CASE OF MINDEK v. CROATIA

SECOND SECTION

CASE OF MINDEK v. CROATIA

(Application no. 6169/13)

JUDGMENT

(Revision)

STRASBOURG

11 September 2018

FINAL

11/12/2018

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

In the case of Mindek v. Croatia (request for revision of the judgment of 30 August 2016),

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

Işıl Karakaş, President,
Nebojša Vučinić,
Paul Lemmens,
Valeriu Griţco,
Ksenija Turković,
Stéphanie Mourou-Vikström,
Georges Ravarani, judges,
and Stanley Naismith, Section Registrar

Having deliberated in private on 10 July 2018,

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

PROCEDURE

1. The case originated in an application (no. 6169/13) against the Republic of Croatia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Croatian national, Mr Anton Mindek (“the applicant”), on 27 December 2012.

2. In a judgment delivered on 30 August 2016 (“the original judgment”), the Court held that there had been a violation of Article 1 of Protocol No. 1 to the Convention because the domestic courts had decided to proceed with the judicial sale of the applicant’s share in the house and the surrounding land he owned with his wife even after he had paid the debt in full, only to collect the enforcement costs. The Court also decided to award the applicant 1,050 euros (EUR) for costs and expenses and dismissed the remainder of his claim for just satisfaction.

3. On 10 February 2017 the Government informed the Court that no earlier than 26 September 2016 (see paragraph 10 below) they had learned that the applicant and his wife had not been living in the house at issue, a fact which by its nature might have had a decisive influence, had it been known to the Court at the time of delivering the original judgment. They accordingly requested revision of the judgment within the meaning of Rule 80 of the Rules of Court.

4. On 9 May 2017 the Court considered the request for revision and gave the applicant’s representative one month in which to submit any observations (Rule 80 § 4 of the Court’s Rules). Accordingly, by a letter of 11 May 2017 the Court invited the applicant’s representative to submit any written comments on the Government’s revision request by 22 June 2017.

5. By a letter of 31 May 2017 the wife of the applicant’s representative informed the Court of his death. She also stated that following the death of her husband the applicant had taken all the documents related to the case, and that because she did not know his current address, she was unable to forward him the Court’s letter of 11 May 2017.

6. Accordingly, on 16 June 2017 the Court sent its letter of 11 May 2017 directly to the applicant, at the address given for him in the application form. The Court has not received any reply from him.

THE LAW

I. THE ORIGINAL JUDGMENT

7. The relevant part of the Court’s judgment of 30 August 2016 reads as follows:

“80. ... the Court reiterates that its jurisdiction to verify that domestic law has been correctly interpreted and applied is limited and that it is not its function to take the place of the national courts. It will therefore confine itself to examining whether the decisions of the domestic courts were arbitrary or manifestly unreasonable (see Anheuser-Busch Inc., cited above, § 83). It will, however, do so with the above considerations in mind (see paragraph 79 above and paragraph 85 below).

81. The Court attaches particular importance to the fact that on 2 May 2011 when the applicant paid the debt in full, he also expressed his readiness to cover the costs of the enforcement proceedings as well, but could not do so because the enforcement court had not specified them at that time. He thus invited the court to issue a decision in that respect (see paragraph 23 above). Instead, the court proceeded with the sale of his share in the property and only specified the costs a year and four months later, in its decision distributing the proceeds of sale (see paragraph 25 above).

82. The Court understands that the domestic courts might have considered that to continue with the sale of the applicant’s share in the property after 2 May 2011 was the appropriate course of action in the circumstances, given his previous conduct in the enforcement proceedings, which could have been seen as delaying tactics. In particular, those courts might have considered it unlikely that the applicant, for whom it took more than three and a half years to settle the debt of HRK 58,415.75[1] (see paragraph 23 above), would pay an additional HRK 10,703.12[2] in costs (see paragraph 32 above) without further delay. However, even if such justification is to be accepted, and although the Court attaches great importance to securing enforcement of judgments without undue delay (see, for example, Zagrebačka banka d.d., cited above, § 201), it does not see why the enforcement court did not at least specify the costs when the applicant asked it to do so (see paragraph 23 above). In that way it would have given him a chance to pay those costs without having to postpone the enforcement proceedings, which subsequently in any event lasted a year and four months before the creditor received the said costs (see the preceding paragraph).

83. Even if these domestic courts’ decisions are not to be regarded as arbitrary, they are manifestly unreasonable for the reasons set out below.

84. In the Court’s view, the purpose of the sale at a public auction effected in the context of enforcement is to satisfy the creditor’s claim from the proceeds of the sale. In the instant case there was no third party whose interests could have been affected if the enforcement had been discontinued and the sale invalidated. Moreover, the Court notes that the enforcement creditor as the buyer made no financial investment by the time the debt was settled (see paragraphs 21, 23 and 29 above and compare with Rousk v. Sweden, no. 27183/04, § 141, 25 July 2013).

