Published on 31 May 2021

FIRST SECTION

Application no. 52132/19 CROATIAN RADIO-TELEVISION against Croatia and 20 other applications (see list appended) communicated on 11 May 2021

STATEMENT OF FACTS

The applicant, Croatian Radio-Television (hereafter “the applicant institution”), is a legal entity established under Croatian law as a public institution ( javna ustanova ). It is represented before the Court by Ms N. Owens, a lawyer practising in Zagreb, in all but one case listed in the Appendix.

The facts of the cases, as submitted by the applicant institution, may be summarised as follows.

The applicant institution is a Croatian public broadcasting organisation which has its seat in Zagreb. Under Croatian law its legal status is that of a public institution, that is, of a non-membership non-profit organisation.

In October 2009 an internal audit discovered that one of the employees in the applicant institution ’ s finance and accounting department, a certain Mr A.K., had signed hundreds of undocumented payment orders and thereby paid fees for external translation services on behalf of the applicant institution to a large number of individuals who had never performed such services. It turned out that those individuals had been contacted by A.K. directly or through his intermediary, a certain Mr M.P. who was also an employee of the applicant institution. They would then return the paid sums to A.K. or M.P. while keeping some 5% of the sums received.

In that way the applicant institution lost around 1,500,000 Croatian kunas (HRK) [1] .

A.K. was summarily dismissed and died soon afterwards, in early 2010. No criminal proceedings were instituted against him.

The applicant institution brought more than hundred civil actions for unjust enrichment against various individuals who had received the above ‑ mentioned payments.

In approximately half of those cases the domestic courts ruled in its favour, whereas in the other half they ruled for the defendants, depending on which second-instance court decided the case. Specifically, the applicant institution submits that all such cases which were examined on appeal by the Zagreb County Court or the Pula County Court ended in its disfavour.

The domestic courts differed in their findings regarding the issue whether the applicant institution had or ought to have known that it had been paying something it had not had to pay, as well as on the related issue whether A.K. had had the authority to make those payments or he had acted ultra vires . Depending on their findings on those issues, the domestic courts either ruled for the applicant institution by applying the general rule on unjust enrichment set out in section 1111(1) of the Obligations Act, or ruled for the defendants by applying the exception set out in section 1112(1) of that Act, which provides that restitution cannot be sought if the person who made the payment knew that nothing was due (see Relevant legal framework below).

The present cases concern 21 sets of civil proceedings, 19 of which were conducted at first instance before the Zagreb Municipal Court and the remaining two before the Pula Municipal Court and the Sesvete Municipal Court respectively. In six of those 21 cases municipal courts gave judgments for the applicant institution.

Of these 21 cases, 20 were examined on appeal by the Zagreb County Court and one by the Pula County Court. In all those cases these county courts ruled for the defendants.

Subsequently, in each of these 21 cases, the applicant institution concurrently lodged an extraordinary appeal on points of law ( revizija ) and a constitutional complaint. In its appeals on points of law the applicant institution argued that the outcome of the proceedings depended on the resolution of certain points which were important for ensuring the uniform application of the law because of the conflicting case-law of the second ‑ instance courts.

In each case the Supreme Court declared inadmissible the applicant institution ’ s appeal on points of law. It held that the stated points were not important for ensuring the uniform application of the law.

Likewise, the Constitutional Court in each case declared inadmissible the applicant institution ’ s constitutional complaint. The court held that the applicant institution – being a public institution organisationally and functionally connected with the State – could not be considered as a bearer of the rights guaranteed by the Constitution and thus did not have standing to lodge a constitutional complaint.

In a number of cases stemming from the same events described above, in which the first- and/or the second-instance courts ruled in favour of the applicant institution, the Supreme Court allowed extraordinary or ordinary appeals on points of law lodged by the defendants. It held that the points stated in those extraordinary appeals were important for the uniform application of the law. It then quashed the contested judgments and remitted the cases to the first-instance courts as it found that the lower courts had failed to established some important facts such as: whether A.K. had been authorised by the nature of his job to make the disputed payments, and where the money paid back by the defendants to A.K. and M.P. had eventually ended up (with A.K. or with the applicant institution). Specifically, the Supreme Court adopted such decisions in cases nos. Rev ‑ 2800/15-5 of 3 November 2016, Rev-650/14-2 of 4 October 2017, Rev-1892/14-2 of 6 December 2017, Rev-124/2014-2 of 18 September 2018, Rev-2828/2015-2 of 4 December 2018, Rev-1380/2016-2 of 27 August 2019, Rev-1905/2016-2 of 12 May 2020 and Rev-1365/2017-2 of 1 July 2020.

