CASE OF SOLOMUN v. CROATIA

FIRST SECTION

CASE OF SOLOMUN v. CROATIA

(Application no. 679/11)

JUDGMENT

STRASBOURG

2 April 2015

FINAL

02/07/2015

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

In the case of Solomun v. Croatia,

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

Elisabeth Steiner, President,
Khanlar Hajiyev,
Mirjana Lazarova Trajkovska,
Paulo Pinto de Albuquerque,
Linos-Alexandre Sicilianos,
Erik Møse,
Ksenija Turković, judges,
and André Wampach, Deputy Section Registrar,

Having deliberated in private on 10 March 2015,

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

PROCEDURE

1. The case originated in an application (no. 679/11) 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, Mr Ivica Solomun (“the applicant”), on 26 November 2010.

2. The applicant was represented by Mr B. Posavčić, a lawyer practising in Kutina. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik.

3. The applicant alleged, in particular, that the quashing of a final civil court judgment in his favour breached the principle of legal certainty and peaceful enjoyment of his possessions, guaranteed under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 respectively.

4. On 17 July 2013 these complaints were communicated to the Government and the remainder of the application was declared inadmissible.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

A. Background to the case

5. The applicant was born in 1974 and lives in Sisak.

6. In 1993 the applicant took up employment with the Sisak-Moslavina Police Department (Policijska uprava sisačko-moslavačka) as a police officer. On 1 January 1998 he was assigned to a post in the Dvor Police Station (Policijska postaja Dvor).

7. Dvor is a municipality that receives special State support as defined by the legislation in force at that time, namely the Act on Areas receiving Special State Support (Zakona o područjima posebne državne skrbi, Official Gazette, nos. 44/1996, 57/1996, 124/1997 and 73/2000; hereinafter: the “Special State Support Act”). Among other things, that Act guaranteed to those employed in the public sector in areas receiving special State support a special salary uplift, which in the case of the Dvor municipality amounted to 50% of the salaries received in other parts of the country.

8. The amendments to the Special State Support Act which entered into force on 29 July 2000 (Official Gazette no. 73/2000) guaranteed the right to a special salary bonus only to those public sector employees in areas receiving special State support who had both their registered domicile (prebivalište) and also actually resided (borave) in the area at issue.

9. In May 2001 the applicant was assigned to another post in the Sisak-Moslavina Police Department, with his place of work being Sisak.

B. The applicant’s civil proceedings

10. On 29 September 2000 the applicant brought an action against the State in the Kutina Municipal Court (Općinski sud u Kutini), seeking payment of a salary bonus in accordance with the Special State Support Act.

11. Soon afterwards the Kutina Municipal Court decided that it was not competent to hear the case and transferred it to the Hrvatska Kostajnica Municipal Court (Općinski sud u Hrvatskoj Kostajnici).

12. During the proceedings before the Hrvatska Kostajnica Municipal Court, the Sisak State Attorney’s Office (Općinsko državno odvjetništvo u Sisku) ‒ representing the State ‒ objected to that court’s territorial jurisdiction, arguing that the applicant had his domicile and lived in Majur, which was also within an area receiving special State support but outside the territorial jurisdiction of the Hrvatska Kostajnica Municipal Court. The Sisak State Attorney’s Office also submitted that the applicant had been receiving expenses for travel between Sisak and Dvor and that he was not entitled to the special salary bonus as provided under the Special State Support Act because Sisak was not an area receiving special State support.

13. The applicant replied to these submissions with the argument that during his tenure in Dvor he had had authorisation to use a police car, and that he had in fact lived in Majur, but since his house had not been fully reconstructed after the war, he had also spent some time in Sisak.

14. With regard to the contentious submissions of the parties, the Hrvatska Kostajnica Municipal Court heard evidence from the applicant, who pointed out that during his tenure in Dvor his registered domicile had been Majur, where he had actually resided ‒ some of the time in his own house and some of the time with his sister, since his house had needed reconstruction. He also explained that he had had authorisation to use a police car and had also been entitled to travel expenses, even though he had actually lived in Majur.

