FIRST SECTION
DECISION
Application no. 9737/09
Marijana OLUJIĆ
against Croatia
The European Court of Human Rights (First Section), sitting on 17 December 2013 as a Chamber composed of:
Isabelle Berro-Lefèvre, President,
Elisabeth Steiner,
Khanlar Hajiyev,
Linos-Alexandre Sicilianos,
Erik Møse,
Ksenija Turković,
Dmitry Dedov, judges,
and Søren Nielsen, Section Registrar,
Having regard to the above application lodged on 13 January 2009,
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 Marijana Olujić, is a Croatian national, who was born in 1950 and lives in Zagreb. She was represented before the Court by Ms I. Bojić, a lawyer practising in Zagreb. The Croatian Government (“the Government”) were represented by their Agent, Mrs Š. Stažnik.
A. The circumstances of the case
2. The facts of the case, as submitted by the parties, may be summarised as follows.
3. The applicant was the majority shareholder of a company, A.M. That company had a dispute over the ownership of a plot of land with another company, C.K., which intended to build a shopping centre on that land. In 1997, C.K. instituted several sets of civil proceedings against A.M. and the applicant in respect of the plot of land, including actions for trespass (smetanje posjeda) and for the provision of temporary access to A.M.’s business premises, which was adjacent to C.K.’s construction site.
4. On 28 October 1997 C.K. brought a civil action against the applicant and A.M. in the Zagreb Municipal Court, seeking damages for delays to construction works allegedly caused by the defendants’ obstruction. It also sought a provisional measure prohibiting the defendants from alienating or encumbering their real property, in order to secure payment of the damages it was claiming.
5. On 17 December 1997 the Zagreb Municipal Court dismissed the plaintiff’s application for a provisional measure. However, that decision was set aside upon the plaintiff’s appeal by the Zagreb County Court (Županijski sud u Zagrebu) on 14 April 1998 and the case was remitted to the Zagreb Municipal Court.
6. On 30 November 1998 the applicant lodged a counterclaim against the plaintiff, seeking damages for loss of profit.
7. On 11 June 1999 bankruptcy proceedings against A.M. were opened in the Zagreb Commercial Court (Trgovački sud u Zagrebu). Consequently, the Zagreb Municipal Court separated the civil proceedings instituted on 28 October 1997 (see paragraph 4 above) against the applicant from those against A.M.
8. The proceedings against A.M. were transferred to the Zagreb Commercial Court, in the course of which both the plaintiff and the defendant withdrew their claims. The Zagreb Commercial Court terminated the bankruptcy proceedings against A.M. on 20 January 2005 because the company’s bankruptcy estate was unable to pay the costs of the proceedings.
9. In course of the proceedings for damages C.K. had instituted against the applicant (see paragraphs 4 and 7 above), following the remittal of the case to the Zagreb Municipal Court (see paragraph 5 above), that court issued a provisional measure on 24 October 2003 prohibiting the applicant from alienating or encumbering eight plots of land owned by her until the adoption of a final judgment on the plaintiff’s compensation claim. The court held that the plaintiff had demonstrated the probability that its claim for damages would be successful and that without such a measure it was likely that the applicant would frustrate or seriously hinder the satisfaction of that claim. The provisional measure was to remain in effect until the judgment in the main proceedings became final or until further order of the court.
10. On 18 November 2003 the applicant appealed against that decision to the Zagreb County Court, which never decided on her appeal.
11. On 23 November 2004 the applicant asked the Zagreb Municipal Court to issue a provisional measure prohibiting C.K. from alienating or encumbering its real property, in order to secure the payment of damages she was seeking in her counterclaim (see paragraph 6 above).
12. Upon the application of C.K., on 14 December 2004 the Dugo Selo Municipal Court (Općinski sud u Dugom Selu) ordered that the provisional measure in respect of the eight plots of land owned by the applicant be noted in the land register of that court.
13. On 21 February 2005 the Zagreb Municipal Court dismissed both the plaintiff’s action and the applicant’s counterclaim (see paragraphs 4 and 6 above). It also dismissed the applicant’s application for a provisional measure (see paragraph 11 above). Both parties lodged appeals against this decision.
14. On 25 October 2005 the Zagreb County Court dismissed both appeals and upheld the first-instance judgment, which thereby became final. The applicant then lodged an appeal on points of law (revizija) with the Supreme Court (Vrhovni sud Republike Hrvatske), whereby she argued that the lower courts had breached the rules of procedure. It was dismissed on 18 July 2007.
