendant gave its reply to the claim on the record. Furthermore, the first-instance court adopted a decision allowing the applicant to join the claimant in the proceedings as an intervener because it held that she had a legal interest.

12.  On 25 February 2005 the Buje Municipal Court allowed the claim.

13.  Upon an appeal by the defendant lodged on 5 February 2007 the Pula County Court (Županijski sud u Puli) quashed the first-instance judgment and remitted the case for a fresh examination.

14.  On 26 May 2009 the first-instance court dismissed the claim as ill-founded. In its reasoning it stated, inter alia, that at the moment of the delineation of the disputed parcels the claimant had not had any right to the property at issue and therefore by its correction the claimant would have become an owner of the property which he had never been given for permanent use. Further to this, the court had assessed the costs of the proceedings according to the value of the claim set at HRK 105,000 at the hearing on 14 June 2001. It ordered the claimant to bear these costs. At the bottom of the last page of that judgment was a note stating that the case had been conducted and the judgment had been drafted by J.G., the court administrator (sudski savjetnik).

15.  The applicant lodged an appeal complaining, inter alia, that her case had been heard and decided by a court administrator who had not been authorised to conduct the impugned proceedings under the relevant procedural rules. She proposed that evidence be heard from J.G., as well as the parties to the proceedings and their legal counsel. The applicant further complained of the assessment of the amount of the litigation costs. She was of the opinion that the value of the claim was the one indicated in the civil action, namely HRK 5,000, which should have been taken into account by the first-instance court when calculating the costs.

16.  On 18 October 2010 the Pula County Court upheld the first-instance judgment. It held, inter alia, that the value of the claim was the one established at the hearing on 14 June 2001, namely HRK 105,000, because the claimant had increased the value before the defendant had begun litigation on the merits. Furthermore, the second-instance court in its reasoning had stated that the case file had shown that the proceedings had been conducted by a trial judge in the presence of a court administrator.

17.  The applicant then lodged simultaneously an appeal on points of law and a constitutional complaint. She complained, among other things, that her case had neither been heard nor decided by a tribunal established by law because the proceedings had been conducted and the judgment drafted and pronounced by a court administrator. She stated that the judge had not been present at the hearings and that the judge had signed the records of the hearings afterwards.

18.  On 14 October 2011 the Supreme Court declared the applicant’s appeal on points of law inadmissible ratione valoris, considering that the value of the claim did not reach the statutory threshold of HRK 100,000. It held, contrary to the lower courts’ findings, that the value of the claim was the one indicated in the civil action because the claimant would have been allowed to alter that value only if it had also amended its claim at the same time.

19.  On 2 December 2011 the applicant informed the Constitutional Court that her appeal on points of law had been declared inadmissible and that she wished to add the Supreme Court’s decision to her constitutional complaint. She argued that the Supreme Court had applied the relevant procedural provisions concerning the value of the claim in an arbitrary manner.

20.  On 29 March 2012 the Constitutional Court dismissed the applicant’s constitutional complaint as manifestly ill-founded.

II.  RELEVANT DOMESTIC LAW AND PRACTICE

A.  Constitution of the Republic of Croatia

21.  The relevant part of the Constitution of the Republic of Croatia (Ustav Republike Hrvatske, Official Gazette nos. 56/1990, 135/1997, 113/2000, 28/2001 and 76/2010) reads as follows:

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.”

B.  Constitutional Court Act

22.  The relevant part of section 62 of the Constitutional Court Act (Ustavni zakon o Ustavnom sudu Republike Hrvatske, Official Gazette no. 49/2002) reads as follows:

Section 62

“1.  Anyone may lodge a constitutional complaint with the Constitutional Court if he or she deems that an individual act on the part of a State body, a body of local or regional self-government, or a legal person with public authority, concerning his or her rights and obligations or a suspicion or accusation of a criminal deed, has violated his or her human rights or fundamental freedoms or his or her right to local or regional self-government guaranteed by the Constitution (hereinafter “a constitutional right”) ...