15. On 2 October 2003 the Hrvatska Kostajnica Municipal Court accepted the applicant’s civil action, ordering the State to pay compensation for his special salary bonus in the total amount of 67,214.69 Croatian kunas (HRK), together with the statutory default interest, for the period between 1 February 1998 and 1 May 2001, and to reimburse him the costs of the proceedings in the amount of HRK 7,978.80.

16. The Hrvatska Kostajnica Municipal Court pointed out that the applicant’s statement as to his domicile and his residence was credible and nothing called it into doubt. It also stressed that the Sisak State Attorney’s Office had neither provided any evidence nor challenged the veracity of the applicant’s statement. Instead, it had argued in its submissions that the applicant had both his domicile and his residence in Majur, within an area receiving special State support. As to the submission concerning travel expenses, the Hrvatska Kostajnica Municipal Court considered that this was a matter relating to the employment conditions of civil servants, which did not in itself have any bearing on the applicant’s domicile and residence. Against this background, the Hrvatska Kostajnica Municipal Court found that the applicant’s claim should be accepted.

17. On 22 October 2003 the Sisak State Attorney’s Office challenged the first-instance judgment before the Sisak County Court (Županijski sud u Sisku) contending that the applicant had only had his domicile in Majur, whereas the travel expenses suggested that he had in fact lived in Sisak. It thus considered that the applicant did not satisfy the criteria of the Special State Support Act necessary to qualify for a special salary uplift.

18. In a decision of 26 February 2004 endorsing all the factual and legal findings of the first-instance judgment, the Sisak County Court dismissed the appeal by the Sisak State Attorney’s Office. The first-instance judgment thus became final.

19. On 19 April 2004 the Kutina Municipal Court opened enforcement proceedings against the State on the basis of the final and enforceable judgment in the applicant’s favour.

20. The judgment was fully enforced on 26 April 2004 by payment of the due amount to the applicant.

C. Proceedings following the request for the protection of legality

21. On 20 May 2004 the State Attorney’s Office of the Republic of Croatia (Državno odvjetništvo Republike Hrvatske) lodged a request for the protection of legality (zahtjev za zaštitu zakonitosti) with the Supreme Court (Vrhovni sud Republike Hrvatske) against the part of the final judgment of the Hrvatska Kostajnica Municipal Court by which the applicant had been awarded HRK 19,238.59 for the period between 11 August 2000 and 5 May 2001 on account of the special salary uplift. It reiterated that the travel expenses which the applicant had received suggested that he had actually resided in Sisak in the period at issue, which could also be deduced from the fact that he had provided an address in Sisak in the civil action he lodged before the Kutina Municipal Court. Thus, once the 2000 amendments to the Special State Support Act had entered into force (see paragraph 8 above), the applicant had no longer been entitled to the special salary bonus since he had no longer resided in an area receiving special State support, which was a precondition for the special uplift, as explained in the judgment of the Supreme Court no. Gzz-190/03 of 18 February 2004.

22. The applicant challenged the request for the protection of legality, arguing that it could not be used as a remedy and that it substantially contradicted the general position on the matter adopted at the meeting of the Civil Division of the Supreme Court on 13 June 2003.

23. On 14 April 2005 the Supreme Court approved the request for the protection of legality, quashed the second-instance judgment in the impugned part, and remitted the case to the Sisak County Court. The Supreme Court held that the 2000 amendments to the Special State Support Act made it clear that civil servants employed in an area receiving special State support who applied for a special salary bonus should also have their domicile and residence in that area. It therefore ordered the Sisak County Court to reassess the appeal arguments of the Sisak Municipal State Attorney’s Office as to whether or not such conditions had been met in the applicant’s case.

24. On 7 December 2006 the Sisak County Court accepted the Sisak Municipal State Attorney’s Office appeal, reversing the first-instance judgment of the Hrvatska Kostajnica Municipal Court in the part in which the applicant was granted HRK 19,238.59 for the period between 11 August 2000 and 5 May 2001 on account of the special salary uplift, and ordering the applicant to repay that amount together with the statutory default interest. The Sisak County Court also reversed the first-instance judgment in the part concerning the costs of the proceedings.

