FIRST SECTION

DECISION

Application no. 26704/15 Zdenka MARIČIĆ and Ivan MARIČIĆ against Croatia

The European Court of Human Rights (First Section), sitting on 19 October 2021 as a Committee composed of:

Erik Wennerström, President, Lorraine Schembri Orland, Ioannis Ktistakis, judges,

and Liv Tigerstedt, Deputy Section Registrar,

Having regard to the above application lodged on 28 May 2015,

Having regard to the declaration submitted by the respondent Government on 10 February 2017 requesting the Court to strike the application out of the list of cases and the applicants’ reply to that declaration,

Having deliberated, decides as follows:

FACTS AND PROCEDURE

1. The applicants, Ms Zdenka Maričić and Mr Ivan Maričić, are Croatian nationals. The first applicant was born in 1953 and lives in Vodice whereas the second applicant was born in 1949 and lives Zagreb. They were both represented before the Court by Mr I. Šerkić , a lawyer practising in Zagreb.

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

3 . The applicants’ complaints under Article 6 § 1 of the Convention concerning denial of access to the Constitutional Court, and under Article 13 concerning the lack of an effective remedy in that regard, were communicated to the Government .

THE LAW

4 . The applicants complained of a denial of access to court in that the Constitutional Court had declared their constitutional complaint inadmissible based on a mistaken belief that the contested second-instance decision of a civil court had concerned the costs of the proceedings rather than the merits of the case, and as such was not amenable to constitutional review. They also complained that they had not had an effective remedy in that regard. They relied on Article 6 § 1 and Article 13 of the Convention.

5. After failure to reach a friendly settlement, by a letter of 10 February 2017 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issue raised by these complaints. They further requested the Court to strike out the application in accordance with Article 37 of the Convention.

The declaration provided as follows:

“I declare, by way of this unilateral declaration, that the Government of the Republic of Croatia:

(a) acknowledges that in the instant case there has been a violation of the applicants’ right to a fair trial, guaranteed by Article 6 § 1 of the Convention and right to an effective legal remedy guaranteed by Article 13 of the Convention; and

(b) is ready to pay to the applicants jointly the amount of EUR 6,300 to cover any and all pecuniary and non-pecuniary damage, as well as costs and expenses, plus any tax that may be chargeable to the applicants.

This sum will be converted into Croatian kunas at the rate applicable on the date of payment, and will be payable within three months from the date of notification of the decision by the Court pursuant to Article 37 § 1 of the European Convention on Human Rights to the account indicated by the applicants. In the event of failure to pay this sum within the said three-month period, the Government undertake to pay simple interest on it, from expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. The payment will constitute the final resolution of the case.”

6 . By a letter of 27 February 2017, the applicants indicated that they were not satisfied with the terms of the unilateral declaration on the ground that the sum offered by the Government was too low and thus did not constitute appropriate compensation for the violations complained of. In addition, a strike out decision would prevent them from being able to seek the reopening of the domestic proceedings complained of. In particular, under section 428a of the Civil Procedure Act (the text of that provision is cited in Lovrić v. Croatia , no. 38458/15, § 24, 4 April 2017), civil proceedings could be reopened only on the basis of a final judgment of the Court finding a violation of the rights and freedoms under the Convention. The applicants therefore wished the examination of the case to continue.

7. The Court reiterates that Article 37 § 1 (c) enables it to strike a case out of its list if:

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

8. It also reiterates that in certain circumstances, it may strike out an application under Article 37 § 1 (c) on the basis of a unilateral declaration by a respondent Government even if the applicants wish the examination of the case to be continued.

9. To this end, the Court has examined the declaration in the light of the principles emerging from its case-law, in particular the Tahsin Acar judgment ( Tahsin Acar v. Turkey (preliminary objections) [GC], no. 26307/95, §§ 75-77, ECHR 2003-VI; see also WAZA Sp. z o.o. v. Poland (dec.), no. 11602/02, 26 June 2007; and Sulwińska v. Poland (dec.), no. 28953/03, 18 September 2007).

10. The Court has established in a number of cases, including those brought against Croatia, its practice concerning complaints about the violation of one’s right of access to higher and constitutional courts, and related complaints about the violation of the right to an effective remedy (see, for example, Čamovski v. Croatia , no. 38280/10, §§ 38-45, 23 October 2012; and Kardoš v. Croatia , no. 25782/11, §§ 47-58, 26 April 2016).

