SOKOLOV v. CROATIA (European Court of Human Rights)

FIRST SECTION
DECISION
Application no. 57222/13
Alexander SOKOLOV
against Croatia

The European Court of Human Rights (First Section), sitting on 17 September 2019 as a Committee composed of:

Krzysztof Wojtyczek, President,
Pere Pastor Vilanova,
Pauliine Koskelo, judges,

and Renata Degener, Deputy Section Registrar,

Having regard to the above application lodged on 26 August 2013,

Having deliberated, decides as follows:

PROCEDURE

1. The applicant, Mr Alexander Sokolov, is a Russian national, who was born in 1960 and lives in Voronezh, Russian Federation. He was represented before the Court by Mr E. Kulenović, a lawyer practising in Pula.

2. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik.

3. The applicant complained under Article 6 § 1 of the Convention about the failure of the Administrative Court to forward him the defendant’s reasoned submissions.

4. On 16 October 2015 the application was communicated to the Government.

the FACTS

A. The circumstances of the case

5. On 13 April 2010 the Istria Police Department (Policijskaupravaistarska) dismissed the applicant’s request for an operating licence to run a business as a foreigner in Croatia.

6. This decision was upheld by the Ministry of the Interior (Ministarstvounutarnjihposlova; hereinafter: the “Ministry”) on 6 July 2010.

7. The applicant challenged the Ministry’s decision before the High Administrative Court (VisokiupravnisudRepublikeHrvatske) alleging numerous substantive and procedural flaws.

8. During the proceedings before the High Administrative Court, the Ministry replied to the applicant’s arguments, referring to an opinion of the Pula Chamber of Commerce (Hrvatskagospodarskakomora, Županijskakomora u Puli) of 31 May 2010, containing a detailed assessment of the reasons for which the applicant should not be granted an operating licence.

9. These submissions were never forwarded to the applicant.

10. On 11 October 2012 the High Administrative Court dismissed the applicant’s action, relying on the submissions provided by the Ministry.

11. The applicant challenged this judgment before the Constitutional Court (UstavnisudRepublikeHrvatske), and on 14 February 2013 the Constitutional Court declared his constitutional complaint inadmissible as manifestly ill-founded. That decision was served on the applicant’s representative on 26 February 2013.

12. Meanwhile, on 1 January 2012 a new Aliens Act came into force, which amended the conditions of issuing an operating licence to foreign nationals in that, inter alia, the prior consent of the competent Chamber of Commerce was no longer necessary.

13. Following the above legislative amendment, on 26 April 2012 the applicant filed a fresh request for an operating licence, which was awarded to him on 3 August 2012 and regularly prolonged thereafter.

B. Relevant domestic law

14. The relevant domestic law has been summarised in Hrdalo v. Croatia, no. 23272/07, §§ 20-29, 27 September 2011 and MaravićMarkešv. Croatia, no. 70923/11, §§ 24-38, 9 January 2014.

15. The 2010 Administrative Disputes Act (Zakon o upravnimsporovima, Official Gazette nos. 20/10 and 143/12), in force as of 1 January 2012, insofar as relevant reads as follows:

“Article 6

1. Before adopting a judgment, the court shall provide an opportunity for all the parties to plead in relation to all claims and allegation of other parties and all facts and legal issues which are the subject-matter of the administrative dispute.

2. The court may decide on an administrative dispute without holding a hearing only in cases defined by this Act.”

16. The 2007 Aliens Act (Zakon o strancima, Official Gazette nos. 79/07 and 36/09) provided that all foreign nationals had to obtain an operating licence under certain circumstances in order to run a company in Croatia, subject to prior consent by the competent Chamber of Commerce.

17. The 2012 Aliens Act (Zakon o strancima, Official Gazette no. 130/11 with subsequent amendments) amended the conditions under which foreign nationals may obtain an operating licence and, inter alia, rendered consent by the Chamber of Commerce nugatory.

COMPLAINTS

18. The applicant complained under Article 6 § 1 of the Convention about the failure of the Administrative Court to forward him the defendant’s submissions.

THE LAW

19. The applicant relied on Article 6 § 1 of the Convention, which, insofar as relevant, reads as follows:

Article 6 § 1

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

1. The parties’ arguments

(a) The Government

20. The Government invited the Court to strike out the applicant’s case out of the Court’s list because the matter had been resolved. Firstly, due to a change in the relevant legislation, the applicant had been granted an operating licence in August 2012, before the Administrative Court had adopted the judgment complained of (in October 2012) and before the applicant filed his application with the Court (in August 2013). Secondly, the applicant suffered no consequences due to the initial refusal to issue him an operating license, since he had remained registered as the director of the company, which operated uninterruptedly throughout the period complained of and even had good business results. Thirdly, following judgments in cases Hrdalo v. Croatia and MaravićMarkešv. Croatia (both cited above), Croatia adopted general execution measures with a view to preventing future violations of the right to fairness of administrative proceedings. In particular, the new 2010 Administrative Disputes Act was enacted, based on which the administrative courts amended their case-law and now regularly submitted a party’s response to an administrative action to the opposing party. Respect for human rights did thus not require further examination of the case before the Court.