25. The Sisak County Court held that the evidence adduced before the first-instance court suggested that in the period at issue the applicant had not in fact resided in an area receiving special State support, and thus had not met all the requirements under the 2000 amendments to the Special State Support Act concerning the right to a special salary uplift.

26. On 30 January 2007 the applicant lodged a constitutional complaint before the Constitutional Court (Ustavni sud Republike Hrvatske) against the judgment of the Sisak County Court of 7 December 2006, challenging the use of a request for the protection of legality in his case.

27. On 29 April 2010 the Constitutional Court dismissed the applicant’s constitutional complaint as ill-founded, holding that the lower courts had acted in accordance with the law. The decision of the Constitutional Court was served on the applicant on 31 May 2010.

28. According to a certificate issued by the Ministry of the Interior on 30 December 2013, pursuant to the above proceedings the applicant repaid the total amount of HRK 28,700 from his salary to the State.

II. RELEVANT DOMESTIC LAW AND PRACTICE

A. Relevant domestic law

1. Constitution

29. The relevant provisions of the Constitution of the Republic of Croatia (Ustav Republike Hrvatske, Official Gazette nos. 56/1990, 135/1997, 8/1998 (consolidated text), 113/2000, 124/2000 (consolidated text), 28/2001 and 41/2001 (consolidated text), 55/2001 (corrigendum), 76/2010, 85/2010, 05/2014) read:

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.”

Article 48

“The right of ownership shall be guaranteed ...“

2. Civil Procedure Act

30. The relevant provisions of the Civil Procedure Act (Zakon o parničnom postupku, Official Gazette of the Socialist Federal Republic of Yugoslavia nos. 4/1977, 36/1977 (corrigendum), 36/1980, 69/1982, 58/1984, 74/1987, 57/1989, 20/1990, 27/1990 and 35/1991 and Official Gazette of the Republic of Croatia nos. 53/1991, 91/1992, 58/1993, 112/1999 and 88/2001) provide:

Section 333

“(1) A judgment which is no longer amenable to appeal shall be final if it has decided about a claim or counterclaim.

...”

Section 391

“An appeal on points of law shall be decided by the Supreme Court without holding a hearing.”

Section 393

“The [competent] court shall dismiss the appeal on points of law by a judgment if it finds that the reasons on which it is based are not met.”

Section 394

“(1) If it finds procedural flaws ... the [competent] court shall by a decision quash, entirely or partially, the judgment of both the second-instance and the first-instance court or only the judgment of the second-instance court and shall remit the case for fresh examination ... “

Request for the protection of legality

Section 401

“(1) Against a final court decision, the State Attorney may lodge a request for the protection of legality within the period of three months.

(2) The time period for the request for the protection of legality under paragraph 1 of this section shall start running:

...

2) against a decision adopted at second instance where no appeal on points of law has been lodged – from the moment when the decision could no longer be challenged.

...”

Section 404

“(1) The State Attorney may lodge a request for the protection of legality with regard to:

1) substantial procedural flaws ...

2) incorrect application of the substantive law.

(2) The State Attorney cannot lodge a request for the protection of legality when the impugned decision went beyond the scope of the claim or where the facts had been erroneously or incompletely established.”

Section 408

“...

(2) Where something is not provided for under sections 401-407 of this Act, in the legality review proceedings sections ... 387-395 ... of this Act shall be mutatis mutandis applicable.”

31. The amendments to the Civil Procedure Act (Official Gazette no. 117/2003), which came into force on 1 December 2003, repealed the provisions on the application of the request for the protection of legality (section 239). However, under section 284 § 5 of the Act introducing the amendments, the legality review proceedings remained applicable to cases where the trial before the first-instance court terminated prior to the entry into force of the amendments.

3. Special State Support Act

32. Under section 4 of the Special State Support Act, Dvor municipality was included in the first category of areas receiving special State support and under section 5, Majur was included in the second category.

