CASE OF HYETT PERGER CVİTANOVİĆ v. CROATIA

SECOND SECTION

CASE OF HYETT PERGER CVITANOVIĆ v. CROATIA

(Application no. 57743/19)

JUDGMENT
 

STRASBOURG

9 July 2024

This judgment is final but it may be subject to editorial revision.

In the case of Hyett Perger Cvitanović v. Croatia,

The European Court of Human Rights (Second Section), sitting as a Committee composed of:

 Lorraine Schembri Orland, President,
 Frédéric Krenc,
 Davor Derenčinović, judges,
and Dorothee von Arnim, Deputy Section Registrar,

Having regard to:

the application (no. 57743/19) against the Republic of Croatia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 30 October 2019 by an Australian national, Ms Gordana Danielle Hyett Perger Cvitanović (“the applicant”), who was born in 1961, lives in Noosa Heads (Australia) and was represented by Mr D. Markušić, a lawyer practising in Zagreb;

the decision to give notice of the application to the Croatian Government (“the Government”), represented by their Agent, Ms Š. Stažnik;

the parties’ observations;

Having deliberated in private on 18 June 2024,

Delivers the following judgment, which was adopted on that date:

SUBJECT MATTER OF THE CASE

1.  The application concerns the applicant’s inability to participate effectively in civil proceedings because of an allegedly defective service of process and improper representation by the guardian ad litem.

2.  In particular, on 15 May 2012, a certain Mr N.P., an advocate, brought a civil action in the Korčula Municipal Court against the applicant seeking payment of 8,600 Croatian kunas (HRK – 1,141 euros (EUR)). He explained that he had been hired by the applicant to provide some inheritance-related legal services to her mother, which the applicant had refused to pay. He enclosed the invoices he had sent by registered mail and with acknowledgement of receipt at the applicant’s address in Australia. He indicated that same address in his statement of claim (tužba) as the address at which the court summons should be served on the applicant.

3.  The Municipal Court attempted to serve the statement of claim on the applicant at the address in question through diplomatic channels, but the service was unsuccessful. Croatian consular authorities in Australia informed the court that the applicant was no longer at that address and enclosed a delivery postal slip indicating that.

4.  The court therefore concluded that the applicant’s address was unknown and on 13 January 2014, appointed V.D., an advocate, to represent her in the civil proceedings as guardian ad litem. The decision to appoint the guardian ad litem was published in the Official Gazette.

5.  The Municipal Court held altogether three hearings. The guardian ad litem did not attend any of those hearings even though he had been duly summoned, nor did he submit a single pleading on the applicant’s behalf during the first-instance proceedings.

6.  At the first hearing, held on 23 May 2014, N.P.’s representative submitted a copy of an e-mail which that representative had sent to the applicant on 16 April 2012 warning her that legal action would be taken against her if she did not pay her debt.

7.  At the second hearing, held on 17 September 2014, N.P. gave his testimony stating, inter alia, that he had communicated with the applicant by phone and e-mail, and that she had reported him to the Croatian Bar Association for malpractice. He provided the court with a copy of an e-mail she had sent to the Bar Association in that regard.

8.  The applicant’s e-mail address was clearly visible from that e-mail correspondence.

9.  By a judgment of 22 October 2014, the Municipal Court granted N.P.’s claim in part. It ordered the applicant to pay him HRK 7,380 (EUR 979), together with the statutory default interest running from the date of the judgment, and to reimburse him HRK 3,366.27 (EUR 447) for the costs of proceedings.

10.  On 23 March 2015 the guardian ad litem notified the Municipal Court that his attempt to deliver the judgment to the applicant at her address in Australia (see paragraph 2 above) was unsuccessful. The enclosed postal slip indicated that she had refused to receive it. The judgment became final on 19 February 2015.

11.  On 12 February 2016 N.P. applied for enforcement of the judgment in question by seizure and sale of the applicant’s immovable property in Croatia. On 13 April 2017 the Municipal Court issued a writ of execution (rješenje o ovrsi). In June 2016 the first attempt to serve the writ at the applicant’s address in Australia through diplomatic channels failed because she was “unknown at the address”. The second attempt of 27 March 2018 was successful.

