CASE OF KARDOŠ v. CROATIA

SECOND SECTION

CASE OF KARDOŠ v. CROATIA

(Application no. 25782/11)

JUDGMENT

STRASBOURG

26 April 2016

FINAL

26/07/2016

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Kardoš v. Croatia,

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

Işıl Karakaş, President,
Julia Laffranque,
Paul Lemmens,

Valeriu Griţco,
Ksenija Turković,
Jon Fridrik Kjølbro,
Stéphanie Mourou-Vikström, judges,
and Stanley Naismith, Section Registrar,

Having deliberated in private on 15 March 2016,

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

PROCEDURE

1. The case originated in an application (no. 25782/11) 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”) by a Croatian national, Ms Zita Kardoš (“the applicant”), on 11 April 2011.

2. The applicant was represented by Ms E. Predovan, a lawyer practising in Zadar. The Croatian Government (“the Government”) were represented by their Agent, Ms Š.Stažnik.

3. The applicant alleged, in particular, that she had been erroneously deprived of access to court and of an effective remedy, contrary to Article 6 § 1 and Article 13 of the Convention.

4. On 16 December 2013 the above complaints were communicated to the Government and the remainder of the application was declared inadmissible.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1951 and lives in Zagreb.

6. The applicant was a co-owner of a block of flats on the island of Vir.

7. On 2 and 23 March 2006 building inspectors of the Inspectorate of the Ministry of the Environment, Spatial Development and Construction (Ministarstvo zaštite okoliša, prostornog uređenja i graditeljstva, Uprava za inspekcijske poslove) carried out an on-site inspection of the block of flats in question.

8. On 31 March 2006 one of the building inspectors ordered that the block of flats be demolished within three days from the date of service of the decision.

9. The applicant lodged an appeal against the demolition order, submitting that the time-limit for compliance was too short and that the block of flats was not within the protected coastal area.

10. On 15 May 2006 the appeal section of the Legal Department at the Inspectorate (Odsjek za postupak u drugom stupnju – “the second-instance body”) dismissed the appeal, finding that the block of flats had been built without a building permit.

11. Meanwhile, on 4 May 2006 the building inspector issued an administrative enforcement order (zaključak o dozvoli izvršenja), stating that the demolition order of 31 March 2006 had become enforceable on 6 April 2006 and that the co-owners had not complied with it within the given time-limit. He therefore ordered that the demolition be carried out by a third party after 11 May 2006, at the expense of the co-owners.

12. The applicant lodged an appeal against the administrative enforcement order, submitting that it was not sufficiently reasoned and that the construction of the block of flats could be retrospectively approved.

13. On 23 May 2006 the second-instance body dismissed the appeal as ill-founded.

14. On 27 June 2006 the co-owners had the block of flats demolished.

15. Meanwhile, on 26 June 2006 the applicant lodged an administrative complaint with the Administrative Court, repeating the arguments made in her appeal and seeking damages for the demolition. Since it was not clear whether the applicant was complaining about the second-instance decision concerning the demolition order or the administrative enforcement, on 11 July 2006 the Administrative Court requested her to specify which she wished to contest.

16. On 30 August 2006 the applicant replied that she was seeking annulment of the second-instance decision of 15 May 2006 concerning the demolition order.

17. On 22 April 2010 the Administrative Court dismissed her complaint as ill-founded, but addressed it as if it had been about the second-instance decision of 23 May 2006 concerning the administrative enforcement.

18. On 13 July 2010 the applicant lodged a constitutional complaint, alleging, inter alia, a violation of her right of access to court, on the ground that the Administrative Court had erroneously decided a matter which had not been the subject of her administrative complaint.

19. On 13 December 2010 the Constitutional Court declared the constitutional complaint inadmissible, on the grounds that the contested decision had not concerned the merits of the case and as such was not amenable to constitutional review. This decision was served on the applicant’s representative on 7 January 2011.

II. RELEVANT DOMESTIC LAW

A. Constitution

20. The relevant provision of the Constitution of the Republic of Croatia (Ustav Republike Hrvatske, Official Gazette no. 56/1990 with subsequent amendments) reads as follows:

Article 29

“In the determination of his rights and obligations or of any criminal charge against him, everyone is entitled to a fair hearing within a reasonable time by an independent and impartial court established by law.”