33. Section 19 of the Special State Support Act provided that public sector employees in areas included in the first category of special State support should receive a special salary bonus in the amount of 50% of the salaries received in other parts of the country.

34. Section 1 of the amendments to the State Support Act, which entered into force on 29 July 2000 (Official Gazette no. 73/2000), provided that the rights under that Act would be guaranteed only to those who had registered their domicile and also actually resided in the area receiving special State support.

B. Relevant domestic practice

35. The Supreme Court, in its judgment no. Gzz-190/03 of 18 February 2004, found that the criteria of employment, domicile and residence in the area receiving special state support were cumulative criteria for qualifying for the special salary bonus payable to those employed in the public sector.

36. At a meeting of the Civil Division of the Supreme Court held on 13 June 2003 (Su-IV-437/2003), that court adopted a general position according to which the 2000 amendments to the Special State Support Act could not be applied to a right to a special salary bonus which had been granted prior to the entry into force of those amendments.

THE LAW

I. ALLEGED VIOLATIONS OF ARTICLE 6 § 1 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL No. 1

37. The applicant complained that the quashing of the judgment of 2 October 2003, as upheld on 26 February 2004, by means of the legality review procedure had violated his right to a fair trial under Article 6 § 1 of the Convention and his right to the peaceful enjoyment of possessions under Article 1 of Protocol No. 1. The relevant parts of these provisions read:

Article 6

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

Article 1 of Protocol No. 1

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

A. Admissibility

1. The parties’ submissions

38. The Government submitted that in his reply to the request for the protection of legality lodged by the State Attorney’s Office, the applicant had failed to raise properly before the Supreme Court his complaints concerning the principle of legal certainty and the protection of his property rights. Moreover, although in his subsequent constitutional complaint before the Constitutional Court the applicant had relied on Article 48 of the Constitution, guaranteeing the right to property, he had not properly substantiated that complaint.

39. The applicant argued that he had properly exhausted the domestic remedies by bringing his complaints before the Supreme Court and the Constitutional Court.

2. The Court’s assessment

40. The Court reiterates that under Article 35 § 1 of the Convention, it may only deal with an application after all domestic remedies have been exhausted. The purpose of Article 35 is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Court (see, for example, Mifsud v. France (dec.) [GC], no. 57220/00, § 15, ECHR 2002-VIII). The obligation to exhaust domestic remedies requires an applicant to make normal use of remedies which are effective, sufficient and accessible in respect of his Convention grievances. To be effective, a remedy must be capable of resolving directly the impugned state of affairs (see Balogh v. Hungary, no. 47940/99, § 30, 20 July 2004).

41. The Court has constantly held that before bringing complaints against 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 possibility of remedying their situation (see Orlić v. Croatia, no. 48833/07, § 46, 21 June 2011; 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).

42. The Court observes in the case at issue that after the quashing ‒ pursuant to the legality review procedure ‒ by the Supreme Court of the second-instance judgment in the applicant’s favour, by which his case had become final (see paragraph 18 above), the Sisak County Court, as the second-instance court, adopted a new decision on the merits of the applicant’s case (see paragraphs 23 and 24 above). The applicant was thereafter at liberty, and indeed obliged (see paragraph 41 above), to bring his complaints before the Constitutional Court. The applicant accordingly availed himself of this remedy by complaining before the Constitutional Court about the use of the request for the legality review and its effects on his property rights (see paragraph 26 above). He thereby made proper use of the available domestic remedies and provided the national authorities with the opportunity which is in principle intended to be afforded to Contracting States by Article 35 § 1 of the Convention, namely that of putting right the violations alleged against them (see, for example, Jaćimović v. Croatia, no. 22688/09, § 41, 31 October 2013).

43. The Court therefore dismisses the Government’s objection. The Court also notes that the applicant’s complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.

