FIRST SECTION
CASE OF SPLIT FERRY PORT JSC v. CROATIA
(Application no. 23472/15)
JUDGMENT
STRASBOURG
28 April 2022
This judgment is final but it may be subject to editorial revision.
In the case of Split Ferry Port JSC v. Croatia,
The European Court of Human Rights (First Section), sitting as a Committee composed of:
Péter Paczolay, President,
Alena Poláčková,
Davor Derenčinović, judges,
and Liv Tigerstedt, Deputy Section Registrar,
Having regard to:
the application (no. 23472/15) against the Republic of Croatia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 12 May 2015 by Split Ferry Port JSC (Trajektna luka Split d.d.), a joint stock company incorporated under Croatian law and having its registered office in Split (“the applicant”) who was represented by Mr J. Biliškov, a lawyer practising in Zagreb;
the decision to give notice of the complaints concerning the lack of oral hearing, reasoned judgment, equality of arms, adversarial hearing and property rights to the Croatian Government (“the Government”), represented by their Agent, Ms Š. Stažnik, and to declare inadmissible the remainder of the application;
the parties’ observations;
Having deliberated in private on 29 March 2022,
Delivers the following judgment, which was adopted on that date:
SUBJECT MATTER OF THE CASE
1. The application concerns fairness of concession-related administrative proceedings in which the Constitutional Court decided on constitutional complaints lodged by a public entity and quashed the Administrative Court’s judgments favourable to the applicant. The main question in those proceedings was the scope of a priority concession to which former socially owned companies, like the applicant, were entitled under the Sea Ports Act.
2. Upon an application by the applicant, on 21 June 2004 the Split Port Authority granted it a priority concession for several port-related activities in the Port of Split and specified the port area where they would be performed and infrastructure to be used. The applicant appealed considering that it was entitled to perform all port-related activities it applied for and to do so in the entire port area and using all port infrastructure.
3. On 29 November 2004 the relevant Ministry allowed the appeal in part and extended the area in which one of the granted activities could be performed but dismissed the appeal in the remaining part.
4. Upon an action for judicial review by the applicant, on 30 November 2005 the Administrative Court quashed the administrative authorities’ decisions and held that the Sea Ports Act was to be interpreted so that the applicant was entitled to a priority concession encompassing all activities it had applied for.
5. Upon a request for the protection of legality by the Principal State Attorney’s Office, on 16 May 2006 the Supreme Court quashed the Administrative Court’s judgment and remitted the case. It held that the Sea Ports Act had to be interpreted so that the applicant was entitled to a priority concession only for port-related activities it had performed before the legislation’s entry into force.
6. In the fresh proceedings, by a judgment of 30 August 2006, the Administrative Court, relying on the Supreme Court’s reasoning, dismissed the applicant’s action.
7. Upon a constitutional complaint by the applicant, on 27 October 2010 the Constitutional Court endorsed the Supreme Court’s view (see paragraph 5 above) but nevertheless quashed the Administrative Court’s judgment because it was not sufficiently reasoned.
8. In the fresh proceedings, by a judgment of 5 January 2011, the Administrative Court quashed the administrative authorities’ decisions (see paragraphs 2-3 above). It gave the same reasons as in its previous judgment (see paragraph 4 above).
9. Meanwhile, following the Administrative Court’s judgment of 30 November 2005 (see paragraph 4 above), the Port Authority adopted a new concession decision, identical to its previous one (see paragraph 2 above). After the Supreme Court’s judgment (see paragraph 5 above), the relevant Ministry, on 11 November 2006, quashed that decision. However, upon another action for judicial review by the applicant, by a judgment of 8 June 2011 the Administrative Court quashed both decisions and remitted the case to the Port Authority.
10. On 2 March 2011 the Port Authority lodged a constitutional complaint against the Administrative Court’s judgment of 5 January 2011 and on 27 February 2014 against the judgment of 8 June 2011 (see paragraphs 8-9 above). These constitutional complaints were never served on the applicant.
11. On 25 May 2011 the Constitutional Court temporarily postponed the execution of the Administrative Court’s judgment of 5 January 2011 (see paragraph 8 above).