B. The Constitutional Court Act

21. The relevant provisions of the Constitutional Court Act of the Republic of Croatia (Ustavni zakon o Ustavnom sudu Republike Hrvatske, Official Gazette nos. 99/99 and 29/02) read as follows:

Section 62

“Anyone may lodge a constitutional complaint with the Constitutional Court if he or she deems that a decision (pojedinačni akt) of a State body, local or regional government or legal entity vested with public authority concerning his or her rights or obligations or the suspicion or accusation of a criminal offence, has violated his or her human rights or fundamental freedoms or the right to local or regional government guaranteed by the Constitution (hereinafter ‘constitutional right’) ...”

C. Administrative Disputes Act of 1977

22. The relevant provisions of the Administrative Disputes Act (Zakon o upravnim sporovima, Official Gazette of the Socialist Federal Republic of Yugoslavia no. 4/1977, and Official Gazette of the Republic of Croatia no. 53/91 with subsequent amendments), which was in force between 1 July 1977 and 31 December 2011, provided:

Section 52

“(1) Proceedings concluded with a judgment or a ruling shall be reopened upon a party’s request if:

(1) the party learns of new facts or discovers or gains the opportunity to use new evidence on the basis of which the dispute would have been resolved more favourably for [him or her] had these facts or evidence been presented or used in the previous proceedings;

(2) the decision rendered is the result of a criminal offence being committed by a judge or court employee or a fraudulent act by a party’s representative, the opponent or the opponent’s representative, and the act constitutes a criminal offence;

(3) the decision was based on a judgment adopted in a criminal or civil matter that was later set aside by another court decision;

(4) the document on the basis of which the decision was adopted was false or fraudulently amended, or where a witness, expert witness or party gave false testimony in court and the court decision was based on that testimony;

(5) the party finds or gains the opportunity to use a previous decision adopted in the same administrative dispute;

(6) an interested party was not given the opportunity to participate in the administrative dispute.

(2) A reopening of the proceedings shall be allowed on the grounds set forth in subsections (1) and (5) only if the party was unable, through no fault of his or her own, to present these facts during the previous proceedings.”

Section 60

“Where this Act does not contain provisions on proceedings in administrative disputes, the provisions of the Civil Procedure Act shall be applied in the appropriate manner.”

D. Administrative Disputes Act of 2010

23. The relevant provision of the Administrative Disputes Act (Zakon o upravnim sporovima, Official Gazette no. 20/10 with subsequent amendments), which entered into force on 1 January 2012, provides:

Section 76

“(1) The proceedings terminated by a judgment shall be reopened upon a petition of the party:

1. if, in a final judgment, the European Court of Human Rights has found a violation of fundamental rights and freedoms in a manner differing from the [Administrative Court’s] judgment, ...”

E. Civil Procedure Act

24. The relevant provision of the Civil Procedure Act (Zakon o parničnom postupku, Official Gazette of the Socialist Federal Republic of Yugoslavia no. 4/77, with subsequent amendments, and Official Gazette of the Republic of Croatia no. 53/91, with subsequent amendments), as in force at the material time, provided:

Section 339

“(1) Where a court has failed to decide all the complaints that should have been resolved by a judgment or has failed to decide part of a complaint, a party to the proceedings may, within fifteen days of receipt, ask the court to supplement the judgment.

...”

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

25. The applicant complained that, by failing to decide her complaint on the merits, the Administrative Court had violated her right of access to court contrary to Article 6 § 1 of the Convention, which reads as follows:

“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

A. Admissibility

1. The parties’ arguments

(a) Compliance with the six-month time-limit

26. The Government submitted that the final decision in the applicant’s case had been made by the Administrative Court on 22 April 2010 and not the Constitutional Court on 13 December 2010 (see paragraphs 17 and 19 above). Since the applicant had been represented by a lawyer, she should have known that, according to the Constitutional Court’s practice, a constitutional complaint was not a remedy to be used in respect of decisions concerning the enforcement of administrative decisions. According to the Government, this had been clear since 25 October 2006 when the Constitutional Court published its decision no. U-III-2761/2006 of the same date in the Official Gazette. They thus considered, citing the case of De Parias Merry v. Spain ((dec.), no. 40177/98, ECHR 1999‑II), that by relying on the Constitutional Court’s decision as the final domestic decision and by lodging her application with the Court on 11 April 2011, the applicant had failed to comply with the six-month time-limit.