B. Merits

1. Article 6 § 1 of the Convention

(a) The parties’ arguments

44. The applicant contended that the use of the request for the legality review in his case had to be contemplated in the light of the fact that after the adoption of the Special State Support Act, the State had introduced measures rendering the rights under that Act ineffective for certain categories of persons who had initially obtained certain rights. The situation had been resolved, however, by the adoption of the general position of the Civil Division of the Supreme Court on 12 June 2003, which ‒ in the applicant’s view ‒ had to be interpreted in his favour. In particular, the pertinent question had been whether or not an individual who was employed in an area receiving special State support had had his or her domicile in such an area and had actually resided there. During the proceedings in this case, he had provided sufficient evidence to demonstrate that all these conditions had been met, but the State had continued to challenge them without the relevant justification.

45. The Government pointed out that after the introduction of the Special State Support Act, a number of civil proceedings had been instituted before the domestic courts and sometimes the decisions of the domestic courts had differed, even though the cases had revolved around the same legal and factual questions. In the Government’s view, this had been the case with the judgment of the competent courts in the applicant’s case, which had differed from the judgment of the Supreme Court no. Gzz-190/03 of 18 February 2004 in which it was found that the special salary bonus could be granted only to those who had had their domicile and had also actually resided in an area receiving special State support. Thus, in the applicant’s case, the use of the request for the protection of legality had been necessitated by the public interest in legal certainty and the rule of law with regard to the prevention of inconsistent court practices in an important area related to post-war social development. The Government also pointed out that the State Attorney’s Office, which had been one of the parties to the proceedings had used the request for the protection of legality within the relevant time-limit. It had been used in relation to the substantial flaws in the proceedings, specifically the error in the assessment of substantive law by the second-instance court and the related flaws in the assessment of facts by that court.

(b) The Court’s assessment

(i) General principles

46. The Court reiterates that the right to a fair hearing before a tribunal as guaranteed by Article 6 § 1 of the Convention must be interpreted in the light of the Preamble to the Convention which, in its relevant part, declares the rule of law to be part of the common heritage of the Contracting States. One of the fundamental aspects of the rule of law is the principle of legal certainty, which requires, among other things, that where the courts have finally determined an issue, their ruling should not be called into question (see, amongst many others, Brumărescu v. Romania [GC], no. 28342/95, § 61, ECHR 1999‑VII, and Varnienė v. Lithuania, no. 42916/04, § 37, 12 November 2013).

47. This principle lays down that no party may seek the re-opening of proceedings merely for the purpose of a rehearing and a fresh decision of the case. Higher courts’ power to quash or alter binding and enforceable judicial decisions should be exercised for the correction of fundamental defects. The mere possibility of two views on the subject is not a ground for re-examination. Departures from that principle are justified only when made necessary by circumstances of a substantial and compelling character (see Kot v. Russia, no. 20887/03, § 24, 18 January 2007). In such cases, the Court has to assess, in particular, whether a fair balance was struck between the interests of the applicants and the need to ensure the proper administration of justice, which includes the importance of observing the principle of legal certainty (see Streltsov and other “Novocherkassk military pensioners” cases v. Russia, no. 8549/06 and 86 other applications, § 49, 29 July 2010).

48. In other words, a review should not be treated as an appeal in disguise, and the mere possibility of there being two views on the subject is not a ground for re-examination (see Esertas v. Lithuania, no. 50208/06, § 21, 31 May 2012). This is because the principle according to which a final judgment is a res judicata and resolves the dispute between the parties with final effect is a fundamental element of the right to a fair trial guaranteed by Article 6 of the Convention in civil matters (see Brletić v. Croatia, no. 42009/10, § 39, 16 January 2014).

(ii) Application of these principles to the present case

49. The Court notes that the judgment of the Hrvatska Kostajnica Municipal Court of 2 October 2003, as upheld by the Sisak County Court on 26 February 2004 (see paragraphs 15 and 18 above), was set aside in the legality review procedure on the grounds that the Sisak County Court should have reassessed the arguments of the Sisak Municipal State Attorney’s Office as to whether or not the applicant had satisfied the preconditions for a special salary bonus in accordance with the Special State Support Act for a certain period of his tenure in an area receiving special State support (see paragraph 23 above). In the ensuing proceedings, the Sisak County Court reassessed the relevant evidence and the parties’ arguments and dismissed the applicant’s civil action in the part that related to a pecuniary claim of HRK 19,238.59 granted to him by the final and enforceable judgment of 2 October 2003 (see paragraph 24 above).

