Communicated on 8 October 2015

SECOND SECTION

Application no. 38458/15 Zvonimir LOVRIĆ against Croatia lodged on 29 July 2015

STATEMENT OF FACTS

The applicant, Mr Zvonimir Lovrić , is a Croatian national who lives in Čaglin . He is represented before the Court by Mr A. Fiuri , an advocate practising in Požega .

A. The circumstances of the case

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

The applicant was a member of the hunting association V. from Čaglin (hereafter “the association”).

On 17 June 2102 the association ’ s Executive Board initiated internal proceedings before the association ’ s Disciplinary Commission against the applicant. The Executive Board asked that the applicant be suspended until the next session of the association ’ s General Meeting ( Skupština ) for falsely reporting to the police a member of the association, accusing him of the criminal offence of intimidation. The Executive Board argued that by doing so the applicant had committed a serious breach of his duties as a member, a disciplinary offence stipulated by the association ’ s internal regulations.

By a decision of 25 August 2012 the Disciplinary Commission acquitted the applicant.

The Executive Board then referred the matter to the General Meeting by convening an extraordinary session.

On 2 September 2012 the General Meeting, by twenty votes to seven, adopted a resolution expelling the applicant from the association. He was informed that he could appeal against that decision, and that any appeal would be examined at the General Meeting ’ s (regular) annual session.

The applicant did so, but the General Meeting ’ s resolution was, by twenty-one votes to three, upheld by another resolution adopted at the annual session held on 20 February 2013.

The General Meeting did not give any reasons for expelling the applicant in either of its resolutions.

On 11 January 2014 the applicant brought a civil action against the association in the Požega County Court ( Županijski sud u Požegi ), whereby he asked the court to declare unlawful the General Meeting ’ s resolution of 20 February 2013 and to reinstate him as a member.

By a decision of 4 March 2014 the County Court declared the applicant ’ s action inadmissible, on the ground that the matter was outside the jurisdiction of the courts. The relevant part of that decision reads as follows:

“Section 26(1) of the Associations Act suggests that legal protection by way of civil action in the county court could be sought only if the General Meeting or the other relevant body of the association had failed to examine a member ’ s report regarding irregularities in the implementation of the Articles of Association, or had failed to correct such irregularities.

Such a civil action would therefore be aimed at securing the implementation of the Articles of Association, and thus would not provide for legal protection in the sense that a specific decision ... of the association could be declared unlawful.

Under section 50 of the defendant association ’ s Articles of Association [ Statut ] the Disciplinary Tribunal imposes disciplinary measures against members who have breached their duties stipulated in the Articles of the Association. According to section 7(2) of the defendant association ’ s Rules on Disciplinary Proceedings and Disciplinary Liability of Members, a request for review may be lodged with the General Meeting [to contest] the Disciplinary Tribunal ’ s decision to expel [a member]. The time-limit for the General Meeting to adopt a resolution on the request is not stipulated. The General Meeting ’ s resolution is final.

...since the plaintiff in his action does not seek [legal] protection envisaged in section 26(1) of the Associations Act, but asks [the court] to declare unlawful the defendant ’ s resolution to expel him, on which [issue] it is for the General Meeting to make a final decision ... this case does not fall within the jurisdiction of the courts ...”

The applicant then appealed against that decision to the Supreme Court ( Vrhovni sud Republike Hrvatske ).

By a decision of 2 April 2014 the Supreme Court dismissed the applicant ’ s appeal and upheld the first-instance decision.

“The first-instance court was correct in declaring the action inadmissible, because the case does not fall within the jurisdiction of the courts ...

In particular, pursuant to section 26(1) of the Associations Act ...the conduct of associations is supervised by their members, and if a member finds irregularities in the implementation of the Articles of Association he or she is entitled to report it to the relevant body of the association designated in the Articles, or to the General Meeting if there is no relevant body designated in the Articles. Furthermore, if the written report is not examined at the General Meeting or by the relevant body of the association designated in the Articles within thirty days of its submission, or if irregularities are not corrected, the member may bring a civil action in the county court within whose area of jurisdiction the registered office of the association is situated, with a view to protecting his or her rights as stipulated in the Articles.

The said provision ... governs jurisdiction of the courts regarding the right of the members of an association to supervise its conduct. That right does not entail the power to contest the lawfulness of a decision adopted in disciplinary proceedings against the plaintiff as a member, as correctly explained in the impugned [first-instance] decision.

In this connection it should be taken into account that the case concerns membership of a ... voluntary organisation [where] members may under the internal rules regulate the protection of [their] membership rights. Therefore, the decision to expel a member does not fall within the jurisdiction of the courts under section 26(1) of the Associations Act.

The defendant association is not an entity vested with public authority, and the decisions it adopts are not administrative acts, which means that the plaintiff ’ s action could not even be examined by the Administrative Court under the [relevant provisions] of the Administrative Disputes Act. That is also the opinion of the Constitutional Court, as expressed in the case U-III-140/2006.

It follows that the county court was correct in deciding that courts have no jurisdiction to decide on the plaintiff ’ s action ...”

On 12 June 2004 the applicant lodged a constitutional complaint against the Supreme Court ’ s decision. He alleged violations of his right to a fair procedure guaranteed by Article 29 paragraph 1 of the Croatian Constitution, and also explicitly relied on Article 6 § 1 of the Convention.

By a decision of 18 December 2014 the Constitutional Court ( Ustavni sud Republike Hrvatske ) declared his constitutional complaint inadmissible and served its decision on his representative on 30 January 2015. It found that the case did not raise any issue in constitutional law.

B. Relevant domestic law

The relevant provision of the Associations Act ( Zakon o udrugama , Official Gazette no. 11/02), which was in force between 1 January 2002 and 30 September 2014, reads as follows:

V. SUPERVISION

Competence to perform supervision

Section 26(1)

“The conduct of associations is supervised by their members. Any member who finds irregularities in the implementation of the Articles of Association is entitled to report it to the relevant body of the association designated in the Articles, or to the General Meeting if no relevant body has been designated in the Articles. If the written report is not examined at the General Meeting or by the relevant body of the association designated in the Articles within thirty days of its submission, or if irregularities are not corrected, the member may bring a civil action in the county court within whose area of jurisdiction the registered office of the association is situated, with a view to protecting his or her rights as stipulated in the Articles.”

COMPLAINT

The applicant complains under Article 6 § 1 of the Convention that he was unable to challenge before judicial authorities the decision (resolution) to exclude him from the association of which he was a member.

QUESTIONS TO THE PARTIES

1. Did the applicant have access to court to contest the decision (resolution) whereby he was expelled from the association of which he was a member?

2. In the negative, was the deprivation of the right of access to court justified in the applicant ’ s case? In particular, did it pursue a legitimate aim, and was there a reasonable relationship of proportionality between the means employed and the aim sought to be achieved?