27. The applicant contended that the judgment of the Administrative Court she had challenged before the Constitutional Court had undoubtedly concerned her civil rights guaranteed under the Constitution and the Convention; it thus could not be said that the judgment of the Administrative Court had not been amenable to review before the Constitutional Court. She considered that by refusing to examine her complaint, the Constitutional Court had acted contrary to the Constitution and the Convention and had allowed a manifest breach of the right to a fair trial to persist.

(b) Exhaustion of domestic remedies

28. The Government submitted that the applicant had failed to exhaust domestic remedies. They pointed out that she had had at her disposal effective remedies within the administrative dispute through which she could have challenged the decision of the Administrative Court, but she had failed to use them. Firstly, she could have applied to the Administrative Court for a supplementary judgment concerning her complaint about the decision of 15 May 2006. This remedy was available under section 339 of the Civil Procedure Act, and its provisions were applicable in administrative disputes under section 60 of the Administrative Disputes Act, which stipulated that the provision of the Civil Procedure Act applied mutatis mutandis in an administrative dispute. If the applicant had asked for a supplementary judgment, the Administrative Court would have considered whether it had decided all her complaints. In the event it determined that it had not, it would have issued a supplementary judgment deciding the remainder.

29. Furthermore, the applicant could have asked for a reopening of the proceedings, which she had failed to do. The Government pointed out that under section 52 of the Administrative Disputes Act, proceedings concluded with a judgment or a ruling could be reopened upon a party’s request if he or she discovered new facts or evidence on the basis of which the dispute would have been resolved more favourably for him or her had the facts or evidence been presented or used in the previous proceedings. In the Government’s view, the fact that the Administrative Court had not taken into account the applicant’s observations on the decision contested in the administrative proceedings would have certainly led to a more favourable outcome for her, at least as far as her right of access to court was concerned, within the meaning of Article 6 § 1 of the Convention.

30. The applicant argued that it was entirely clear that the Administrative Court had not only made a technical error regarding the statements in the decision, but had actually decided on a completely different decision than the one disputed in her administrative complaint. She could not therefore have requested it to make any corrections or amendments, since the remedy relied on by the Government concerned evident drafting errors and not mistakes in the conduct of the court itself or the decision-making process. Furthermore, in the applicant’s view, a request for a reopening of the proceedings was not applicable in her situation, given that all the facts and evidence had been known to the Administrative Court and the situation in question had not concerned any new facts or evidence.

2. The Court’s assessment

(a) Compliance with the six-month time-limit

31. The Court reiterates that the requirements contained in Article 35 § 1 concerning the exhaustion of domestic remedies and the six-month period are closely interrelated, since they are not only combined in the same Article, but also expressed in a single sentence whose grammatical construction implies such a correlation (see Hatjianastasiou v. Greece, no. 12945/87, Commission decision of 4 April 1990; Berdzenishvili v. Russia (dec.), no. 31697/03, ECHR 2004‑II (extracts); and Gregačević v. Croatia, no. 58331/09, § 35, 10 July 2012). As a rule, the six-month period runs from the date of the final decision in the process of exhaustion of domestic remedies. Article 35 § 1 cannot be interpreted in a manner which would require an applicant to inform the Court of his complaint before his position in connection with the matter has been finally settled at the domestic level (see Orlić v. Croatia, no. 48833/07, § 45, 21 June 2011).

32. As regards the present case, the Court observes that after the applicant’s appeal against the demolition order of 31 March 2006 had been dismissed by the second-instance body (see paragraph 10 above), she lodged an administrative complaint with the Administrative Court, which was dismissed on 22 April 2010 (see paragraphs 15 and 17 above). She then lodged a constitutional complaint challenging the Administrative Court’s judgment, but on 13 December 2010 the Constitutional Court declared it inadmissible (see paragraphs 18 and 19 above). This decision was served on her representative on 7 January 2011 (see paragraph 19 above) and she lodged her application with the Court on 11 April 2011, within six months.