15. On 24 October 2007 the applicant lodged a constitutional complaint against that decision. She argued, inter alia, that her right of ownership had been violated because the provisional measure issued by the Zagreb Municipal Court had prevented her from freely disposing of her property for more than four years and that the first-instance court should have vacated the provisional measure on 25 October 2005, when the judgment of the Zagreb Municipal Court became final (see paragraph 14 above). She also maintained that her appeal against the provisional measure had never been decided by the Zagreb County Court.
16. On 29 October 2007 the applicant asked the Zagreb Municipal Court to set aside the provisional measure against her (see paragraph 9 above). The Zagreb Municipal Court discharged the provisional measure on 28 November 2007.
17. On 11 June 2008 the Constitutional Court (Ustavni sud Republike Hrvatske) dismissed the applicant’s constitutional complaint and served its decision on her representative on 15 July 2008. The relevant part of the decision reads as follows:
“...
Article 48 § 1 of the Constitution reads as follows:
The right of ownership shall be guaranteed.
The Constitutional Court offers protection of the above-mentioned right by preventing public authorities from hindering [the exercise] or depriving [a person] of that right, unless the hindrance or deprivation is based on the law.
The Constitutional Court finds that the complaint – in the subject matter and the circumstances of the present case – based on a breach of Article 48 § 1 of the Constitution, that guarantees the right of ownership, is without merit.
...”
18. Upon the applicant’s application, on 10 December 2008 the Dugo Selo Municipal Court ordered that the entry in its land register noting the provisional measure be removed.
B. Relevant domestic law and practice
1. The Enforcement Act
19. The Enforcement Act (Ovršni zakon, Official Gazette of the Republic of Croatia, nos. 57/1996, 29/1999, 42/2000, 173/2003, 194/2003, 151/2004, 88/2005, 121/2005 and 6720/08) regulates both enforcement proceedings (ovršni postupak) based on civil law disputes and applications for securing a claim (postupak osiguranja), such as proceedings for the issuance of provisional measures.
20. The relevant provisions of the Enforcement Act, as in force at the material time, provided as follows:
Chapter thirty-one
PROVISIONAL MEASURES
...
2. Provisional measures for securing a monetary claim
Requirements for imposing a provisional measure
Section 296(1)
“A provisional measure may be imposed with a view to securing a monetary claim if the requesting party [namely the creditor] demonstrates the probability that his or her claim exists [that is, will be successful], and that without such a measure there is a probable risk that the opposing party [namely the debtor] would frustrate or seriously hinder the satisfaction of the claim [namely the collection of the debt] by alienating, concealing or otherwise disposing of his assets.”
Types of provisional measure for securing monetary claims
Section 297
“(1) When the securing of a monetary claim is sought, any measure capable of achieving that aim may be imposed, in particular:
...
3. prohibiting the opposing party from alienating or encumbering his or her immovable property, ... accompanied by an entry (zabilježba) in respect of the prohibition in the land register, ...
...
(3) Prohibitions referred to in paragraph 1 of this section shall be considered effective from [the moment] of their service on the person concerned, or submission to the land registry division of a court.
(4) The effect of an entry referred to in subsection 1 paragraph 3 of this section is that the requesting party may seek enforcement of his or her claim when it becomes enforceable against the immovable property recorded in the land register to which the prohibition refers, irrespective of the fact that a third party has, with the voluntary agreement of the opposing party, acquired a certain right in respect of that immovable property and recorded it in the land register. On the basis of an enforcement deed [for example, a court judgment] against the opposing party granting his or her claim secured by registration of the prohibition [through an entry in the land register], and [on the basis of] evidence that a [third] party has acquired ownership or another right in respect of the immovable property [in question] after the registration of the prohibition, the requesting party may apply for enforcement in respect of the immovable property in question [through its seizure and sale] directly against that [third] party.”
4. Common provisions
...
Section 304
“(1) An appeal against a decision concerning an application for a provisional measure can be lodged within 8 days...
(2) The appeal court shall issue a decision on an appeal lodged pursuant to subsection 1 of this section within 30 days from the date of its receipt.
(3) An appeal does not suspend execution of a provisional measure.”
Section 305
“(1) If the requesting party did not bring an action within the time-limit, or did not institute other proceedings that would justify the [continuance of an] provisional measure or the validity of a provisional measure expired, the court shall, upon the application of the opposing party, terminate the proceedings and set aside the decisions taken...”
2. The domestic courts’ case-law
21. In decision Gž-1170/2001 of 9 October 2001 the Koprivnica County Court (Županijski sud u Koprivnici) found that the provisional measure issued in course of a labour dispute was in force even after the finality of the judgment, since it could be discharged only upon the application of a party to the proceedings, and no party to that case had lodged such an application.