50. In this connection the Court notes that in the Bočvarska case it has already had an opportunity to examine the legal effects of the legality review procedure, as it was provided in the legal systems of other Contracting States, with the same nature and purpose as provided for in the Civil Procedure Act in force at the time of the proceedings in the present case (see Bočvarska v. the former Yugoslav Republic of Macedonia, no. 27865/02, §§ 53-58 and 82, 17 September 2009). In particular, it observed that a request for the protection of legality before the Supreme Court against final decisions in civil proceedings could be lodged only by an organ of the State ‒ in the present case the State Attorney’s Office ‒ with full discretion in deciding whether or not to use that remedy (Ibid., §§ 53-58; see further in the context of criminal proceedings Lepojić v. Serbia, no. 13909/05, §§ 30-31 and 54, 6 November 2007). The Court thus considered that the legal effects of the legality review procedure were comparable to those of the supervisory review system existing in some Contracting States, since the Supreme Court could set at naught an entire judicial process which had ended in a judicial decision that was “irreversible” and thus res judicata (see Bočvarska, cited above, § 82).

51. It is true that in the Bočvarska case the public prosecutor who had lodged the request for the protection of legality was not a party to the civil proceedings which had ended by a final judgment, whereas in the case at issue the State Attorney’s Office was a party to the proceedings; however, the Court does not consider this to be of a crucial importance for its analysis (see, for example, Nelyubin v. Russia, no. 14502/04, § 27, 2 November 2006, and Sfinx-Impex S.A. v. the Republic of Moldova, no. 28439/05, §§ 22-24, 25 September 2012). It does not alter the fact that a request for the protection of legality was a remedy solely in the hands of the State Attorney’s Office and subject exclusively to its discretionary decision, which as such raises an issue of the equality of the parties in the proceedings since only one of them ‒ namely the State Attorney’s Office ‒ had a mechanism for setting aside a final judgment unfavourable to it.

52. Having said that, the Court observes that in a number of cases concerning the quashing of final judgments by means of the supervisory review procedure, it has found violations of the principle of legal certainty under Article 6 § 1 of the Convention when that remedy was used for the sole purpose of obtaining a different decision in the case because the first-instance and appeal courts’ findings had been insufficiently supported by evidence and they had misinterpreted the law (see, for example, Nelyubin, cited above, § 28; Kondrashova v. Russia, no. 75473/01, § 31, 16 November 2006; Seregina v. Russia, no. 12793/02, § 83, 30 November 2006; Kot, cited above, § 29; Sitkov v. Russia, no. 55531/00, § 32, 18 January 2007; Boris Vasilyev v. Russia, no. 30671/03, § 34, 15 February 2007; and Pugach and Others v. Russia, nos. 31799/08, 53657/08, 53661/08, 53666/08, 53670/08, 53671/08, 53672/08 and 53673/08, § 24, 4 November 2010).

53. This is because it is unavoidable that in civil proceedings the parties would have conflicting views on the application of the substantive law. The courts are called upon to examine their arguments in a fair and adversarial manner and make their assessment of the claim. Thus, when the merits of the applicant’s claim were examined by the first-instance and appeal courts ‒ acting within their competence and without any fundamental defect in the proceedings ‒ the fact that a higher instance disagreed with the assessment made by the first-instance and appeal courts could not, in itself, constitute an exceptional circumstance warranting the quashing of a binding and enforceable judgment and the re-opening of proceedings on the applicant’s claim (see, inter alia, Kot, cited above, § 29).

