FIRST SECTION
DECISION
Application no. 72174/13
Marica MIŠČEVIĆ against Croatia
The European Court of Human Rights (First Section), sitting on 16 January 2018 as a Committee composed of:
Kristina Pardalos, President,
Ksenija Turković,
Pauliine Koskelo, judges,
and Renata Degener, Deputy Section Registrar,
Having regard to the above application lodged on 5 November 2013,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Ms Marica Miščević, was a Croatian national who was born in 1927 and lived in Zagreb. She was represented before the Court by Mr M. Mihočević, a lawyer practising in Zagreb.
2. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik.
3. The applicant died on 23 June 2014 and on 31 August 2016 the applicant’s representative informed the Court that her statutory heirs, Mr Dragan Miščević and Mr Nikola Miščević, wished to pursue the application (see paragraphs 17-19 below).
A. The circumstances of the case
4. The facts of the case, as submitted by the parties, may be summarised as follows.
5. On 14 August 1996 the applicant’s husband, M.M., was killed when a land mine planted in his house in the village of Pavlovac exploded.
6. On 5 April 2005 the applicant and her two sons brought a civil action against the State in the Zagreb Municipal Court (Općinski sud u Zagrebu), seeking damages in relation to the killing of M.M., arguing that his killing had amounted to a terrorist act within the meaning of the Act on Liability for Damage Resulting from Terrorist Acts and Public Demonstrations (Zakon o odgovornosti za štetu nastalu uslijed terorističkih akata i javnih demonstracija, hereinafter: the Liability Act).
7. On 18 May 2006 the Zagreb Municipal Court ruled in favour of the plaintiffs and awarded them damages. Specifically, the applicant was awarded 136,520.60 Croatian kunas (HRK)[1], and her sons HRK 90,000 each[2]. The court noted that M.M. had been of Serbian ethnicity and had been a former general in the Yugoslav People’s Army, that the explosive device had been planted in his house in an isolated village where no military operations had been conducted, and that in 1993 a bomb had been planted in another house belonging to him. It also found that at the time of his killing the question of the return of Serbian refugees had become very topical and that according to the media coverage at the time the public had perceived his killing as a terrorist act. It therefore concluded that the explosive device which had killed M.M. had been intentionally planted in his house in order to deter those who had been planning to return to the area by instilling the fear in them that they might end up like M.M.
8. On 8 July 2008 the Zagreb County Court (Županijski sud u Zagrebu) dismissed an appeal lodged by the State Attorney’s Office and upheld the first-instance judgment.
9. On 2 October 2008 the State Attorney’s Office lodged an appeal on points of law with the Supreme Court (Vrhovni sud Republike Hrvatske). On 3 November 2010 the Supreme Court declared the appeal on points of law lodged in respect of the damages awarded to the applicant’s sons inadmissible rationae valoris. The lower courts’ judgments, granting them compensation in connection with the death of their father, thus became final. As regards the damages awarded to the applicant, the Supreme Court overturned the lower courts’ judgments and dismissed her claim. It held that the lack of military operations in the area could not in itself have led to the conclusion that the act of violence at issue had amounted to a terrorist act, and that neither the circumstances such as the return of citizens who had previously left the area, nor the public perception of the act at issue as a terrorist act, could have constituted a relevant basis for any substantive conclusion as to the character of that act. It thus found that in the particular case the relevant law had been incorrectly applied and that the applicant’s claim ought to have been dismissed. This judgment was served on the State Attorney’s Office on 21 March 2011.
10. On 6 May 2013 the Constitutional Court (Ustavni sud Republike Hrvatske) declared a constitutional complaint lodged by the applicant’s sons inadmissible on the grounds that they had been awarded compensation. As regards the applicant, the Constitutional Court found that there had been no violation of her constitutional right to a fair hearing. This decision was served on the applicant’s representative on 24 May 2013.
11. Meanwhile, on 16 April 2009, by way of enforcement of the final judgment of the Zagreb Municipal Court, the applicant and her sons had received the entire amount of damages awarded to them, together with the statutory default interest.
