FIRST SECTION

DECISION

Application no. 1375/14 Zvonko NOGOLICA against Croatia

The European Court of Human Rights (First Section), sitting on 2 July 2019 as a Committee composed of:

Krzysztof Wojtyczek, President, Armen Harutyunyan, Pauliine Koskelo, judges,

and Renata Degener, Deputy Section Registrar ,

Having regard to the above application lodged on 18 December 2013,

Having deliberated, decides as follows:

FACTS AND PROCEDURE

1. The applicant, Mr Zvonko Nogolica , is a Croatian national who was born in 1962 and lives in Zagreb. He was represented before the Court by Ms Lj . Nogolica , a lawyer practising in Zagreb.

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

3. The applicant complained, under Article 1 of Protocol No. 1 and Article 13 of the Convention, about the lack of an effective procedure to challenge the lawfulness of the domestic authorities ’ decision establishing his tax liability.

4. On 29 March 2016 the Government was given notice of the above complaints and the remainder of the application was declared inadmissible, pursuant to Rule 54 § 3 of the Rules of Court.

5. On 12 June 2002 the applicant bought a plot of land in Resnik .

6. On 12 November 2002 he submitted a property transfer tax declaration to the Zagreb Office of the Ministry of Finance Tax Administration ( Ministarstvo financija , Porezna uprava , Podru č ni ured Zagreb , hereafter “the Zagreb Office”).

7. On 27 April 2007 the Zagreb Office ordered the applicant to pay 39,096 Croatian kunas (HRK) in taxes [1] .

8. On 8 June 2007 the applicant lodged an appeal with the Ministry of Finance, challenging the findings of the Zagreb Office.

9. On 28 April 2010 the Ministry of Finance dismissed the applicant ’ s appeal as unfounded and upheld the Zagreb Office ’ s tax assessment. It informed the applicant that the decision could not be challenged on appeal, but that he could lodge an administrative action with the Administrative Court ( Upravni sud Republike Hrvatske ).

10. On 28 June 2010 the applicant lodged an administrative action with the Administrative Court, arguing that the final decision on his tax liability, adopted by the Ministry of Finance on 28 April 2010, was unlawful, given that it had been adopted after the expiry of the absolute six-year statutory time-limit for determining his tax liability.

11. On 6 March 2013 the High Administrative Court ( Visoki upravni sud Republike Hrvatske ), which had meanwhile become competent to examine the case, dismissed the applicant ’ s administrative action. It declined to deal with his complaint that the final tax liability decision had been adopted after the expiry of the statutory time-limit on the grounds that he had failed to raise that issue in his appeal against the first-instance decision of the Zagreb Office.

12. On 3 May 2013 the applicant lodged a constitutional complaint with the Constitutional Court ( Ustavni sud Republike Hrvatske ), which on 6 June 2013 dismissed the complaint as unfounded. The decision of the Constitutional Court was served on the applicant on 18 June 2013.

13. While the proceedings concerning the determination of his tax liability were pending before the High Administrative Court (see paragraph 10 above), on 22 September 2011 the applicant instituted separate proceedings before the Zagreb Office, arguing that determining his tax liability had become time-barred and asking that his tax due be written off.

14. By a decision of 25 February 2014, the Zagreb Office found that the absolute six-year statutory time-limit on the right of tax authority to determine the applicant ’ s tax liability had expired on 1 January 2009 and ordered that the applicant ’ s tax due be written off. The decision was served on the applicant on 3 March 2014. He did not lodge an appeal against it.

15. On 3 June 2016 the Zagreb Office informed the applicant that, pursuant to its decision of 25 February 2014, he could seek reimbursement of the amount paid in respect of property transfer tax and invited him to submit a request in that respect.

16. On 9 June 2016 the applicant sought the Zagreb Office to reimburse him the amount paid in respect of property transfer tax.

17. On 10 June 2016 the Zagreb Office found that the applicant had paid HRK 45,810.76 for the property transfer tax. As he had had an unpaid tax due for other tax obligations in the amount of HRK 22,310.52, the Zagreb Office ordered that he be reimbursed HRK 23,500.24. The applicant did not appeal against this decision.

