FIRST SECTION
\nCASE OF BUVA\u010c v. CROATIA
\n(Application no. 47685\/13)<\/p>\n
JUDGMENT
\nSTRASBOURG
\n6 September 2018<\/p>\n
This judgment is final but it may be subject to editorial revision.<\/p>\n
In the case of Buva\u010d v. Croatia,<\/strong><\/p>\n The European Court of Human Rights (First Section), sitting as a Committee composed of:<\/p>\n Ale\u0161Pejchal, President, Having deliberated in private on 10 July 2018,<\/p>\n Delivers the following judgment, which was adopted on that date:<\/p>\n PROCEDURE<\/strong><\/p>\n 1.\u00a0\u00a0The case originated in an application (no. 47685\/13) against the Republic of Croatia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (\u201cthe Convention\u201d) by a Croatian national, Mr Radovan Buva\u010d (\u201cthe applicant\u201d), on 12 July 2013.<\/p>\n 2.\u00a0\u00a0The applicant was represented by Mr Lj. Planini\u0107, a lawyer practising in Zagreb. The Croatian Government (\u201cthe Government\u201d) were represented by their Agent, Ms \u0160. Sta\u017enik.<\/p>\n 3.\u00a0\u00a0On 9 October 2015 the complaint concerning the right of access to a court hearing was communicated to the Government and the remainder of the application was declared inadmissiblepursuant to Rule 54 \u00a7 3 of the Rules of Court.<\/p>\n THE FACTS<\/strong><\/p>\n I.\u00a0\u00a0THE CIRCUMSTANCES OF THE CASE<\/p>\n 4.\u00a0\u00a0The applicant was born in 1971 and lives in Zagreb.<\/p>\n 5.\u00a0\u00a0On 28 April 2008 the daily newspaper B. published an article under the headline \u201cMob Lawyer joins the Supervisory Board\u201d, describing the applicant as an extortionist.<\/p>\n 6.\u00a0\u00a0On 27 May 2008 the applicant\u2019s representative askedthe publisherto publish a correction of that information. The publisher neither replied nor published a correction of the disputed information.<\/p>\n 7.\u00a0\u00a0On 9 July 2008, after the expiry of the deadline envisaged in the relevant provisions of the Media Act (Zakon o medijima) to publish a correction, the applicant brought a civil action against the publisher in the Zagreb Municipal Civil Court (Op\u0107inskigra\u0111anskisud u Zagrebu), claiming non-pecuniary damage.<\/p>\n 8.\u00a0\u00a0On 10 July 2009 the publisher replied stating in particular that the applicant had failed to submit a power of attorney with his request.<\/p>\n 9.\u00a0\u00a0At a hearing held on 31 January 2012 the Zagreb Municipal Civil Court heard evidencefrom the applicant who said that he had authorised his representativeto act on his behalf vis-\u00e0-vis the publisher.<\/p>\n 10.\u00a0\u00a0On 31 January 2012 the Zagreb Municipal Civil Court, relying on sections 22(2) and 40(3) of the Media Act, declared the applicant\u2019s claim inadmissible. The first-instance court held that the request for the publication of a correction of the disputed information had not been signed by a duly authorised person because the applicant had not proved that his representative had actually submitted a power of attorney with the request.<\/p>\n The relevant part of the decision reads:<\/p>\n \u201cIn his testimony, the [applicant] stated that he had given power of attorney to his counsel, [Lj.P], authorising her to institute both criminal and civil proceedings for defamation … He was present during the preparation of a draft of the request for the correction of the disputed information …<\/p>\n …<\/p>\n This court does not accept the [applicant]\u2019s evidence because the [applicant] has no direct knowledge of what was ultimately sent to the defendant … On the other hand, the [applicant\u2019s]statement concerning the granting of a power of attorney is of no relevance for the solution to the specific legal issue …<\/p>\n …<\/p>\n Given that the request for the publication of a correction of the disputed information was not signed by the [applicant], but by his counsel,[Lj.P.], and that it was not accompanied with a power of attorney, the [applicant]has not proved that he had properly requested the publication of a correction of the disputed information … an action which is, pursuant to section 22(2) of the Media Act, a procedural requirement for bringing a civil action for non-pecuniary damage against the publisher …\u201d<\/p>\n 11.