FIRST SECTION

DECISION

Application no. 59230/13 Zdravka VUKRES against Croatia

The European Court of Human Rights (First Section), sitting on 26 November 2019 as a Committee composed of:

Tim Eicke, President, Jovan Ilievski, Raffaele Sabato, judges, and Renata Degener, Deputy Section Registrar ,

Having regard to the above application lodged on 7 September 2013,

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 Zdravka Vukres, is a Croatian national, who was born in 1937 and lives in Zagreb. She was 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.

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

4 . The applicant was a holder of a specially protected tenancy ( stanarsko pravo ) of a flat in Zagreb measuring 44 square metres. The flat is located in a building which, in 1953, was confiscated from its owners, Mr J.L. and his wife Ms M.L., by the socialist authorities.

5 . On 19 June 1991 the Specially Protected Tenancies (Sale to Occupier) Act entered into force. It entitled holders of specially protected tenancies of flats in social or State ownership to purchase their flats from the provider of the flat under favourable conditions.

6 . In 1997 the applicant applied to the City of Zagreb ( Grad Zagreb , hereinafter “the local authorities”) to purchase the flat under the above Act.

7 . On 14 July 1998 the local authorities, having established that the flat had been confiscated under the socialist regime and relying on the relevant restitution legislation (see paragraphs 27 and 29 below), refused her request.

8 . Meanwhile, in 1997 the flat ’ s former owner J.L. and his son D.L., relying on the Restitution Act (see paragraphs 27 and 29 below), instituted administrative proceedings before the local authorities ’ Office for Property Affairs ( Grad Zagreb, Gradski ured za imovinsko-pravne poslove ) seeking restitution of the above building. The applicant participated in those proceedings as a third (interested) party.

9 . By a decision of 10 July 2002 the Office for Property Affairs awarded the ownership of the building to J.L. and D.L. The applicant was entitled to remain living in the flat as a protected lessee (see paragraph 29 below).

10 . On 17 September 2002 the applicant lodged an appeal against that decision.

11 . By a decision of 24 October 2005 the Civil Law Directorate of the Ministry of Justice, acting as a second-instance administrative authority, dismissed the applicant ’ s appeal. The decision was signed by Assistant Minister B.K.

12 . The applicant then, on 20 February 2006, brought an action for judicial review before the Administrative Court ( Upravni sud Republike Hrvatske ) against that decision. She designated the Ministry of Justice – the Civil Law Directorate as the defendant.

13 . On 20 June 2006, the applicant ’ s son sent an email to Assistant Minister B.K. complaining that he had not received a response to a petition he had submitted earlier. In the same email he noted that a secretary at the Ministry of Justice was not providing him with the information on who was the head of the unit which had decided the applicant ’ s appeal. He received no reply.

14 . By a judgment of 12 March 2010 the Administrative Court, sitting in a three-member panel presided over by Judge M.Č., dismissed the applicant ’ s action. The judgment refers to the Ministry of Justice as the defendant although it indicates that it should be served on the Ministry of Justice – the Civil Law Directorate.

15 . On 28 July 2010, the applicant ’ s son sent a letter to the Ministry of Justice, asking who the head of the unit which had dealt with the applicant ’ s case had been. He received no reply.

16 . By a letter of 28 July 2010 the applicant enquired with the Ministry of Justice who had in the period between late 2005 to mid-2006 been the head of the unit that had dealt with appeals related to confiscated flats and their tenants. The applicant did not receive a response to this query.

17 . On 11 August 2010 the applicant lodged a constitutional complaint against the Administrative Court ’ s decision. She argued, inter alia , that her constitutional right to fair proceedings had been violated in that Judge M.Č. had been the head of the unit in the Ministry of Justice which had dismissed her appeal (see paragraphs 11 and 14 above). She explained that, after having read the Administrative Court ’ s judgment, she had noticed that its style and certain expressions in it had been familiar and similar to the style and expressions used in the Ministry ’ s decision of 24 October 2005 (see paragraphs 11 and 14 above). That had prompted her to make some online enquires which had suggested that before becoming a judge of the Administrative Court Judge M.Č. had been a director of the Ministry of Justice ’ s Civil Law Directorate. She had then made further enquiries with the Ministry of Justice, which had refused to provide her with the information on which jobs M.Č. had worked while she had been employed at the Ministry (see paragraphs 15-16 above).

18 . By a decision of 6 March 2013 the Constitutional Court ( Ustavni sud Republike Hrvatske ) dismissed the applicant ’ s constitutional complaint. It held that the proceedings complained of had been fair without expressly addressing her arguments concerning the alleged lack of impartiality. The applicant was served with the Constitutional Court ’ s decision on 13 March 2013.