33. With regard to the Government’s submission that the constitutional complaint was not a remedy to be exhausted for the purpose of calculating the six-month period, the Court reiterates that it has consistently held that before lodging complaints about Croatia, 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 their situation (see Orlić, cited above, § 46; Čamovski v. Croatia, no. 38280/10, § 27, 23 October 2012; Bajić v. Croatia, no. 41108/10, § 66, 13 November 2012; Remetin v. Croatia, no. 29525/10, § 81, 11 December 2012; Tarbuk v. Croatia, no. 31360/10, § 29, 11 December 2012; Damjanac v. Croatia, no. 52943/10, § 70, 24 October 2013; and Šimecki v. Croatia, no. 15253/10, § 29, 30 April 2014).

34. Therefore, the issue to be examined is whether the applicant’s constitutional complaint against the Administrative Court’s decision of 22 April 2010 (see paragraph 17 above) was, in the particular circumstances of the instant case, a remedy to be used for the purposes of Article 35 § 1 of the Convention and, consequently, whether the Constitutional Court’s decision of 13 December 2010 (see paragraph 19 above) declaring that complaint inadmissible was the decision from which the six-month time-limit should be calculated.

35. In this connection, the Court notes that, under section 62 of the Constitutional Court Act, anyone who considers that his or her rights, as guaranteed by the Constitution, have been infringed by a decision of a State or public authority determining any of his rights or obligations may lodge a constitutional complaint against such a decision (see paragraph 21 above). Since the right to a fair hearing is guaranteed by the Constitution (see paragraph 20 above), it would appear that where an applicant lodged a constitutional complaint in reliance on that provision complaining of a violation that fell within its substantive scope, the Court considered, irrespective of the possible decision of the Constitutional Court, that it did not amount to an unreasonable use of that remedy (see, for example, Dolenec v. Croatia, no. 25282/06, § 200, 26 November 2009; Remetin, § 83; Gregačević, § 41; and Šimecki, § 33, all cited above).

36. However, in view of the Government’s arguments (see paragraphs 26-27 above), the issue arises as to whether, when the practice of the Constitutional Court suggests that certain decisions are not open to constitutional review, the Court would be prepared to take that practice into account.

37. The Court has already had the opportunity to address this issue in a number of cases against Croatia, and each time rejected a similar inadmissibility objection raised by the Government (see, for example, Pavlović and Others v. Croatia, no. 13274/11, §§ 30-38, 2 April 2015, as regards decisions on costs of proceedings, and Šimecki, cited above, §§ 28-33, as regards certain decisions adopted in enforcement proceedings). In particular, it has held – without intending to question the power of the Constitutional Court to interpret the criteria for admissibility of constitutional complaints, or the resultant practice which dictates that certain decisions are not open to constitutional review – that applicants who had lodged their constitutional complaints had acted neither unreasonably nor contrary to the wording of section 62 of the Constitutional Court Act (see Pavlović and Others, cited above, §§ 34 and 36, and Šimecki, cited above, § 33). The Court sees no reason to hold otherwise in the present case.

38. The Court can only add that, having regard to its characteristics, a constitutional complaint is clearly a remedy capable of addressing the relevant Convention issue and redressing the violation complained of. To hold that such a remedy did not need to be pursued simply because, at the time, the Constitutional Court’s practice suggested that the decision being contested was not open to constitutional review, would not only disregard the fact that such practice might evolve (see Pavlović and Others, cited above, § 36). More importantly, it would remove any incentive for such evolution, as applicants would systematically address their complaints to the Court without giving the Constitutional Court a chance to change its practice. That would be contrary to the principle of subsidiarity (see Vrtar v. Croatia, no. 39380/13, § 76, 7 January 2016).

39. Lastly, the Court notes that, had the applicant’s arguments that the Administrative Court had examined the wrong decision been accepted, the Constitutional Court would not have declared her constitutional complaint inadmissible on the grounds that the case concerned enforcement of administrative decisions, which were not open to constitutional review. Therefore, even leaving aside the above considerations (see paragraphs 31-38), it cannot be said that, by lodging the constitutional complaint, the applicant pursued an unnecessary remedy. The Government’s objection regarding non-compliance with the six-month rule must therefore be rejected.

