Last Updated on October 3, 2020 by LawEuro
FIRST SECTION
DECISION
Application no. 29843/13
Radmila JURIĆ
against Croatia
The European Court of Human Rights (First Section), sitting on 26 June 2018 as a Committee composed of:
Kristina Pardalos, President,
Ksenija Turković,
Pauliine Koskelo, judges,
and Abel Campos, Section Registrar,
Having regard to the above application lodged on 19 March 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, Ms Radmila Jurić, is a Croatian national, who was born in 1950 and lives in Zagreb. She was represented before the Court by Ms I. Bojić, a lawyer practising in Zagreb.
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.
1. Background to the case
4. By a decision of 31 May 1979 the Social Accounting Service, Centre for Automatic Data Processing Workers Council (Savjet radne zajednice Centra za automatsku obradu podataka Službe društvenog knjigovodstva) granted the applicant the right to use one room (from the stock of eight so‑called rooms for single persons), measuring 10 square metres.
5. On 8 May 1986 the applicant and the Medvešćak Municipality entered an agreement by which a specially protected tenancy was granted to the applicant for the room in question, all on the basis of the decision of 31 May 1979.
6. Pursuant to the Specially Protected Tenancies (Sale to Occupier) Act, enacted on 3 June 1991, the applicant requested the owner of the flat she occupied to conclude a contract for the sale of the flat between the owner as the seller and herself as the buyer. Since the owner declined her request, the applicant brought a civil action against the Finances Agency in the Zagreb Municipal Court seeking a judgment in lieu of the contract of sale.
7. On 9 December 2009 the Zagreb Municipal Court found for the applicant.
8. The defendant lodged an appeal and on 15 November 2011 the Zagreb County Court overturned the first instance judgment, expressly relying on section 373(a) of the Civil Procedure Act. It held that the premises the applicant occupied were not a flat but a so-called room for single people and that the applicant had never acquired a specially protected tenancy for the flat at issue but only the right to occupy it temporarily. The County Court also ordered the applicant’s eviction on the grounds that she had no legal basis for occupying the premises at issue since she had never been a holder of the specially protected tenancy on it.
9. The applicant’s subsequent constitutional complaint was declared inadmissible on 20 September 2012 for non-exhaustion of previous remedies, namely an appeal on points of law with the Supreme Court.
B. Relevant domestic law and practice
10. 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.
…”
11. The relevant part of the Civil Procedure Act (Zakon o parničnom postupku, Official Gazette nos. 53/1991, 91/1992, 112/1999, 88/2001, 117/2003, 88/2005, 2/2007, 84/2008, 123/2008 and 57/2011) reads as follows:
Section 373(a)
“A second-instance court shall dismiss an appeal and upheld the first instance‑judgment or reverse it when it finds that:
1. crucial facts between the parties are not contested;
2. that [crucial facts] could be assessed on the basis of documents and evidence in the case-file, irrespective of whether the first-instance court took into account these documents and evidence when adopting its decision.”
Section 382
“Parties may lodge an appeal on points of law against the second-instance judgment:
…
3. adopted on the basis of sections 373(a) and 373(b) of this Act
…”
12. The applicant submitted five decisions of the Supreme Court (Rev‑122/2010-2, Rev-729/2012, Rev-2/2010 and Rev-369/2011) where it declared appeals on points of law inadmissible in cases where second‑instance courts reversed first-instance judgments expressly relying on section 373(a) of the Civil procedure Act. In these cases the Supreme Court reassessed that basis and found that the second-instance courts’ reliance on section 373(a) of the Civil Procedure Act had been groundless.
COMPLAINTS
13. The applicant complained under Article 8 about her eviction.
14. She also complained under Article 1 of Protocol No. 1 taken alone and in conjunction with Article 14 about her inability to purchase the flat at issue.