12. On 10 June 2011, following the Supreme Court’s judgment overturning the lower courts’ judgments in respect of the applicant and dismissing her claim, the State lodged a counter-enforcement claim against the applicant, seeking reimbursement of the sum received. On 28 September 2012 this claim was finally dismissed as having been lodged out of time.
13. The State never instituted any separate proceedings against the applicant or her statutory heirs with a view to obtaining reimbursement of the sum or damages, and the applicant never repaid to the State the amount which had initially been awarded to her.
B. Relevant domestic law
1. Enforcement Act
14. The relevant provisions of the Enforcement Act of 1996 (Ovršni zakon, Official Gazette, no. 57/96, with subsequent amendments, hereinafter “the 1996 Enforcement Act”), which was in force between 11 August 1996 and 14 October 2012, provided:
Counter-enforcement
Section 58
“(1) After enforcement has been completed, the enforcement debtor may in the same enforcement proceedings ask the court to order the enforcement creditor to return what he or she has received in the enforcement:
1. if the enforcement title [decision] was finally quashed, overturned, annulled, put out of effect or if it was otherwise established that it was without effect;
...
(4) For the reasons stipulated in paragraph 1 of this section the enforcement debtor may seek damages in separate proceedings.
(5) The counter-enforcement claim stipulated in paragraph 1 of this section may be submitted within three months of the date the enforcement debtor learned of the grounds for it, but no later than within one year following the conclusion of the enforcement proceedings.”
2. Civil Obligations Act
15. The relevant provisions of the Civil Obligations Act (Zakon o obveznim odnosima, Official Gazette nos. 35/2005, 41/2008, 125/2011 and 78/2015), provide:
Section 225
“If no other statutory-limitation period is prescribed by law, claims shall become statute-barred after five years.”
Section 230
“(1) A claim for damages shall become statute-barred three years after the injured party learned about the damage and the person who caused it.
(2) In any event that claim shall become statute-barred five years after the damage occurred.
...”
Unjust enrichment
Section 1111
“(1) When part of the property of one person passes, by any means, into the property of another, and that transfer has no basis in a legal transaction, decision of a court or other relevant authority or in legislation [that is to say it is without cause], the person who received it [the beneficiary] shall be obliged to return it or, if restitution is not possible, provide compensation for the value of the benefit obtained.
...
(3) The obligation to return property or provide compensation for the value thereof shall arise even where something has been received on account of grounds which did not materialise or which were subsequently extinguished.”
Section 1117
“(1) If a beneficiary has, by acting in good faith, received payment of damages related to an injury, deterioration of health or death, reimbursement of the payment cannot be sought on the grounds that it was received without cause.
(2) A beneficiary shall be considered as not acting in good faith from the moment he or she received a decision on accepting an extraordinary legal remedy, and shall be obliged to reimburse the payment received on the basis which was extinguished, together with interest calculated from the moment he or she has stopped acting in good faith.”
COMPLAINTS
16. The applicant complained under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 that the Supreme Court’s judgment overturning the lower courts’ judgments granting her damages in connection with the death of her husband had been arbitrary and had lacked adequate reasoning.
THE LAW
I. AS TO WHETHER THE APPLICANT’S HEIRS CAN PURSUE THE APPLICATION
17. The Court must first address the issue of the applicant’s heirs’ entitlement to pursue the application originally introduced by the applicant, who died on 23 June 2014.
18. In his letter of 31 August 2016 the applicant’s representative informed the Court that the applicant’s sons, Mr Dragan Miščević and Mr Nikola Miščević, wished to pursue the application (see paragraph 3 above). He submitted a decision issued by a notary public of 27 August 2014 declaring Mr Dragan Miščević and Mr Nikola Miščević to be the applicant’s only statutory heirs. The Government contested this, proposing that the application be struck out of the Court’s list of cases.
19. Having regard to its case-law on the subject (see Malhous v. the Czech Republic (dec.) [GC], no. 33071/96, ECHR 2000‑XII), the Court holds that the applicant’s heirs have a legitimate interest in pursuing the present proceedings in the applicant’s stead. However, the Court’s examination is limited to the question of whether or not the complaints, as originally submitted by Ms Marica Miščević, disclose a violation of the Convention (ibid.).
