Communicated on 20 October 2015

SECOND SECTION

Application no. 16931/12 Željka STOJAKOVIĆ against Croatia lodged on 16 February 2012

STATEMENT OF FACTS

The applicant, Ms Željka Stojaković , is a Croatian national who lives in Darda . She is represented before the Court by Mrs B. Paprić , a lawyer practising in Osijek.

The circumstances of the case

On 4 January 2004 the applicant sold a house to B.P. and B.P.O., who gave her a security deposit of EUR 1,000 (an earnest payment). In March 2004 B.P. and B.P.O. moved into the aforementioned house, but in May 2004 they moved out, alleging that the applicant had failed to provide all necessary documents for registering the house with the land registry as their own property. They considered that the applicant was in breach of contract by reason of non-performance.

On 1 July 2004 B.P. and B.P.O. lodged a civil action with the Beli Manastir Municipal Court ( Op ćinski sud u Belom Manastiru ), seeking recovery of double the amount which they had paid as a deposit – that is, 2,000 euros (EUR) – as provided for by the Civil Obligation Act in circumstances where a party who has received a deposit is found to be in breach of contract.

On 30 November 2004 the first-instance court adopted a judgment, which was then quashed by the Osijek County Court ( Županijski sud u Osijeku ) on 6 April 2006.

On 20 December 2006, in relation to a new set of proceedings, the first ‑ instance court adopted a judgment in which it established that, even though the applicant had fulfilled her obligations under the contract and the claimants had taken possession of the house in issue, the contract had legal defects, in that it did not contain the number of the plot of land in question, any cadastral municipality data, or a clausula intabulandi (a declaration by a vendor that a purchaser may be entered in the land register as the owner of a property), which rendered the contract null and void. Therefore, the court dismissed the claimants ’ claim, but ordered the applicant to repay the deposit of EUR 1,000 to the claimants, on the basis of unjust enrichment.

The applicant lodged an appeal against the first-instance judgment.

On 6 November 2008 the Osijek County Court dismissed the applicant ’ s appeal as unfounded and upheld the first-instance judgment.

The applicant then lodged both an appeal on points of law and a constitutional complaint. She argued that her case had been decided in contradiction with similar cases heard in the Osijek County Court and the Supreme Court, where those courts had established that the mere fact that a contract for purchase of a property did not contain the number of a plot of land, cadastral municipality data or a clausula intabulandi did not make it null and void. She referred to the Supreme Court ’ s decisions and judgments nos. Rev-2591/93, Rev-2229/93, Rev-1279/92, Rev-2078/97, Rev-1320/96, Rev-117/98 and Rev-2025/95, the reasoning adopted in the Osijek County Court ’ s judgment no. Gž-1388/92 and the Osijek Municipal Court ’ s judgment no. P-1582/88.

The claimants neither lodged an appeal on points of law themselves, nor responded to the applicant ’ s appeal on points of law.

The Constitutional Court stayed the proceedings pending the conclusion of the proceedings before the Supreme Court.

On 21 September 2010 the Supreme Court declared the appeal on points of law inadmissible ratione materiae .

The relevant part of that decision reads:

“ The claimants ’ appeal on points of law is hereby declared inadmissible.

Reasons

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... The claimants lodged an appeal on points of law against the second-instance judgment, invoking section 382 (2) of the Civil Procedure Act ...

...

Parties may lodge an appeal on points of law against a second-instance judgment if the decision in dispute depends on the resolution of substantive or procedural issues of importance in ensuring the uniform application of the law and the equality of all citizens.

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In particular, the relevant appeal on points of law does not indicate a specific legal issue of importance in ensuring the uniform application of the law and the equality of all citizens, given that the claimants are contesting the [second-instance] judgment because they are dissatisfied with the fact that the court did not allow their claim ...

In support of their complaints, the claimants refer to the decisions of this court nos . Rev-2591/93, Rev-2229/93, Rev-1279/92, Rev-2078/97, Rev-1320/96, Rev-117/98 and Rev-2025/95, in addition to the Osijek County Court ’ s judgment no. Gž-1388/92 and the Osijek Municipal Court ’ s decision no. P-1582/ 88 ...

...

Simply listing the reference numbers of decisions – of either the cassation court or any other court – does not make the claimants ’ appeal on points of law admissible, even assuming that all those decisions were based on the same facts and legal basis.”

The applicant ’ s constitutional complaint was to no avail, because on 8 December 2011 the Constitutional Court declared it inadmissible as manifestly ill-founded. It held that there was “no constitutional issue” to be examined.

COMPLAINTS

The applicant complains under Article 6 § 1 of the Convention that the Supreme Court ’ s conduct deprived her of her right to a fair hearing. In particular, she alleges that, owing to the lack of reasoning in the Supreme Court ’ s decision dismissing her appeal on points of law, it was not apparent that her appeal had been reviewed in a manner complying with the Article 6 § 1 requirements.

She further complains under Article 6 § 1 of the Convention of divergent case-law and a breach of the principle of legal certainty, given the apparent difference in the assessment of identical situations by the same appeal court and the Supreme Court.

QUESTIONS TO THE PARTIES

Did the applicant have a fair trial within the meaning of Article 6 § 1 of the Convention? In particular, was the Supreme Court ’ s decision in breach of her right of access to a court?

Was the decision adequately reasoned?

In the light of the applicant ’ s allegation that the Osijek County Court applied different case-law to identical claims, have the domestic courts complied with the principle of legal certainty, implicitly guaranteed by this provision?