11. As regards the applicants’ argument that the decision to strike out the application would prevent them from having the domestic proceedings reopened (see paragraph 6 above), the Court first notes that in the applicants’ case those proceedings consisted of two phases: the proceedings before civil courts and the proceedings before the Constitutional Court. It further observes that section 428a of the Civil Procedure Act, to which the applicants relied, concerns only reopening of civil proceedings and not those before the Constitutional Court. Lastly, the Court notes that, when on 25 August 2016 the Government were given notice of the above ‑ mentioned complaints (see paragraphs 3-4), the President of the Section, acting as a single judge pursuant to Rule 54 § 3 of the Rules of Court, declared the remainder of the application inadmissible, including the applicants’ complaints concerning the proceedings before the civil courts. Since the case as it stands now thus concerns only the applicants’ complaints regarding the proceedings before the Constitutional Court, their argument that the Court’s strike-out decision would prevent them from seeking reopening of civil proceedings cannot be considered as relevant.

12. As regards the possibility of re-examination of a case by the Constitutional Court, the Court refers to the action report provided by the Government in the process of supervision of the execution of the judgment in the ÄŒamovski case (cited above). On the basis of that report the Committee of Ministers on 29 April 2015 adopted resolution CM/ResDH(2015)61 whereby it closed the process of supervision of the execution of that judgment. The relevant part of that report reads as follows:

“Following the Čamovski judgement, in a joint session of 12/02/2013 the judges of the Constitutional Court decided to change the practice in all future similar cases (more precisely when the Constitutional Court erroneously declares the constitutional complaint inadmissible on procedural grounds and the applicant asks for rectification of such error).

ln accordance with the new practice the Constitutional Court shall: 1) treat the applicant’s request for rectification as a proposal for reinstatement of the proceedings (§ 21) and then 2) examine the constitutional complaint on merits.

The Constitutional Court applied the above explained practice for the first time in a decision of 14/02/2013.

Accordingly, the Constitutional Court now has available means to rectify any possible errors and miscalculation (§ 16). Therefore, any person in the same situation today as the applicant in Čamovski case was in 2008 would not be deprived of access to the Constitutional Court, as it is now possible to correct errors in calculation of time-limits for lodging a constitutional complaint.”

13. In the decision to which the Government referred in their action plan (no. U-III-3704/2012 of 14 February 2013), which was published on the Constitutional Court’s website, that court set aside its earlier decision in the case whereby it declared a constitutional complaint inadmissible as lodged outside of the statutory time-limit. Specifically, after receiving the initial inadmissibility decision, the complainant informed the Constitutional Court that the starting date it had taken for the purpose of calculating the time ‑ limit in question had been wrong. The Constitutional Court treated the complainant’s submissions as an application for reinstatement of the proceedings to the status que ante ( prijedlog za povrat u prijaÅ¡nje stanje ), re-examined his constitutional complaint and eventually dismissed it on the merits.

14. This suggests that the Constitutional Court may, upon an application for reinstatement of the proceedings, re-examine a constitutional complaint which it previously wrongly declared inadmissible on procedural grounds, and that it may do so without any decision by the Court.

15. It can therefore be said with a sufficient degree of certainty that the procedure for reinstatement of the proceedings would be available regardless of the Court accepting the Government’s unilateral declaration and striking the case out of its list (compare and contrast with Romić and Others v. Croatia , nos. 22238/13 and 6 others, § 85, 14 May 2020). Furthermore, there is nothing to suggest that the Court’s decision to strike the application out would in any way prevent re-examination of the applicants’ constitutional complaint by the Constitutional Court.

16. That being so, and noting the admissions contained in the Government’s declaration, as well as the amount of compensation proposed – which is consistent with the amounts awarded in similar cases – the Court considers that it is no longer justified to continue the examination of the application (Article 37 § 1 (c)).

17. Moreover, in light of the above considerations, the Court is satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of the application (Article 37 § 1 in fine ).

18. Finally, the Court emphasises that, should the Government fail to comply with the terms of their unilateral declaration, the application may be restored to the list in accordance with Article 37 § 2 of the Convention ( Josipović v. Serbia (dec.), no. 18369/07, 4 March 2008).

19. In view of the above, it is appropriate to strike the case out of the list.

For these reasons, the Court, unanimously,

Takes note of the terms of the respondent Government’s declaration and of the arrangements for ensuring compliance with the undertakings referred to therein;

Decides to strike the application out of its list of cases in accordance with Article 37 § 1 (c) of the Convention.

Done in English and notified in writing on 18 November 2021. p_1}              {signature_p_2}

Liv Tigerstedt Erik Wennerström Deputy Registrar President