Last Updated on October 3, 2020 by LawEuro
FIRST SECTION
DECISION
Application no. 16931/12
Željka STOJAKOVIĆ
against Croatia
The European Court of Human Rights (First Section), sitting on 12 June 2018 as a Committee composed of:
Aleš Pejchal, President,
Krzysztof Wojtyczek,
Jovan Ilievski, judges,
and Renata Degener, Deputy Section Registrar,
Having regard to the above application lodged on 16 February 2012,
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 Željka Stojaković, is a Croatian national who lives in Darda. She was represented before the Court by Mrs B. Paprić, a lawyer practising in Osijek.
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 4 January 2004 the applicant sold a house to B.P. and B.Po., who gave her a security deposit (an “earnest payment”) in the amount of 1,000 euros (EUR). In March 2004 B.P. and B.Po. moved into the aforementioned house, but in May 2004 they moved out, alleging that the applicant had failed to provide all the necessary documents for registering the house with the land registry as their own property. They considered that the applicant was in breach of contract by reason of non-performance.
5. On 1 July 2004 B.P. and B.Po. lodged a civil action with the Beli Manastir Municipal Court (Općinski sud u Belom Manastiru), seeking recovery of double the amount which they had paid as a deposit – namely 2,000 euros (EUR) – as provided for by the Civil Obligation Act in circumstances where a party who has received a deposit is found to be in breach of contract.
6. On 30 November 2004 the first-instance court adopted a judgment, which was then quashed by the Osijek County Court (Županijski sud u Osijeku) on 6 April 2006.
7. On 20 December 2006, in relation to a new set of proceedings, the first-instance court delivered a judgment in which it established that, even though the applicant had fulfilled her obligations under the contract and the claimants had taken possession of the house in issue, the contract had legal deficiencies in that it contained neither the number of the plot of land in question nor any cadastral municipality data, lacked all the necessary signatures, and the applicant’s signature had not been certified by a notary. The first-instance court found that such a contract could not serve as a valid basis for the registration of ownership in the land registry and that it was null and void. It therefore accepted the claimants’ civil action and ordered the applicant to repay the deposit of EUR 1,000, on the basis of unjust enrichment.
8. The applicant lodged an appeal against the first-instance judgment.
9. On 6 November 2008 the Osijek County Court dismissed the applicant’s appeal as unfounded and upheld the first-instance judgment.
10. The applicant then lodgedin parallel an appeal on points of law with the Supreme Court (Vrhovni sud Republike Hrvatske) and a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske). In both remedies she argued that the Beli Manastir Municipal Court and the Osijek County Court should have ruled in her favour. She submitted that the decision in her case contradicted similar cases heard in the Osijek County Court and the Supreme Court, where those courts had established that contracts for purchase of a property concluded in similar circumstances had been valid. She referred to the Supreme Court’s decisions and judgments nos. Rev-2591/1993 (including the Osijek County Court’s judgment no. Gž‑1388/92 and the Osijek Municipal Court’s judgment no. P-1582/88, which were examined in the cited case of the Supreme Court), Rev‑2229/1993, Rev-1279/1992, Rev-2078/1997, Rev-1320/1996, Rev‑117/1998 and Rev‑2025/1995.
11. The Constitutional Court stayed the proceedings pending the conclusion of the proceedings before the Supreme Court.
12. On 21 September 2010 the Supreme Court declared the appeal on points of law inadmissible ratione materiae. The relevant part of that decision reads:
“The claimants’ appeal on points of law is hereby declared inadmissible.
Reasons
… The claimants lodged an appeal on points of law against the second-instance judgment, relying on section 382 (2) of the Civil Procedure Act …
…
Parties may lodge an appeal on points of law against a second‑instance judgment if the decision in dispute depends on the resolution of substantive or procedural issues of importance in ensuring the uniform application of the law and the equality of all citizens.
…
In particular, the relevant appeal on points of law does not indicate a specific legal issue of importance in ensuring the uniform application of the law and the equality of all citizens, given that the claimants are contesting the [second-instance] judgment because they are dissatisfied with the fact that the court did not allow their claim …
In support of their complaints, the claimants refer to the decisions of this court nos. Rev-2591/93, Rev-2229/93, Rev-1279/92, Rev-2078/97, Rev-1320/96, Rev‑117/98 and Rev-2025/95, in addition to the Osijek County Court’s judgment no. Gž-1388/92 and the Osijek Municipal Court’s decision no. P-1582/88 …
…
Simply listing the reference numbers of decisions – of either the cassation court or any other court – does not make the claimants’ appeal on points of law admissible, even assuming that all those decisions were based on the same facts and legal basis.”
