SECOND SECTION

DECISION

Application no . 38462/14 Dragica KOMÅ O against Croatia

The European Court of Human Rights (Second Section), sitting on 4 April 2017 as a Chamber composed of:

Işıl Karakaş, President, Julia Laffranque, Nebojša Vučinić, Valeriu Griţco, Ksenija Turković, Jon Fridrik Kjølbro, Stéphanie Mourou-Vikström, judges, and Hasan Bakırcı , Deputy Section Registrar ,

Having regard to the above application lodged on 13 May 2014,

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 Dragica Komšo, is a Croatian national who was born in 1969 and lives in Benkovac. Her application was lodged on 13 May 2014.

2. The Croatian Government (“the Government”) were represented by their Agent, Ms Š.Stažnik.

A. The circumstances of the case

3. The facts of the case, as submitted by the parties, may be summarised as follows.

4. On an unspecified date in 2005 the applicant moved with her husband and two children from Drvar in Bosnia and Herzegovina to Benkovac, Croatia.

5. On 24 March 2005 the applicant applied to the Benkovac Social Welfare Centre ( Centar za socijalnu skrb Benkovac ; “the welfare centre”) for welfare benefits ( pravo na pomoć za uzdržavanje ). She stated that she was unemployed with no income and had two children who were still minors.

6. On 29 April 2005 a social worker warned the applicant about the need to provide accurate information about her assets and the obligation to report any changes to the welfare centre.

7. On 4 May 2005 the welfare centre granted benefits to the applicant and her family on account of their poor financial situation.

8. On 8 September 2005 the welfare centre received information from an anonymous source that the applicant ’ s husband had a shop in Drvar.

9. On 16 September 2005 the applicant informed the welfare centre about her husband ’ s shop. She admitted it existed but argued that she had considered it to be irrelevant because it had been robbed in February 2005 and its earnings had been very low. The applicant was warned about the possibility of criminal and financial liability for providing false statements.

10. On 27 September 2005 the welfare centre decided to stop her benefits. It established that the applicant and her family could provide for themselves through their own work, which in their case was the revenue from their shop. The decision was served on the applicant on 28 September 2005 and she did not lodge an appeal.

11. On the same day, 28 September 2005, the applicant visited the welfare centre and gave a statement about repayment of the social welfare benefits received between 24 March 2005 and 27 September 2005. She was warned that civil proceedings for reimbursement would be instituted against her. The applicant replied that she could not repay the due amount because the earnings from the shop were very low and that she and her husband planned to close it soon.

12. On 13 March 2007 the Benkovac Municipal State Attorney ’ s Office ( Op ć insko državno odvjetni š tvo u Benkovcu ; “the State Attorney ’ s Office”), lodged a civil action against the applicant in the Benkovac Municipal Court ( Op ć inski sud u Benkovcu ), relying on the fact that the applicant had failed to disclose that her husband owned a shop in Drvar when she had been granted welfare benefits. The State Attorney ’ s Office sought repayment of the 8,612 Croatian kunas (HRK) (about 1,170 euros (EUR)) she had received , together with statutory default interest.

13. The applicant argued during the proceedings that the shop had in fact not been in operation since the robbery on 24 January 2005 but that her husband had not been able to close it because of unsettled tax liabilities. She stated that they had not had the means to support themselves and their children.

14. At a hearing on 2 February 2010 the applicant ’ s lawyer asked for financial information on the husband ’ s shop to be obtained from the Drvar Tax Authority in order to assess whether the applicant had satisfied the statutory requirements for welfare benefits. The applicant ’ s lawyer did not provide any reasons why he or the applicant had not been able to obtain the document from the authorities of Bosnia and Herzegovina, nor did he claim that. The first-instance court dismissed the proposal, considering it to be aimed at delaying the proceedings because the data would have had to be requested from Bosnia and Herzegovina via the diplomatic service. The first-instance court pointed out that the applicant had had more than enough time since the institution of the proceedings to obtain the data in question if she deemed it relevant. At the same hearing the court also heard evidence, at the request of the applicant, from the director of the welfare centre, M.B.

15. On 15 February 2010 the Benkovac Municipal Court dismissed the State Attorney ’ s claim because the applicant had not been given an opportunity to repay the money within a specified time-limit.

16. On 28 April 2011, upon an appeal by the State Attorney ’ s Office, the Zadar County Court ( Županijski sud u Zadru ) quashed the first-instance decision and remitted the case for fresh consideration.

17. The court held two hearings in the new proceedings. At a hearing on 25 August 2011 the applicant ’ s lawyer submitted a certificate from the regional tax office in Drvar dated 4 September 2008 on the applicant ’ s husband ’ s unpaid tax liabilities. The State Attorney ’ s Office argued that the document was irrelevant because a certificate on unpaid tax liabilities could not be proof of earnings.

