SECOND SECTION

DECISION

Application no . 11756/11 Dubravko BRLJAČIĆ against Croatia

The European Court of Human Rights (Second Section), sitting on 23 August 2016 as a Chamber composed of:

Işıl Karakaş , President, Nebojša Vučinić , Paul Lemmens, Valeriu Griţco , Ksenija Turković , Stéphanie Mourou-Vikström , Georges Ravarani , judges, and Stanley Naismith, Section Registrar ,

Having regard to the above application lodged on 29 December 2010,

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, Mr Dubravko Brljačić , is a Croatian national who was born in 1955 and lives in Požega . He was represented before the Court by Mr N. Sabljar , a lawyer practising in Rijeka.

2. The Croatian Government (“the Government”) were represented by their Agent, Ms Å . Sta ž nik .

A. The circumstances of the case

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

1. Background to the case

4. In September 1997, following a public tender for the purchase of real properties owned by a company, P.-d. ( hereinafter “the company”), the applicant bought a commercial property (a retail store) from the company.

5. On the basis of the purchase contract the applicant registered his ownership of the retail store in the land register.

6. In October 1998 the applicant transferred his ownership of the retail store to his wife, D.B.B., who then duly registered her ownership in the land register.

2. Criminal proceedings against the company ’ s managers

7. On 29 March 2000 the Požega County State Attorney ’ s Office ( Županijsko državno odvjetništvo u Požegi ) indicted thirteen managers of the company before the Požega County Court ( Županijski sud u Požegi ) on charges of abuse of power and authority in connection with several disadvantageous contracts concluded by the company, including the one concluded with the applicant.

8. The company joined the criminal proceedings by lodging a civil claim seeking the annulment of the contracts concluded by the alleged commission of a criminal offence.

9. During the proceedings before the Požega County Court the applicant was examined as a witness concerning the criminal charges against the accused. He explained that he had intended to start his own retail business and thus he had initially rented the retail store in question from the company. However, in July 1997 he had been offered the chance to buy the store, which he had accepted. The applicant also explained that subsequently, given that he had been unemployed and thus not eligible to take out a loan to pay for the renovation of the store, he had transferred his ownership of the store to his wife, who had been in a position to take out a loan.

10. On 4 February 2002 the Požega County Court found the accused guilty as charged and sentenced them to imprisonment. It granted the company ’ s civil claim and declared the contracts concluded by the accused null and void, including the contract concluded with the applicant. It also held that the decision declaring the contracts null and void should not call into question the rights of parties who had bought the real properties from the company in good faith, as that would require further proceedings to establish whether they had acted in good faith when concluding the contracts, and that would be contrary to the principle of efficiency of criminal proceedings.

11. The accused and the Požega County State Attorney ’ s Office appealed against the first-instance judgment before the Supreme Court ( Vrhovni sud Republike Hrvatske ) alleging numerous substantive and procedural flaws in the findings of the Požega County Court concerning the criminal responsibility of the accused. The applicant and several other parties who had concluded contracts with the company also appealed against the first-instance judgment, challenging the annulment of the contracts on which they had based their property titles.

12. On 19 April 2006 the Supreme Court dismissed the appeals by the accused and the Požega County State Attorney ’ s Office as unfounded and declared the complaints lodged by the applicant and the other third parties inadmissible on the grounds that they did not have standing to lodge an appeal against the first-instance judgment.

13. The applicant then challenged the judgments of the lower courts by lodging a constitutional complaint with the Constitutional Court ( Ustavni sud Republike Hrvatske ). He contended in particular that the decision to declare the real property purchase contract null and void had unlawfully and unjustifiably interfered with his property rights and that the Supreme Court had declined to examine his complaint in that respect.

14. On 30 June 2010 the Constitutional Court dismissed the applicant ’ s constitutional complaint against the judgment of the Supreme Court as unfounded and ruled the complaints against the first-instance judgment of the Požega County Court inadmissible as they had been lodged outside the thirty-day statutory time-limit for lodging a constitutional complaint. In particular, the Constitutional Court examined the applicant ’ s complaint from the perspective of the right to a fair trial and found that there had been nothing unlawful or arbitrary in the decision of the Supreme Court; in its view, no other issue arose with regard to the remainder of the applicant ’ s complaints.

3. The company ’ s civil proceedings against the applicant

15. On 18 July 2007, relying on the final judgment of the Požega County Court by which the applicant ’ s purchase contract had been declared null and void, the company instituted civil proceedings against the applicant and his wife, D.B.B., before the Po ž ega Municipal Court ( Op ć inski sud u Po ž egi ). It asked that the contract on the transfer of the property title from the applicant to his wife be declared null and void and that the successive entries in the land register of the applicant ’ s and D.B.B. ’ s titles to the retail store be cancelled. Alternatively, the company claimed 690,402.97 Croatian kunas (HRK) (approximately 92,600 euros (EUR)), plus statutory default interest.