13. On 4 February 2011 the applicant informed the Constitutional Court of the Supreme Court’s decision and asked that the examination of her constitutional complaint be resumed.
14. On 8 December 2011 the Constitutional Court declared the applicant’s constitutional complaint inadmissible as manifestly ill-founded. The decision of the Constitutional Court was served on the applicant’s representative on 13 January 2012.
15. In October 2014 the applicant asked the Supreme Court to rectify a clerical error in its decision of 21 September 2010 (see paragraph 12 above). On 22 September 2015 the Supreme Court granted the request and rectified its decision. On the same day, the decision on rectification was published on the Supreme Court’s website and on 22 October 2015 served on the applicant’s representative.
B. Relevant domestic law and practice
1. Relevant domestic law
16. The Constitution of the Republic of Croatia (Ustav Republike Hrvatske, Official Gazette no. 56/1990, with further amendments) in Article 29 guarantees the right to a fair trial.
17. The relevant part of section 62 of the Constitutional Act on the Constitutional Court (Ustavni zakon o Ustavnom sudu Republike Hrvatske, Official Gazette no. 99/1999, with further amendments) reads:
“1. Anyone may lodge a constitutional complaint with the Constitutional Court if he or she considers that a decision (pojedinačni akt) of a State body, a body of local and regional self-government, or a legal person with public authority which has issued a decision about his or her rights and obligations, or about a suspicion or accusation of a criminal act, has violated his or her human rights or fundamental freedoms or his or her right to local and regional self-government guaranteed by the Constitution (hereinafter ‘constitutional right’) …”
18. The relevant provision of the Civil Procedure Act (Zakon o parničnom postupku, Official Gazette no. 53/1991, with further amendments) reads as follows:
Appeal on points of law
Section 382
“(2) …[T]he parties may lodge an [extraordinary] appeal on points of law against a second-instance judgment if the decision in the dispute depends on the resolution of a substantive or procedural question which is important for securing the consistent application of the law and the equality of citizens …
(3) When lodging an appeal on points of law, as provided for under paragraph 2 of this section, the party must specify the legal question [which needs to be resolved] and must indicate the provision or other source of law concerning the matter and must also substantiate its request by explaining why the [resolution of] the question in issue is important for securing the consistent application of the law and the equality of citizens.”
2. Relevant practice
19. The relevant practice of the Supreme Court to which the applicant referred in her appeal on points of law (see paragraph 10 above) refers to the following cases:
– Rev-2591/1993 of 4 April 1995, concerning the civil dispute between a municipality and a housing association and several other individuals over the formal validity of a contract for the sale of socially owned property;
– Rev-2229/1993 of 16 June 1994, concerning the formalities relating to the validity of a security deposit (an earnest payment) contract in which that court stressed that an accessory contract had no legal value if the main contract was null and void;
– Rev-1279/1992 of 9 July 1992 and Rev-2078/1997 of 27 April 2000, concerning the criteria for differentiation of a preliminary from the main contract for the purchase of real property;
– Rev-1320/1996 of 20 January 1999, Rev-117/1998 of 1 October 2002 and Rev-2025/1995 of 28 December 1995, concerning the manner of determination of the validity of a real estate purchase contract where the vendor was not the owner of the property in question. In the latter case, the Supreme Court stressed that the requirements for the formal validity of a contract were, amongst other things, written form, the signatures of the parties and the signature of the vendor certified by the relevant authority.
20. According to the practice of the Constitutional Court, an appellant is required to make a specific complaint against the decision of the Supreme Court which ruled on the lower courts’ decisions if he or she wishes to challenge both the lower courts’ and the Supreme Court’s decisions before the Constitutional Court. This applies not only when a constitutional complaint is lodged after the decision of the Supreme Court but also in parallel with the lodging of an appeal on points of law before the Supreme Court (see, for instance, U-III-2314/2014, 2 December 2004; U‑III‑389/2007, 19 May 2010; U-III-4902/2008, 22 April 2010; U‑III‑3129/2011, 8 December 2011; U-III-4427/2010, 18 September 2013; U‑III‑2326/2011, 2 July 2014).
