European Court of Human Rights

In the case of Buvač v. Croatia,

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

Aleš Pejchal, President,
Krzysztof Wojtyczek,
Jovan Ilievski, judges,
and Renata Degener, Deputy Section Registrar,

Having deliberated in private on 10 July 2018,

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

PROCEDURE

1. The case originated in an application (no. 47685/13) against the Republic of Croatia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") by a Croatian national, Mr Radovan Buvač ("the applicant"), on 12 July 2013.

2. The applicant was represented by Mr Lj. Planinić, a lawyer practising in Zagreb. The Croatian Government ("the Government") were represented by their Agent, Ms Š. Stažnik.

3. On 9 October 2015 the complaint concerning the right of access to a court hearing was 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

4. The applicant was born in 1971 and lives in Zagreb.

5. On 28 April 2008 the daily newspaper B . published an article under the headline "Mob Lawyer joins the Supervisory Board", describing the applicant as an extortionist.

6. On 27 May 2008 the applicant's representative asked the publisher to publish a correction of that information. The publisher neither replied nor published a correction of the disputed information.

7. On 9 July 2008, after the expiry of the deadline envisaged in the relevant provisions of the Media Act ( Zakon o medijima ) to publish a correction, the applicant brought a civil action against the publisher in the Zagreb Municipal Civil Court ( Općinski građanski sud u Zagrebu ), claiming non-pecuniary damage.

8. On 10 July 2009 the publisher replied stating in particular that the applicant had failed to submit a power of attorney with his request.

9. At a hearing held on 31 January 2012 the Zagreb Municipal Civil Court heard evidence from the applicant who said that he had authorised his representative to act on his behalf vis-à-vis the publisher.

10. On 31 January 2012 the Zagreb Municipal Civil Court, relying on sections 22(2) and 40(3) of the Media Act, declared the applicant's claim inadmissible. The first-instance court held that the request for the publication of a correction of the disputed information had not been signed by a duly authorised person because the applicant had not proved that his representative had actually submitted a power of attorney with the request.

The relevant part of the decision reads:

"In his testimony, the [applicant] stated that he had given power of attorney to his counsel, [Lj.P], authorising her to institute both criminal and civil proceedings for defamation ... He was present during the preparation of a draft of the request for the correction of the disputed information ...

...

This court does not accept the [applicant]'s evidence because the [applicant] has no direct knowledge of what was ultimately sent to the defendant ... On the other hand, the [applicant's] statement concerning the granting of a power of attorney is of no relevance for the solution to the specific legal issue ...

...

Given that the request for the publication of a correction of the disputed information was not signed by the [applicant], but by his counsel, [Lj.P.], and that it was not accompanied with a power of attorney, the [applicant] has not proved that he had properly requested the publication of a correction of the disputed information ... an action which is, pursuant to section 22(2) of the Media Act, a procedural requirement for bringing a civil action for non-pecuniary damage against the publisher ..."

11. On 19 November 2012 the Šibenik County Court ( Županijski sud u Šibeniku ) dismissed an appeal by the applicant and upheld the first-instance decision.

12. On 14 March 2013 the Constitutional Court declared a constitutional complaint lodged by the applicant inadmissible on the grounds that there was "no constitutional issue" to be examined.

II. RELEVANT DOMESTIC LAW AND PRACTICE

A. Civil Procedure Act

13. The relevant provisions of the Civil Procedure Act ( Zakon o parničnom postupku , Official Gazette Zakon o parničnom postupku, Official Gazette no. 53/1991 with subsequent amendments), as in force at the material time, read as follows:

Section 98

"A representative shall submit a power of attorney when undertaking the first procedural action.

The court may allow that procedural actions for a party be temporarily undertaken by a person who has not submitted a power of attorney, but shall, at the same time, order this person to submit subsequently, within a specified time-limit, either a power of attorney or the party's approval for the performance of a procedural action.

...

In the course of the whole proceedings, the court shall pay attention to whether the person appearing as a representative is duly authorised. If the court establishes that the person appearing as representative is not duly authorised, it shall set aside the procedural actions undertaken by this person, unless these actions are subsequently approved by the party."

B. Media Act

14. The relevant provisions of the Media Act ( Zakon o medijima , Official Gazette no. 59/04, with subsequents amandemnets), as applicable at the relevant time, read as follows:

Section 22

"Non-pecuniary damage shall be compensated, as a rule, by publishing a correction of the information and with the publisher's apology and with the payment of compensation pursuant to the general regulations of the Obligations Act.

A person who previously requested from the publisher that a correction of the disputable information be published, that is to say the publisher's apology if correction is not possible, shall have the right to lodge a claim for compensation for non-pecuniary damage in compliance with the general regulations of the Obligations Act."

