FIRST SECTION

DECISION

Application no . 51166/10 Josip HABULINEC and Anita FILIPOVIC against Croatia

The European Court of Human Rights (First Section), sitting on 4 June 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 9 August 2010,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

1. The applicants, Mr Josip Habulinec and Ms Anita Filipović, are Croatian nationals who were born in 1968 and 1972 respectively and live in Krapinske Toplice. They were represented before the Court by Ms I. Bojić, a lawyer practising in Zagreb.

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. The applicants are cohabitees who have two children together, born in 2007 and 2008.

5. On 26 January 2010 the second applicant gave birth to A., who died a day later in Zabok General Hospital.

6. On 28 January 2010 the birth of A. was registered at the Zabok Register Office and the second applicant was registered as A. ’ s mother, while data about the child ’ s father were not registered.

7. In March 2010 the first applicant went to the Zabok Register Office asking to be registered as A. ’ s father, but was told that it was not possible to recognise paternity of a deceased child.

8. On 2 July 2010 the applicants contacted the Zabok Register Office through their representative, seeking registration of the first applicant ’ s paternity.

9. On 9 July 2010 the applicants ’ counsel was informed by letter that registration of the first applicant ’ s paternity was not possible because the child was deceased.

B. Relevant domestic law and practice

1. The Constitution

(a) Relevant provisions

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

Article 14

“Everyone in the Republic of Croatia shall enjoy rights and freedoms regardless of their race, colour, sex, language, religion, political or other belief, national or social origin, property, birth, education, social status or other characteristics.

All shall be equal before the law.”

Article 35

“Everyone has the right to respect for and legal protection of his or her private and family life, dignity, reputation and honour.”

Article 140

“International agreements in force which have been concluded and ratified in accordance with the Constitution and made public shall be part of the internal legal order of the Republic of Croatia and shall have precedence in terms of their legal effects over the [domestic] statutes. ...”

(b) The Constitutional Court ’ s jurisprudence

2. The Constitutional Act on the Constitutional Court

12. Section 62(1) of the Constitutional Act on the Constitutional Court ( Ustavni zakon o Ustavnom sudu , Official Gazette no. 29/2002) reads:

“1. Everyone may lodge a constitutional complaint with the Constitutional Court if he or she deems that a decision ( pojedinačni akt ) of a State body, a body of local or regional self-government, or a legal person with public authority, which has decided on his or her rights and obligations, or on a suspicion or accusation in respect of a criminal act, has violated his or her human rights or fundamental freedoms, ... guaranteed by the Constitution (hereinafter: ‘ constitutional right ’ ) ...”

3. The Courts Act

13. The relevant part of the Courts Act ( Zakon o sudovima , Official Gazette no. 3/1994, 100/96, 131/97, 129/2000, 17/2004, and 141/2004), as in force at the material time, provided as follows:

Section 5

“1. The courts adjudicate cases on the basis of the Constitution and statutes.

2. The courts adjudicate cases also on the basis of the international agreements which are the part of the [internal] legal order of the Republic of Croatia ... ”

4. The Administrative Procedure Act

14. The relevant provisions of the Administrative Procedure Act ( Zakon o općem upravnom postupku , Official Gazette no. 53/1991 of 8 October 1991) are as follows:

Section 218 (1) provides that in simple matters, where there is no need to undertake separate examination proceedings, an administrative authority shall give a decision and serve it on a party within one month following the submission of an application. In all other, more complex cases, the authority shall give a decision and serve it on a party within two months.

Section 218 (2) provides that a party whose application has not been decided and served within the time-limits set out in paragraph (1) may lodge an appeal (appeal for failure to respond, žalba zbog šutnje administracije ) as if his or her application had been dismissed.

Section 247 (1) provides that a decision on an appeal shall be given and served on a party as soon as possible, but at the latest within two months following the submission of the appeal.

Section 246 (1) provides that the second-instance administrative authority deciding on an appeal for failure to respond shall request the first ‑ instance authority to give reasons for its omission. If it finds that the failure to respond was attributable to the party, or that the reasons for such an omission were otherwise justified, the second-instance authority shall order the first-instance authority to give a decision within one month. If it finds that the omission was not justified, it shall request the case file.

Section 246 (2) provides that if the case file contains sufficient information, the second-instance administrative authority shall decide the case. Otherwise, it shall first hear the case and take evidence, and then give a decision. Exceptionally, if it considers that such a procedure would save time and costs, it shall order the first-instance authority to hear the case and take evidence within a specified time-limit, whereupon it shall decide the case itself. That decision shall be final.