(b) Exhaustion of domestic remedies

40. The Court considers that the question of exhaustion of domestic remedies should be joined to the merits, since it is closely linked to the substance of the applicant’s complaint about her right of access to court.

(c) Conclusion

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

B. Merits

1. The parties’ arguments

42. The applicant contended that she had lodged an administrative complaint regarding the demolition order of 15 May 2006, which could be seen from its very content and her letter of 30 August 2006 explicitly informing the Administrative Court which decision she wished to contest. However, contrary to her written submission, that court had decided on the validity of another decision and had dismissed her administrative complaint as if it had been about the decision of 23 May 2006. The Constitutional Court, with its excessively formalistic approach, had refused to remedy the situation.

43. The Government pointed out that the Administrative Court had truly made an obvious mistake and had decided on the wrong administrative decision, which the applicant herself had contributed to by not clearly indicating in her complaint which of the two decisions she wanted the court to review in the course of the administrative dispute. However, even when the judgment on the legality of the wrong administrative decision had been rendered, the applicant could have applied for a supplementary judgment or requested a reopening of the proceedings, that is to say, she should have pointed out the error to the Administrative Court and requested its correction. In their view, only in the event that the Administrative Court refused to do so, thus de iure denying the applicant’s right of access to court regarding the decision on the demolition order of 15 May 2006, could she seek protection before the Constitutional Court. Since this was not done, the Government were of the opinion that the State could not be held responsible for a violation of Article 6 § 1 of the Convention.

2. The Court’s assessment

(a) General principles

44. The Court has held on many occasions that Article 6 § 1 embodies the “right to a court”, of which the right of access, that is, the right to institute proceedings before a court, constitutes one aspect only; however, it is that aspect which enables an individual to benefit from the further guarantees laid down in that provision. The fair, public and expeditious characteristics of judicial proceedings are indeed of no value at all if such proceedings are not first initiated. And in civil matters one can scarcely conceive of the rule of law without there being a possibility of having access to the courts (see, among many other authorities, Golder v. the United Kingdom, 21 February 1975, §§ 34 in fine and 35-36, Series A no. 18; Z. and Others v. the United Kingdom [GC], no. 29392/95, §§ 91‑93, ECHR 2001-V; and Kreuz v. Poland, no. 28249/95, § 52, ECHR 2001-VI).

45. The right of access to court is not, however, absolute. It may be subject to legitimate restrictions such as statutory limitation periods, security for costs orders, and regulations concerning minors and persons of unsound mind (see Stubbings and Others v. the United Kingdom, 22 October 1996, §§ 51‑52, Reports of Judgments and Decisions 1996‑IV; Tolstoy Miloslavsky v. the United Kingdom, 13 July 1995, §§ 62‑67, Series A no. 316-B; and Golder, cited above, § 39). Where the individual’s access is limited either by operation of law or in fact, the Court will examine whether the limitation imposed impaired the essence of the right and, in particular, whether it pursued a legitimate aim and whether there was a reasonable relationship of proportionality between the means employed and the aim sought to be achieved (see Ashingdane v. the United Kingdom, 28 May 1985, § 57, Series A no. 93; Związek Nauczycielstwa Polskiego v. Poland, no. 42049/98, § 29, ECHR 2004‑IX; and Szwagrun-Baurycza v. Poland, no. 41187/02, § 49, 24 October 2006). If the restriction is compatible with these principles, no violation of Article 6 will arise (see Z and Others v. the United Kingdom, cited above, §§ 92‑93).

46. In this connection, the Court reiterates that, in accordance with Article 19 of the Convention, its duty is to ensure the observance of the obligations undertaken by the Contracting Parties to the Convention. In particular, it is not its function to deal with errors of fact or law allegedly committed by a national court, unless and in so far as they may have infringed rights and freedoms protected by the Convention (see Běleš and Others v. the Czech Republic, no. 47273/99, § 48, ECHR 2002‑IX).

(b) Application of these principles to the present case

47. The Court notes that the applicant lodged two separate appeals against two separate decisions of the building inspector (see paragraphs 9 and 12 above). These were dismissed by the second-instance body on 15 May 2006 and 23 May 2006 respectively (see paragraphs 10 and 13 above). She then lodged an administrative complaint, from which it was unclear whether it concerned the decision of 15 May 2006 or that of 23 May 2006. The Administrative Court asked the applicant to clarify this matter and she replied that she was complaining about the decision of 15 May 2006 (see paragraphs 15 and 16 above). However, the Administrative Court, contrary to her written submission, dismissed her administrative complaint as if it concerned the decision of 23 May 2006 (see paragraph 17 above). As a result, her administrative complaint was never examined on the merits.