21. Alternatively, the Government submitted that the applicant failed to exhaust effective domestic remedies in that he had not raised the same complaints he made to the Court in his constitutional complaint.

22. Lastly, the Government argued that the applicant suffered no significant disadvantage in that the Ministry’s response to his administrative action had been irrelevant to the outcome of the dispute since it contained no new information or arguments, which distinguished the present case from Hrdalo and MaravićMarkeš judgments.

(b) The applicant

23. In his observations, the applicant merely stated that he maintained all allegations made in the applicant form.

2. The Court’s assessment

24. The Court does not have to address all the issues raised by the parties. In the light of the new developments brought to its attention, it considers that, for the reasons set out below, there is no objective justification for continuing to examine the applicant’s complaint, and that it is thus appropriate to apply Article 37 § 1 of the Convention, which provides as follows:

“The Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that

(a) the applicant does not intend to pursue his application; or

(b) the matter has been resolved; or

(c) for any other reason established by the Court, it is no longer justified to continue the examination of the application.

However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires.”

25. In order to ascertain whether Article 37 § 1 (b) applies to the present case, the Court must answer two questions: firstly, whether the circumstances complained of directly by the applicant still obtain; and, secondly, whether the effects of a possible violation of the Convention on account of those circumstances have also been redressed (see Pisano v. Italy (striking out) [GC], no. 36732/97, § 42, 24 October 2002; Sisojeva and Others v. Latvia, no. 60654/00, § 97, 16 June 2005; and Kaftailova v. Latvia (striking out) [GC], no. 59643/00, § 48, 7 December 2007).

26. The Court notes that, in the present case, the applicant complained that the failure of the Administrative Court to forward him the defendant’s submissions had rendered his administrative dispute unfair. The Court has previously found violations against Croatia in cases raising the same issue (see Hrdalo v. Croatia, no. 23272/07, 27 September 2011 and MaravićMarkešv. Croatia, no. 70923/11, 9 January 2014).

27. The Court notes that, within the framework of the execution of the Court’s Hrdalo and MaravićMarkešjudgments, the new 2010 Administrative Disputes Act, which came into force in January 2012, introduced the principle of equality of arms for parties to administrative disputes (see paragraph 15 above). According to information provided by the Government, which have not been disputed by the applicant, that amendment to legislation also led to a change in the practice of domestic courts in that the administrative courts now forward parties’ submissions to the other party and the Constitutional Court finds violations in cases where this had not been done.

28. In addition, the Court notes that in January 2012 the new Aliens Act removed the requirement of consent by the Chamber of Commerce to a foreign national being awarded an operating licence (see paragraph 17 above) and that in August 2012 the applicant obtained such a licence and has been able to prolong it ever since (see paragraph 13 above). The impugned judgment of the Administrative Court, which had meanwhile become futile, was adopted only on 11 October 2012, that is, after the applicant had already obtained his licence,.

29. The Court notes that the reason for the applicant’s administrative proceedings at the domestic level and ultimately for his application to the Court had been his inability to obtain an operating licence, which he had in reality received even prior to filing his application with the Court on 26 August 2013. The circumstances complained of directly by the applicant therefore no longer obtain and the first criterion under Article 37 § 1 (b) of the Convention had therefore been met (see paragraph 25 above).

30. The Court further observes that the applicant did not seek any just satisfaction under Article 41 of the Convention (see paragraph 23 above). It therefore considers that, in the present case, the second criterion under Article 37 § 1 (b) of the Convention (see paragraph 25 above) has also been met (see Krstanović v. Croatia (dec.), no. 32132/12, 11 September 2018).

31. In the light of the above, the Court considers that the matter has been resolved within the meaning of Article 37 § 1 (b) of the Convention. Moreover, in view of the changed legislation and judicial practice which had been at the heart of the applicant’s complaint in the present case (see paragraph 27 above), the Court further considers that respect for human rights as defined in the Convention and its Protocols does not require it to continue the examination of the application under Article 37 § 1 in fine.

Accordingly, the case should be struck out of the list.

For these reasons, the Court, unanimously,

Decides to strike the application out of its list of cases.

Done in English and notified in writing on 10 October 2019.

Renata Degener                                   Krzysztof Wojtyczek
Deputy Registrar                                  President

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