5 . The Administrative Disputes Act

15. The relevant provisions of the Administrative Disputes Act ( Zakon o upravnim sporovima , Official Gazette nos. 53/1991, 9/92 and 77/92) are as follows:

Section 26 (1) provides that if the appellate administrative authority fails to give a decision on a party ’ s appeal against a first-instance decision within sixty days, and fails to do so upon a repeated request within a further period of seven days, the party may bring an action in the Administrative Court (action for failure to respond, tužba zbog šutnje administracije ), as if his or her appeal had been dismissed.

Section 26 (2) provides that when the first-instance administrative authority fails to give a decision against which no appeal lies, the party may directly bring an action in the Administrative Court.

Section 26 (3) provides that, in matters where the right of appeal exists, if a first-instance administrative authority fails to give a decision on a party ’ s application within sixty days, that party may submit his or her application to the appellate administrative authority. Against the latter authority ’ s decision the party may bring an action in the Administrative Court, and if the authority fails to give a decision the party may bring an administrative action under the conditions set out in paragraph 1.

Section 42 (5) provides that when the Administrative Court, following an action for failure to respond, finds for the plaintiff, it shall either instruct the respondent administrative authority as to how to decide the case on points of law, or shall itself rule on the application (acting as a court of full jurisdiction under paragraph 2 of section 64).

Section 64 (1) provides that, in execution of the judgment rendered under section 42 (5), the administrative authority shall issue its decision immediately, but at the latest within thirty days. Otherwise, a party may make a special submission requesting it to do so. If the authority does not issue a decision within seven days following such a submission, that party may apply to the Administrative Court.

Section 64 (2) provides that if such an application is made, the Administrative Court shall first ask the administrative authority to give reasons for its omission. The authority shall reply immediately, but at the latest within seven days. If the authority fails to do so, or if the reasons given do not justify the failure to decide, the Administrative Court shall give a decision which will substitute the decision of the administrative authority.

6. The Family Act

16. The relevant provisions of the Family Act ( Obiteljski zakon , Official Gazette nos. 116/2003, 17/2004, 136/2004 and 107/2007), which entered into force on 22 July 2003, read as follows:

Section 58 § 2

“Maternity and paternity cannot be recognised after a child ’ s death, save where a child has descendants.”

7. The Prevention of Discrimination Act

17. The relevant part of the Prevention of Discrimination Act ( Zakon o suzbijanju diskriminacije , Official Gazette no. 85/2008) reads as follows:

Section 1

“(1) This Act ensures protection and promotion of equality as the highest value of the constitutional order of the Republic of Croatia; creates conditions for equal opportunities and regulates protection against discrimination on the basis of race or ethnic origin or skin colour, gender, language, religion, political or other conviction, national or social origin, state of wealth, membership of a trade union, education, social status, marital or family status, age, health condition, invalidity, genetic inheritance, gender identity, expression or sexual orientation.

(2) Discrimination within the meaning of this Act means putting any person in a disadvantageous position on any of the grounds under subsection 1 of this section, as well as his or her close relatives ... ”

Section 8

“This Act shall be applied in respect of all State bodies ... legal entities and natural persons ...”

Section 16

“Anyone who considers that, owing to discrimination, any of his or her rights has been violated may seek protection of that right in proceedings in which the determination of that right is the main issue, and may also seek protection in separate proceedings under section 17 of this Act.”

Section 17

“A person who claims that he or she has been a victim of discrimination in accordance with the provisions of this Act may bring a claim and seek:

1. a ruling that the defendant has violated the plaintiff ’ s right to equal treatment or that an act or omission by the defendant may lead to the violation of the plaintiff ’ s right to equal treatment (claim for an acknowledgment of discrimination);

2. a ban on (the defendant ’ s) taking actions which violate or may violate the plaintiff ’ s right to equal treatment or an order for measures aimed at removing discrimination or its consequences to be taken (claim for a ban or for removal of discrimination);

3. compensation for pecuniary and non-pecuniary damage caused by violation of the rights protected by this Act (claim for damages);

4. an order for a judgment finding a violation of the right to equal treatment to be published in the media at the defendant ’ s expense ...”

COMPLAINTS

18. The applicants complained under Article 8 of the Convention that it was impossible to register the first applicant as A. ’ s father, and under Article 14 of the Convention that they had been discriminated against as parents of a child born out of wedlock.

