Communicated on 25 August 2016
SECOND SECTION
Application no. 26704/15
Zdenka MARIČIĆ and Ivan MARIČIĆ
against Croatia
lodged on 28 May 2015
STATEMENT OF FACTS
The applicants, Ms Zdenka Maričić and Mr Ivan Maričić, are Croatian nationals who were born in 1953 and 1949 and live in Vodice and Zagreb respectively. They are represented before the Court by Mr I. Šerkić, a lawyer practising in Zagreb.
The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
On 22 December 1997 the applicants lodged an application for the enforcement of a judgment with the Zagreb Municipal Court (Općinski sud u Zagrebu); the court allowed their claim for 56,750.00 Deutschmarks (DEM); the object of the enforcement was a debtor’s house.
On 20 April 1998 the Zagreb Municipal Court issued the enforcement order. However, the execution judge failed to have the enforcement order delivered to the Land Registry Department (Zemljišnoknjižni odjel) for the prohibition of the alienation and encumbrance of the said real estate (zabrana otuđenja i opterećenja nekretnine).
On 23 July 1998 third parties lodged an application to be entered in the land register as the owners of the impugned house on the basis of a sale-purchase agreement concluded with the debtor in 1996.
On 1 February 2000 the Land Registry Department adopted a decision granting their application and recording them as the owners of the impugned house, thus preventing the sale of the said house in the enforcement proceedings.
On 17 January 2002 the applicants brought a claim before the Zagreb Municipal Court against the State seeking damages of DEM 56,750.00, denominated in euros (EUR 29,015.81), for judicial malpractice.
On 24 February 2002 the Supreme Court delegated the case to the Samobor Municipal Court (Općinski sud u Samoboru).
By a judgment of 11 April 2006 the Samobor Municipal Court allowed the applicants’ claim.
Upon an appeal by the Samobor Municipal State Attorney’s Office (Općinsko državno odvjetništvo u Samoboru), on 18 June 2009 the Velika Gorica County Court (Županijski sud u Velikoj Gorici) upheld the first-instance judgment.
The Samobor Municipal State Attorney’s Office lodged an appeal on points of law and on 25 September 2013 the Supreme Court quashed the lower courts judgments and remitted the case for fresh consideration.
In the resumed proceedings, the first-instance court partially allowed the applicants’ claim ordering the State to pay EUR 21,890.02 in damages and 36,569.71 Croatian kunas (HRK) for the costs of the proceedings. It held that the applicants had contributed to the damage caused because they had failed to submit the impugned application for the enforcement with the proof that they had lodged it, to the Land Registry Department (Zemljišnoknjižni odjel) so that it would be officially entered (zabilježba) in the land register, as provided by the Land Registry Rules (Zemljišnoknjižni poslovnik).
By a judgment of 10 December 2014 the Velika Gorica County Court upheld the first-instance judgment.
The applicants then lodged a constitutional complaint complaining, inter alia, that their right to a fair hearing, as well as their right to peaceful enjoyment of their possessions, had been violated when the courts partially dismissed their claim holding them jointly responsible for the damage caused.
On 19 February 2015 the Constitutional Court declared their constitutional complaint inadmissible and on 5 March 2015 it served its decision on their representative. It held that the contested decision had not concerned the merits of the case and as such was not amenable to constitutional review under section 62 of the Constitutional Court Act. The relevant part of this decision reads as follows:
“... the contested judgment, in part challenged by the applicants in their constitutional complaint, by which a pronouncement was reached on the costs of the proceedings, does not constitute a decision [(pojedinačni akt)] within the meaning of section 62(1) of the Constitutional Court Act against which the Constitutional Court is competent to provide constitutional protection.”
COMPLAINTS
The applicants complain under Article 6 § 1 of the Convention that they had no access to the Constitutional Court.
They also complain, under Article 13 of the Convention, that they had no effective remedy in this connection.
QUESTIONS TO THE PARTIES
1. Did the applicants have access to court in respect of their constitutional complaint, as required under Article 6 § 1 of the Convention?
2. Did the applicants have at their disposal an effective domestic remedy for their Convention complaint, as required by Article 13 of the Convention?
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