2.  If another legal remedy exists in respect of the violation of the constitutional right [complained of], a constitutional complaint may be lodged only after that remedy has been used.”

C.  Civil Procedure Act

23.  The relevant provisions of the Civil Procedure Act (Zakon o parničnom postupku, Official Gazette nos. 53/1991, 91/1992, 112/1999, 81/2001, 117/2003, 88/2005, 84/2008, 96/2008, 23/2008 and 57/2011,), as in force at the material time, provided:

Section 13

“(1) Court administrators [sudski savjetnici] are authorised in the first instance to conduct litigation proceedings [parnični postupak], assess the evidence and establish the facts. On the basis of proceedings so conducted, the court administrator shall submit to the judge, who is so authorised by the president of the court, a written proposal on the basis of which the judge shall render a decision. In the introduction to the decision it shall be stated that the decision was rendered on the basis of a proposal by a court administrator.

(2) If he or she does not accept the proposal given by the court administrator, the competent judge shall conduct proceedings him- or herself.

(3) Court administrators are authorised in litigation proceedings to conduct proceedings and propose a decision to the judge in disputes for the payment of monetary claims, if the value of the claim does not exceed HRK 50,000.00 kunas, or in commercial disputes if the value of the claim does not exceed HRK 500,000.00.

(4) In second-instance proceedings and proceedings conducted on the basis of extraordinary legal remedies, judicial advisors shall report on the state of the case file and prepare a draft decision.”

Section 206

“(1) A person who has a legal interest that one of the parties succeeds in litigation pending between other persons, may join that party.

...”

Section 428a

“(1) When the European Court of Human Rights has found a violation of a human right or fundamental freedom guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms or additional Protocols thereto ratified by the Republic of Croatia, a party may, within thirty days of the judgment of the European Court of Human Rights becoming final, lodge an application with the court in the Republic of Croatia which adjudicated in the first instance in the proceedings in which the decision violating the human right or fundamental freedom was rendered, to set aside the decision by which the human right or fundamental freedom was violated.

(2) The proceedings referred to in paragraph 1 of this section shall be conducted by applying, mutatis mutandis, the provisions on the reopening of proceedings.

(3) In the reopened proceedings the courts are required to respect the legal opinions expressed in the final judgment of the European Court of Human Rights finding a violation of a fundamental human right or freedom.”

D.  Courts Act

24.  The relevant provision of the Courts Act (Zakon o sudovima, Official Gazette no. 150/2005, 16/2007 and 113/2008), as in force at the material time, provided:

Section 120

“(1) Court administrators shall be authorised to independently conduct certain court proceedings, to evaluate evidence and establish facts.

(2) On the basis of proceedings conducted in the above way, the court administrator shall submit to a judge authorised by the president of a court a written proposal for a decision on the basis of which the judge shall issue a decision.

(3) Should the authorised judge not accept the proposed decision submitted by the court administrator, he or she shall conduct the proceedings him- or herself.

(4) Court administrators are authorised to conduct proceedings and propose decisions within the meaning of paragraphs 1 and 2 of this Article in the following proceedings:

1. in litigation proceedings for payment of a monetary claim or damages if the value of the claim does not exceed HRK 50,000.00, or in commercial courts if the value of the claim does not exceed HRK 500,000.00;

2. in enforcement proceedings;

3. in probate proceedings;

4. in land registry proceedings;

5. in non-contentious proceedings, except for proceedings for deprivation of business capacity, dissolution of co-ownership and disputes over landmarks;

6. in misdemeanour proceedings;

7. in second-instance proceedings and proceedings in extraordinary legal remedies, court advisors shall report on the status of the file and prepare draft decisions.”

E.  The case-law of the Constitutional Court

25.  In its decision no. U-III-2677/2007 of 14 February 2012 the Constitutional Court quashed the decisions of the lower courts and ordered a fresh consideration of the case. It found that the lower courts, when dismissing an appeal by an intervener because the defendant, who the intervener had joined in the proceedings complained of, had withdrawn her appeal against the first-instance judgment, had violated the intervener’s right of access to court. The relevant part of this decision reads as follows:

“... an appeal by the complainant of the constitutional complaint, who participated as an intervener on the defendant’s side, against the Zagreb Commercial Court’s judgment ... of 13 July 2005, was declared inadmissible;

...

