CASE OF NOVAKOVIĆ v. CROATIA

FIRST SECTION

CASE OF NOVAKOVIĆ v. CROATIA

(Application no. 32096/12)

JUDGMENT

STRASBOURG

23 July 2015

FINAL

23/10/2015

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

In the case of Novaković v. Croatia,

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

Isabelle Berro, President,
Elisabeth Steiner,
Mirjana Lazarova Trajkovska,
Julia Laffranque,
Paulo Pinto de Albuquerque,
Ksenija Turković,
Dmitry Dedov, judges,
and Søren Nielsen, Section Registrar,

Having deliberated in private on 30 June 2015,

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

PROCEDURE

1. The case originated in an application (no. 32096/12) 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 Dragan Novaković (“the applicant”), on 19 April 2012.

2. The applicant was represented by Mrs N. Kovačević, a lawyer practising in Sisak. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik.

3. The applicant alleged, in particular, that he had been deprived of access to a court as regards his claim for damages against the State.

4. On 8 September 2014 notice of the complaints under Article 6 § 1 and Article 13 of the Convention was given 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 1956 and lives in Sisak.

A. Background to the case

6. The applicant, a person of Serbian ethnic origin, lived in the town of Sisak. During 1991 and 1992 Serbian paramilitary forces gained control of about one third of the territory of Croatia and proclaimed the so-called “Serbian Autonomous region of Krajina” (Srpska autonomna oblast Krajina, hereinafter the “Krajina”). The town of Sisak was close to the border of Krajina. There were targeted killing of Serbian civilians by members of the Croatian police and army in the Sisak area during a prolonged period in 1991 and 1992 (see Jelić v. Croatia, no. 57856/11, § 78, 12 June 2014). In July 1991 the applicant left the town of Sisak, fearing for his personal safety.

7. At the beginning of August 1995 the Croatian authorities announced a campaign of military action with the aim of regaining control over the Krajina. The action was codenamed “Storm” and lasted from 4 to 7 August 1995.

8. In 1996 the United Nations Security Council established the United Nations Transitional Administration in Eastern Slavonia, Baranja and Western Sirmium (the “UNTAES”). On 15 January 1998 the UNTAES mandate ceased and the transfer of power to the Croatian authorities began.

B. Civil proceedings instituted by the applicant

9. On 26 September 1999 the applicant lodged a civil action against the Sisak Municipality and the Sisak Market in the Sisak Municipal Court, seeking payment of a sum of money on account of his investments in certain premises. The applicant stated that in July 1991 he left the town of Sisak fearing for his personal safety. He returned to Croatia in 1996. As a result, he was not able to lodge his claim within the five-year statutory time-limit. In his oral evidence given on 19 February 2002 the applicant said that after having left the town of Sisak, he had first moved to Glina, in the territory of the Krajina, and soon afterwards to the Netherlands.

10. On 30 January 2006 the Sisak County Court dismissed the claim on the grounds that it had become time-barred. It held that the applicant had left the town of Sisak of his own free will, that the town of Sisak had never been occupied and that the courts had been operational there at all times. Therefore, there had been no “insurmountable obstacles” for the applicant to lodge his civil claim within the statutory limitation period. The relevant part of the judgment reads:

“... the defendant’s objection concerning the statutory limitation period is well founded since the plaintiff brought his civil action on 26 September 1999 and the lease agreement had ceased on 6 September 1991. Therefore, under section 371 of the Obligations Act ... the plaintiff’s claim had become statute-barred after five years.

...

The plaintiff’s submissions under section 383 of the Obligations Act concerning insurmountable obstacles which had prevented him from seeking judicial protection of his rights have not been accepted by this court because he had left the town of Sisak of his own free will and the courts [in Sisak] have been operational at all times.”

11. This judgment was upheld by the Sisak County Court on 8 January 2009. The relevant part of its judgment reads:

“Under section 383 of the Obligations Act the statutory limitation period is suspended during the time in which a creditor is unable, owing to insurmountable obstacles, to seek the fulfilment of an obligation [from a debtor].

The conclusions of the first-instance court that the plaintiff had not proved the existence of any such obstacles; that the plaintiff had left the town of Sisak of his own free will since that town had never been occupied by the enemy army during the period relevant for the statutory limitation; and that the courts [in Sisak] functioned at all times; are correct and therefore fully endorsed by this court.”