54. This is particularly true in the applicant’s case, in which the Hrvatska Kostajnica Municipal Court duly examined the parties’ arguments as to the applicant’s domicile and his actual place of residence and held that the Sisak State Attorney’s Office had neither provided any evidence nor challenged the veracity of the applicant’s statement regarding his actual residence in the area receiving special State support (see paragraphs 12-16 above). Accordingly, when the Sisak County Court, as the court of appeal, dismissed the Sisak State Attorney’s Office further arguments in that respect, the possible disagreement of the Supreme Court with such findings could not be regarded as an exceptional circumstance warranting the quashing of a binding and enforceable judgment and re-opening of the proceedings on the applicant’s claim.

55. As to the Government’s argument that the quashing of the final and enforceable judgment had been necessary in the interests of legal certainty in the event of inconsistent judgments by lower courts, the Court notes that these arguments relate to the alleged inconsistency between the judgment in the applicant’s case and the judgment of the Supreme Court no. Gzz-190/03 of 18 February 2004, by which that court found that a special salary bonus could be granted only to those who had their domicile and actually resided within the area receiving special State support. However, as observed above, these facts were obviously a matter for examination before the Hrvatska Kostajnica Municipal Court and the Sisak County Court, and thus the request for the protection of legality was in fact more of a disguised appeal by the State Attorney’s Office to secure an additional re-examination of those same facts than an attempt to secure the principle of legal certainty by preventing inconsistency in civil courts’ judgments (see Pravednaya v. Russia, no. 69529/01, § 32, 18 November 2004). Moreover, the Court observes that the relevant domestic law clearly excluded any possibility of the use of the request for the protection of legality with regard to allegedly erroneous or incomplete establishment of facts (see paragraph 30 above, section 404 § 2 of the Civil Procedure Act).

56. Having regard to the above considerations, the Court finds that, by granting the State Attorney’s Office’s request to set aside that part of the judgment of 2 October 2003 ‒ as upheld on appeal on 26 February 2004 ‒ that related to a part of the applicant’s pecuniary claim, the Supreme Court infringed the principle of legal certainty.

57. There has accordingly been a violation of Article 6 § 1 of the Convention.

2. Article 1 of Protocol No. 1

(a) The parties’ arguments

58. The applicant argued that by the final judgment of the competent courts in his case, granting him a pecuniary claim which he had duly enforced, he had acquired a possession of which he had been unjustifiably deprived as a result of the use of the legality review procedure. Specifically, he had been obliged to repay the amount granted to him by the final civil courts’ judgment. He thus considered that he had been made to bear an excessive individual burden.

59. The Government contended that the applicant had had no reason to believe that the decisions of the civil courts had conferred on him pecuniary rights regarding the full amount claimed in the civil proceedings. In particular, for the reasons argued above (see paragraph 45), the Government pointed out that the applicant should have been aware that the judgment in his favour had been contrary to the judgment of the Supreme Court no. Gzz-190/03 of 18 February 2004, and was therefore amenable to a legality review. In the Government’s view, irrespective of the final judgment in his favour, the applicant’s legitimate expectations as regards his salary had been a constant matter of dispute. Therefore, the mere fact that the applicant had enforced the pecuniary claim granted by the impugned civil courts’ judgment did not alter the fact that he should have been aware that he might have to return part of the enforced amount. In any case, should the Court find that there had been interference with the applicant’s property rights, the Government considered that such interference had amounted to a control of the use of property in the public interest of attaining legal certainty regarding the securing of rights under the Special State Support Act. Accordingly, given the number of disputes related to securing rights under the Special State Support Act and its social importance, the Government considered that the quashing of the final judgment in the applicant’s favour through the legality review procedure had not placed an excessive individual burden on him.

(b) The Court’s assessment

60. The Court has constantly held that the existence of a debt confirmed by a binding and enforceable judgment furnishes the judgment beneficiary with a “legitimate expectation” that the debt would be paid and constitutes one of the beneficiary’s “possessions” within the meaning of Article 1 of Protocol No. 1. Quashing such a judgment amounts to an interference with his or her right to peaceful enjoyment of possessions (see, amongst many others, Kot, cited above, § 32, and Bočvarska, cited above, §§ 78-79). This is particularly true in the present case, where the final and enforceable judgment in the applicant’s favour had been executed and the applicant had been obliged to repay part of that judgment debt pursuant to the quashing, which amounted to deprivation of his possessions (see, mutatis mutandis, Brumărescu, cited above, §§ 74 and 77; Kehaya and Others v. Bulgaria, nos. 47797/99 and 68698/01, § 74, 12 January 2006; and, by contrast, Streltsov and other “Novocherkassk military pensioners” cases, cited above, § 59).