\u00a0\u00a0On 19 November 2012 the \u0160ibenik County Court (\u017dupanijskisud u \u0160ibeniku) dismissed an appeal by the applicant and upheld the first-instance decision.<\/p>\n 12.\u00a0\u00a0On 14 March 2013 the Constitutional Court declared a constitutional complaint lodged by the applicant inadmissible on the grounds that there was \u201cno constitutional issue\u201d to be examined.<\/p>\n II.\u00a0\u00a0RELEVANT DOMESTIC LAW AND PRACTICE<\/p>\n A.\u00a0\u00a0Civil Procedure Act<\/strong><\/p>\n 13.\u00a0\u00a0The relevant provisions of the Civil Procedure Act (Zakon o parni\u010dnompostupku, Official Gazette Zakon o parni\u010dnompostupku, Official Gazette no. 53\/1991 with subsequent amendments), as in force at the material time, read as follows:<\/p>\n Section 98<\/p>\n \u201cA representative shall submit a power of attorney when undertaking the first procedural action.<\/p>\n The court may allow that procedural actions for a party be temporarily undertaken by a person who has not submitted a power of attorney, but shall, at the same time, order this person to submit subsequently, within a specified time-limit, either a power of attorney or the party\u2019s approval for the performance of a procedural action.<\/p>\n …<\/p>\n In the course of the whole proceedings, the court shall pay attention to whether the person appearing as a representative is duly authorised. If the court establishes that the person appearing as representative is not duly authorised, it shall set aside the procedural actions undertaken by this person, unless these actions are subsequently approved by the party.\u201d<\/p>\n B.\u00a0\u00a0Media Act<\/strong><\/p>\n 14.\u00a0\u00a0The relevant provisions of the Media Act (Zakon o medijima, Official Gazette no. 59\/04, with subsequents amandemnets), as applicable at the relevant time, read as follows:<\/p>\n Section 22<\/p>\n \u201cNon-pecuniary damage shall be compensated, as a rule, by publishing a correction of the information and with the publisher\u2019s apology and with the payment of compensation pursuant to the general regulations of the Obligations Act.<\/p>\n A person who previously requested from the publisher that a correction of the disputable information be published, that is tosay the publisher\u2019s apology if correction is not possible, shall have the right to lodge a claim for compensation for non-pecuniary damage in compliance with the general regulations of the Obligations Act.\u201d<\/p>\n Section 40<\/p>\n \u201cEveryone shall have the right to request from the editor-in-chief publication without compensationof a correction of the published information which has violated their rights or interests. Legal persons and other organisations and bodies shall also be entitled to a correction if the information is in violation of their rights and interests. The purpose of the correction is to correct untruthful or incomplete information.<\/p>\n The publication of a correction may be requested within thirty days of the publication of the information.<\/p>\n The request for a correction shall be submitted to the editor-in-chief in written form. The request shall be reasoned and signed by the applicantand itshall contain all necessary data concerningthe applicant and his address.<\/p>\n …\u201d<\/p>\n C.\u00a0\u00a0Case-law of the Constitutional Court<\/strong><\/p>\n 15.\u00a0\u00a0In decision no. U-III-4057\/2013 of 17 September 2014, relied on by the applicant, the Constitutional Court found a violation of the right to a fair hearing when thecivil courtshad declared the claimant\u2019s civil action inadmissible because her representatives had not enclosed a power of attorney with the request to publish the correction of the disputed information. The Constitutional Court held that the manner in which the domestic courts had applied the relevant provisions of the Media Act had amounted to excessive formalism.<\/p>\n D.\u00a0\u00a0Case-law of the Supreme Court<\/strong><\/p>\n 16.\u00a0\u00a0The Government relied on the Supreme Court\u2019s decisions nos.