The Constitutional Court notes that the complainant was not a party to the agreement (Agreement/97) that was a subject matter of the dispute in the civil proceedings preceding the Constitutional Court’s proceedings. However, on the basis of Agreement/97 (which the [first-instance] court in its judgment no. P-6463/2000 found to be null and void), K. [the defendant] became the owner of the disputed property, and - as a registered owner - later sold on the property in question (on the basis of Contract/98) to the applicant as a buyer (the intervener in the civil proceedings). Therefore, the applicant’s property rights concerning the disputed property on the basis of Contract/98 directly depend on the validity of Agreement/97. It follows that the disputed court decisions had a direct effect on the applicant’s property rights. That fact had a direct effect on the applicant’s procedural position in the proceedings in which the subject matter of the dispute was his property rights too.

Therefore the Constitutional Court accepts the applicant’s argument that in the instant proceedings the subject matter of the dispute was ‘a dispute between two parties’ which was decisive for ‘the rights of a third person, ... who had not been given an opportunity to independently participate in the all stages of the proceedings before the competent court’.

...

In view of the foregoing, ... [the courts] had to take into account whether the outcome of the instant civil proceedings had had a direct effect on the applicant’s ‘rights and obligations’ within the meaning of Article 29 § 1 of the Constitution, namely ‘the civil rights and obligations’ within the meaning of Article 6 § 1 of the Convention.”

26.  The Government referred to case no. U-III-998/2009 of 19 March 2009, in which the Constitutional Court upheld the decisions adopted in the enforcement proceedings conducted by a court administrator. In its reasoning the Constitutional Court found that the proceedings concerned had been conducted by a tribunal established by law because under section 120(4) of the Courts Act court administrators were authorised to conduct the enforcement proceedings.

F.  The case-law of the Supreme Court

27.  In decision no. Rev 1355/15-2 of 7 October 2015 the Supreme Court held that a court administrator was only authorised to participate in litigation proceedings concerning a monetary claim where the value of the claim did not exceed the prescribed threshold, whereas a court administrator was not authorised to participate in any other type of litigation proceedings, irrespective of the value of the claim in those other litigation proceedings. The relevant part of the decision reads as follows:

“... in accordance with section 13(3) of the Civil Procedure Act, a court administrator is not authorised to participate in conducting proceedings or suggest a decision to a judge in litigation proceedings which do not concern payment of a monetary claim, irrespective of the value of the claim ...”

THE LAW

I.  ALLEGED VIOLATIONS OF ARTICLE 6 § 1 OF THE CONVENTION

28.  The applicant complained that the Buje Municipal Court could not be considered “a tribunal established by law” since the proceedings had been conducted and the judgment had been drafted and pronounced by a court administrator who had not been authorised to do so under the relevant domestic law. She also complained that she had been deprived of access to the Supreme Court. She relied on Article 6 § 1 of the Convention, which reads as follows:

“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal established by law”

A.  Admissibility

1.  The parties’ arguments

29.  The Government alleged that the applicant did not have victim status because she had not been a party to the proceedings but only an intervener. They argued that the proceedings at issue had not concerned her rights and obligations but the rights and obligations of the claimant. According to the Government, an intervener in the proceedings could not be affected by a decision of a domestic court to such an extent that he or she could reasonably claim that the decision had led to a violation of his or her rights guaranteed by the Convention. In this connection the Government pointed to the following considerations. An intervener conducted actions in the name of the party joined. Further, an intervener could conduct only those actions that were in the party’s favour. Moreover, a party which an intervener had joined was allowed to withdraw at any given moment actions of the intervener that were not in the former’s interest. Therefore, if an intervener deemed that he or she was entitled to a specific right regarding the subject of dispute in which he or she participated in such a capacity, he or she was authorised to lodge a civil action on his or her own behalf before a competent court. The applicant had been a so-called ordinary intervener because the courts had refused to grant her the status of single co-litigant. Thus she should have instituted separate civil proceedings on her own.