12. On 20 May 2009 the lower courts’ judgments were upheld by the Supreme Court. The relevant part of its judgment reads:

“The [lower] courts assessed all relevant circumstances and dismissed the plaintiff’s claim that there were insurmountable obstacles preventing him from lodging his action and that section 383 of the Obligations Act was applicable.

Contrary to the plaintiff’s allegations that he could not go to the town of Sisak and lodge his civil action owing to insurmountable obstacles, the courts established that the courts in the town of Sisak had been operational at all times; that the town of Sisak had not been occupied by the enemy army at any time during the period relevant for the statutory limitation; that the plaintiff had not proved the existence of obstacles preventing him from going to Sisak; and that he had left Sisak of his own free will.

Since these are well-known facts, the conclusion of the lower courts that there were no insurmountable obstacles preventing him from lodging the claim in due time ... is correct.

This court is also of the opinion that the plaintiff cannot rely on insurmountable obstacles of an objective nature within the meaning of section 383 of the Obligations Act since the town of Sisak was not occupied by the enemy army, none of its citizens has the status of refugee or displaced person and the lodging of a civil action was possible during the entire period of war because the courts remained operational.”

13. The applicant’s subsequent constitutional complaint was dismissed on 5 October 2011. The Constitutional Court endorsed the reasoning of the lower courts.

II. RELEVANT DOMESTIC LAW

14. The relevant part of the Obligations Act (Zakon o obveznim odnosima, Official Gazette nos. 53/1991, 73/1991, 3/1994, 7/1996 and 112/1999) provides as follows:

Section 360

“(1) The right to claim fulfilment of an obligation shall cease when the statutory limitation period has expired.

(2) The statute of limitations [bars a right to claim] when the statutorily prescribed period in which a creditor could have claimed fulfilment of an obligation has expired.

...”

Section 371

“Claims shall become statute-barred after five years where no other time-limit has been fixed by law.”

Section 383

“The running of the statutory limitation period is suspended during the period in which a creditor is unable, owing to insurmountable obstacles, to seek judicially the fulfilment of an obligation.”

Section 388

“[The running of the] statutory limitation [period] is interrupted by the bringing of a civil action in a court or by the taking of any other legal action before another competent authority by the creditor against the debtor with a view to determining, securing or enforcing his or her right.”

THE LAW

ALLEGED VIOLATION OF ARTICLE 6 § 1 AND ARTICLE 13 OF THE CONVENTION

15. The applicant, relying on Article 6 § 1 and Article 13 of the Convention, complained about the refusal of the national courts to examine his claim for damages against the State on the merits. The Court observes that the requirements of Article 13 of the Convention are less strict than, and are in such situations absorbed by, those of Article 6 § 1 (see, among other authorities, Vasilescu v. Romania, 22 May 1998, § 43, Reports of Judgments and Decisions 1998‑III, and Fazliyski v. Bulgaria, no. 40908/05, § 45, 16 April 2013). The Court, being master of the characterisation to be given in law to the facts of the case, will therefore examine this complaint under 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

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

B. Merits

1. The parties’ submissions

17. The applicant argued that, as a person of Serbian ethic origin, he had been forced to flee the town of Sisak in 1991 for fear for his life. Only after he had obtained personal documents from the Croatian Embassy in Brussels had he been able to lodge a civil claim in the Sisak Municipal Court. While it was true that, even before that time, he had had the possibility of contacting a lawyer in Croatia to represent him before a court in Sisak, he had not done so because he had deemed that any representation without personal contact with a lawyer would be insufficient. For these reasons, the statutory limitation period should have been suspended in his case.

18. The Government replied that the statutory limitation period for the applicant’s claim had commenced in 1991 and expired in 1996, whereas he had lodged it with the national courts as late as 1999. The national courts had held that he had had no justified reason for such a delay. The Government submitted that the applicant had left Croatia of his own free will and had never explained where exactly he had been in the period between 1991 and 1996. It appeared that at least some of that time he had spent in the Netherlands. The postal service and other means of communication between the Netherlands and Croatia had never been severed, let alone interrupted. The Sisak Municipal Court, which was the court of competent jurisdiction in respect of the applicant’s claim, had always been operational, as the town of Sisak had never been in occupied territory.