COMPLAINTS
21. The applicant complained, under Article 6 § 1 of the Convention, that the Supreme Court had deprived her of the right to a fair hearing. In particular, she alleged that, owing to the lack of reasoning in the Supreme Court’s decision dismissing her appeal on points of law, it had not been apparent that her appeal had been reviewed in a manner complying with the Article 6 § 1 requirements.
22. She further complained, under Article 6 § 1 of the Convention, of divergent case-law and a breach of the principle of legal certainty in the decisions of the civil courts in her case.
THE LAW
23. Complaining of a breach of her right to a fair trial before the Supreme Court, and of the divergent case-law and a breach of the principle of legal certainty in the decisions of the civil courts, the applicant relied on Article 6 § 1 of the Convention, which, in so far as relevant, reads as follows:
“In the determination of his civil rights and obligations … everyone is entitled to a fair … hearing … by [a] … tribunal …”
24. The Government contested these arguments.
A. The complaint concerning the Supreme Court’s decision on the applicant’s appeal on points of law
1. The parties’ arguments
25. The Government submitted that the applicant had failed to complain before the Constitutional Court of the matters she had raised before the Court concerning the Supreme Court’s decision in her case. In particular, in accordance with the well-established practice of the Constitutional Court, the applicant had been required to raise her complaints concerning the Supreme Court’s decision in her request to continue with the examination of the case before the Constitutional Court, or she could have lodged a separate constitutional complaint in this respect. However, when asking the Constitutional Court to continue with the examination of her case, the applicant had not raised any question as regards the Supreme Court’s decision, nor had she lodged a separate constitutional complaint in that respect. Moreover, she had failed to lodge a separate constitutional complaint against the Supreme Court’s decision on rectification of its previous decision, and had introduced some of her complaints before the Court out of the six-month time-limit.
26. The applicant maintained that the Government’s objections were unfounded. She considered that there was no reason to lodge a new constitutional complaint against the Supreme Court’s decision on rectification of its previous decision.
2. The Court’s assessment
27. The Court finds it unnecessary to address all of the Government’s objections, as the complaints are in any event inadmissible for the following reasons.
28. The Court refers to the general principles relating to the rule of exhaustion of domestic remedies set out in Vučković and Others v. Serbia ([GC], no. 17153/11, §§ 69-77, 25 March 2014; see also Gherghina v. Romania [GC] (dec.), no. 42219/07, §§ 83-89, 9 July 2015).
29. The Court reiterates that it has consistently held that, in order to comply with the principle of subsidiarity, applicants are in principle required to afford the Croatian Constitutional Court ‒ as the highest Court in Croatia ‒ the opportunity to remedy the situation complained of before the Court before bringing complaints against Croatia before it (see, for instance, Pavlović and Others v. Croatia, no. 13274/11, § 32, 2 April 2015, and cases cited therein).
30. In the case at issue, the Court notes that the applicant lodged in parallel an appeal on points of law before the Supreme Court and a constitutional complaint before the Constitutional Court, complaining of a breach of her right to a fair trial in the proceedings before the Beli Manastir Municipal Court and the Osijek County Court (see paragraph 10 above). In such circumstances, pursuant to its practice, the Constitutional Court stayed the proceedings pending conclusion of the proceedings before the Supreme Court (see paragraphs 11 and 20 above).
31. When the proceedings before the Supreme Court ended with the rejection of the applicant’s appeal on points of law, she informed the Constitutional Court thereof and asked that the examination of her constitutional complaint be resumed (see paragraph 13 above). She did not thereby raise any issue with regard to the decision of the Supreme Court concerning her appeal on points of law. At the same time, the Court notes that, according to the consistent practice of the Constitutional Court (see paragraph 20 above), the applicant was required ‒ if she wished that court to deal with any question concerning the Supreme Court’s decision ‒ either to raise a specific complaint in that respect when asking for the resumption of the constitutional proceedings or to lodge a separate constitutional complaint concerning the matter. However, as already noted above, the applicant did not make a complaint concerning the Supreme Court’s decision when asking for the resumption of proceedings before the Constitutional Court, nor did she lodge a separate constitutional complaint in that respect.
32. In these circumstances, the Court finds that by failing to raise any complaint before the Constitutional Court concerning the Supreme Court’s decision, the applicant failed to comply with the requirements of its case‑law by affording the Constitutional Court the opportunity to remedy the situation complained of before the Court (see paragraph 28 above).