12. After the publication of that decision in the Official Gazette, the applicant filed several submissions with the Constitutional Court arguing that the Port Authority’s constitutional complaints were inadmissible as premature and because, as a public entity, it could not be a bearer of constitutional rights. The applicant also expressly asked to be served with copies of the constitutional complaints, and in October 2014 also argued that the second constitutional complaint had been lodged outside of the statutory time-limit of thirty days.
13. By a decision of 13 November 2014, the Constitutional Court quashed the Administrative Court’s judgments of 5 January and 8 June 2011 (see paragraphs 8-9 above).
14. The court acknowledged the possibility that the Port Authority’s constitutional complaints could be premature but, having regard to the circumstances of the case and the respect for the rule of law and the principle of legal certainty, decided to jointly examine the admissibility and merits of the constitutional complaints. It then held that the Administrative Court had failed to observe, and exhibited unacceptable disregard for the legal views expressed in the earlier decisions of the Supreme Court and the Constitutional Court (see paragraphs 5 and 7 above) without giving any reasons. It then concluded that it had therefore decided to rule on the merits of the constitutional complaints.
15. In December 2014 and September 2016, the Constitutional Court allowed the applicant to consult the case file and make copies of documents in it.
16. On 29 December 2014 the applicant provided the Constitutional Court with certain evidence for its argument that the Port Authority’s second constitutional complaint had been lodged out of time.
17. In the fresh proceedings, by two judgments of 25 January 2015, the Administrative Court, which in the meantime had become the High Administrative Court, dismissed the applicant’s actions against the Ministry’s decisions of 29 November 2004 and 11 November 2006 (see paragraphs 3 and 9 above).
18. The applicant then lodged constitutional complaints against that judgment arguing that the constitutional complaints by the Port Authority had never been served on it which prevented it from effectively commenting on their content and timeliness. It also complained that no oral hearing had been held before the High Administrative Court even though certain facts remained unestablished.
19. By two decisions of 13 July 2016, the Constitutional Court dismissed the applicant’s constitutional complaints. It held that under the Constitutional Court Act it could have, but was not obliged to, serve the Port Authority’s constitutional complaints on the applicant as a third interested party. It also held that there had been no breach of the applicant’s right to an oral hearing because of Croatia’s reservation to Article 6 § 1 of the Convention which excluded the right to a public hearing in judicial review proceedings.
20. On 29 November 2016 the Supreme Court declared inadmissible the request for the protection of legality lodged in March 2011 by the Principal State Attorney against the Administrative Court’s judgment of 5 January 2011 (see paragraph 8 above) because that judgment had in the meantime been quashed by the Constitutional Court (see paragraph 13 above).
21. The applicant complained under Article 6 § 1 of the Convention that the Constitutional Court had failed to take into consideration its arguments regarding the admissibility of the constitutional complaints lodged by the Port Authority and that the principles of equality of arms and adversarial hearing had not been respected before that court (see paragraphs 10-13 above). It also complained about the breach of those principles and the lack of an oral hearing before the High Administrative Court (see paragraph 17 above). Lastly, it complained under Article 1 of Protocol No. 1 to the Convention that its property rights had been violated by the domestic courts’ decisions.
THE COURT’S ASSESSMENT
ALLEGED VIOLATIONS OF ARTICLE 6 § 1 OF THE CONVENTIONAdmissibility22. The Government argued that the application was premature because it had been lodged with the Court on 12 May 2015, while the proceedings before the Constitutional Court were still pending (see paragraph 19 above). However, an application cannot be declared inadmissible as premature if the domestic remedies are exhausted before the Court determines the issue of admissibility (see, for example, Molla Sali v. Greece [GC], no. 20452/14, § 90, 19 December 2018). The Government’s objection must therefore be dismissed.
23. The Court further notes that the complaints under Article 6 § 1 are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. They must therefore be declared admissible.
Merits24. It is not disputed between the parties that the Port Authority’s constitutional complaints were never served on the applicant. The Court has already found a violation of Article 6 § 1 of the Convention on that account in a similar case and finds no reason to hold otherwise in the present one (see Gaspari v. Slovenia, no. 21055/03, §§ 50-57, 21 July 2009).
25. Moreover, the applicant’s arguments regarding locus standi of the Port Authority and timeliness of the second constitutional complaint remained unanswered by the Constitutional Court (see paragraphs 12, 14, 16 and 18-19 above) even though their nature and importance required a specific and express reply (see, mutatis mutandis, Ruiz Torija v. Spain, 9 December 1994, § 30, Series A no. 303 A).