II. ALLEGED VIOLATIONS OF ARTICLE 6 § 1 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL No. 1
20. The applicant complained that the Supreme Court’s judgment overturning the lower courts’ judgments which granted her damages in connection with the death of her husband had been arbitrary and lacked adequate reasons and that the dismissal of her claim by that court had violated her property rights. She relied on Article 6 § 1 of the Convention and Article 1 of Protocol No. 1. Those provisions, in so far as relevant, read as follows:
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.”
A. The parties’ arguments
1. The Government
21. The Government submitted that the difference between the applicant’s signature on the power of attorney submitted to the Court and the one submitted in the domestic proceedings indicated that she had not personally signed the power of attorney submitted to the Court and that she had therefore abused her right of individual application. The Government also argued that the applicant had failed to comply with the six-month time‑limit for lodging the application with the Court, suggesting that in the instant case the time-limit should have been calculated from the date of issue of the Supreme Court’s judgment. The Government asserted further that the applicant’s complaints were of a fourth-instance nature, and that, since she had never repaid the State the sum awarded to her by the first and second-instance courts, she had not suffered any significant disadvantage as a consequence of the Supreme Court’s judgment.
22. The Government also submitted that it is for the domestic courts to interpret domestic law and the facts of the case brought before them. In the instant case, the judgment of the Supreme Court had been in line with its previously developed case-law on the matter and had not been arbitrary.
2. The applicant
23. The applicant contested all the Government’s arguments regarding the inadmissibility of her application. She contended in particular that, since the Supreme Court had overturned the lower courts’ judgments and dismissed her claim, the State could at any time implement means of obtaining the sum initially awarded to her.
24. She maintained that the Supreme Court’s judgment overturning the lower courts’ judgments had been arbitrary and had lacked relevant reasons and that the dismissal of her claim by that court had amounted to a violation of her right to peaceful enjoyment of her possessions.
B. The Court’s assessment
25. The Court does not have to address all the issues raised by the parties because the application is in any event inadmissible for the following reasons.
26. The Court observes that, for the applicant, the purpose of instituting the civil proceedings against the State was to obtain damages in relation to her husband’s killing (see paragraph 6 above). The Court notes in this connection that on 16 April 2009, by way of enforcement of the final judgment of the Zagreb Municipal Court, the applicant received the entire amount of the damages awarded to her, together with the statutory default interest. It further notes that even though the Supreme Court overturned the lower courts’ judgments and dismissed her claim, the applicant never repaid to the State the amount which had initially been awarded to her (see paragraph 13 above).
27. Following the Supreme Court’s judgment the State had several means at its disposal to obtain reimbursement of the sum paid to the applicant: firstly, lodging a counter-enforcement claim in the same enforcement proceedings in which the applicant obtained payment (see paragraph 14 above); and secondly, bringing a civil action for unjust enrichment against the applicant or, subsequently, her statutory heirs (see paragraph 15 above). In addition to this the State could have sought damages from the applicant or her statutory heirs (see paragraph 14 above).
28. In this connection the Court observes that the counter-enforcement claim lodged by the State on 10 June 2011 was finally dismissed by the domestic courts as having been lodged out of time (see paragraph 12 above).
29. As to a civil action for unjust enrichment or for damages (see paragraphs 14-15 above), the Court notes that such claims had already become statue-barred: the five-year statutory-limitation period stipulated in section 225 of the Civil Obligations Act applicable to lodging the civil action for unjust enrichment expired on 21 March 2016 (see paragraphs 9 and 15 above) and the statutory-limitation period stipulated in section 230 of the Civil Obligations Act applicable to instituting civil proceedings for damages has also undoubtedly expired (see paragraph 15 above).
30. It thus follows that the State does not have any legal means at its disposal to obtain reimbursement of the damages initially awarded to the applicant. Having regard to the fact that the purpose of instituting the civil proceedings against the State was precisely to obtain damages in relation to the killing of her husband, the Court considers that the applicant’s complaints do not raise any substantive issue under the Convention.
31. Accordingly, the present application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 8 February 2018.
Renata DegenerKristina Pardalos
Deputy RegistrarPresident
[1]. Approximately 18,750 euros (EUR) at the time.
[2]. Approximately EUR 12,360 at the time.
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