61. In this connection the Court reiterates that the first and most important requirement of Article 1 of Protocol No. 1 is that any interference by a public authority with the peaceful enjoyment of possessions should be lawful. The rule of law, one of the fundamental principles of a democratic society, is inherent in all the Articles of the Convention (see Pincová and Pinc v. the Czech Republic, no. 36548/97, § 45, ECHR 2002‑VIII, with further references). The principle of lawfulness also presupposes that the applicable provisions of domestic law are sufficiently accessible, precise and foreseeable in their application (see Broniowski v. Poland [GC], no. 31443/96, § 147, ECHR 2004‑V). Furthermore, a deprivation of property can only be justified if it is shown to be “in the public interest” and if it satisfies the requirement of proportionality by striking a fair balance between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights (see Sporrong and Lönnroth v. Sweden, 23 September 1982, §§ 69-74, Series A no. 52).

62. In the present case the Court has already found that, by depriving of any legal effect the final judgment of 3 October 2003, the authorities acted in breach of the principle of legal certainty inherent in Article 6 § 1 of the Convention (see paragraph 60 above). It cannot be maintained, therefore, that the deprivation of property at issue was lawful, in the sense of the Convention. The present case thus concerns a failure to recognise the res judicata effect of a final judgment delivered in contentious proceedings. It cannot be considered that a public interest overriding the fundamental principle of legal certainty and the applicant’s rights justified a re-examination of the dispute and the resulting deprivation of his possessions (see Tregubenko v. Ukraine, no. 61333/00, § 54, 2 November 2004, and Kehaya and Others, cited above, § 76).

63. There has therefore been a violation of Article 1 of Protocol No. 1.

II. 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, in respect of pecuniary damage, the amount of HRK 28,700, which he had been obliged to repay to the State after the quashing of the final judgment in his favour pursuant to the legality review proceedings (see paragraph 28 above), and 6,000 euros (EUR) in respect of non-pecuniary damage.

66. The Government considered the applicant’s claim unfounded and unsubstantiated.

67. As regards pecuniary damage, the Court notes that the applicant is claiming damages in relation to the amount which he had been obliged to repay to the State after the quashing of the final judgment in his favour pursuant to the legality review proceedings, which the Court found to be in violation of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 (see paragraphs 57 and 63 above). The Court therefore, having found a causal link between the amount claimed and the finding of violations, awards the applicant EUR 3,871.69 in respect of pecuniary damage, plus any tax that may be chargeable to him.

68. In respect of the non-pecuniary damage, having regard to all the circumstances of the present case, the Court accepts that the applicant has suffered non-pecuniary damage which cannot be compensated for solely by the finding of a violation. Making its assessment on an equitable basis, the Court awards the applicant EUR 5,000 in respect of non-pecuniary damage, plus any tax that may be chargeable to him.

B. Costs and expenses

69. The applicant also claimed EUR 2,467 in respect of the costs and expenses incurred before the domestic courts and those incurred before the Court.

70. The Government considered the applicant’s claim unfounded and unsubstantiated.

71. 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 2,400 covering costs under all heads.

C. Default interest

72. 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. Declares the application, as submitted under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1, admissible;

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

3. Holds that there has been a violation of Article 1 of Protocol No. 1;

4. 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 3,871.69 (three thousand eight hundred and seventy-one euros and sixty-nine cents), plus any tax that may be chargeable, in respect of pecuniary damage;

(ii) EUR 5,000 (five thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(iii) EUR 2,400 (two thousand four hundred 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;

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

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

André WampachElisabeth Steiner
Deputy RegistrarPresident

 

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