30.  The applicant argued that the subject matter of the proceedings at issue had been plots of land she had bought from the claimant. These proceedings had had a direct effect on her property rights because she could not have registered her ownership of the land at issue until the discrepancy between the cadastral records and land registry records had been corrected. Consequently, the legal effects of the final judgment adopted in the proceedings at issue had related to her. Therefore, it could not be said that she did not have victim status.

2.  The Court’s assessment

31.  As regards the Government’s objection as to the applicant’s victim status, the Court reiterates that, in order to rely on Article 34 of the Convention, an applicant must meet two conditions: he or she must fall into one of the categories of petitioners mentioned in Article 34 and must be able to make out a case that he or she is the victim of a violation of the Convention (see Vallianatos and Others v. Greece [GC], nos. 29381/09 and 32684/09, § 47, ECHR 2013 (extracts)). The word “victim”, in the context of Article 34 of the Convention, denotes the person or persons directly or indirectly affected by the alleged violation (see SARL du Parc d’Activités de Blotzheim v. France, no. 72377/01, § 20, 11 July 2006). Hence, Article 34 concerns not just the direct victim or victims of the alleged violation, but also any indirect victims to whom the violation would cause harm or who would have a valid and personal interest in seeing it brought to an end (see, mutatis mutandis, Defalque v. Belgium, no. 37330/02, § 46, 20 April 2006, and Tourkiki Enosi Xanthis and Others v. Greece, no. 26698/05, § 38, 27 March 2008).

32.  In the present case the subject matter of the dispute was the correction of the dimensions of the parcels of land in the land register following the applicant’s acquisition of these plots from the claimant (see paragraphs 7-9 above). Furthermore, the Court notes that the domestic courts established that the claimant had not had any rights to the property at issue and it therefore dismissed the claim (see paragraph 14 above). The claimant had sold part of this property to the applicant in 1997 (see paragraph 7 above). Further to this, the applicant joined the claimant and participated in the proceedings at issue from the very beginning and the domestic courts recognised her legal interest in the claimant’s potential success (see paragraph 11 above). Moreover, she was allowed ratione personae to make use of legal remedies, namely an appeal, an appeal on points of law and a constitutional complaint (see paragraphs 15 and 17 above). In particular, the Constitutional Court recognised the applicant as a right-holder from section 62 of the Constitutional Court Act (see paragraphs 20 and 22 above). If the applicant had had at her disposal another legal remedy in respect of the violation of her constitutional rights, as argued by the Government (see paragraph 31 above), the applicant could have lodged a constitutional complaint only after that remedy had been used, as provided for in section 62(2) of the Constitutional Court Act (see paragraph 22 above). However, the Constitutional Court did not declare the applicant’s complaint inadmissible for non-compliance with the exhaustion-of-remedies rule (see paragraph 20 above).

33.  In the view of the foregoing, the Court considers that the applicant was directly concerned by the situation because these proceedings had a direct effect on her property rights and thus Article 6 § 1 of the Convention is applicable. Therefore, she had a legitimate personal interest in seeing this situation brought to an end. Accordingly, the Court concludes that the applicant should be considered a victim of the alleged violation within the meaning of Article 34 of the Convention and dismisses the Government’s objection that the applicant lacks victim status (see Bielec v. Poland, no. 40082/02, §§ 45-46, 27 June 2006; and Topallaj v. Albania, no. 32913/03, § 68, 21 April 2016).

34.  The Court further notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It also notes that it is not inadmissible on any other ground. It must therefore be declared admissible.

B.  Merits

1.  The parties’ submissions

35.  The applicant argued that the proceedings had been conducted by a court administrator who had not been authorised by law to conduct that type of very complex proceedings. Moreover, the value of the claim had been above the statutory threshold of HRK 50,000, above which the court administrator was not allowed to conduct proceedings, even if the court administrator at issue had been consulting a competent judge. The court administrator in the applicant’s case had led the proceedings herself, regardless of the fact that the records of the hearings had been signed by a judge. Therefore, the applicant’s case had not been heard by a tribunal established by law.