26. The Government argued that the Constitutional Court had actually addressed those admissibility issues by deciding to join them to the merits and that it had eventually held that upholding the rule of law and the principle of legal certainty, breached by the Administrative Court, had justified ruling on the merits of the Port Authority’s constitutional complaints (see paragraph 14 above).
27. The Court however notes that in its decision the Constitutional Court only acknowledged the possibility that the Port Authority’s constitutional complaints could be premature and joined that admissibility issue to the merits (ibid.). Furthermore, the Court does not see how crucial admissibility issues such as timeliness of one of the constitutional complaints and locus standi of the complainant could have been put aside with a view to deciding the merits of the case, no matter how important the case may be (for upholding the rule of law and the principle of legal certainty). It therefore finds the Government’s argument unconvincing.
28. Even if that argument is to be accepted, such approach by the Constitutional Court would have been contrary to the Court’s case-law (see Magomedov and Others v. Russia, nos. 33636/09 and 9 others, §§ 94-96, 28 arch 2017). In that regard it cannot but be noted that there were other means whereby that court could ensure the respect for its decisions and for those of the Supreme Court. Specifically, the Principal State Attorney could and did lodge a request for the protection of legality against one of the judgments contested by the Port Authority’s constitutional complaints and the Supreme Court, which had earlier allowed such a remedy, dismissed it only because the Constitutional Court had in the meantime quashed that judgment (see paragraphs 5 and 20 above).
29. The above considerations are sufficient for the Court to conclude that the proceedings in question did not satisfy the requirements of a fair hearing. It therefore does not find it necessary to address the applicant’s further complaints regarding various instances of unfairness in the subsequent phase of the proceedings before the High Administrative Court (see paragraphs 17 and 21 above).
30. There has accordingly been a violation of Article 6 § 1 of the Convention.
REMAINING COMPLAINT31. The applicant also complained under Article 1 of Protocol No. 1 to the Convention. It is to be noted that, even though a concession can be considered a “possession” within the meaning of that Article (see, for example, Uzan v. Turkey (dec.), no. 18240/03, § 84, 29 March 2011), the applicant had never been granted the priority concession of the desired scope by any decision, let alone by a final one.
32. Moreover, where, as in the present case, there is a dispute as to the correct interpretation and application of domestic law and the question of compliance with the statutory requirements is to be determined in judicial proceedings (see, for example, Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, § 149, 20 March 2018), a claim cannot be considered as having a sufficient basis in national law and thus cannot qualify as a “possession” to which Article 1 of Protocol No. 1 would be applicable. The guarantees of that Article therefore do not apply to the applicant’s claim to be granted full priority concession in the present case.
33. It follows that this complaint is inadmissible as being incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected, pursuant to Article 35 § 4 thereof.
APPLICATION OF ARTICLE 41 OF THE CONVENTION
34. The applicant in their observations stated that it would be fair to award it compensation for the breaches in the proceedings complained of and for the losses sustained by being prevented to perform normal economic activity as a priority concessionaire. It did not specify the amount of just satisfaction nor whether its claim concerned pecuniary damage, non-pecuniary damage and/or costs and expenses.
35. The Government argued that, in the absence of a specific claim, the Court should not award any just satisfaction.
36. The Court reiterates that an applicant who wishes to obtain an award of just satisfaction must make a specific claim to that effect (Rule 60 § 1 of the Rules of Court). While the Court is, even in the absence of a properly submitted claim, empowered to afford just satisfaction this is only on account of non-pecuniary damage and in exceptional circumstances (see Nagmetov v. Russia [GC], no. 35589/08, §§ 74-82, 30 March 2017). It finds that such circumstances do not obtain in the present case, and it therefore rejects the applicant’s claim for just satisfaction.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
Declares the complaints under Article 6 § 1 of the Convention admissible and the remainder of the application inadmissible;Holds that there has been a violation of Article 6 § 1 of the Convention on account of the unfairness of the proceedings before the Constitutional Court;Holds that there is no need to examine the merits of the applicant’s remaining complaints under Article 6 of the Convention;Dismisses the applicant’s claim for just satisfaction.Done in English, and notified in writing on 28 April 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Liv Tigerstedt Péter Paczolay
Deputy Registrar President