FIRST SECTION

DECISION

Application no. 20737/15 Vlado NOVAK against Croatia

The European Court of Human Rights (First Section), sitting on 16 March 2021 as a Committee composed of:

Krzysztof Wojtyczek, President, Erik Wennerström , Ioannis Ktistakis , judges, and Attila Teplán , Acting Deputy Section Registrar ,

Having regard to the above application lodged on 21 April 2015,

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 Vlado Novak, is a Croatian national who was born in 1955 and lives in Zagreb. He was represented before the Court by Ms Lj . Babić , a lawyer practising in Zagreb.

2 . The Government were represented by their Agent, Ms Š. Stažnik .

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

4 . The applicant was detained in the period between 24 August 1987 and 17 April 1989.

5 . On several occasions during his detention the applicant handed over various personal items to the prison authorities. He claimed that on one of those occasions he had handed over twelve drawings by Marc Chagall and six valuable antiquarian books. A certificate dated 3 February 1988 stated “books: six, and drawings, Chagall, twelve”.

6 . The books and drawings were not returned to the applicant upon his release from detention. He therefore lodged a criminal complaint and instituted civil proceedings against the State, with a view to having the books and drawings returned to him or obtaining compensation for their loss.

7 . On 28 December 2002 the applicant brought a civil action against the State in the Zagreb Municipal Court ( Općinski sud u Zagrebu ), seeking the return of the above-mentioned items or, alternatively, compensation.

8 . At the hearing held on 11 December 2001, the applicant abandoned his claim for the return of the items and maintained only his claim for compensation in respect of the drawings alone.

9 . On 14 February 2003 the applicant specified the value of his claim for compensation and sought 6 million Croatian kunas .

10 . By a judgment of 20 December 2007, the Zagreb Municipal Court dismissed the applicant ’ s claim. It held that the applicant had not proved that the drawings he had handed over to the prison administration were indeed by Marc Chagall.

11 . By a judgment of 7 February 2012, the Zagreb County Court ( Županijski sud u Zagrebu ) dismissed an appeal by the applicant and upheld the first-instance judgment. It held that if the drawings were indeed valuable as the applicant claimed, it would have been his duty under domestic law to indicate that fact to the prison authorities when handing them over for safekeeping.

12 . On 18 December 2013 the Supreme Court ( Vrhovni sud Republike Hrvatske ) dismissed the applicant ’ s subsequent appeal on points of law ( revizija ), endorsing the reasons given by the County Court.

13 . The applicant then, on 4 June 2014, lodged a constitutional complaint with the Constitutional Court. He relied on Article 29 § 1 of the Croatian Constitution, which guarantees the right to fair proceedings. The relevant part of his constitutional complaint reads as follows:

“ III CONSTITUTIONAL RIGHT CONSIDERED TO HAVE BEEN BREACHED

[T]he contested [judgments] ... were in breach of the complainant ’ s right to a fair trial ... guaranteed by Article 29 § 1 of the Croatian Constitution.

IV FACTS AND ARGUMENTS IN SUPPORT OF THE ALLEGED BREACH OF A CONSTITUTIONAL RIGHT

In the present case, the Zagreb Municipal Court ... on 30 April 2004 gave a judgment dismissing the complainant ’ s (the plaintiff ’ s) claim. The Zagreb County Court, by its decision ... of 7 November 2006, quashed the judgment of the Municipal Court ... and remitted the case for fresh proceedings with the explanation that the first ‑ instance court had committed a serious breach of civil procedure in that the reasons given in that judgment were unclear and contradictory, and that no reasons had been given in respect of one key issue, namely why the disputed folder had not been returned to the plaintiff (the complainant) whereas most of the other items had.

Furthermore, the Zagreb County Court considered vague and contradictory the findings in the first-instance judgment whereby [the first-instance court held] that the decision as to which items the plaintiff would keep with him in prison had been his choice, and that he had made the wrong choice in not keeping the drawings ... [The County Court considered] that this ... did not alleviate the failure and the unacceptable conduct of the [State authorities], which had not returned what [they] had received from the plaintiff for safekeeping.

Moreover, the first-instance court held the plaintiff responsible for not having retained the drawings, even though that duty fell, under the [relevant subordinate legislation], on the defendant.