33. The Court therefore finds that the applicant’s complaint must be rejected for non-exhaustion of domestic remedies in accordance with Article 35 §§ 1 and 4 of the Convention.
B. The complaint concerning the divergent case-law and legal certainty
1. The parties’ arguments
34. The Government submitted that the practice of the domestic courts, on which the applicant had relied in her appeal on points of law, concerned situations factually and legally different from the one pertaining in the applicant’s case. In the Government’s view, the domestic courts in the applicant’s case had followed a well-established practice of the Supreme Court. Moreover, the domestic system had provided the mechanisms for overcoming the possible case-law inconsistencies but the applicant, by failing to properly lodge an appeal on points of law, had not duly availed herself of those mechanisms.
35. The applicant submitted that she had invoked the case-law of the Supreme Court showing that the contract which she had concluded with the plaintiffs should be considered valid. Accordingly, in the applicant’s view, the domestic courts had been required to rule in her favour in her case. The applicant also pointed out that the case-law of the Osijek County Court was inconsistent in various other areas, not only concerning the validity of real‑estate purchase contracts.
2. The Court’s assessment
36. The Court reiterates, in accordance with Article 19 of the Convention, that its only task is to ensure the observance of the obligations undertaken by the Parties to the Convention. In particular, the Court is not competent to deal with an application alleging that errors of law or fact have been committed by the domestic courts, except when it considers that such errors might have involved a possible violation of any of the rights and freedoms set out in the Convention (see, for instance, Schenk v. Switzerland, 12 July 1988, § 45, Series A no. 140, and Lukežić v. Croatia (dec.), no. 24660/07, § 50, 10 September 2013).
37. It is not the task of the Court to take the place of the domestic courts. It is primarily for the national authorities, in particular the courts, to resolve problems of interpretation of domestic legislation. The Court’s role is to verify whether the effects of such interpretation are compatible with the Convention (see Nejdet Şahin and Perihan Şahin v. Turkey [GC], no. 13279/05, § 49, 20 October 2011). That being so, save in the event of evident arbitrariness or manifest unreasonableness, it is not the Court’s role to question the interpretation of domestic law by the national courts (see, for example, Bochan v. Ukraine (no. 2) [GC], no. 22251/08, § 61, ECHR 2015; see also,Ādamsons v. Latvia, no. 3669/03, § 118, 24 June 2008).
38. As regards the applicant’s complaint regarding legal inconsistency in the practice of the domestic courts, the Court reiterates that its assessment of such allegations includes establishing whether “profound and long-standing differences” exist in the relevant case-law, whether the domestic law provides mechanisms for overcoming these inconsistencies, whether those mechanisms have been applied and, if appropriate, to what effect (see Nejdet Şahin and Perihan Şahin, cited above, § 53).
39. The Court notes in the present case that the applicant’s specific allegations about legal inconsistency, as argued before the domestic courts, concern the fact that in her case, contrary to the practice to which she referred in her appeal on points of law and the constitutional complaint (see paragraphs 10 and 19 above), the domestic courts ruled against her and in favour of the plaintiffs.
40. However, from the domestic courts’ practice as cited by the applicant, the Court is unable to discern the existence of “profound and long-standing differences” in the relevant case-law. In this connection, the Court observes that the issues arising in the applicant’s case concerned unjust enrichment resulting from the receipt of a security deposit (an earnest payment) where the main purchase contract between two private parties was null and void because it contained neither the number of the plot of land in question nor any cadastral municipality data, it lacked all the necessary signatures, and the vendor’s signature had not been certified by a notary (see paragraph 7 above). The cases referred to by the applicant either did not concern these issues or, contrary to what she submitted, supported the domestic courts’ conclusions in her case showing that an accessory contract had no legal value if the main contract was null and void (Rev-2229/1993 of 16 June 1994), and that the requirements for formal validity of a contract were written form, the signatures of the parties, and the signature of the vendor certified by the relevant authority (Rev-2025/1995 of 28 December 1995).
41. In so far as the applicant considers that the domestic courts should have interpreted the relevant law and the existing case-law differently in order to rule in her favour, the Court would stress that problems of interpretation of domestic legislation are not for the Court to resolve, particularly since there is no indication that the domestic courts’ decisions in the applicant’s case are arbitrary or manifestly unreasonable (compareLukežić, cited above, § 56).
42. Against the above background, the Court finds that the applicant’s 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 5 July 2018.
Renata Degener Aleš Pejchal
Deputy Registrar President
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