\u00a0Rev \u00a0908\/1997-2 of 24 October 2000, Rev 848\/2004-2 of 30 March 2005, Rev 717\/2003-2 of 12 May 2005, Rev 551\/2009-2 of 27 May 2009, Rev 1016\/2009-2 of 9 September 2009 and Rev 929\/2009-2 of 15\u00a0September 2009 in which the court held that a procedural requirement for bringing a claim for damages, arising out of inaccurate information, in a court,was a request for correction of the disputedinformation lodged with a publisher. In addition to this, the Supreme Court held that when a request was submitted by a representative, he or she was obliged to enclose a power of attorney with it.<\/p>\n THE LAW<\/strong><\/p>\n I.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 6 \u00a7 1 OF THE CONVENTION<\/p>\n 17.\u00a0\u00a0The applicant complained that the national courts had violated his right of access to court, as provided in Article 6 \u00a7 1 of the Convention, which reads as follows:<\/p>\n \u201cIn the determination of his civil rights and obligations … everyone is entitled to a … hearing … by [a] … tribunal …\u201d<\/p>\n A.\u00a0\u00a0Admissibility<\/strong><\/p>\n 18.\u00a0\u00a0The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 \u00a7 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.<\/p>\n B.\u00a0\u00a0Merits<\/strong><\/p>\n 1.\u00a0\u00a0The parties\u2019 arguments<\/em><\/p>\n (a)\u00a0\u00a0The applicant<\/p>\n 19.\u00a0\u00a0The applicant argued that the limitation imposed on him and overly formalistic approach of the domestic courts in applying the relevant provisions of the Media Act had no legitimate aim. Moreover, contrary to the Government\u2019s allegations, there had been nothing in the text of the Media Act that had clearly providedthat the preliminary proceedings before the publisher had been a procedural requirement for lodging a civil action.<\/p>\n 20.\u00a0\u00a0The applicant further averred that it had not been disputed that his representative had sent the request for the correction of the incorrect information to the publisher. If the power of attorney had not been submitted with the request, as claimed by the opposite party, the editor\u2011in\u2011chief had been obliged, pursuant to the relevant provisions of the Media Act, to inform the applicant of the reasons for not publishing the correction of the disputed information within the prescribed deadline for the correction. This would have allowed the applicant to submit the power of attorney that allegedly had not been submitted with the request.<\/p>\n (b)\u00a0\u00a0The Government<\/p>\n 21.\u00a0\u00a0The Government argued that the manner of the domestic courts in applying the relevant provisions of the Media Act had been foreseeable and in accordance with the well-established case-law of the Supreme Court. Specifically, the procedural requirement for bringing an action against the publisher in the court was submitting a request for a publication of correction of the disputed information with the publisher. This allowed the publisher toremedy the consequences of the damage caused by inaccurate information in a timely manner which could not be achieved in the court proceedings due to inevitable long duration of the court proceedings.<\/p>\n 22.\u00a0\u00a0The Government pointed out that, pursuant to the relevant provisions of the Media Act,a request for the correction of the incorrect information has to be duly signed by the person submitting therequest, or by his or her representative.In the latter case, a representative has to submit a power of attorney authorising him or her to submit the impugned request on behalf of his or her client. If omitted,this would give rise to the injured party losing an opportunity to bring an action before a court, as had happened in the applicant\u2019s case. The fact that the applicant had approved his representative\u2019s action at the main hearing is of no relevance because, by not submitting the power of attorney, the applicant\u2019s representativehad failed to demonstrate the authenticity of the request. Therefore, there had been no \u201cexcessive formalism\u201d in the present case, but sensible application of the relevant provisions of the Media Act in compliance with the well\u2011established case-law of the Supreme Court.<\/p>\n
\nKrzysztof Wojtyczek,
\nJovan Ilievski, judges,
\nand Renata Degener, Deputy Section Registrar,<\/p>\n