In its quashing decision, the Zagreb County Court gave clear instructions to the first ‑ instance court that it had to give clear reasons for its decision in the fresh proceedings, especially with regard to the failure of [the State authorities], which unquestionably acted contrary to [subordinate legislation]. [The County Court also held] that in so doing, [the first-instance court] had to give logical reasons as to why the above-mentioned folder with drawings by the painter Marc Chagall – described in detail not only by the plaintiff but also by a witness, M.S. – had not been returned to the plaintiff (the complainant).

The complainant reiterates that, as can be seen from certificate no. 19201, he handed over, among other things, twelve drawings by the French painter Marc Chagall to the administration of the Zagreb District Court; the drawings had been executed in ink and pen in 1937. The drawings had biblical motifs, and each one was signed by the artist in the lower right-hand corner; all the drawings were in a rotten-cherry-coloured folder, on which the name “CHAGALL”, was printed in gold letters measuring about 5 cm.

In addition, a dedication from the author to the applicant was written in French on the inner left side of the folder.

Upon his release from prison, the complainant demanded from the prison administration the return of his belongings which he had handed over for safekeeping according to certificate no. 19201 – which was undisputed – signed by the ... judicial police officer S.P. However, the folder was never returned to the complainant.

In the fresh proceedings ... the Zagreb Municipal Civil Court completely ignored the instructions of the Zagreb County Court and did not act in accordance with it, even though the [State] itself did not dispute that some twelve drawings the plaintiff had handed over for safekeeping as his personal belongings had not been returned to him by [the prison authorities].

The [State] was indisputably bound to keep the plaintiff ’ s belongings, which the plaintiff had to hand over for safekeeping [to the prison authorities], and to return them to the plaintiff upon his release ...

Under no circumstances can the [State] be absolved of responsibility for the loss of the plaintiff ’ s or any other detainee ’ s or inmate ’ s items, whether such items were created by the detainee himself, Marc Chagall or someone else. [That is so] without exception and regardless of whether these items were of exceptional or insignificant pecuniary value at the time they were deposited or at the time that they were returned. [It] was not ... the task of the court in civil proceedings to determine where, how and why those items went missing. It only had to be established whether those items had gone missing, something that was indisputably established among the parties.

The complainant also emphasises the above-mentioned as an important fact which points to the inequality and the unequal procedural position faced by him in the present proceedings.

In conclusion, the complainant considers that the competent judicial authorities failed to examine all the issues that were relevant in the present case when deciding on [his] well-founded claim.

Therefore, the complainant considers that this breach is of such severity that it also results in a breach of [his] constitutional right to a fair hearing as provided in Article 29 § 1 of the Croatian Constitution.

In view of the above, the complainant proposes that the Constitutional Court adopt a decision allowing his constitutional complaint and quashing the Supreme Court ’ s judgment.”

14 . By a decision of 9 October 2014 the Constitutional Court declared inadmissible the applicant ’ s constitutional complaint, finding that he had not raised any constitutionally relevant issues. The court served its decision on the applicant ’ s representative on 24 October 2014.

15 . The relevant domestic law is set out in Merot d.o.o. and Storitve Tir d.o.o. v. Croatia (( dec. ), nos. 29426/08 and 29737/08, § 18, 10 December 2013).

COMPLAINT

16 . The applicant complained under Article 1 of Protocol No. 1 of a violation of his right to the peaceful enjoyment of his possessions in that the domestic authorities had not compensated him for the loss of valuable drawings.

THE LAW

17 . The applicant complained that the refusal of the domestic authorities to award him compensation for the value of the lost drawings he had handed over to the prison authorities had been in breach of his right to the peaceful enjoyment of his possessions. He relied on Article 1 of Protocol No. 1, which reads as follows:

“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.”

18 . The Government disputed the admissibility of this complaint by arguing that the applicant had failed to exhaust domestic remedies.

19 . The Government submitted that, in his constitutional complaint, the applicant – who had been represented by an advocate – had only complained of a violation of his constitutional right to fair proceedings. He had relied on Article 29 § 1 of the Croatian Constitution, which guaranteed the right to fair proceedings, and had advanced arguments regarding the inadequate reasoning of the first-instance judgment and the alleged inequality he had faced in the proceedings complained of.