Section 40

"Everyone shall have the right to request from the editor-in-chief publication without compensation of a correction of the published information which has violated their rights or interests. Legal persons and other organisations and bodies shall also be entitled to a correction if the information is in violation of their rights and interests. The purpose of the correction is to correct untruthful or incomplete information.

The publication of a correction may be requested within thirty days of the publication of the information.

The request for a correction shall be submitted to the editor-in-chief in written form. The request shall be reasoned and signed by the applicant and it shall contain all necessary data concerning the applicant and his address.

..."

C. Case-law of the Constitutional Court

15. In decision no. U-III-4057/2013 of 17 September 2014, relied on by the applicant, the Constitutional Court found a violation of the right to a fair hearing when the civil courts had declared the claimant's civil action inadmissible because her representatives had not enclosed a power of attorney with the request to publish the correction of the disputed information. The Constitutional Court held that the manner in which the domestic courts had applied the relevant provisions of the Media Act had amounted to excessive formalism.

D. Case-law of the Supreme Court

16. The Government relied on the Supreme Court's decisions nos. Rev 908/1997-2 of 24 October 2000, Rev 848/2004-2 of 30 March 2005, Rev 717/2003-2 of 12 May 2005, Rev 551/2009-2 of 27 May 2009, Rev 1016/2009-2 of 9 September 2009 and Rev 929/2009-2 of 15 September 2009 in which the court held that a procedural requirement for bringing a claim for damages, arising out of inaccurate information, in a court, was a request for correction of the disputed information lodged with a publisher. In addition to this, the Supreme Court held that when a request was submitted by a representative, he or she was obliged to enclose a power of attorney with it.

THE LAW

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

17. The applicant complained that the national courts had violated his right of access to court, as provided in Article 6 § 1 of the Convention, which reads as follows:

"In the determination of his civil rights and obligations ... everyone is entitled to a ... hearing ... by [a] ... tribunal ..."

A. Admissibility

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

B. Merits

1. The parties' arguments

(a) The applicant

19. The applicant argued that the limitation imposed on him and overly formalistic approach of the domestic courts in applying the relevant provisions of the Media Act had no legitimate aim. Moreover, contrary to the Government's allegations, there had been nothing in the text of the Media Act that had clearly provided that the preliminary proceedings before the publisher had been a procedural requirement for lodging a civil action.

20. The applicant further averred that it had not been disputed that his representative had sent the request for the correction of the incorrect information to the publisher. If the power of attorney had not been submitted with the request, as claimed by the opposite party, the editor-�in-�chief had been obliged, pursuant to the relevant provisions of the Media Act, to inform the applicant of the reasons for not publishing the correction of the disputed information within the prescribed deadline for the correction. This would have allowed the applicant to submit the power of attorney that allegedly had not been submitted with the request.

(b) The Government

21. The Government argued that the manner of the domestic courts in applying the relevant provisions of the Media Act had been foreseeable and in accordance with the well-established case-law of the Supreme Court. Specifically, the procedural requirement for bringing an action against the publisher in the court was submitting a request for a publication of correction of the disputed information with the publisher. This allowed the publisher to remedy the consequences of the damage caused by inaccurate information in a timely manner which could not be achieved in the court proceedings due to inevitable long duration of the court proceedings.

22. The Government pointed out that, pursuant to the relevant provisions of the Media Act, a request for the correction of the incorrect information has to be duly signed by the person submitting the request, or by his or her representative. In the latter case, a representative has to submit a power of attorney authorising him or her to submit the impugned request on behalf of his or her client. If omitted, this would give rise to the injured party losing an opportunity to bring an action before a court, as had happened in the applicant's case. The fact that the applicant had approved his representative's action at the main hearing is of no relevance because, by not submitting the power of attorney, the applicant's representative had failed to demonstrate the authenticity of the request. Therefore, there had been no "excessive formalism" in the present case, but sensible application of the relevant provisions of the Media Act in compliance with the well-�established case-law of the Supreme Court.

2. The Court's assessment

23. The general principles concerning the right of access to a court are set out in the case of Zubac v. Croatia [GC], no. 40160/12, §§ 76-99, 5 April 2018.

24. Turning to the circumstances of the present case, the Court firstly notes that the Zagreb Municipal Civil Court refused to examine the merits of the applicant's claim because it established that the applicant had failed to meet the requirements set out in the sections 22 and 40 of the Media Act (see paragraph 10 above). Thus, in the Court's view, the decision of the Zagreb Municipal Civil Court of 31 January 2012 to declare the applicant's claim inadmissible may be regarded as imposing a restriction on his right of access to a court. The Court must therefore examine whether the applicant's right of access to a court was unduly restricted by that decision.