16. During the proceedings the applicant and D.B.B., represented by a lawyer, contested the company ’ s civil claim on the grounds that they had purchased the real property at issue in good faith and that there were no grounds for annulling their property title. They also pointed out that the final judgment of the Požega County Court by which the contracts concluded by the company ’ s directors had been declared null and void did not call into question the rights of third parties who had obtained their property titles in good faith.

17. At a hearing on 31 March 2014 the Požega Municipal Court examined the relevant materials concerning the conclusion of the contracts and the transfer of title to the retail store from the company to the applicant and from the applicant to D.B.B. It also heard the company ’ s representative, the applicant and D.B.B., and read out the judgments of the Požega County Court and the Supreme Court.

18. On 29 April 2014 the Požega Municipal Court dismissed the company ’ s civil action on the grounds that both the applicant and D.B.B. had become owners of the real property at issue in good faith. It explained that whereas it was not possible to call into question the Požega County Court ’ s final judgment declaring the applicant ’ s purchase contract null and void, that judgment had to be read in conjunction with the relevant provisions of the Civil Obligations Act, which protected parties who had acted in good faith from being obliged to return that which they had acquired on the basis of an annulled contract. In the case at issue, the Požega Municipal Court considered that there was nothing suggesting that the applicant, and subsequently D.B.B., had not acquired title to the retail store in good faith.

19. The company lodged an appeal against the judgment of the Požega Municipal Court with the Slavonski Brod County Court ( Ž upanijski sud u Slavonskom Brodu ). The company argued, in particular, that the first-instance court had erred in its findings concerning the question of whether the applicant and D.B.B. had obtained title to the retail store in good faith.

20. The company ’ s appeal was forwarded to the applicant ’ s representative, who did not respond to the company ’ s arguments.

21. On 16 March 2015 the Slavonski Brod County Court dismissed the company ’ s appeal as unfounded and upheld the first-instance judgment of the Požega Municipal Court. In its reasoning, the Slavonski Brod County Court stated that there was nothing to call into question the findings of the first-instance judgment with regard to the question of whether the applicant and D.B.B. had acquired title to the retail store in good faith.

22. On 24 April 2015 the company lodged an appeal on points of law with the Supreme Court challenging the judgment of the Slavonski Brod County Court. The proceedings before the Supreme Court are still pending.

B. Relevant domestic law

23. The relevant provisions of the Constitution of the Republic of Croatia ( Ustav Republike Hrvatske , Official Gazette nos. 56/1990, 135/1997, 8/1998, 113/2000, 124/2000, 28/2001, 41/2001, 55/2001, 76/2010, 85/2010 and 05/2014) read as follows:

Article 29

“In the determination of his rights and obligations or of any criminal charge against him, each person is entitled to a fair hearing within a reasonable time by an independent and impartial court established by law.”

Article 48

“The right of ownership shall be guaranteed ...”

24. The relevant provision of the Code of Criminal Procedure ( Zakon o kaznenom postupku , Official Gazette nos. 110/1997, 27/1998, 58/1999, 112/1999, 58/2002, 143/2002 and 62/2003) provides as follows:

Article 134

“If the civil claim concerns the annulment of a legal transaction, and the court finds that the request is well-founded, it shall declare the full or partial nullity of that legal transaction, including its effects, without interfering with the rights of third parties.”

25. The relevant parts of the Civil Obligations Act ( Zakon o obveznim odnosima , Official Gazette nos. 53/1991, 73/1991, 3/1994, 7/1996, 112/1999 and 88/1000) provide as follows:

Nullity

Section 103

“(1) A contract that is contrary to the Constitution, peremptory rules or morals shall be null and void unless the purpose of the breached rule indicates that some other sanction or the law in a particular case provides otherwise.

(2) If the conclusion of a contract is prohibited only in respect of one party, the contract shall remain valid, unless the law in a particular case provides otherwise, in which case the party that has breached the statutory prohibition shall bear the relevant consequences.”

Effects of nullity

Section 104

“(1) Where a contract is null and void, each contracting party is bound to return to the other everything it has received on the basis of such a contract. If that is not possible, or if the nature of the obligation performed renders [such return] impracticable, an appropriate [amount of] monetary compensation shall be given, according to the value of the object in question at the moment at which [the relevant] court decision is passed, unless the law provides otherwise.