(a) The applicant ’ s criminal complaint

19 . On 3 August 2011 the applicant lodged a criminal complaint against M.Č. with the Zagreb Municipal State Attorney ’ s Office ( Općinsko državno odvjetništvo u Zagrebu ).

20 . By a letter of 22 August 2013 the State Attorney ’ s Office informed the applicant that there was no suspicion that a criminal offence subject to State prosecution, had been committed. The relevant part of that letter reads as follows:

“The [the Ministry of Justice ’ s decision of 24 October 2005] was signed by Assistant Minister B.K. Therefore, even if M.Č. participated in preparation of that decision, it was checked by the person who signed it. Moreover, the lawfulness of the said decision was also examined by the Administrative Court. In the judicial-review proceedings following your action for judicial review, the panel found the decision and the proceedings which had preceded it lawful. ... Consequently, since there is no suspicion that the conduct of M.Č. or any other person in the Ministry of Justice in relation with the adoption of the aforementioned decision could have given rise to... a criminal offence, there are no reasons for the State Attorney to act in the present case.”

(b) The applicant ’ s request for reopening of the proceedings

21 . On 9 August 2010 the applicant lodged a request for the reopening of the judicial-review proceedings (see paragraphs 12-14 above) on account of Judge M.Č. ’ s previous involvement in the case, specifically in deciding her appeal.

22 . In a decision of 17 May 2012 the Administrative Court, which in the meantime had become the High Administrative Court ( Visoki upravni sud Republike Hrvatske ), declared inadmissible the applicant ’ s request for reopening of the proceedings. It held that under the relevant domestic legislation at the time a lack of impartiality was not grounds for reopening of judicial-review proceedings.

(c) Information concerning M.Č. ’ s professional career

23 . The Government furnished evidence suggesting that M.Č. ’ s career at the relevant time had progressed as follows:

– between 2002 and 2004 she had been a judge of the Zadar Municipal Court;

– between 2 August 2004 and 19 February 2008 she had been senior administrative counsel at the Department for Second-Instance Proceedings at the Civil Law Directorate of the Ministry of Justice;

– from 20 February 2008 until 17 March 2009 she had been ad interim director of the Civil Law Directorate of the Ministry of Justice;

– since 18 March 2009 she had been working as a judge of the Administrative Court.

24 . In support of this information the Government submitted a decision of the Ministry of Justice of 19 July 2004 whereby Judge M.Č. had been temporarily assigned, for the period of two years, to the position of senior administrative counsel at the Department for Second-Instance Proceedings at the Ministry ’ s Civil Law Directorate.

25 . The Government also submitted a decision of 14 February 2008 whereby Judge M.Č., referred to as senior administrative counsel at the Department for Second-Instance Proceedings at the Ministry ’ s Civil Law Directorate, had been provisionally appointed the head of that Directorate. The text of that decision suggests that by an earlier decision, of 6 July 2006, she had been assigned to the position of senior administrative counsel at the Ministry ’ s aforementioned department and directorate.

26 . Both the decision of 19 July 2004 and that of 14 February 2008 mention specific numbered posts defined by the Ministry ’ s internal regulations to which M.Č. had been assigned.

27 . The Act on Compensation for, and Restitution of, Property Appropriated During the Yugoslav Communist Regime ( Zakon o naknadi za imovinu oduzetu za vrijeme jugoslavenske komunističke vladavine , Official Gazette nos. 92/96 with subsequent amendments – “the Restitution Act”) , which entered into force on 1 January 1997, enabled the former owners of confiscated or nationalised property, or their heirs in the first line of succession (direct descendants or a spouse), to obtain under certain conditions either restitution of or compensation for property appropriated during the socialist regime.

28 . Pursuant to section 22 of the Restitution Act, nationalised flats in respect of which third persons had acquired specially protected tenancies were not to be restored to their former owners. The tenants had a right to purchase such flats from the provider of the flat under favourable conditions set out in the Specially Protected Tenancies (Sale to Occupier) Act. At the same time, the former owners were entitled to financial compensation in respect of the flats.

29 . On the other hand, pursuant to section 32 of the Restitution Act, confiscated flats were to be awarded to their former owners. Under section 13 of the Appropriated Property Compensation Fund Act ( Zakon o Fondu za naknadu oduzete imovine, Official Gazette no. 69/97 with subsequent amendments), which entered into force on 12 July 1997, the tenant had the right to purchase a confiscated flat only if no request for its restitution had been submitted or if such a request had been dismissed in a final decision. Otherwise, pursuant to section 33 of the Restitution Act the tenants had the right to remain living in the flat as protected lessees ( zaštićeni najmoprimci ). Under the Lease of Flats Act ( Zakon o najmu stanova , Official Gazette no. 91/96 with subsequent amendments), which entered into force on 5 November 1996, such lessees are subject to a number of protective measures, such as the duty of landlords to contract a lease of indefinite duration, payment of protected rent ( zaštićena najamnina ), the amount of which is set by the Government and significantly lower than the market rent; and better protection against termination of the lease.