12.  On 30 April 2018 the applicant lodged a request for reopening of the case on the grounds that she had been prevented from participating in the original civil proceedings (see paragraphs 2-9) because of defective service and improper representation by the guardian ad litem. In particular, she submitted that the fact that she had eventually received the writ of execution at her address in Australia and that all previous attempts to serve the summons on her at that address had been unsuccessful for different reasons suggested that the service had been defective. Moreover, the guardian ad litem had not even attempted to contact her, appeared at any of the court hearings, submitted any pleadings or appealed against the judgment in the original proceedings (see paragraphs 4-9 above).

13.  By a decision of 30 November 2018, the Korčula Municipal Court dismissed the applicant’s request, finding that the appointment of the guardian ad litem had been in compliance with domestic law and that she had therefore been properly represented in the original proceedings. On 17 January 2019 the Vukovar County Court dismissed the applicant’s appeal against that decision.

14.  The applicant then, on 12 and 14 March 2019 respectively, lodged a constitutional complaint and an extraordinary appeal on points of law.

15.  On 16 April 2019 the Constitutional Court declared inadmissible the applicant’s constitutional complaint, and on 30 April 2019 notified her representative of that decision. It held that under its longstanding case-law, decisions concerning requests for the reopening of a case were, in principle, not open to constitutional review.

16.  On 9 May 2023, the Supreme Court declared inadmissible the applicant’s extraordinary appeal on points of law.

17.  Before the Court the applicant complained under Article 6 § 1 and Article 13 of the Convention that she had not been properly served with the statement of claim and other submissions, which had prevented her from effectively participating in the proceedings. She also submitted (i) that the requirements for appointing a guardian ad litem had not been met, and (ii) that the domestic courts had failed to replace him even though he had not properly represented her.

THE COURT’S ASSESSMENT

ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

18.  The Court reiterates that the safeguards of Article 6 § 1 are stricter than those of Article 13 (see Kudła v. Poland [GC], no. 30210/96, § 146, ECHR 2000-XI) and finds that the applicant’s complaint under Article 13 should be considered to be absorbed by his complaint under Article 6 § 1.

19.  The Government admitted that in the given circumstances a request for reopening was a remedy to be exhausted for the purposes of Article 35 § 1 of the Convention. However, in the proceedings following her request for reopening the applicant had lodged an extraordinary appeal on points of law (see paragraph 14 above) which she had not mentioned in her application to the Court. Her failure to disclose that information amounted, in the Government’s view, to an abuse of the right of application.

20.  The Court reiterates that an extraordinary appeal on points of law is not an effective remedy in respect of those Convention complaints which do not concern divergent domestic case-law (see Mirenić-Huzjak and Jerković v. Croatia (dec.), no. 72996/16, § 54, 24 September 2019) and that the applicant in the present case did not complain of divergent case-law. While mentioning in her application that she had used the remedy in question would have been useful for the sake of completeness, the Court finds that this information was not a factor essential for the examination of the case and concerning the very core of it. Therefore, the applicant’s failure to provide this information to the Court cannot be seen as an abuse of the right of application (see for the relevant principles Saakashvili v. Georgia (dec.), nos. 6232/20 and 22394/20, § 64, 1 March 2022).

21.  In their observations of 30 July 2021 the Government argued that the application was premature because at that time the Supreme Court had not yet decided on the applicant’s extraordinary appeal on points of law (see paragraphs 14 and 16 above). They also submitted that the applicant had failed to exhaust domestic remedies in that she had not sued the guardian ad litem for damages on account of the alleged shortcomings in his representation (see paragraphs 12 and 17 above).

22.  The Court reiterates that an extraordinary appeal on points of law was not an effective remedy in the present case and that, in any event, the Supreme Court in the meantime decided on that remedy (see paragraphs 16 and 20 above).

23.  It further observes that in her request for reopening of the case – a remedy which had to be exhausted according to the Government – the applicant complained of, inter alia, certain shortcomings in the service of court summons (see paragraphs 12 and 19 above). Since in the present case the alleged breach of the adversarial principle stems first and foremost from those shortcomings (see paragraph 17 above), the Court considers that the applicant was not required to sue the guardian ad litem for damages and thereby pursue yet another avenue of potential redress for the breach of the same principle on account of improper representation. It reiterates that, if domestic law provides for several parallel remedies, an applicant who has sought to obtain redress for an alleged breach of the Convention through one of these remedies is not necessarily required to use others which have essentially the same objective (see, for example, Zustović v. Croatia, no. 27903/15, § 77, 22 April 2021).