18. On 22 June 2016 HRK 23,500.24 was paid to the applicant ’ s bank account.

19. The relevant provisions of the General Tax Act ( Opći porezni zakon ; Official Gazette no. 147/08), in force at the time, read as follows:

Section 19(2)

“The taxpayer or any person who overpaid taxes or who paid taxes without legal grounds shall be entitled to:

1. refund of overpaid taxes or taxes paid without legal grounds,

2. interest on taxes paid without legal grounds.”

Section 113(5)

“Tax authority shall reimburse the overpaid taxes or taxes paid without legal grounds...together with interest.”

20 . The relevant provisions of the Property Transfer Tax Act ( Zakon o porezu na promet nekretnina , Official Gazette nos. 69/1997, 153/2002, 22/2011 and 143/2014), in force at the time, read as follows:

Section 21

“(1) Any person who paid property transfer tax, interest, costs of enforcement of payment or a fine which he or she was not obligated to pay, shall be entitled to reimbursement of paid or overpaid sums.

(2) The paid or overpaid sum referred to in paragraph 1 of this section shall be reimbursed to the person from whom the amount was collected following his or her request, within 30 days from submitting the request.”

THE LAW

21. The applicant complained that the domestic authorities had determined his tax liability contrary to the relevant domestic law, and that no effective procedure to challenge that decision had been available to him. He relied on Article 1 of Protocol No. 1 and Article 13 of the Convention, which read as follows:

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.

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.”

Article 13

“Everyone whose rights and freedoms as set forth in this 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.”

22. In view of the fact that, after the proceedings complained of had been completed, the domestic authorities had established that the applicant ’ s tax due should be written off and the fact that he had recovered the money levied, the Government argued that the applicant could no longer claim to be a “victim” within the meaning of Article 34 of the Convention. The developments that had arisen subsequent to the applicant ’ s application before the Court had been to his advantage and constituted sufficient redress for any alleged violations complained of. The Government invited the Court to either ( i ) declare the application inadmissible on the grounds that the applicant could no longer claim to be the victim of the alleged violations or (ii) strike the case out of its list of cases on the grounds that the mater had been resolved.

23. The applicant invited the Court to examine his case because he had wished to obtain compensation for the suffering and distress caused by the situation.

24. The Court does not have to address all the issues raised by the parties. In the light of the new developments brought to its attention, it considers that, for the reasons set out below, there is no objective justification for continuing to examine the applicant ’ s complaints, and that it is thus appropriate to apply Article 37 § 1 of the Convention, which provides as follows:

“The Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that

(a) the applicant does not intend to pursue his application; or

(b) the matter has been resolved; or

(c) for any other reason established by the Court, it is no longer justified to continue the examination of the application.

However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires.”

25. In order to ascertain whether Article 37 § 1 (b) applies to the present case, the Court must answer two questions: firstly, whether the circumstances complained of directly by the applicant still obtain; and, secondly, whether the effects of a possible violation of the Convention on account of those circumstances have also been redressed (see Pisano v. Italy (striking out) [GC], no. 36732/97, § 42, 24 October 2002; Sisojeva and Others v. Latvia , no. 60654/00, § 97, 16 June 2005; and Kaftailova v. Latvia (striking out) [GC], no. 59643/00, § 48, 7 December 2007).

26. The Court notes that, in the present case, the applicant complained that the domestic authorities had determined his tax liability after the statutory time limit to do so had already expired, and that no effective procedure to challenge that decision had been available to him.

29. In the light of the above, the Court considers that the matter has been resolved within the meaning of Article 37 § 1 (b) of the Convention. Furthermore, it is satisfied that respect for human rights as defined in the Convention and its Protocols does not require it to continue the examination of the application under Article 37 § 1 in fine .

30. Accordingly, the case should be struck out of the Court ’ s list of cases.

For these reasons, the Court, unanimously,

Decides to strike the application out of its list of cases.

Done in English and notified in writing on 25 July 2019 .

Renata Degener Krzysztof Wojtyczek Deputy Registrar President

[1] . A pproximately 5,300 euros