22. In decision Gž-1189/2003 of 15 September 2003 the Šibenik County Court (Županijski sud u Šibeniku) found, inter alia, that by virtue of section 305 of the Enforcement Act the courts could not discharge provisional measures on their own motion.
23. Written submissions of the Rijeka County Court (Županijski sud u Rijeci) and the Osijek County Court (Županijski sud u Osijeku) included with the Government’s observations confirm the line of case-law cited above. According to those courts, section 305 of the Enforcement Act clearly stipulates that provisional measures can only be discharged upon the application of a party to the proceedings. Thus, there are no situations in which the courts may discharge a provisional measure on their own motion.
COMPLAINTS
24. The applicant complained, under Article 1 of Protocol No. 1 to the Convention, that the imposition of the provisional measure prohibiting her from alienating or encumbering her eight plots of land and its continuation for more than two years after the finality of the judgment in the main proceedings had amounted to a violation of her right to the peaceful enjoyment of her possessions. She further complained under Article 13 of the Convention that she had had no domestic remedy in that respect, as the domestic courts had failed to decide on her appeal against the decision imposing the provisional measure.
25. Lastly, the applicant complained under Article 6 § 1 of the Convention of the lack of fairness of the civil proceedings, submitting that only part of the plaintiff’s written submissions had been served on her.
THE LAW
A. Alleged violation of Article 1 of Protocol No. 1 to the Convention taken alone and in conjunction with Article 13 of the Convention
26. The applicant complained, relying on Article 1 of Protocol No. 1 to the Convention, that the provisional measure affecting her real property and its continuation after the finality of the judgment in the main proceedings had violated her right to peaceful enjoyment of her possessions. She further complained, under Article 13 of the Convention, that she had had no domestic remedy in that respect, arguing that her appeal against the provisional measure had never been decided. The relevant provisions of the Convention read as follows:
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.”
Article 13
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
1. The parties’ submissions
27. The Government argued that the applicant had failed to comply with the six-month time-limit, contending that there was a discrepancy between the date on the application form (13 January 2009) and the date of the Court’s stamp acknowledging receipt of the application form (20 January 2009).
28. The Government further argued that the applicant could not claim to be a victim of a violation of her property rights, as she could have freely disposed of her property notwithstanding the provisional measure and had failed to apply for the discharge of the provisional measure as soon as the judgment became final. The Government relied on the domestic courts’ jurisprudence (see paragraphs 21-23 above), according to which provisional measures could only be set aside upon the application of one of the parties.
29. The Government also submitted that any interference with the applicant’s right to peaceful enjoyment of her possessions had been in accordance with the provisions of the Enforcement Act and the Land Register Act; had pursued the legitimate aim of protecting the plaintiff company and third parties interested in purchasing or leasing the applicant’s real property; and had not presented an excessive burden for the applicant, since she could have disposed of her property despite the provisional measure.
30. Lastly, the Government admitted that the Zagreb County Court had failed to decide on the applicant’s appeal against the provisional measure, but argued that there had been no need to decide on the applicant’s appeal after the judgment in the main proceedings had become final, particularly given that an appeal against a provisional measure would not stay its execution.
31. In reply, the applicant submitted a copy of a postal receipt from which it was visible that the application was sent on 14 January 2009, within the six-month time-limit.
32. The applicant argued that her ability to dispose of her property had been purely theoretical, as the prohibition established by the provisional measure had been entered into the land register. The applicant also argued that such interference with her property rights had not served any legitimate aim, but rather the private interests of her opponent in litigation. In her view, the provisional measure affecting her property had served as a de facto guarantee of the plaintiff’s unsettled claims against her company, for which she should not have been personally liable, and had therefore been an excessive burden. In addition, the applicant argued that the national courts should have automatically discharged the provisional measure after the judgment in the main proceedings had become final.
33. Lastly, the applicant argued that the Zagreb County Court’s failure to decide on her appeal had been caused by the negligence of the Zagreb Municipal Court, which had not forwarded the case file to the Zagreb County Court in due time. According to the applicant, such inactivity could not be justified under any circumstances.
2. The Court’s assessment
(a) Article 1 of Protocol No. 1 to the Convention taken alone
34. The Court does not find it necessary to examine the Government’s objections based on the applicant’s failure to observe the six-month rule and her alleged lack of victim status, because her complaints are in any event inadmissible for the following reasons.
35. As regards the decision of the Zagreb Municipal Court to impose a provisional measure affecting the applicant’s property (see paragraph 9 above), the Court notes that the applicant essentially complained about the manner in which the Zagreb Municipal Court interpreted and applied the Enforcement Act in a civil law dispute between private parties. In this connection, the Court reiterates that its jurisdiction to verify that domestic law has been correctly interpreted and applied is limited and that it is not its function to take the place of the national courts, its role being rather to ensure that the decisions of those courts are not flawed by arbitrariness or otherwise manifestly unreasonable (see Anheuser-Busch Inc. v. Portugal [GC], no. 73049/01, § 83, ECHR 2007‑I).
