Last Updated on October 3, 2020 by LawEuro
FIRST SECTION
DECISION
Application no. 21899/13
Frane ŠARIĆ
against Croatia
The European Court of Human Rights (First Section), sitting on 17 September 2019 as a Committee composed of:
Krzysztof Wojtyczek, President,
Armen Harutyunyan,
Pere Pastor Vilanova, judges,
and Renata Degener, Deputy Section Registrar,
Having regard to the above application lodged on 25 February 2013,
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
1. The applicant, MrFraneŠarić, is a Croatian national who was born in 1951 and lives in Zadar. He was represented before the Court by Mr A. Marjanović Kavanagh, a lawyer practising in Zagreb.
2. The Croatian Government (“the Government”) were represented by their Agent, MrsŠ. Stažnik.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. On 13 April 1993 the applicant’s house in Zadar was blown up by an unknown perpetrator.
5. On 7 March 1995 the applicant brought a civil action against the State in the Zagreb Municipal Court (Općinskisud u Zagrebu), seeking compensation for pecuniary damage. He relied on section 180 of the Obligations Act, which provided that the State was liable for damage resulting from “acts of violence or terrorist acts”.
6. On 3 February 1996 the Amendment to the Obligations Act (Zakon o izmjeniZakona o obveznimodnosima, Official Gazette no. 7/1996 of 26 January 1996 – “the 1996 Amendment”) entered into force. It repealed section 180 and stayed all proceedings instituted on the basis of that provision, pending enactment of new legislation.
7. Accordingly, the applicant’s proceedings were stayed ex legeon 8 June 1998, pursuant to the 1996 Amendment.
8. On 9 August 1999 the applicant lodged a request for reconstruction assistance in respect of his destroyed house.
9. On 5 June 2003 the Zadar Regional Administration Office (Ureddržavneuprave u Zadarskojžupaniji) dismissed the applicant’s request because he did not fulfil the residence requirement under the applicable legislation. The applicant did not lodge an appeal against that decision.
10. On 31 July 2003 the Act on Liability for Damage Resulting from Terrorist Acts and Public Demonstrations (Zakon o odgovornostizaštetunastaluuslijedterorističkihakataijavnihdemonstracija, Official Gazette of the Republic of Croatia no. 117/2003) of 23 July 2003 – “the 2003 Liability Act”) entered into force. It provided that the State was liable in tort for damage caused by death, bodily injury or impairment of health resulting from terrorist acts, whereas damage to property was to be compensated through reconstruction assistance, obtainable from the competent administrative authorities, under the Reconstruction Act. The Liability Act also provided that all proceedings stayed on the basis of the 1996 Amendment were to be resumed in accordance with its provisions.
11. Accordingly, on an unspecified date the Zagreb Municipal Court resumed the proceedings instituted by the applicant, under the 2003 Liability Act.
12. On 29 January 2008 the Zagreb Municipal Court dismissed the applicant’s claim and ordered him to reimburse the State 28,600 Croatian kunas (HRK) for the costs of the proceedings.
13. On 28 May 2009 the Government adopted a decision writing off unpaid costs awarded to the State in proceedings instituted on the basis of former section 180 of the Obligations Act, and resumed on the basis of section 10 of the 2003 Liability Act (Odluka o otpisutražbinatroškovaparničnogpostupkadosuđenihRepubliciHrvatskoj u određenimpostupcima). In particular, the competent State Attorney’s offices were instructed not to institute enforcement proceedings to collect such costs and to withdraw applications for enforcement in proceedings that had already been instituted.
14. The first-instance judgment in the applicant’s case was upheld on appeal by the Zagreb County Court (Županijskisud u Zagrebu) on 27 September 2011.
15. On 30 May 2012 the Supreme Court (VrhovnisudRepublikeHrvatske) dismissed an appeal on points of law lodged by the applicant, except in the part on the costs of proceedings, where it reduced the amount owed by the applicant to HRK 23,320.
16. A subsequent constitutional complaint lodged by the applicant was dismissed by the Constitutional Court (UstavnisudRepublikeHrvatske) on 17 January 2013.
17. Meanwhile, on 5 March 2012 the Zadar Municipal State Attorney’s Office (Općinskodržavnoodvjetništvo u Zadru) invited the applicant to reimburse the State HRK 26,600 for the costs of the impugned proceedings.
18. On 12 April 2012 the applicant paid the State HRK 26,600 for the costs of proceedings.
19. On 16 April 2012 the Zadar Municipal State Attorney’s Office (Općinskodržavnoodvjetništvo u Zadru) invited the applicant to reimburse the State a further HRK 2,000 for the costs of the impugned proceedings, as they had mistakenly requested HRK 26,600 on 5 March 2012.
20. On 26 April 2012 the applicant paid the State another HRK 2,000.
B. Relevant domestic law
21. The relevant domestic law has been cited in Kresović and Others v. Croatia ((dec.) [Committee], no. 5864/12, 12 September 2017).
22. The State Budget Acts for 2012, 2013, 2014 and 2015 (Zakon o izvršavanjudržavnogproračunaRepublikeHrvatske, Official Gazette nos. 24/12, 132/12, 152/13, 39/14 and 148/14) provide that revenue wrongly or excessively paid to the State budget must be returned to the payer on the basis of a decision by the competent Ministry, against which an administrative dispute could be initiated. No time-limit is specified for submitting such a request.
COMPLAINT
23. The applicant complained under Article 1 of Protocol No. 1 to the Convention that the domestic courts had unjustifiably ordered him to reimburse the State for the costs of the civil proceedings at issue.
THE LAW
24. The applicant complained that his right to the peaceful enjoyment of his possessions had been violated, contrary to Article 1 of Protocol No. 1, 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.”
25. The Government argued that the applicant had failed to exhaust available domestic remedies. Firstly, he could and should have withdrawn his civil action, since it must have been clear to him that his claim had no prospects of success based on the 2003 Liability Act. Consequently, he had had no legal interest in the continuation of the proceedings. Secondly, in so far as the applicant considered that he had overpaid the costs of the proceedings to the State, he could apply to the competent Ministry – and ultimately even start an administrative dispute – for the return of wrongly or excessively paid revenue to the State budget, in line with a very simple procedure provided for under the relevant State Budget Act. In support of their claim, the Government provided the Court with copies of decisions issued by the relevant Ministry, claiming that on average about 6,000 such decisions were issued yearly.
26. The applicant reiterated his complaint.
27. The Court observes that in 2012 the applicant paid the costs of proceedings of his own motion, despite the fact that by then the 2009 Government Decision had been adopted (see paragraph 13 above), writing off all claims for unpaid costs awarded to the State in civil proceedings instituted under former section 180 of the Obligations Act and instructing the competent State Attorney’s offices not to institute enforcement proceedings to collect such costs. In this connection, the Court accepts the Government’s contention that the applicant could have, and still can, lodge a request for the return of wrongly or excessively paid revenue to the State. Should his request be dismissed, the applicant would have the possibility of initiating an administrative dispute against any such decision (see paragraph 22 above).
28. In those circumstances, this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on10 October 2019.
Renata Degener Krzysztof Wojtyczek
Deputy Registrar President
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