Communicated on 26 May 2016

SECOND SECTION

Application no. 1789/15 Tanja OŠKRT BUNJEVČEVIĆ against Croatia lodged on 1 January 2015

STATEMENT OF FACTS

The applicant, Ms Tanja Oškrt Bunjevčević , is a Croatian national who was born in 1947 and lives in Zagreb. She is represented before the Court by Ms T. Klaić -Stetter, a lawyer practising in Zagreb.

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

1. The first set of enforcement proceedings

Following an application by Zagreb Municipality on 1 July 2003, the Zagreb Municipal Court issued an enforcement order (no. 16229/03) against the applicant on 17 July 2003, ordering her to pay outstanding debts of 20,861.28 Croatian kuna (HRK). The order stated that one third of the applicant ’ s pension, paid by the Croatian Pension Fund, was to be seized each month to help settle the debt to Zagreb Municipality. The order was executed between 1 February 2008 and 31 July 2010, while the remaining two thirds of the applicant ’ s pension was paid into her account in Raiffeisen Bank.

2. The second set of enforcement proceedings

On 27 June 2005 the Zagreb Municipal Court issued a further enforcement order (no. 17280/04) against the applicant following an application by Zagreb Municipality lodged on 24 January 2005 in respect of a further outstanding debt of HRK 271,673.83. The enforcement order included no information notice about legal remedies allowed against it ( pouka o pravnom lijeku ).

On 20 October 2009 the Zagreb Municipal Court ordered the temporary seizure of all funds in the applicant ’ s bank accounts. The decision contained an information notice to the effect that an appeal could be lodged against it within eight days of its service. The applicant lodged an appeal, claiming that her whole pension would be seized under the order, which was contrary to the rules of the Enforcement Act. However, the information notice was wrong and no appeal against the decision in question was allowed.

On 14 April 2010 the Zagreb Municipal Court ordered that funds in the applicant ’ s bank accounts be transferred to the account of Zagreb Municipality. The information notice stated that there was no legal remedy against that decision.

On 2 November 2011 the applicant, now legally represented, lodged an application to restore the proceedings to the status quo ante ( prijedlog za povrat u prijašnje stanje ), together with an appeal against the enforcement order of 27 June 2005.

As to the admissibility of her appeal, the applicant argued that enforcement order no. 17284/04 had not included an information notice on the remedy to be used and that therefore she, not being legally represented, had concluded that no remedy was possible. Furthermore, the decision of 20 October 2009 had contained an information notice that was incorrect as it had said that an appeal was allowed against it. Owing to such wrong instructions, the applicant had not used the proper remedies in a timely manner.

As to the merits, she alleged that one third of her pension had been seized by the Croatian Pension Fund in favour of Zagreb Municipality on the basis of enforcement order no. 16229/2003. However, all the money from her account in Raiffeisen Bank had been seized on the basis of enforcement order no. 17284/04. The prescribed maximum pension which could be seized pursuant to an enforcement order was one third. Since the only funds she received in Raiffeisen Bank were her monthly pension instalments, in reality all her pension had been seized on the basis of enforcement orders. In support of her arguments, she relied on section 149(1) of the Enforcement Act as well as the view expressed by the Constitutional Court in decision no. U-III-1248/2008 of 25 February 2009.

The applicant ’ s appeal was declared inadmissible as being lodged out of time, a decision that was upheld on appeal.

The applicant lodged a constitutional complaint, which was declared inadmissible on the grounds that the contested decision was not amenable to constitutional review. The Constitutional Court ’ s decision was served on the applicant on 1 July 2014.

COMPLAINTS

The applicant complains that her appeal was declared inadmissible as being lodged out of time, even though the instruction as to what remedy was available to her was not included in the enforcement order and that a wrong instruction as to the remedy to be used was included in the decision on the seizure of the funds from her bank accounts.

The applicant also complains under Article 1 of Protocol No. 1 that the seizure of any amount exceeding one third of her pension was unlawful.

QUESTIONS TO THE PARTIES

1. Has there been a disproportionate restriction on the applicant ’ s right of access to a court, as guaranteed by Article 6, having regard to the finding that her appeal against the enforcement order was inadmissible?

2. Has the applicant been deprived of her possessions in the public interest, and in accordance with the conditions provided for by law and in accordance with the principles of international law, within the meaning of Article 1 of Protocol No. 1?