18. At a hearing held on 8 September 2011 the first-instance court heard evidence from the applicant ’ s husband at the request of the applicant. He stated that his wife had not disclosed information about their shop because she had been afraid it would prevent them from receiving welfare benefits. At the same hearing the first-instance court dismissed an application from the applicant to be heard in person because it held that she had submitted all her observations in her reply to the claim and that her request to give evidence was aimed at delaying the proceedings. The applicant ’ s lawyer had no further evidence and the first-instance court concluded the hearing.

19. On 19 September 2011 the Benkovac Municipal Court granted the claim and ordered the applicant to reimburse to the State HRK 8,612, together with statutory default interest, and to pay HRK 5,875 in costs and expenses for the proceedings. It held that while the applicant ’ s statements about her husband ’ s shop might in fact have been true, the fact remained that she had not disclosed that information voluntarily and had therefore fraudulently, and undoubtedly unlawfully, obtained social welfare benefits which the court could not make lawful.

20. On 17 October 2011 the applicant lodged an appeal with the Zadar County Court, reiterating her previous arguments. She stated that her husband had owned the shop at issue, not her, and that she had only been employed in her husband ’ s business, which had been ruined by the robbery.

21. On 19 June 2013 the Zadar County Court, relying on section 196 of the Social Welfare Act, dismissed the applicant ’ s appeal on the grounds that she had not disclosed the fact that her husband had owned a shop, and that her arguments concerning the actual state of the business and her poor financial situation were of no relevance.

22. The applicant then lodged a constitutional complaint with the Constitutional Court ( Ustavni sud Republike Hrvatske ), alleging that her right to a fair hearing had been violated because the first-instance court had disregarded her request to obtain the data on her husband ’ s shop from the Drvar Tax Authority, thus failing to correctly establish all the circumstances of her case. She also alleged that she had been discriminated against.

23. On 17 December 2013 the Constitutional Court declared her complaint inadmissible as manifestly ill-founded.

B. Relevant domestic law

24. The relevant part of the Civil Procedure Act ( Zakon o parničnom postupku, Official Gazette nos. 53/1991, 91/1992, 112/1999, 81/2001, 117/2003, 88/2005, 84/2008, 96/2008, 23/2008, 57/2011, 148/2011 ‑ consolidated text), as in force at the material time, provided as follows:

Section 219

“Each party is obliged to provide facts and present evidence on which his or her claim is based or to refute the statements and evidence of his or her opponent.

...”

Section 232

“Parties referring to a document as proof of a statement are obliged to submit that document themselves.

...

If the document is in the possession of a state authority or a legal or physical person vested with public authority, and the party is not able to arrange for the document to be handed over or shown, the court shall itself obtain the document upon a motion by the party.”

25. The relevant provision of the Social Welfare Act ( Zakon o socijalnoj skrbi, Official Gazette nos. 73/1997, 27/2001, 59/2001, 82/2001 and 103/2003), as in force at the material time, provided as follows:

Section 196

“A beneficiary who was granted allowance on the basis of a decision of the Social Welfare Centre shall compensate the damage if:

- on the basis of false or inaccurate data which he or she knew or should have known to be false or inaccurate, or in some other unlawful manner, he or she was granted an allowance to which he or she was not entitled, or he or she was granted this allowance in an amount greater than the amount to which he or she was entitled,

- he or she was granted an allowance because he or she failed to report a change that affects the loss or the scope of the entitlement, and he or she knew or should have known about this change.”

COMPLAINTS

26. The applicant complained under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 that the first-instance court had refused to obtain financial information about her husband ’ s shop from the Drvar Tax Authority and that she had been ordered to repay the social welfare benefits.

27. She also complained, without relying on any provision of the Convention that the national courts had ruled against her without hearing her give evidence in person.

THE LAW

A. Alleged violations of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention

28. The applicant complained that she had not had a fair hearing as the principle of equality of arms had been violated by the first-instance court ’ s refusal to obtain financial data on her husband ’ s shop from the Drvar Tax Authority. The applicant also complained that the domestic courts, without taking into account all the circumstances of her case, had unjustifiably ordered her to repay the social welfare benefits. 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.”

1. Submissions of the parties

29. The Government argued that the applicant had not properly exhausted domestic remedies because she had not lodged an appeal against the Benkovac Social Welfare Centre ’ s decision of 27 September 2005 on terminating her right to social welfare benefits. They emphasised that establishing whether the shop in Drvar had been operating or not and whether the applicant and her family had sufficient income or any at all should have been determined in administrative proceedings by the welfare centre concerned. In that connection, the Government argued that the applicant had failed to comply with the six-month time-limit for lodging an application because that period had begun to run after the expiry of the deadline for an appeal against the decision of 27 September 2005. In addition, the Government argued that the applicant had failed to raise her complaint concerning her right to the peaceful enjoyment of her possessions before the Constitutional Court.