48. In this connection, the Court reiterates that the fact that the applicant was able to lodge a complaint with the domestic courts does not necessarily satisfy the requirements of Article 6 § 1 of the Convention (see Yagtzilar and Others v. Greece, no. 41727/98, § 26, ECHR 2001‑XII). That Article secures to everyone the right to have any claim relating to his civil rights and obligations brought before a court or tribunal. In this way it embodies the “right to a court”, which, according to the Court’s case-law, includes not only the right to institute proceedings but also the right to obtain the “determination” of the dispute by a court (see Kutić v. Croatia, no. 48778/99, § 25, ECHR 2002‑II, and Menshakova v. Ukraine, no. 377/02, § 52, 8 April 2010).

49. It remains to be seen whether the error committed by the Administrative Court in the identification of the object of the complaint, resulting in the total absence of the examination of the applicant’s real complaint, could have been remedied through available procedural mechanisms.

50. The Court further notes that under section 339 of the Civil Procedure Act, a party may ask for a supplementary judgment where a court has failed to decide all the complaints or part of a complaint (see paragraph 24 above).

51. In the case at issue, the applicant lodged her administrative complaint about the decision concerning the demolition order of 15 May 2006. However, since it was not very clear from her administrative complaint which decision she was contesting, the Administrative Court in its letter of 11 July 2006 requested her to specify whether she wanted to contest the decision of 15 May 2006 or the decision of 23 May 2006 (see paragraph 15). It appears from that letter that the Administrative Court did not leave the possibility for the applicant to lodge simultaneously administrative complaint against both decisions. The applicant corrected the abovementioned ambiguity by precisely identifying the decision of 15 May 2006 as the subject of her complaint with the Administrative Court (see paragraph 16 above). Despite that, the court assessed her complaint as if it concerned the decision of 23 May 2006, thus failing to decide her one and only complaint, that is, the complaint about the decision of 15 May 2006. Instead, it decided on a complaint that she did not lodge (see paragraph 17 above).

52. In this connection, the Court considers that the applicant’s situation does not fall within the scope of section 339 of the Civil Procedure Act, because in the present case the Administrative Court did not fail to decide all the complaints or part of a complaint, but manifestly incorrectly assessed her complaint as if it concerned another decision, overlooking the fact that she, in her submissions of 30 August 2006, had given information about the decision she wished to contest.

53. With regard to the Government’s submission that the applicant should have requested a reopening of the proceedings, the Court notes that under the relevant domestic law, such requests may be an effective remedy where a party learns of a new fact or evidence on the basis of which the dispute would have been resolved more favourably for him or her had they been presented in the previous proceedings or on other grounds recognised by law (see paragraph 22 above).

54. The fact that a court decides on a complaint which the complainant has not lodged cannot be considered a new fact or evidence on the basis of which the dispute would have been resolved more favourably for the party concerned. Moreover, the relevant domestic law does not list that as a ground for a reopening of the proceedings (see paragraph 22 above).

55. As to the Government’s argument that the applicant could have requested the Administrative Court to correct its obvious error concerning which of the two decisions she had wished to contest, the Court reiterates that she explicitly identified the relevant decision in her letter of 30 August 2006 (see paragraphs 15, 16 and 52 above).

56. Consequently, the Court considers that the applicant was not required to seek the protection of her rights under section 339 of the Civil Procedure Act or section 52 of the 1977 Administrative Disputes Act (see paragraphs 22 and 24 above), because these remedies were not applicable to her situation.

57. In the circumstances of the present case, the Court considers that the Administrative Court erroneously failed to decide the applicant’s complaint, thus depriving her of her right of access to court (see, mutatis mutandis, Pelevin v. Ukraine, no. 24402/02, §§ 28-32, 20 May 2010).

58. Accordingly, the Court rejects the Government’s objection as to the exhaustion of domestic remedies and finds that there has been a violation of Article 6 § 1 of the Convention in the present case.