19. Under Article 13 they complained that they had no remedy at their disposal for their Convention complaints.

THE LAW

A. Complaint under Article 8 of the Convention, taken alone and in conjunction with Article 14 of the Convention

20. The applicants complained that it was impossible to register the first applicant as A. ’ s father, because the paternity of a dead child could not be recognised. They also complained that they had been discriminated against in that respect in comparison to the parents of deceased children born of a marriage. They relied on Articles 8 and 14 of the Convention, which read as follows:

Article 8

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

Article 14

“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

1. The parties ’ arguments

21. The Government argued that the applicants should have used remedies prescribed by the Administrative Procedure Act and the Administrative Disputes Act, namely an appeal in respect of the negative reply of the Zabok Register Office and a complaint with the Administrative Court. Against the decision of the latter they would also have been able to lodge a constitutional complaint. The Constitutional Court was vested with the power to assess whether any statutory provision had been applied in compliance with the constitutional rights of the person concerned in each individual case. By not using the said remedies the applicants had not complied with the principle of subsidiarity.

22. As regards their Article 14 complaint, the applicants could have brought a claim under the Prevention of Discrimination Act, by which they would have been able to seek an acknowledgment of any possible discrimination as set out in that Act, and an order for the removal of the discrimination and its consequences, as well as compensation.

23. The applicants argued in reply that they had had no remedy to use, because the Zabok Register Office had not issued a formal written decision on their request but had only sent a reply by letter.

24. They argued further that it was not possible for the national authorities to allow the first applicant to have his paternity of A. registered, because that would have been contrary to a statutory provision, namely section 58 § 2 of the Family Act. Thus, they would have contravened the “principle of legality”, which is an underlying principle of the whole legal system in Croatia.

25. As regards the remedies under the Prevention of Discrimination Act, the applicants contended that it was unclear against whom they should have used such remedies. Furthermore, it would have been impossible to ask the national courts to order the Zabok Register Office to register the first applicant ’ s paternity of A., since that would have been in contravention of the above-mentioned provision of the Family Act.

2. The Court ’ s assessment

27. In accordance with Article 35 § 1 of the Convention, the Court may only deal with a matter after all domestic remedies have been exhausted. The purpose of Article 35 is to afford the Contracting States the opportunity of preventing or putting right violations alleged against them before those allegations are submitted to the Court (see, for example, Hentrich v. France , 22 September 1994, § 33, Series A no. 296-A, and Remli v. France , 23 April 1996, § 33, Reports 1996-II). Thus, a complaint submitted to the Court should first have been made to the appropriate national courts, at least in substance, in accordance with the formal requirements of domestic law and within the prescribed time-limits. To hold otherwise would not be compatible with the subsidiary character of the Convention system (see Gavril Yosifov v. Bulgaria , no. 74012/01, § 42, 6 November 2008). Nevertheless, the obligation to exhaust domestic remedies requires only that an applicant make normal use of remedies which are effective, sufficient and accessible in respect of his Convention grievances (see Balogh v. Hungary , no. 47940/99, § 30, 20 July 2004, and John Sammut and Visa Investments Limited v. Malta (dec.), no. 27023/03, 28 June 2005).

28. In the present case there is no dispute that the applicants submitted a written request to the Zabok Register Office for registration of the first applicant ’ s paternity. No formal written decision was issued in response to their request. However, the applicants were able to lodge an appeal for failure to respond ( žalba zbog šutnje administracije ) to the Ministry of Administration (see, mutatis mutandis, Štajcar v. Croatia (dec.), no. 46279/99, 20 January 2000; and Rauš-Radovanović v. Croatia (dec.), no. 43603/05, 2 October 2008) . Had that Ministry also remained silent, they could have brought an action for failure to respond in the Administrative Court ( tužba zbog šutnje administracije ). Had the administrative authorities issued a negative written response to the first applicant ’ s request they could have lodged a regular appeal and subsequently both a complaint with the Administrative Court and a constitutional complaint.

29. As regards the applicants ’ doubts about the prospect of success of any of the remedies mentioned above (see paragraphs 24 and 25 above), the Court has already accepted that the mere existence of doubts as to the effectiveness of a domestic remedy does not automatically absolve the applicant from the obligation to exhaust it (see, inter alia , Back v. Finland (dec.), no. 23773/94, 9 April 1996; and Tamm v. Estonia (dec.), no. 15301/04, 2 September 2008 ).

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

B. Complaint under Article 13 of the Convention

33. The applicant ’ s complained also that they had no remedy at their disposal for their Convention complaints. They relied on Article 13, which reads as follows:

“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.”

34. The Government contended that the applicants had at their disposal effective domestic remedies, mentioned above, which they had not used.

35. The applicants replied that the remedies relied on by the Government could not be considered effective in their situation.

36. The Court has established above that the applicants had at their disposal several remedies, including a constitutional complaint.

37. 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.

For these reasons, the Court unanimously

Declares the application inadmissible.

Søren Nielsen Isabelle Berro-Lefèvre Registrar President