20 . The Government argued that the applicant had not complained, either expressly or in substance, of a violation of his right to the peaceful enjoyment of his possessions. He had not relied on Article 1 of Protocol No. 1 or the relevant Article of the Croatian Constitution, nor had he advanced any arguments regarding the right to property. Yet in his application to the Court the applicant – represented by the same advocate as in the domestic proceedings – had expressly relied on Article 1 of Protocol No. 1.

21 . The applicant did not submit any arguments in reply to those of the Government.

22 . The Court reiterates that the purpose of the exhaustion rule is to afford a Contracting State the opportunity of addressing, and thereby preventing or putting right, the particular Convention violation alleged against it (see, among many other authorities, Radomilja and Others v. Croatia [GC] , nos. 37685/10 and 22768/12 , § 117, 20 March 2018).

23 . In accordance with the Court ’ s case-law (see, for example, Merot d.o.o. and Storitve Tir d.o.o. , cited above, § 36, and the cases cited therein), the mere fact that an applicant has submitted his or her case to the various competent courts does not itself constitute compliance with the requirements of Article 35 § 1 of the Convention as even in those jurisdictions where the domestic courts are able, or even obliged, to examine the case of their own motion, applicants are not exempted from raising before them the complaint subsequently made to the Court. Therefore, in order to properly exhaust domestic remedies, it is not sufficient that a violation of the Convention is “evident” from the facts of the case or the applicants ’ submissions. Rather, the applicants must actually complain (expressly or in substance) of such a violation in a manner which leaves no doubt that the same complaint that was subsequently submitted to the Court had indeed been raised at the domestic level (ibid.).

24 . It is true that, in accordance with the Court ’ s case-law, it is not always necessary for the Convention to be explicitly raised in domestic proceedings provided that the complaint is raised “at least in substance”. This means that the applicant must raise legal arguments to the same or like effect on the basis of domestic law, in order to give the national courts the opportunity to redress the alleged breach. However, as the Court ’ s case-law bears out, to genuinely afford a Contracting State the opportunity of preventing or redressing the alleged violation requires taking into account not only the facts but also the applicant ’ s legal arguments, for the purposes of determining whether the complaint submitted to the Court had indeed been raised beforehand, in substance, before the domestic authorities. That is because it would be contrary to the subsidiary character of the Convention machinery if an applicant, ignoring a possible Convention argument, could rely on some other ground before the national authorities for challenging an impugned measure, but then lodge an application before the Court on the basis of the Convention argument (see, for example, Radomilja and Others , cited above, § 117, and the cases cited therein).

25 . Turning to the present case, the Court notes that the applicant in his constitutional complaint did not rely on Article 1 of Protocol No. 1. Nor did he rely on Article 48 of the Croatian Constitution, which guarantees the right of ownership. Instead, he referred to Article 29 § 1 of the Croatian Constitution, which guarantees the right to fair proceedings and corresponds to Article 6 § 1 of the Convention (see paragraph 13 above).

26 . Moreover, even though the applicant complained about the same set of facts before the Constitutional Court and before this Court, his legal arguments were not the same. In particular, in his constitutional complaint he argued that the facts complained of, namely certain shortcomings in the reasoning of the first-instance court, had rendered the proceedings unfair (see paragraph 13 above) whereas before the Court he had not complained of the unfairness of the proceedings but argued that those shortcomings had resulted in a breach of his right to the peaceful enjoyment of his possessions (see paragraphs 15-16 above).

27 . What is more, the applicant did not even reply to the Government ’ s non-exhaustion objection, let alone try to argue that in his constitutional complaint he had complained of a violation of his right of property in substance or that doing so would have been devoid of any prospect of success.

28 . In these circumstances, the Court finds that in his constitutional complaint the applicant did not complain of the violation of his right to the peaceful enjoyment of possessions, not even in substance. He thus did not properly exhaust domestic remedies and did not provide the national authorities with the opportunity, which is in principle intended to be afforded to Contracting States by Article 35 § 1 of the Convention, of addressing, and thereby preventing or putting right, the particular Convention violation alleged against them (see paragraph 22 above).

29 . It follows that the present application is inadmissible under Article 35 § 1 of the Convention for non-exhaustion of domestic remedies and must therefore be rejected pursuant to Article 35 § 4.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 15 April 2021 . }

Attila Teplán Krzysztof Wojtyczek Acting Deputy Registrar President