(2) However, if a contract is null and void because its substance or purpose is contrary to the Constitution and peremptory rules, the court may dismiss, fully or partially, a request for restitution [made by] the party that has not acted in good faith ...”

COMPLAINTS

26. The applicant complained, under Articles 6 and 13 of the Convention and Article 1 of Protocol No. 1, of a lack of access to a court in respect of the criminal courts ’ judgment annulling the contract by which he had obtained the ownership of the retail store.

THE LAW

27. The Court notes at the outset that the central thrust of the applicant ’ s complaint is his lack of access to a court in the criminal proceedings in which the competent criminal courts granted the company ’ s civil action and annulled the contract by which he had obtained the ownership of the retail store.

28. In these circumstances, being the master of characterisation to be given in law to the facts of the case, the Court will consider this complaint solely under Article 6 § 1 of the Convention (see, for instance, Jovanović v. Serbia , no. 32299/08 , §§ 32-33, 2 October 2012), which, in so far as relevant, reads as follows:

Article 6

“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

A. The parties ’ arguments

29. The Government contended in particular that the applicant ’ s complaints were manifestly ill-founded as it was clear from the material which they provided concerning the civil proceedings before the Požega Municipal Court that the applicant had had effective access to a court in respect of his title to the retail store and that the court at issue had ruled in his favour. It moreover followed that the criminal court ’ s judgment annulling the contract by which the applicant had purchased the real property in question had merely declared it null and void; it had not decisively interfered with his property rights, as that was a matter which should have been determined in the subsequent civil proceedings. It was therefore irrelevant that he had not had an opportunity to influence the decision-making of the criminal courts, given that he had been provided with an effective opportunity to protect his property rights in the subsequent civil proceedings. In those proceedings his position as a party to the conclusion of the impugned contract needed to be determined. This arguably followed from the fact that the competent domestic authorities had never attempted to strike out his property title from the land register or to otherwise interfere with his property rights merely on the basis of the criminal court ’ s judgment.

30. Furthermore, given that the civil proceedings had ultimately ended in the applicant ’ s favour, the Government considered, irrespective of the company ’ s appeal on points of law before the Supreme Court, that the matter had been settled and that the case should be struck out of the Court ’ s list of cases. In any event, the Government contended that the applicant had not suffered any significant disadvantage and that his complaints were also inadmissible on this ground.

31. The applicant argued in particular that the civil proceedings to which the Government referred were completely irrelevant to his particular complaints, given that he had not been given an effective opportunity to participate in the criminal proceedings in order to protect his property rights. At the same time, the contract on which he had based his title to the retail store had been declared null and void in the criminal proceedings. It was therefore essential that he be given an effective opportunity to protect his property rights in the course of those proceedings. This in particular followed from the fact that the civil courts had considered that they could not call into question the findings of the criminal courts. They had, however, dismissed the company ’ s civil action on the ground of the necessity to protect confidence in the transfer of properties, and this judgment had been challenged before the Supreme Court. In the applicant ’ s view, it could therefore be said that it was not he but his wife who had managed to protect her property title before the civil courts, given that the property title had meanwhile been transferred to her.

32. In any event, the applicant considered that the company ’ s civil claim for the annulment of the contract should have been examined in the civil proceedings in which he would have had the position of a party to the proceedings (and thus the necessary procedural means to protect his rights), and not in the course of the criminal proceedings from which he had been completely excluded. He therefore argued that the impugned conduct of the domestic authorities denying him an effective opportunity to participate in the criminal proceedings could not be considered to constitute an insignificant disadvantage in respect of the possibility for him to protect his property rights. This, in his view, warranted the examination of his case and the finding of a violation of his Convention rights.

B. The Court ’ s assessment

33. The Court considers that it is not necessary to address all the Government ’ s objections, since the applicant ’ s complaint is in any event inadmissible for the following reasons.

34. The Court firstly observes that there is no dispute between the parties regarding whether Article 6 of the Convention is applicable in the circumstances of the present case concerning the annulment of the contract by which the applicant obtained title to the retail store. Indeed, in view of the fact that property rights are civil rights within the meaning of Article 6 § 1 of the Convention, that provision was applicable under its civil head and the applicant was consequently entitled to have the dispute over his civil right determined by a tribunal (see, for instance, Rummi v. Estonia , no. 63362/09, § 64, 15 January 2015).

35. Article 6 § 1 secures to everyone the right to have any claim relating to his or her civil rights and obligations brought before a court or tribunal (see Golder v. the United Kingdom , 21 February 1975, § 36, Series A no. 18). This “right to a court”, of which the right of access is an aspect, may be relied on by anyone who considers on arguable grounds that an interference with the exercise of his or her civil rights is unlawful and complains that no possibility was afforded to submit that claim to a court meeting the requirements of Article 6 § 1 (see, amongst many others, Roche v. the United Kingdom [GC], no. 32555/96, § 117, ECHR 2005-X, and Stanev v. Bulgaria [GC], no. 36760/06 , § 229, ECHR 2012).