30 . Section 15 of the Administrative Disputes Act ( Zakon o upravnim sporovima , Official Gazette of the Socialist Federal Republic of Yugoslavia no. 4/77, and Official Gazette of the Republic of Croatia no. 53/91, with subsequent amendments), which was in force between 1 July 1977 and 31 December 2011, provided that the defendant in judicial-review (administrative dispute) proceedings was the administrative authority whose decision was being contested.

31 . The State Administration System Act ( Zakon o sustavu državne uprave , Official Gazette of the Republic of Croatia no. 75/93 with subsequent amendments ), which was in force between 21 August 1993 and 22 December 2011, provided that administrative authorities were ministries, State administrative organisations and State administration offices. Administrative organisations within ministries, such as directorates, departments, sectors and other units, were not considered (separate) administrative authorities.

COMPLAINT

32 . The applicant complained under Article 6 § 1 of the Convention of the lack of impartiality of the Administrative Court ’ s panel which had dismissed her action for judicial review against the appellate decision of the Ministry of Justice because the presiding judge had been working at the Ministry at the time the contested decision had been adopted, and had been involved in the decision-making in her case.

THE LAW

33 . The applicant complained of a violation of her right to a fair hearing before an impartial tribunal on account of the fact that the panel of the Administrative Court which had dismissed her action for judicial review against the decision of the Ministry of Justice had been presided over by Judge M.Č., who had at the time of the adoption of that decision been employed with the directorate of the Ministry which had rendered it. The applicant had initially claimed that at the relevant time M.Č. had been the head of that directorate. However, later on she complained that M.Č. had otherwise been involved in decision-making in her case before the Ministry. The applicant relied on Article 6 § 1 of the Convention, which in the relevant part reads as follows:

“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by an ... impartial tribunal established by law.”

34 . The Government disputed the admissibility of the application on two grounds. They argued, first, that the applicant had not been the victim of the violation complained of and, secondly, that the application was, in any event, manifestly ill-founded.

35 . The Government submitted that at the time when the Ministry of Justice had rendered its second-instance decision in the applicant ’ s case (see paragraph 11 above) M.Č. had not been the head of the Ministry ’ s Civil Law Directorate (see paragraphs 23-26 above). Moreover, M.Č. had neither rendered nor signed that decision, or participated in the second-instance proceedings in any way. The decision had been signed by B.K. who had been an assistant minister at the time (see paragraph 11 above).

36 . The applicant ’ s case had been assigned to a certain Mr R.P., an external associate/expert of the Ministry of Justice, on the basis of a contract for service of 3 December 2004. In support of that information the Government submitted a note from the case file certifying R.P. ’ s relationship with the Ministry, as well as the list of cases assigned to him, among which was that of the applicant.

37 . R.P. had drafted the decision in the applicant ’ s case and Ms Lj.G.M., who had at the time been the head of the Second-Instance Proceedings Department in the Ministry, approved it. As already stated, the decision had ultimately been signed by B.K., an assistant minister (see paragraphs 11 and 35 above).

38 . M.Č., as senior administrative counsel in the Ministry, had had absolutely no authority over any lawyers working in or for the Ministry. She had not therefore been superior to the Ministry ’ s external associates/experts such as R.P., let alone to the head of the Second-Instance Proceedings Department Lj.G.M. or Assistant Minister B.K.

39 . Lastly, the Government stressed that M.Č. had not had any role in the appellate proceedings in the applicant ’ s case and that she had not been involved (formally or informally) in the decision-making process. Therefore, the fact that she had been the presiding judge in the panel of the Administrative Court which had dismissed the applicant ’ s action for judicial review (see paragraphs 12 and 14 above) against the Ministry ’ s decision had not called into question that court ’ s impartiality.

40 . It was for the applicant to prove her allegations with sufficient certainty, which she had not done.

41 . The Government thus invited the Court to find that the applicant was not a victim of the violation complained of or, alternatively, that the application was manifestly ill-founded.

42 . The applicant replied that the Government had failed to submit all the relevant documentation which would clarify to which position M.Č. had been appointed and what exactly had been her job at the Ministry of Justice. Her position and powers had thus remained unclear. Consequently, the Government had not dispelled the applicant ’ s doubts regarding M.Č. ’ s involvement in her case at the appellate level and the resultant misgivings concerning the Administrative Court ’ s impartiality.