2. The Court’s assessment

19. The Court reiterates that the right of access to the courts, as secured by Article 6 § 1, is not absolute but may be subject to limitations; these are permitted by implication, since the right of access by its very nature calls for regulation by the State, which may vary in time and in place according to the needs and resources of the community and of individuals. In laying down such regulation, the Contracting States enjoy a certain margin of appreciation, but the final decision as to observance of the Convention’s requirements rests with the Court. Limitations on the right to a court are compatible with Article 6 only if they do not restrict or reduce the access left to the litigant in such a way or to such an extent that the very essence of the right is impaired; lastly, such limitations will not be compatible with Article 6 § 1 if they do not pursue a legitimate aim or if there is not 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).

20. It is primarily for the national authorities, notably the courts, to resolve problems of interpretation of domestic legislation. The Court’s role is confined to ascertaining whether the effects of such an interpretation are compatible with the Convention (see Edificaciones March Gallego S.A. v. Spain, 19 February 1998, § 33, Reports 1998‑I). This applies in particular to the interpretation by courts of rules of a procedural nature, such as time-limits governing the submission of documents or lodging of appeals (see, among other authorities, Pérez de Rada Cavanilles v. Spain, 28 October 1998, § 43, Reports 1998-VIII).

21. Turning to the present case, the Court firstly notes that the requirement to lodge a judicial claim within a statutory time-limit is not, in itself, incompatible with Article 6 § 1 of the Convention. The Court has held on numerous occasions that such a requirement pursued a legitimate aim of proper administration of justice and of compliance, in particular, with the principle of legal certainty (see, for example, Pérez de Rada Cavanilles, cited above, § 45, and Miragall Escolano and Others v. Spain, no. 38366/97, § 33, ECHR 2000-I). The Court considers that there is no reason to find otherwise in the present case. However, also the manner in which those time-limits were applied in the particular circumstances of the present case is a relevant factor in determining whether or not the applicant enjoyed effective access to a court.

22. The applicant argued that it was impossible for him to reach the Sisak Municipal Court before the statutory limitation period had expired because he had had to flee Croatia on the grounds of his personal safety and had no Croatian documents. Therefore the domestic courts should have found, in his case, the statutory time-limitation period to have been suspended during that time.

23. The Court is ready to accept the applicant’s contention that, as a person of Serbian ethnic origin, he had to flee the town of Sisak on the grounds of his personal safety, given the Court’s findings in the Jelić case to the effect that: “there [were] elements indicating ... targeted killing of Serbian civilians by members of the Croatian police and army in the Sisak area in a prolonged period during 1991 and 1992” (see Jelić v. Croatia, no. 57856/11, § 78, 12 June 2014).

24. The Court observes that the Supreme Court carefully examined the applicant’s factual submissions before it as to why he had not lodged his claim earlier, together with the legal provisions governing access to courts that were applicable at the relevant time. The Supreme Court found that the applicant had had the possibility of lodging his claim with the Sisak Municipal Court at the relevant time. This was confirmed by the Constitutional Court. The Court considers that these decisions do not appear arbitrary or unreasonable.

25. As to the applicant’s contention that he was not in a position to file a civil suit in Croatia because he was not able to enter the country, the Court notes that even assuming that the applicant himself was prevented from entering Croatia, he could have engaged the services of another person to represent him before the Croatian authorities or could have corresponded with the Croatian authorities by mail (see Ostojić v. Croatia (dec.), no. 16837/02, 26 September 2002). Bearing in mind the applicant’s allegation that during the critical period he had lived in the Netherlands, the Court notes that there is no indication that the postal services between Croatia and the Netherlands were disrupted at any time. The Court accepts the findings of the national courts that the Sisak Municipal Court was not in occupied territory and that this court remained fully operational at all times during the war in Croatia; facts which were not disputed by the applicant.

26. Accordingly, having regard to the above considerations, and taking into account the legitimate aim served by the statutory time-limits for lodging claims, and the margin of appreciation afforded to States in regulating the right of access to courts, the Court considers that in the circumstances of the present case the applicant did not suffer a disproportionate restriction on his right of access to a court and finds that there has been no violation of Article 6 § 1 of the Convention (see, mutatis mutandis, Itslayev v. Russia, no. 34631/02, §§ 37-38, 9 October 2008, and Pavle Lončar v. Bosnia and Herzegovina, no. 15835/08, § 45, 25 February 2014).

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the application admissible;

2. Holds that there has been no violation of Article 6 § 1 of the Convention.

Done in English, and notified in writing on 23 July 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Søren NielsenIsabelle Berro
RegistrarPresident

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