30. The Government also contended that the applicant had actively participated in the civil proceedings complained of and that all of her procedural rights had been respected. The Government commented on her complaint that the domestic courts had not taken all the circumstances of her case into account when establishing the facts by pointing out that if she had considered the information on her husband ’ s business to be crucial to her case she had had more than six years to obtain it. Despite that, she had neither obtained any documents from Bosnia and Herzegovina nor submitted any papers as proof of her husband ’ s business ’ s financial situation and earnings , such as ledgers or other bookkeeping documents. Moreover, she had never explained during a trial that had lasted six years why she had not been able to obtain the documents at issue herself and why it had been necessary for the national courts, and them alone, to obtain such documents from the Bosnia and Herzegovina tax authorities through diplomatic channels, bearing in mind the principles of civil proceedings and the obligation of parties to submit and propose evidence for the establishment of facts in their favour. Furthermore, the applicant had given numerous contradictory statements throughout the proceedings before the national courts and the Court.

31. The applicant stated that she had not lodged an appeal against the social welfare centre ’ s decision of 27 September 2005 because an employee at the centre had threatened her that she would inform the police if she did so. She further contended that the above-mentioned decision had never been served on her and that the welfare centre had erroneously served its decision of 4 May 2005 on her twice.

32. The applicant also argued that at the hearing on 2 February 2010 the first-instance court had failed to give any relevant reasons for refusing her representative ’ s request to obtain data about her husband ’ s business from the Bosnia and Herzegovina tax authorities, thus failing to properly establish all the circumstances of her case.

2. The Court ’ s assessment

33. The Court does not have to address all the issues raised by the parties because, even assuming that the applicant properly exhausted the available domestic remedies, the application is in any event inadmissible for the following reasons.

(a) As regards Article 6 § 1 of the Convention

34. The Court reiterates that while Article 6 of the Convention guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence or the way it should be assessed, which are therefore primarily matters for regulation by national law and the national courts (see, for example, García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999 ‑ I, Perić v. Croatia , no. 34499/06, § 17, 27 March 2008 and Carmel Saliba v. Malta , no. 24221/13, § 63, 29 November 2016 ). In this connection the Court reiterates that in its case-law the principle of equality of arms requires that each party be afforded “a reasonable opportunity to present his case under conditions that do not place him at a substantial disadvantage vis-aÌ€-vis his opponent” (see, among other authorities, De Haes and Gijsels v. Belgium , 24 February 1997, § 53, Reports of Judgments and Decisions 1997 ‑ I ) . It is left to the national authorities to ensure in each individual case that the requirements of a fair hearing are met (see Perić , cited above, § 19).

35. Turning to the present case, the Court notes that at the hearing before the first-instance court on 25 August 2011 the applicant ’ s lawyer himself submitted the certificate from the Drvar Tax Authority. It further notes that the certificate was dated 4 September 2008, which means that the applicant already had it in her possession at the hearing of 2 February 2010. However, the document only showed her husband ’ s tax liabilities and not the shop ’ s income. In that connection the Court observes that there was nothing to prevent the applicant, and nor did she claim this, from submitting documents about the real financial situation of her husband ’ s business, and consequently her family ’ s financial situation, such as a balance sheet, income statement, accounts or any other bookkeeping document, if she considered them as essential for her case, as provided under section 219 of the Civil Procedure Act (see paragraph 24). The applicant ’ s failure to adduce such evidence deprived the civil courts of the opportunity to examine her allegations and get some insight into her real financial situation. Owing to that failure her other arguments about the alleged unfairness of the proceedings and the excessive burden placed on her for having to repay the social welfare benefits carry no weight. In these circumstances, the Court finds that there was nothing arbitrary or manifestly unreasonable about the domestic court ’ s refusal to seek information from the Bosnia and Herzegovina authorities.

36. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

( b ) As regards Article 1 of Protocol No. 1

37. The Court does not find it necessary to decide whether the benefits the applicant received constituted a “possessi on” for the purposes of Article 1 of Protocol No. 1 to the Convention (compare to B. v. the United Kingdom , no. 36571/06, § 39 , 14 February 2012) because this complaint is in any event inadmissible for the reasons set out below (see paragraphs 38-39).

38. Therefore, even assuming that the order to the applicant to repay those benefits amounted to an interference with her right to peaceful enjoyment of her possessions, the Court finds that the interference was justified. In particular, that interference w as based in law, namely section 196 of the Social Welfare Centre (see paragraph 25) and pursued a legitimate aim in the general interest, namely that the social benefits are allocated to those in greatest need and that those who do not satisfy the requirements do not obtain such benefits unjustifiably.

40. Accordingly, this complaint is also manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

B. The applicant ’ s other complaint

41. Without relying on any Article of the Convention, the applicant complained that she had not been able to testify in person before the first-instance court, raising this issue for the first time in her reply to the Government ’ s observations.

42. The Court notes that the applicant failed to raise this complaint before the Constitutional Court. In that connection the Court reaffirms its subsidiary role, according to which applicants have first to address their grievances to the relevant national authorities.

43. It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 11 May 2017 .

Hasan Bakırcı Işıl Karakaş Deputy Registrar President