36. The right of access to a court is not absolute but may be subject to limitations; these are permitted by implication since the right of access “by its very nature calls for regulation by the State, regulation which may vary in time and in place according to the needs and resources of the community and of individuals” (see Ashingdane v. the United Kingdom , 28 May 1985, § 57, Series A no. 93). In laying down such regulation, the Contracting States enjoy a certain margin of appreciation. Whilst the final decision as to observance of the Convention ’ s requirements rests with the Court, it is no part of the Court ’ s function to substitute for the assessment of the national authorities any other assessment of what might be the best policy in this field. Nonetheless, the limitations applied must not restrict the access left to the individual in such a way or to such an extent that the very essence of the right is impaired. Furthermore, a limitation will not be compatible with Article 6 § 1 if it does not pursue a legitimate aim and if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be achieved (see Stanev , cited above, § 230, and Kristiansen and Tyvik As v. Norway , no. 25498/08 , § 52, 2 May 2013).

37. In respect of interference with the property rights of third parties in the context of criminal proceedings, the Court has held that, as a general principle, persons whose property is confiscated should be formally granted the status of parties to the proceedings in which the confiscation is ordered (see SilickienÄ— v. Lithuania , no. 20496/02 , § 50, 10 April 2012). This in particular means that the right of access to a court may be satisfied by allowing third parties whose property rights are affected in criminal proceedings an effective examination of their complaints in the context of those proceedings. Recourse to a civil or administrative court could constitute further avenues for the applicant to exercise his or her right of access to a court (see Rummi , cited above, § 79). In any case, however, the Court reiterates that its task is not to review the relevant law and practice in abstracto , but to determine whether or not the manner in which they were applied to, or affected the applicant, gave rise to a violation of the Convention (see, for instance, Cordova v. Italy (no. 1) , no. 40877/98, § 57, ECHR 2003 ‑ I).

38. The Court notes in the case in issue that in the context of the criminal proceedings against the company ’ s managers on charges of concluding several disadvantageous contracts for the company, on the basis of the company ’ s civil claim, the Požega County Court declared the purchase contract by which the applicant obtained ownership of the retail store null and void. Although the applicant was not formally recognised as a party in those proceedings, the Court considers that the applicant was not without safeguards for the protection of his property rights.

39. In this connection the Court notes that the Požega County Court, when annulling the contracts concluded by the convicted managers (including the applicant ’ s purchase contract), reserved the question of the position of parties who had bought the real properties from the company in good faith on the grounds that it would require further proceedings to establish whether they had acted in good faith when concluding those contracts (see paragraph 10 above). It therefore follows that the judgment of the Požega County Court did not in itself lead to any conclusive interference with the applicant ’ s property rights. Indeed, his property title was not struck out of the land register, and nor was there any interference in practice with his possession of the retail store on the basis of the Požega County Court ’ s judgment.

40. However, the Požega County Court ’ s judgment provided a basis for the company to institute further proceedings before the competent civil courts challenging the applicant ’ s title to the retail store, including the further transfer of that property to his wife. The central issue in those proceedings was the question of whether the applicant had acquired the real property at issue in good faith, which, if answered in the affirmative, would have protected his property title, despite the annulment of the initial purchase contract by the criminal courts (see paragraphs 15 and 25 above).

41. In the civil proceedings at issue before the Požega Municipal Court the applicant was given every opportunity to participate effectively in the proceedings and he availed himself of that opportunity by instructing a lawyer to represent him and by giving evidence and putting forward all the relevant arguments in support of his case (see paragraphs 16 and 17 above). Moreover, he was given an opportunity to participate in the appeal proceedings before the Slavonski Brod County Court and to respond to the arguments put forward by the company (see paragraph 20 above). On the basis of those proceedings, the competent civil courts dismissed the company ’ s civil claim and upheld the applicant ’ s title to the retail store on the grounds that there was nothing to call into question his good faith at the time of his concluding the purchase contract with the company (see paragraph 21 above).

42. In these circumstances, and irrespective of the outcome of those proceedings, it cannot be held that the applicant was deprived of the possibility to exercise his right of access to a court in order to protect his title to the retail store.

43. The Court therefore rejects the applicant ’ s complaint as being manifestly ill-founded, pursuant to 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 15 September 2016 .

             Stanley Naismith Işıl KarakaÅŸ Registrar President