36.  The Government emphasised that the Court, while examining whether there had been a violation of Article 6 § 1 of the Convention, had examined the proceedings as a whole from the beginning to their conclusion. The proceedings at issue had been conducted and decisions adopted at all three instances by courts established by law and with their own jurisdictions. In this connection the Government pointed out that the first two hearings held on 14 February and 19 March 2008 of the resumed proceedings before the Buje Municipal Court had been conducted by Judge F.K. After that the case had been assigned to Judge M.V. under whose tutelage and supervision court administrator J.G. had conducted the following three hearings (on 26 February 2009, 12 May 2009 and 26 May 2009). After the conclusion of the main hearing J.G. had issued a written proposal (draft) on the basis of which Judge M.V. had issued a first-instance decision.

37.  In this connection the Government argued that under the relevant provisions of the Civil Procedure Act, court administrators were authorised to conduct first-instance proceedings, examine evidence and establish facts if the value of the claim did not exceed HRK 50,000. On the basis of the proceedings conducted within these parameters, a court administrator should submit to a judge assigned by the president of the court a written proposal on the basis of which the judge rendered a decision. If the competent judge did not accept the proposal, he or she was obliged to conduct the proceedings him- or herself. In the present case the value of the claim had been HRK 5,000 and therefore the court administrator had been authorised to conduct the proceedings at issue. Moreover, she had done so under the supervision of a competent judge. The Government stressed that court administrators were authorised to help judges and conduct actions for which they had competence under the relevant domestic law. Judges checked their work and thus the lawfulness of the actions of a court administrator did not come into question. The above facts were also confirmed by the Pula County Court, which had established that in addition to the court administrator a judge had also participated at the hearings. Moreover, a judge had rendered the first-instance judgment. Therefore, the applicant’s case had been decided by a tribunal established by law.

2.  The Court’s assessment

38.  The Court reiterates that the phrase “established by law” covers not only the legal basis for the very existence of a “tribunal” but also the composition of the bench in each case (see Buscarini v. San Marino (dec.), no. 31657/96, 4 May 2000).

39.  The case at issue concerns the parties’ dispute as to whether a court administrator was authorised under national law to conduct the civil proceedings at issue. In this connection, the Court notes that section 120(1) of the Courts Act allows court administrators to independently conduct certain court proceedings, to evaluate evidence and establish facts (see paragraph 24 above). Paragraph 4 of the same provision enumerates the court proceedings which court administrators are authorised to conduct (see paragraph 24 above).

40.  It further notes that court administrators are authorised, under section 120(1) of the Courts Act and section 13(3) of the Civil Procedure Act, to conduct only those litigation proceedings which concern payment of a monetary claim or compensation in respect of damage in which the value of the dispute does not exceed HRK 50,000 (see paragraphs 23 and 24 above).

41.  In this connection, the Court observes that the present case concerned litigation proceedings for the correction of the size of certain plots of land in the land register, a specific non-monetary claim (see paragraph 8). The Court also notes that the national courts did not at all assert that a court administrator was authorised to conduct the proceedings at issue. Rather, their position was that a judge had also been present at hearings and adopted a judgment. In other words, it concerned neither payment of a monetary claim nor compensation for damage. Therefore, the Government’s arguments related to the value of the claim as the decisive factor as to whether the court administrator was authorised to conduct the proceedings at issue are of no relevance (see paragraphs 27 and 37 above).

42.  The Court further observes that nothing in the text of the Courts Act, much less in the text of the Civil Procedure Act, indicates that court administrators are authorised to conduct other types of litigation proceedings save for those enumerated in section 120 of the Courts Act and section 13 of the Civil Procedure Act if under the supervision and tutelage of a judge (see paragraphs 23 and 24 above).