II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

59. The applicant also complained that she had had no effective remedy in respect of her complaint concerning access to court. She relied on Article 13 of the Convention which reads as follows:

“Everyone whose rights and freedoms as set forth in the Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

60. The applicant reiterated the arguments made in her complaint regarding access to court.

61. The Government contested those arguments.

62. The Court notes that this complaint is linked to the one examined above and must therefore likewise be declared admissible.

63. Having regard to its findings above, and given that Article 6 § 1 is to be considered a lex specialis in relation to Article 13 (see, for example, Sukhorubchenko v. Russia, no. 69315/01, § 60, 10 February 2005, and Jalloh v. Germany (dec.), no. 54810/00, 26 October 2004), the Court considers that it is not necessary to examine separately the merits of the applicant’s identical complaint made under Article 13 of the Convention (see Jovanović v. Serbia, no. 32299/08, § 53, 2 October 2012).

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

64. Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Damage

65. The applicant claimed 55,000 euros (EUR) in respect of pecuniary damage and EUR 10,000 in respect of non-pecuniary damage.

66. The Government considered the applicant’s claim excessive, unfounded and unsubstantiated, as there was no causal link between the violations complained of and the applicant’s financial claims.

67. On the other hand, the Court finds that the applicant must have sustained non-pecuniary damage. In this connection the Court first reiterates that the most appropriate form of redress in cases where it finds that an applicant has not had access to court in breach of Article 6 § 1 of the Convention would, as a rule, be to reopen the proceedings in due course and re‑examine the case in keeping with all the requirements of a fair hearing (see, for example, Lungoci v. Romania, no. 62710/00, § 56, 26 January 2006; Yanakiev v. Bulgaria, no. 40476/98, § 90, 10 August 2006; and Lesjak v. Croatia, no. 25904/06, § 54, 18 February 2010). In this connection the Court notes that, having regard to section 76(1) subparagraph 1 of the 2010 Administrative Disputes Act (see paragraph 23 above), the applicant can now file a petition for the reopening of the proceedings which have been brought before the Administrative Court, in respect of which the Court has found a violation of Article 6 § 1 of the Convention. In these circumstances, ruling on an equitable basis, the Court awards the applicant EUR 2,500 in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount.

B. Costs and expenses

68. The applicant also claimed EUR 3,550 for the costs and expenses incurred before the domestic courts and EUR 850 for those incurred before the Court.

69. The Government contested these claims.

70. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 890 for the costs and expenses incurred in the proceedings before the domestic courts and EUR 850 for those incurred in the proceedings before the Court, plus any tax that may be chargeable to the applicant.

C. Default interest

71. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Joins to the merits the Government’s objection as to the exhaustion of domestic remedies and rejects it;

2. Declares the application admissible;

3. Holds that there has been a violation of Article 6 § 1 of the Convention;

4. Holds that there is no need to examine the complaint under Article 13 of the Convention;

5. Holds

(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into Croatian kunas at the rate applicable at the date of settlement:

(i) EUR 2,500 (two thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 1,740 (one thousand seven hundred and forty 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;

6. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 26 April 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Stanley NaismithIşıl Karakaş
RegistrarPresident

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judge Lemmens is annexed to this judgment.

A.I.K.
S.H.N.

CONCURRING OPINION OF JUDGE LEMMENS

1. I fully agree with my colleagues as to the outcome in this case. It seems to me, however, that the case could have been disposed of in a much more straightforward way.

The facts of the case are very simple. The applicant brought an appeal before the Administrative Court which, she stated by way of clarification, was directed against the decision upholding the demolition order (“the demolition decision”), and not against the later decision upholding the order for the enforcement of that demolition order (“the enforcement decision”). The Administrative Court failed to take a decision on the appeal against the demolition decision, and instead took a decision on a non-existent appeal against the enforcement decision. When the applicant then filed a constitutional complaint, the Constitutional Court characterised the judgment of the Administrative Court as one relating to the enforcement of a decision – and thus not as a judgment on the merits of a dispute – with the result that the complaint was declared inadmissible as being directed against a decision that was not amenable to constitutional review.