85. That being so, the Court finds it evident that from the moment the applicant paid his debt in full on 2 May 2011 (see paragraph 23 above) the need to protect the interest of his creditor (to recover the costs of enforcement proceedings) cannot justify the serious detrimental effects the decision to continue with the sale of his share in the property had on him. The fact remains that, as a result of that decision, the applicant’s share in his only real estate, which was also his home, worth HRK 131,200[3], was sold to his creditor for one-third of the market value and only to cover the costs of enforcement proceedings amounting to HRK 10,703.12[4], that is, for some 8% of the price (see paragraphs 14, 21, 25 and 32 above). What is more, as a further consequence thereof, the applicant and his wife are now facing eviction from their home in the proceedings for partition of co‑ownership (see paragraphs 36-40 above).

86. The foregoing considerations are sufficient to enable the Court to conclude that even if the domestic courts’ decisions to proceed with the sale of the applicant’s share in his only real estate, after he had already settled the principal debt are not to be regarded arbitrary, they were manifestly unreasonable in the specific circumstances of the present case.

87. There has, accordingly, been a violation of Article 1 of Protocol No. 1 to the Convention.”

II. THE REQUEST FOR REVISION

8. Referring to paragraphs 70 and 83-87 of the original judgment, the Government argued that the Court’s finding of a violation had been largely based on the assumption that, because of the judicial sale of the applicant’s share in the house, he and his wife were facing eviction from their home. That assumption had been based on a statement by the applicant’s representative who, when submitting the claim for just satisfaction on 13 August 2013, had stated that:

(i) the applicant had been living in the house in question since his retirement;

(ii) the house and the surrounding land was his only real estate in Croatia;

(iii) the judicial sale of the house would eventually render him and his wife homeless.

9. Even earlier, in a letter to the Court of 5 April 2013, the applicant’s representative, replying to the Court’s question about the applicant’s date and place of birth, had stated:

“... I hereby comply with the letter of 23 January 2013 ... and within the set deadline submit the requested information on the applicant’s place of birth, which is 4 June 1932 in S. Domitrovec, where he still lives.”

10. However, during the execution of the original judgment the Government learned that the applicant and his wife had not been living in the house at issue. In particular, on 26 September 2016 the daily newspaper Večernji List published an article with the headline “The court insisted on auctioning off half of the house for 10.700 kunas”, commenting on the Court’s judgment in the applicant’s case. The article suggested that the applicant and his wife lived in Germany. The relevant part of the article reads:

“They were saved by the European Court of Human Rights, which recently ruled in their favour, which they did not know until they heard it from a journalist of Večernji List. In fact, they live in Germany, and only come to Domitrovec in the summer, but since 84 year old Anton Mindek had fallen ill and could not drive they did not come [to Croatia] this year ....

...

‘I thought nothing would come of it. I do not know what we will do now, since we cannot come to Croatia’, said Hilda Mindek ... Her husband was born in Domitrovec and [the house, which has been in his family for generations,] has special sentimental value for them.”

11. The Government submitted that they could not reasonably have known that the applicant had not been living in the house because his last registered domicile was at the address of the house. Moreover, there had been nothing to suggest that he had been living elsewhere.

12. Through further enquiries with the Croatian Pension Fund and Croatian Health Insurance Fund the Government learned that the applicant had never had pension or health insurance in Croatia. This suggested that he had never been employed and, most probably, had not lived in Croatia while of working age. Likewise, if he had moved to Croatia after his retirement, his pension earned abroad would have been paid to him through the Croatian Pension Fund. However, the Croatian Pension Fund had no records to that effect. Moreover, the records of the Ministry of the Interior showed that his wife, who was a German national, had registered a short-term residence at the address of the house in the period between 18 February and 18 May 2010 only.

13. For the Government, all this suggested that:

(i) the applicant was not living in the house in question and had not been living there at the relevant time,

(ii) his representative had led the Court to believe otherwise, which amounted to an abuse of the right of application.

14. In the Government’s view, the fact that the applicant and his wife had been living elsewhere rather than in the house subject to judicial sale might have had a decisive influence on the Court’s decision in the present case. They therefore invited the Court to revise the original judgment.

III. THE COURT’S ASSESSMENT

15. The relevant part of Rule 80 of the Rules of Court provides:

“A party may, in the event of the discovery of a fact which might by its nature have a decisive influence and which, when a judgment was delivered, was unknown to the Court and could not reasonably have been known to that party, request the Court, within a period of six months after that party acquired knowledge of the fact, to revise that judgment.

...”

16. In their request for revision the Government argued that the fact that the applicant and his wife had not been living in the house subject to judicial sale had had a decisive influence on the Court’s finding of a violation of Article 1 of Protocol No. 1 to the Convention in the original judgment (see paragraph 14 above).

17. However, for the reasons set out below (see paragraphs 18-25), the Court considers that the fact relied on by the Government did not have a decisive influence, within the meaning of Rule 80 § 1 of the Rules of Court, and that a revision of the original judgment is therefore not required.