25. In this connection, the Court observes that section 22(2) of the Media Act prescribes that a procedural requirement for claiming damages caused by false information before a court is a request for correction of such information having been submitted to a publisher (see paragraph 14 above). In the Court's view a legitimate aim of such a requirement is to enable those suffering actual harm caused by false information to provide a publisher with an opportunity to correct distorted perceptions that could have been created about them based on incorrect media announcements. Accordingly, this requirement cannot in itself be seen as contrary to Article 6 § 1 of the Convention. Therefore, the Court must further examine whether the manner in which the Zagreb Municipal Civil Court applied section 22 of the Media Act infringed the proportionality principle (see, mutatis mutandis , Bulfracht Ltd v. Croatia , no. 53261/08, § 36, 21 June 2011).

26. The Court notes that the applicant's representative lodged on the applicant's behalf a request for correction of the disputed information with the publisher of the newspaper at issue (see paragraph 6 above). What stood in the way of the applicant's right to have his civil claim examined on the merits was a power of attorney that his representative allegedly did not submit with the request. Specifically, the Zagreb Municipal Civil Court held that the request had not been lodged by an authorised person because the applicant's attorney had allegedly failed to submit a power of attorney with the request (see paragraph 10 above).

27. In this connection, the Court notes that under the relevant rules of Civil Procedure Act a party may grant power of attorney in writing or orally, to be recorded in the minutes at a court. The court may allow that procedural actions for a party are temporarily carried out by a person who has not submitted a power of attorney, but must, at the same time, order this person to submit subsequently, within a specified time-limit, either a power of attorney or his or her approval for the procedural action to be completed (see paragraph 13 above).

28. Against the above background, and even assuming that the applicant's attorney failed to submit a power of attorney, the Court notes that the applicant stated in his oral evidence before the first-instance court that he had authorised his attorney to act on his behalf, thus approving the procedural action at issue (see paragraph 9 above). The Court sees no reasons for imposing stricter conditions on the applicant in the proceedings before a publisher than in the proceedings before a court.

29. That being so, the Court considers that the way in which the Zagreb Municipal Court interpreted and applied the relevant provisions of the Media Act in the present case may be qualified as excessive formalism. The restriction in question was therefore not proportionate to the legitimate aim pursued by the rule set out in section 22(2) of the Media Act, and impaired the very essence of the applicant's right of access to court as secured by Article 6 § 1 of the Convention.

30. This view is corroborated by the subsequent case-law of the Constitutional Court (see paragraph 15 above), which decided to change its practice some eighteen months after dismissing on 14 March 2013 the applicant's constitutional complaint against the Šibenik County Court's decision. In particular, on 17 September 2014, in an identical case to that of the applicant, the Constitutional Court, in its decision no. U-III-4057/2013, found that the manner in which the civil courts had applied sections 22(2) and 40(3) of the Media Act had amounted to excessive formalism which had deprived the complainant of the right to a fair hearing guaranteed by Article 29(1) of the Croatian Constitution.

31. There has accordingly been a violation of Article 6 § 1 of the Convention.

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

32. 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

33. The applicant claimed 5,000 euros (EUR) in respect of non-�pecuniary damage.

34. The Government objected to that amount.

35. The Court finds that the applicant must have sustained non-�pecuniary damage. Making its assessment on an equitable basis as required by Article 41 of the Convention, it awards him EUR 2,500 in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount.

B. Costs and expenses

36. The applicant also claimed 12,812 Croatian kunas (HRK - about 1,700 euros (EUR)) for the costs and expenses incurred before the domestic courts and HRK 12,500 (about EUR 1,700) for those incurred before the Court. The applicant also asked the Court to award him HRK 1,000 (about EUR 130) for material costs incurred before the domestic courts and the Court.

37. The Government contested this claim.

38. 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 2,500 for the costs and expenses incurred in the proceedings before the Constitutional Court and in the proceedings before the Court, plus any tax that may be chargeable to the applicant.

C. Default interest

39. 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 complaint concerning the right of access to court admissible;

2. Holds that there has been a violation of Article 6 § 1 of the Convention;

3. Holds

(a) that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into Croatian kunas at the rate applicable at the date of settlement;

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

(ii) EUR 2,500 (two thousand five hundred euros), plus any tax that may be chargeable to the applicant, 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;

4. Dismisses the remainder of the applicant's claim for just satisfaction.

Done in English, and notified in writing on 6 September 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

              Renata Degener Aleš Pejchal
Deputy Registrar President