THE LAW
15. The applicant complained that the eviction order had violated her right to respect for her home and that in denying her the right to purchase the flat at issue the national authorities had violated her right to peaceful enjoyment of her possessions and had also discriminated against her. She relied on Articles 8 and 14 of the Convention as well as on Article 1 of Protocol No.1, the relevant part of which reads as follows:
Article 8
“1. Everyone has the right to respect for his … home …
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
Article 14
“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
Article 1 of Protocol No. 1
“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.”
1. The parties’ arguments
16. The Government argued that the applicant had not properly exhausted domestic remedies since she had not, prior to submitting a constitutional complaint, lodged an appeal on points of law with the Supreme Court against the judgment of the Zagreb County Court of 15 November 2011 which expressly relied on section 373(a) of the Civil Procedure Act. Exactly on those grounds the Constitutional Court declared her constitutional complaint inadmissible.
17. The applicant maintained that the practice of the Supreme Court was inconsistent and that in a number of cases it had considered that an appeal on points of law had not been admissible even though appeal courts had reversed first instance judgments expressly relying on section 373(a) of the Civil Procedure Act.
2. The Court’s assessment
18. The relevant general principles are summarised in the case of Gherghina (see Gherghina v. Romania (dec.) [GC], no.42219/07, §§ 83‑89).
19. As to the present case the Court notes that it has consistently held that, in order to satisfy the requirement of exhaustion of domestic remedies and in conformity with the principle of subsidiarity, before bringing their complaints to the Court applicants are required to afford the Croatian Constitutional Court the opportunity to remedy their situation and address the issues they wish to bring before the Court (see, for example, Bučkal v. Croatia (dec.), no. 29597/10, § 20, 3 April 2012; Longin v. Croatia, no. 49268/10, § 36, 6 November 2012; and Muršić v. Croatia [GC], no. 7334/13, § 81, ECHR 2016).
20. However, under section 62(2) of the Constitutional Court’s Act, a constitutional complaint may be lodged only after prior remedies have been exhausted. In the applicant’s case the Constitutional Court held that the applicant had not satisfied that condition since she had not lodged an appeal on points of law with the Supreme Court before lodging her constitutional complaint.
21. The Court observes that section 382 of the Civil Procedure Act provides that parties to the civil proceedings may lodge an appeal on points of law with the Supreme Court whenever a second-instance court reverses a first-instance judgment on the basis of section 373(a) of the Civil Procedure Act. Such is exactly the situation in the present case.
22. The Court also notes the applicant’s argument that in certain cases in which the second-instance judgment expressly relied on section 373(a) of the Civil Procedure Act, the Supreme Court had still held that an appeal on points of law had not been allowed because it assessed that the reliance on the above-mentioned provision had been groundless. The Court reiterates that the existence of mere doubts as to the prospects of success of a particular remedy which is not obviously futile is not a valid reason for failing to make use of that remedy (see Gherghina, cited above, §§ 86 and 106, relying on Akdivar and Others v. Turkey, 16 September 1996, § 71, Reports of Judgments and Decisions 1996‑IV; Scoppola v. Italy (no. 2) [GC], no. 10249/03, § 70, 17 September 2009; and Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, § 74, 25 March 2014).
23. The fact that the Supreme Court occasionally reassessed the findings of the lower courts as to the basis for overturning a first-instance judgment could not have dispensed the applicant from using an appeal on points of law in the present case since that was a precondition for lodging a constitutional complaint. In this connection the Court stresses that domestic remedies must be used in accordance with the formal requirements of domestic law and within the prescribed time-limits (see Vučković and Others, cited above, § 72).
24. Therefore, contrary to the applicant’s position, by applying to the Supreme Court the applicant would have created an opportunity for the development of domestic case-law on the issues concerned, which would potentially have been beneficial to anyone else in a similar or comparable situation. The Court thus concludes that the reasons put forward by the applicant to justify not bringing an appeal on points of law are unconvincing.
25. Accordingly, the application 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 on 19 July 2018.
Abel Campos Kristina Pardalos
Registrar President
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