24.  In view of foregoing, the Government’s objections as to the admissibility must be rejected.

25.  The Court further notes that the present application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.

26.  The general concept of a fair trial, encompassing the fundamental principle that proceedings should be adversarial, requires that the person against whom proceedings have been initiated should be informed of this fact. If court documents are not duly served on the litigants, they might be prevented from defending themselves in the proceedings (see Gankin and Others v. Russia (nos. 2430/06, 1454/08, 11670/10 and 12938/12, § 28, 31 May 2016). Domestic courts are therefore required to make reasonable efforts to summon parties to judicial proceedings (ibid., § 27).

27.  In the cases concerning civil proceedings in absentia the Court must verify: (i) whether the authorities were diligent in informing the applicants of the proceedings, and whether the applicants could be considered to have waived their right to appear before the courts and to defend themselves; and (ii) whether domestic law provided the applicants with the appropriate means to secure a fresh adversarial hearing, once they had learnt of the judgments against them (see Bartaia v. Georgia, no. 10978/06, § 29, 26 July 2018 and the cases cited therein).

28.  The Court further notes that under Croatian law (section 148 of the Civil Procedure Act) in the event that the party cannot find out the address of the person to whom the court summons should be served, the court has to try to obtain that information from the relevant authorities or in some other way.

29.  In the present case the attempt of the first-instance court to serve the statement of claim at the applicant’s address in Australia failed and the summons was returned with the indication that she was no longer at that address (see paragraph 3 above). However, at the hearings of 23 May and 17 September 2014 the plaintiff provided the court with two documents in which the applicant’s e-mail address was clearly indicated and which she had used to communicate with the Croatian Bar Association (see paragraphs 6-8 above).

30.  The Court considers that in those circumstances and given the importance of the principle of adversarial hearing, due diligence would have required the first-instance court to use that e-mail address to try to inform the applicant of the proceedings against her (even though under Croatian law that was not an official way of serving court summons at the time), to obtain her postal address via e-mail for the purposes of serving the statement of claim, or, at least, suggest to the guardian ad litem to do so.

31.  In view of this, the Court finds that the first-instance court did not make reasonable efforts to inform the applicant of the proceedings in question, and thus did not act diligently in that regard (see paragraphs 26-27 above).

32.  It is clear that the applicant did not waive her right to participate in the proceedings, and that her attempt to obtain a fresh hearing by lodging a request for reopening of the case failed (see paragraphs 12-15 and 27 above).

33.  The foregoing considerations are sufficient to enable the Court to conclude that there has been a violation of Article 6 § 1 of the Convention in the present case.

34.  The Court therefore does not find it necessary to examine whether the allegedly improper representation by the guardian ad litem was also in breach of that Article.

APPLICATION OF ARTICLE 41 OF THE CONVENTION

35.  The applicant claimed 10,000 euros (EUR) in respect of non‑pecuniary damage and EUR 7,095.25 in respect of costs and expenses incurred before the domestic courts and before the Court.

36.  The Government contested these claims.

37.  The Court notes that under domestic law the applicant may request reopening of the civil proceedings in respect of which the Court has found a violation of the Convention and considers that in the given circumstances this is the most appropriate way of repairing the consequences of that violation. It therefore considers that a finding of a violation constitutes in itself sufficient just satisfaction for any non-pecuniary damage she might have sustained.

38.  Having regard to the documents in its possession, the Court considers it reasonable to award EUR 661 for costs and expenses incurred in the proceedings before the Court, plus any tax that may be chargeable to the applicant. Her claim for costs and expenses incurred before the domestic courts must be rejected, given that she will be able to have them reimbursed should the proceedings complained of be reopened (see, for example, Stojanović v. Croatia, no. 23160/09, § 84, 19 September 2013).

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

(a)  that the respondent State is to pay the applicant, within three months, EUR 661 (six hundred and sixty-one euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

Done in English, and notified in writing on 9 July 2024, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 Dorothee von Arnim Lorraine Schembri Orland
 Deputy Registrar President