18. The Court reiterates at the outset that, in so far as it calls into question the final character of judgments of the Court, the possibility of revision, which is not provided for in the Convention but was introduced by the Rules of Court, is considered to be an exceptional procedure. Requests for revision of judgments are therefore to be subjected to strict scrutiny (see McGinley and Egan v. the United Kingdom (revision), nos. 21825/93 and 23414/94, § 30, ECHR 2000‑I; and Gustafsson v. Sweden (revision – merits), 30 July 1998, § 25, Reports of Judgments and Decisions 1998‑VI). Where doubts remain as to whether or not a new fact actually did have a decisive influence on the original judgment, legal certainty must prevail and the final judgment must stand.

19. In this connection, the Court first notes that it examined the present case under Article 1 of Protocol No. 1 and not Article 8 of the Convention. Furthermore, its finding of a violation of Article 1 of Protocol No. 1 was based on the severity of the consequences the sale had on the applicant, which rendered that decision manifestly unreasonable (see paragraphs 83-86 of the original judgment).

20. In the reasons given for finding a violation of Article 1 of Protocol No. 1 the reference to the applicant’s house being his home appears in paragraph 85 of the original judgment (see paragraph 7 above), from which it follows that the State failed to strike a fair balance between the aim sought to be achieved and the measure employed primarily due to disproportionality between the value of the house and the value of the debt (see, in this respect, Vaskrsić v. Slovenia, no. 31371/12, § 87, 25 April 2017).

21. Furthermore, paragraph 85 of the original judgment does not refer to the fact that the applicant was living in the house at issue on a daily basis but to the fact that it was his home. Likewise, it does not suggest that the applicant and his wife would be rendered homeless but that they were facing eviction from their home, it being understood that a person may also be evicted in his or her absence. These differences are not merely semantic.

22. Under the Court’s case-law developed in the context of Article 8 of the Convention, the term “home” in the English version of Article 8 is not to be interpreted narrowly (see Niemietz v. Germany, 16 December 1992, § 30, Series A no. 251‑B). Whether or not a particular dwelling constitutes a “home” will depend on the factual circumstances, notably the existence of sufficient and continuous links with a specific place. In a number of cases the Court has held that a given dwelling constituted a “home” even though the applicants were not living there on a permanent basis (see, for example, Gillow v. the United Kingdom, 24 November 1986, § 46, Series A no. 109; McKay-Kopecka v. Poland (dec.), no. 45320/99, 19 September 2006; and Trifunović v. Croatia (dec.), no. 34162/06, 6 November 2008). Likewise, the Court has considered that second or holiday homes also constituted a home within the meaning of Article 8 of the Convention (see Demades v. Turkey, no. 16219/90, §§ 31-34, 31 July 2003).

23. Newly discovered facts in the present case seem to suggest that the applicant has been living in Germany, but that he and his wife have been using the house in question (where he was born and where his family lived for generations) for living purposes during their stays in Croatia in the summer.

24. Seen in the light of the case-law cited above (see paragraph 22), these facts, in the Court’s view, mean that the applicant retained sufficient continuing links with the house at issue for it to be considered his “home” in Convention terms. Therefore, the fact that the applicant was not actually living in the house at issue on a daily basis is not a fact of decisive influence, within the meaning of Rule 80 § 1 of the Court’s Rules, which would justify a revision of the Court’s original judgment in the present case.

25. This conclusion further allows for the dismissal of the Government’s arguments that the applicant’s representative abused the right of individual application (see paragraph 13 above).

26. In this connection, the Court first reiterates that an application may be seen as an abuse of the right of application if, among other reasons, an applicant or his or her representative have misled the Court. This may occur, for example, when it is clear that an application is knowingly based on untrue facts with a view to deceiving the Court, or where it is deliberately grounded on a description of facts omitting events of central importance (see Al-Nashif v. Bulgaria, no. 50963/99, § 89, 20 June 2002, and Kerechashvili v. Georgia (dec.), no. 5667/02, ECHR 2006‑V).

27. However, as explained above (see paragraphs 18-24), since the question of whether the applicant was actually living in the house at issue on a daily basis is not decisive for the purposes of revision of the Court’s original judgment, it cannot be considered as a fact of “central importance” for the purposes of deciding whether there was an abuse of the right of individual application. It is therefore unnecessary to examine whether the applicant’s representative omitted to clarify that the applicant was not living in the house at issue on a daily basis, or presented the facts differently, and, if so, whether his actions or omissions in this respect were deliberate.

28. In view of the above considerations, the Court finds that the Government’s request for revision must be dismissed.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

Decides to dismiss the Government’s request for revision.

Done in English, and notified in writing on 11 September 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

              Stanley NaismithIşil Karakaş
RegistrarPresident

[1]. Approximately EUR 7,924.87 at the time.

[2]. Approximately EUR 1,447.59 at the time.

[3]. Approximately EUR 18,000 at the time.

[4]. Approximately EUR 1,447.59 at the time.

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