In decisions no. Rev-2877/2014-2 of 15 January 2019 and no. Rev-2775/2015-2 of 22 January 2019 the Supreme Court allowed the extraordinary appeal on points of law lodged by the applicant institution, quashed the contested judgments and remitted the cases to the first-instance courts. In those cases the Supreme Court held that the lower courts had not given sufficient reasons for their finding that the applicant institution had made the disputed payments knowing that nothing had been due.

In the case no. Rev-2616/2019-2 of 12 September 2019 the Supreme Court declared inadmissible the extraordinary appeal on points of law lodged by the defendant, and in case no. Rev-1415/2016-2 of 10 June 2020 such appeal lodged by the applicant institution, holding in both cases that the stated points of law were not important for ensuring the uniform application of the law.

RELEVANT LEGAL FRAMEWORK

The relevant provisions of the Obligations Act (Official Gazette, no. 35/05 with subsequent amendments), which has been in force since 1 January 2006, concerning unjust enrichment read as follows:

ENRICHMENT WITHOUT CAUSE General rule Section 1111(1)

“When part of the property of one person passes, by any means, into the property of another, and that transfer has no basis in a legal transaction, decision by the court or other relevant authority or in legislation [it is without cause], the person who received it [beneficiary] shall return it. If restitution is not possible, he or she shall provide compensation for the value of the benefit obtained .”

RESTITUTION RULES

When restitution cannot be sought

Section 1112(1)

“Whoever makes a payment knowing that he or she does not have to pay, has no right to seek restitution, unless he or she has retained the right to a refund, if he or she has paid to avoid duress or if the payment of the debt depends on the fulfilment of a condition.”

COMPLAINTS

The applicant institution complains under Article 6 § 1 of the Convention, taken alone and in conjunction with Article 14, of conflicting case-law of domestic courts because in the 21 sets of civil proceedings in question the domestic courts ruled against it while in a number of other cases arising from the same set of facts they ruled in its favour. It also complains that, instead of harmonising the divergent case-law of the lower courts, the Supreme Court itself became the source of uncertainty by declaring inadmissible its extraordinary appeals on points of law in these 21 sets of civil proceedings while allowing such appeals lodged by defendants in other such cases.

The applicant institution further complains, also under Article 6 § 1 of the Convention, about the Constitutional Court ’ s decisions to declare inadmissible its constitutional complaints.

QUESTIONS TO THE PARTIES

1. Does the applicant institution enjoy sufficient institutional and operational (editorial) independence from the State to be regarded as a “non-governmental organisation” within the meaning of Article 34 of the Convention (see Radio France and Others v. France ( dec. ), no. 53984/00, ECHR 2003 ‑ X (extracts), and Österreichischer Rundfunk v. Austria , no. 35841/02, 7 December 2006)? Consequently, does the applicant institution have locus standi to lodge an individual application under that Article?

2. If the applicant institution has locus standi to lodge an individual application:

(a) Has there been a violation of the applicant institution ’ s right to a fair hearing, guaranteed by Article 6 § 1 of the Convention, on account of the conflicting case-law of the domestic courts?

(b) If so, was the applicant institution discriminated against in the enjoyment of its right to a fair hearing, contrary to Article 14 of the Convention read in conjunction with Article 6 § 1 thereof?

(c) Were the decisions of the Constitutional Court to declare inadmissible the applicant institution ’ s constitutional complaints in breach of its right of access to court, guaranteed by Article 6 § 1 of the Convention?

APPENDIX

No.

Application

no.

Lodged on

Applicant ’ s name

and

seat

Represented by

52132/19

27/09/2019

CROATIAN RADIO-TELEVISION

Zagreb

Nataša OWENS

62085/19

18/11/2019

62358/19

25/11/2019

62941/19

27/11/2019

822/20

19/12/2019

1273/20

23/12/2019

1289/20

23/12/2019

1933/20

23/12/2019

1935/20

02/01/2020

1939/20

02/01/2020

1941/20

02/01/2020

1963/20

02/01/2020

1964/20

02/01/2020

1965/20

02/01/2020

1967/20

02/01/2020

3208/20

27/12/2019

3275/20

16/12/2019

9566/20

12/02/2020

10338/20

14/02/2020

10570/20

13/02/2020

3627/21

08/01/2021

[1] Approximately 200,000 euros.