ŠARE v. CROATIA (European Court of Human Rights)

FIRST SECTION

DECISION

Application no. 22899/12
Ante ŠARE
against Croatia

The European Court of Human Rights (First Section), sitting on 22 January 2019 as a Committee composed of:

Krzysztof Wojtyczek, President,
Ksenija Turković,
Pauliine Koskelo, judges,
and Renata Degener, Deputy Section Registrar,

Having regard to the above application lodged on 30 March 2012,

Having deliberated, decides as follows:

THE FACTS

1.  The applicant, Mr Ante Šare, is a Croatian national who was born in 1938 and lives in Zagreb. He was represented before the Court by Mr Ž. Živković, a lawyer practising in Šibenik.

2.  The Croatian Government (“the Government”) were represented by their Agent, Ms Š.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 22 November 2007 the applicant and five other claimants lodged a civil action against Z.P. – a joint stock company with its seat in Zagreb – with the Šibenik Municipal Court (Općinski sud u Šibeniku). They sought recognition of their ownership of certain plots of land and their registration in the land register. They indicated in their action the value of the claim as being 101,000 Croatian kunas (HRK).

5.  On 10 September 2008 the Šibenik Municipal Court dismissed the claimants’ action as unfounded.

6.  The applicant and five other claimants lodged an appeal and on 1 February 2010 the Šibenik County Court (Županijski sud u Šibeniku) dismissed it and upheld the first-instance judgment.

7.  On 18 March 2010 the claimants lodged an appeal on points of law (revizija) with the Supreme Court (Vrhovni sud Republike Hrvatske).

8.  On 17 January 2011 the Supreme Court declared the appeal on points of law inadmissible by virtue of the value of the claim. It held that the claimants’ civil action had included two claims arising from different legal bases and therefore it divided the value of dispute in two.

9.  The claimants then lodged a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske), which was rejected on 15 September 2011 on the grounds that the case raised no constitutional issue. On 30 September 2011 this decision was served on the applicant’s representative.

B.  Relevant domestic law and practice

10.  The relevant domestic law and practice is summarised in the case of Jureša v. Croatia (no. 24079/11, §§ 17-20, 22 May 2018).

COMPLAINT

11.  The applicant complained that he had been deprived of access to the Supreme Court and the Constitutional Court.

THE LAW

12.  The applicant complained that he had had no access to the Supreme Court because of the manner in which that court had interpreted and applied the relevant domestic law and calculated the value of the dispute. He also complained that the Constitutional Court had deprived him of access to that court. He 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 …”.

A.  Access to the Constitutional Court

1.  The parties’ arguments

13.  The applicant complained that he had been deprived of his right of access to the Constitutional Court when it had declared his constitutional complaint inadmissible on the grounds that the case had raised no constitutional issue.

14.  The Government made no comment in this regard.

2.  The Court’s assessment

15.  The Court notes that the final domestic decision complained of, namely the decision of the Constitutional Court of 15 September 2011, was served on the applicant’s representative on 30 September 2011 (see paragraph 10 above), and that this complaint was raised for the first time in the applicant’s reply of 6 November 2015 to the Government’s observations, that is to say more than four years later.

16.  It follows that this complaint has been submitted out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

B.  Access to the Supreme Court

1.  The parties’ arguments

17.   The Government argued that the complaint was of a fourth-instance nature since the applicant had asked the Court to correct errors of fact and law allegedly made by the Supreme Court. They further averred that the Supreme Court’s decision in the applicant’s case had not been based only on the relevant domestic law, but had been in accordance with long-standing domestic case-law, as confirmed by domestic legal experts and the Constitutional Court.

18.  The applicant maintained that he had been deprived of access to the Supreme Court because of the manner in which that court had interpreted the relevant provisions of the procedural law, which had been contrary to the Supreme Court’s practice. Specifically, the Supreme Court in cases similar to that of the applicant, relying on section 37(2) of the Civil Procedure Act, had considered civil actions for recognition of ownership and the issuance of a permission to register document (clausula intabulandi) as one claim.

2.  The Court’s assessment

19.  The Court notes that it has already found no violation of 6 § 1 of the Convention in a case raising similar issue to those in the present case (see Jureša v. Croatia, no. 24079/11, 22 May 2018).

20.  Having examined the submitted material, the Court considers that the applicant has not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case.

21.  In particular, from 1 February 2010 onwards, the Supreme Court started to change its interpretation of section 37(2) of the Civil Procedure Act in cases similar to that of the applicant, considering claims for recognition of ownership and the issuance of a permission to register document as two claims. This interpretation has remained the practice since 10 May 2010 (see Jureša, cited above, § 43). Thus, the present case does not concern divergent approaches by the Supreme Court which could create case-law uncertainty, but rather a reversal of case-law, which falls within the discretionary powers of the domestic courts, notably in countries which have a system of written law (as in Croatia) and which are not, in theory, bound by precedent (see Jureša,cited above, § 43).

22.  Accordingly, the present complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 14 February 2019.

Renata Degener                                              Krzysztof Wojtyczek
Deputy Registrar                                                      President

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