43 . In particular, the Government had submitted two decisions, the first from 2004, whereby M.Č. had been appointed as senior administrative counsel in the Second-Instance Proceedings Department of the Ministry ’ s Civil Law Directorate, and the second one from 2008 whereby she had been appointed the head of that Directorate (see paragraphs 24-25 above). The first of those decisions suggested that M.Č. had been appointed as senior administrative counsel in the Ministry for a period of two years (see paragraph 24 above). Therefore, it remained unclear what her position in the period between 2006 and 2008 had been. What is more, the two decisions submitted by the Government refer to numbered posts defined by the Ministry ’ s internal regulations (see paragraph 26 above). The Government has not provided the Court with a copy of those regulations, which would have been helpful in determining what M.Č. ’ s job description had been.

44 . Moreover, from the documents submitted by the Government it had been impossible to discern whether before being appointed the head of the Civil Law Directorate in 2008, M.Č. had been a head of one of the Directorate ’ s subunits such as the Second-Instance Proceedings Department.

45 . Furthermore, the Government had not furnished any proof for their statement that Lj.G.M. had at the relevant time been the head of the Second-Instance Proceedings Department in the Ministry, who had approved the decision in the applicant ’ s case allegedly prepared by R.P. (see paragraph 37 above). As regards R.P. himself, the applicant submitted that he had at the relevant time been working as legal counsel at the Constitutional Court. She thus found it odd that he had prepared the Ministry ’ s decision in her case, as the Government claimed (see paragraph 36 above), which seemed incompatible with his job at the Constitutional Court.

46 . Lastly, the applicant submitted that, even leaving aside the above considerations (see paragraphs 42-45), the mere fact that in the period between 20 February 2008 and 18 March 2009 M.Č. had been the head of the Ministry ’ s Civil Law Directorate (see paragraph 23 above) called into question the Administrative Court ’ s impartiality. In particular, that meant that in that period M.Č. had been a legal representative of the opposing party in the applicant ’ s case, it being understood that in the proceedings before the Administrative Court the applicant had been the plaintiff and the Ministry, specifically its Civil Law Directorate, the defendant (see paragraphs 12 and 14 above). Sitting subsequently as a judge in the applicant ’ s case had placed M.Č. in obvious conflict of interests and had cast doubt on the Administrative Court ’ s impartiality. The applicant pointed out that the Court had in similar situatio ns found a violation of Article 6 § 1 of the Convention (the applicant referred to Mežnarić v. Croatia , no. 71615/01, 15 July 2005).

47 . As regards the Government ’ s assertion that she had not proven her allegations (see paragraph 40 above), the applicant replied that the burden of proof was not on her because all relevant information regarding M.Č. ’ s position in the Ministry of Justice was in the Government ’ s possession. In this connection the applicant reiterated her argument that the Government had furnished incomplete documentation in this regard (see paragraph 42 above).

48 . Relevant principles emerging from the Court ’ s case-law concerning the right to an impartial tribunal are summarised in Morice v. France ([GC], no. 29369/10, § § 73-78, ECHR 2015).

49 . In the present case the Court finds that the Government sufficiently demonstrated that Judge M.Č. had not been involved in decision-making in the applicant ’ s case at the appellate level. In particular, the decision of Civil Law Directorate of the Ministry of Justice of 24 October 2005 was prepared by R.P., checked and approved by the head of the Second-Instance Department at the time, Lj.G.M., and signed by Assistant Minister B.K. (see paragraphs 11 and 36-37 above). M.Č. became the ad interim head of the Civil Law Directorate on 20 February 2008, that is, two years and almost four months after the Ministry had adopted the decision in the applicant ’ s case (see paragraphs 11, 23 and 25 above).

50 . As regards the applicant ’ s argument that the very fact that in the period between 20 February 2008 and 18 March 2009 M.Č. had been the head of the Ministry ’ s Civil Law Directorate called into question the Administrative Court ’ s impartiality because in that period she had been a representative of the defendant authority in the applicant ’ s case (see paragraph 46 above), the Court notes that this argument has no support in the relevant domestic law at the time. In particular, the relevant provisions of the Administrative Disputes Act and the State Administration System Act suggest that only the Ministry of Justice and not (also) its Civil Law Department was the defendant authority in the proceedings before the Administrative Court (see paragraphs 30-31 above).

51 . It follows that the present application is inadmissible under Article 35 § 3 (a) of the Convention as manifestly ill-founded and must be rejected pursuant to Article 35 § 4 thereof.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 19 December 2019 .

Renata Degener Tim Eicke Deputy Registrar President