2. With respect to the objection based on the six-month rule, I find it obvious that it was not unreasonable for the applicant to file a constitutional complaint against the judgment of the Administrative Court dismissing a claim which she had not brought before that court (an appeal against the enforcement decision) and failing to take a decision on the claim which she had brought (an appeal against the demolition decision). The fact that, according to the Constitutional Court’s case-law, complaints directed against judgments that do not concern the merits of a dispute are inadmissible (see paragraphs 36 to 37 of the judgment) is, in my opinion, not a relevant issue. Even though the Constitutional Court applied that same case-law in the applicant’s case, the fact remains that the latter’s constitutional complaint concerned a decision taken on an appeal directed against a demolition decision, not against its enforcement. Our judgment should not have entered into a discussion with respect to the Constitutional Court’s practice concerning decisions rejecting appeals effectively directed against enforcement decisions or other decisions not related to the merits.

If the Court had refrained from entering into that discussion, it could also have avoided suggesting that the applicant was entitled to pursue her constitutional complaint, notwithstanding the Constitutional Court practice of declaring complaints of a certain type inadmissible, because she could have hoped “that such practice might evolve” (see paragraph 38 of the judgment). I find this suggestion debatable. Where it can effectively be assumed, in the light of the existing case-law, that a given remedy would be bound to fail (compare Pressos Compania Naviera S.A. and Others v. Belgium, 20 November 1995, § 27, Series A no. 332), an applicant is absolved from the obligation to exhaust that remedy (see, generally, Aksoy v. Turkey, 18 December 1996, § 52, Reports of Judgments and Decisions 1996-VI, and Sejdovic v. Italy [GC], no. 56581/00, § 55, ECHR 2006‑II), without having to wonder whether or not he or she would be able to convince the relevant court to change its case-law. Our judgment could be interpreted as meaning that an applicant cannot always rely on the existence of negative case‑law. Be that as it may, in our case, as stated above, there is in my opinion no question of the existence of clear case-law closing the door of the Constitutional Court to the applicant, since she could very well argue that her complaint did not fall within the scope of the existing case-law concerning decisions unrelated to the merits of a dispute. I therefore do not see why she should have to justify her recourse to the Constitutional Court on the basis of a hope that this case-law might evolve.

3. With respect to the objections based on the rule of exhaustion of domestic remedies, I do not see why it was necessary to join them to the merits of the complaint relating to the right to a court (see paragraph 40 of the judgment). These objections could, in my opinion, have been rejected at the admissibility stage, on the basis of the reasoning developed in the relevant part of the judgment relating to the merits (see paragraphs 50 to 56 of the judgment).

4. With respect to the merits of the complaint, I believe it would have been sufficient to note that the Administrative Court simply made a mistake and failed to decide on the appeal brought by the applicant. There was in my opinion no need to reiterate the general principles relating to the right of access to a court and the possible limitations thereto (see paragraphs 44 to 45 of the judgment). Our case had little or nothing to do with these principles.

If a general principle nevertheless had to be mentioned, it seems to me that it should rather have been the principle that the right to a court includes not only the right to institute proceedings (right of access) but also the right to a judicial determination of the dispute (see paragraph 48 of the judgment, referring to Kutić v. Croatia, no. 48778/99, § 25, ECHR 2002‑II, and Menshakova v. Ukraine, no. 377/02, § 52, 8 April 2010; see the foundations of this principle in König v. Germany, 28 June 1978, § 98, Series A no. 27; Le Compte, Van Leuven and De Meyere v. Belgium, 23 June 1981, § 51, Series A no. 43; Stran Greek Refineries and Stratis Andreadis v. Greece, 9 December 1994, § 49, Series A no. 301‑B; and Assanidze v. Georgia [GC], no. 71503/01, § 129, ECHR 2004‑II).

Because of the mistake made by the Administrative Court, the applicant did not obtain an examination of her appeal (see paragraph 47 of the judgment). In other words, she did not receive a judicial determination of the dispute which she had brought before that court. As this mistake was not remedied by the Constitutional Court, the applicant’s right to a court was violated.

Rather than concluding that the applicant was deprived of her right of access to a court (see paragraph 57 of the judgment, referring, mutatis mutandis, to Pelevin v. Ukraine (no. 24402/02, §§ 28-32, 20 May 2010)), I would say that her right to a judicial determination of the dispute with the administrative authorities was violated.

 

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