43.  The Court notes the Government’s assertion that the hearings held on 26 February, 12 May and 26 May 2009 had been conducted by the court administrator under the supervision and tutelage of Judge M.V. (see paragraph 36 above). The applicant in her appeal against the first-instance judgment, her appeal on points of law and her constitutional complaint alleged that the judge had not been present and that the judge had signed the records of the hearings afterwards (see paragraphs 15 and 17 above). To support her allegations, the applicant asked that evidence be heard from court administrator J.G., as well as the parties to the proceedings and their legal counsel (see paragraph 15 above). That request was, however, ignored by the national courts. The Court notes that the first-instance judgment itself noted that the hearings had been conducted and the judgment drafted by a court administrator. The Court sees no reason to doubt such assertion from the first-instance judgment, since it was drafted by the court administrator herself, and sees no reason for her to note that she was the one who conducted the hearings had it not been so. More importantly, the judge herself confirmed that fact by her signature on the judgment.

44.  Having examined the available material and the relevant provisions of domestic legislation, the foregoing considerations are sufficient to enable the Court to conclude that the proceedings at issue were conducted by the court administrator who was not authorised under the relevant domestic law to conduct such proceedings. Therefore the Buje Municipal Court which heard the applicant’s case could not be regarded as a “tribunal established by law”.

45.  There has accordingly been a violation of Article 6 § 1 of the Convention. In the light of these findings, the Court considers that it is not necessary to examine separately the complaint about the lack of access to the Supreme Court.

II.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

46.  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.”

A.  Damage

47.  The applicant claimed 267,705.48 euros (EUR) in respect of pecuniary damage and EUR 180,000 in respect of non-pecuniary damage.

48.  The Government objected and argued that the amounts claimed were excessive, unfounded and unsubstantiated, as there was no causal link between the violations complained of and the applicant’s financial claims.

49.  The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, the Court finds that the applicant must have sustained non-pecuniary damage. In this connection the Court first reiterates that the most appropriate form of redress in cases where it finds that an applicant has not had a fair hearing as required by Article 6 § 1 of the Convention would, as a rule, be to reopen the proceedings in due course and re-examine the case in keeping with all the requirements of a fair hearing (see, for example, Lungoci v. Romania, no. 62710/00, § 56, 26 January 2006; Yanakiev v. Bulgaria, no. 40476/98, § 90, 10 August 2006; Lesjak v. Croatia, no. 25904/06, § 54, 18 February 2010; and Kardoš v. Croatia, no. 25782/11, § 67, 26 April 2016). In this connection the Court notes that, having regard to section 428a of the Civil Procedure Act (see paragraph 23 above), the applicant can now lodge an application for the reopening of the proceedings which were brought before the Buje Municipal Court, in respect of which the Court has found a violation of Article 6 § 1 of the Convention. In these circumstances, ruling on an equitable basis, the Court awards the applicant EUR 2,500 in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount.

B.  Costs and expenses

50.  The applicant also claimed HRK 36,850.00 (approximately EUR 4,900) for the costs and expenses incurred before the domestic courts and HRK 11,250.00 (approximately EUR 1,500) for those incurred before the Court.

51.  The Government contested these claims.

52.  According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 500 for the costs and expenses incurred in the proceedings before the domestic courts and EUR 1,500 for those incurred in the proceedings before the Court, plus any tax that may be chargeable to the applicant.

C.  Default interest

53.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1.  Declares the application admissible;

 

2.  Holds that there has been a violation of Article 6 § 1 of the Convention in respect of the right to a “tribunal established by law”;

 

3.  Holds that it is not necessary to examine separately the applicant’s complaint under Article 6 § 1 of the Convention in respect of the right of access to court;

 

4.  Holds

(a)  that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into Croatian kunas at the rate applicable at the date of settlement:

(i)  EUR 2,500 (two thousand and five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii)  EUR 2,000 (two thousand euros), plus any tax that may be chargeable, in respect of costs and expenses;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

 

5.  Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 7 September 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

    Abel Campos                                                     Linos-Alexandre Sicilianos
       Registrar                                                                      President