36. In the present case, the plaintiff instituted civil proceedings against the applicant, seeking compensation for damages. In the course of those proceedings, the plaintiff sought a provisional measure from the Zagreb Municipal Court concerning the applicant’s property. The judge in charge of the civil proceedings accepted the plaintiff’s application for a provisional measure, finding that the statutory conditions for imposing such a measure had been met (see paragraph 9 above). The decision of the Zagreb Municipal Court was sufficiently reasoned and based on the relevant provisions of the Enforcement Act. The Court finds no basis on which to conclude that the impugned decision was affected by any element of arbitrariness or that it was otherwise manifestly unreasonable.
37. As regards the continuation of the provisional measure after the judgment of the Zagreb Municipal Court became final (see paragraph 14 above), the Court notes that the provisional measure was to stay in effect until the judgment in the main proceedings became final or until further order of the court (see paragraph 9 above). As the national courts did not deal with the provisional measure at the later stages of the proceedings, the provisional measure was to stay in effect until the date on which the main judgment became final, namely 25 October 2005. Under the relevant provisions of Croatian law (see paragraph 20 above), after that date, the applicant should have asked the Zagreb Municipal Court to set aside the provisional measure. While recognizing the particularity of such a procedural rule, the Court reiterates that it is in the first place for the national authorities, and notably the courts, to interpret domestic law. The Court has to verify compatibility with the Convention of the effects of such an interpretation (see Tejedor García v. Spain, 16 December 1997, § 31, Reports of Judgments and Decisions 1997‑VIII).
38. The Court notes that section 305 of the Enforcement Act clearly established the applicant’s right to seek the discharge of the provisional measure immediately after the main judgment became final (see paragraph 20 above). Furthermore, the Court is unable to discern from the relevant provisions of the Enforcement Act or the domestic courts’ case-law (see paragraphs 21-23 above) that a duty is placed on the national courts to automatically discharge provisional measures in situations comparable to that of the present case. Since the applicant only applied for discharge of the measure on 29 October 2007 (see paragraph 16 above), she herself created a situation she is complaining about before the Court.
39. The Court therefore concludes that, in the present case, the continuation of the provisional measure after the main judgment became final was attributable to the applicant’s failure to seek its discharge earlier.
40. In light of the foregoing, the Court concludes that the applicant’s complaint under Article 1 of Protocol No. 1 to the Convention taken alone is inadmissible under Article 35 § 3 (a) of the Convention as manifestly ill‑founded, and must be rejected pursuant to Article 35 § 4.
(b) Article 13 of the Convention in conjunction with Article 1 of Protocol No. 1 to the Convention
41. The Court reiterates that Article 13 of the Convention does not contain a general guarantee of legal protection of every substantive right. It relates exclusively to those cases in which an applicant alleges, on arguable grounds, that one of his rights or freedoms set forth in the Convention has been violated.
42. According to the Court’s case-law, this provision applies only where an individual has an “arguable claim” to be the victim of a violation of a Convention right (see, among other authorities, Boyle and Rice v. the United Kingdom, 27 April 1988, § 52, Series A no. 131).
43. The Court has found above that the applicant’s complaint under Article 1 of Protocol No.1 to the Convention concerning the imposition and the continuation of the provisional measure is manifestly ill-founded. In this connection, the Court would highlight that, on an ordinary reading of the words, it is difficult to conceive how a claim that is “manifestly ill-founded” can nevertheless be “arguable”, and vice versa (see Boyle and Rice, cited above, § 54).
44. The Court therefore concludes that the applicant did not have an “arguable claim”, and Article 13 of the Convention in conjunction with Article 1 of Protocol No. 1 thereto is inapplicable to her case.
45. It follows that this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4.
B. Alleged violation of Article 6 § 1 of the Convention
46. Lastly, the applicant complained about the fairness of the civil proceedings instituted against her, in that the submissions of the plaintiff had not been served on her in their entirety. She relied on Article 6 § 1 of the Convention, the relevant part of which reads as follows:
“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
47. The Court notes that the applicant failed to raise this complaint before the national courts.
48. It follows that this complaint is inadmissible under Article 35 § 1 of the Convention for non-exhaustion of domestic remedies, and must be rejected pursuant to Article 35 § 4.
For these reasons, the Court by a majority
Declares the application inadmissible.
Søren NielsenIsabelle Berro-Lefèvre
RegistrarPresident
Full & Egal Universal Law Academy