JOINT DISSENTING OPINION OF JUDGES LEMMENS AND RAVARANI

1. To our regret we are unable to join the majority in their finding of a violation of Article 1 of Protocol No. 1 to the Convention .

A. The complaint, and the majority ’ s approach to it

2. First of all, we would like to note that the applicant complained about the application by the enforcement court of section 97(4) of the Enforcement Act, as amended in 1999. According to the applicant, the said provision did not oblige the court to sell the property at any price during a third auction. He argued that on the basis of that provision, read in combination with section 6 of the Act, the court could have sold the property only if the sale respected his dignity as enforcement debtor and if the enforcement was the least onerous for him. By selling his house at the price that was offered at the third auction, the court had violated his dignity and put him in a very difficult situation, thus acting in disregard of section 6 of the Act (see paragraphs 52-54 of the judgment).

We consider that this is a complaint about the lawfulness of the court ’ s interference with the applicant ’ s right of property.

3. While the majority agree that the interference was based on section 97(4) of the Enforcement Act (see paragraph 63 of the judgment), they find a violation of Article 1 of Protocol No. 1 because of the lack of “foreseeability” of the provision in question (see paragraph 65 of the judgment). In our opinion, the majority thus do not examine the complaint as brought before the Court. While the applicant directed his criticism at the court applying the law, the majority direct their criticism at the legislature for having enacted a law that was not sufficiently foreseeable in its application.

It is difficult for us to accept such an approach. In our opinion, the Court should limit itself to examining the complaint as brought by the applicant.

B. The Court ’ s limited role in reviewing whether domestic law has been correctly interpreted and applied by the domestic courts

4. We would also like to underline that this case is about the sale of the applicant ’ s property in the context of enforcement proceedings. As is noted by the majority, the actions taken by the State authorities are to be situated within a horizontal relationship between creditors (Ms M.A., Mr J.A. and Mr Z.A.) and a debtor (the applicant) (see paragraph 61 of the judgment).

In so far as the applicant contests the lawfulness of the decisions taken by the domestic courts, it is important to note that the Court ’ s jurisdiction in such a context is limited. In particular, it is not its function to take the place of the domestic courts, its role being rather to ensure that the decisions of those courts are not flawed by arbitrariness or otherwise manifestly unreasonable (see Anheuser-Busch Inc. v. Portugal [GC], no. 73049/01, § 83, ECHR 2007 ‑ I, and Zagrebačka banka d.d. v. Croatia , no. 39544/05 , § 250, 12 December 2013, both cited in paragraph 61 of the judgment).

While the majority refer to this limited role for the Court (see paragraph 62 of the judgment), they in fact go beyond the sole assessment of the potential arbitrariness or manifest unreasonableness of the domestic courts ’ decisions and assess the quality of the law which has been applied in the instant case.

C. The lawfulness of the decision to sell the applicant ’ s house

5. While our approach to the case would have been different from that of the majority, in the present separate opinion we will nevertheless also address the questions discussed by the majority. We will first examine whether the law applied by the courts was foreseeable and afforded legal protection against arbitrary application. We will then turn to the question whether the decision to sell the applicant ’ s house was flawed by arbitrariness or otherwise manifestly unreasonable.

Whether section 97(4) of the Enforcement Act was foreseeable and afforded legal protection against arbitrary application

6. As quoted in the judgment ( see paragraph 65) , a rule is foreseeable when an individual is able to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail (see, among many others, Centro Europa 7 S.r.l. and Di Stefano v. Italy [GC], no. 38433/09 , § 141, ECHR 2012 ). However, such consequences need not be foreseeable with absolute certainty. Rather, the law must be able to keep pace with changing circumstances (ibid.).

D omestic law must also afford a measure of legal protection against arbitrary interferences by public authorities with the rights safeguarded by the Convention (see paragraph 65 of the judgment). Consequently, the law must indicate with sufficient clarity the scope of any discretion conferred on the competent authorities and the manner of its exercise (see Hasan and Chaush v. Bulgaria [GC], no. 30985/96, § 84, ECHR 2000 ‑ XI ; Maestri v. Italy [GC], no. 39748/98, § 30, ECHR 2004 ‑ I ; Sanoma Uitgevers B.V. v. the Netherlands [GC], no. 38224/03 , § 82, 14 September 2010 ; and also Centro Europa 7 S.r.l. and Di Stefano , cited above, § 143).

7. According to the majority, legal uncertainty was created by the Constitutional Court and the Supreme Court after they had provided a “flexible” interpretation of section 97(4) of the Enforcement Act, making the criteria for selling property at a third public auction “blurred and difficult to foresee” and leaving “too much room ... for diverging applications of the law” (see paragraph 66 of the judgment). The unforeseeability of the application of the law was, according to the majority, illustrated in the applicant ’ s case by the fact that the Sisak County Court had first, in its decision of 1 April 2009, considered the sale of the applicant ’ s house for HRK 50,000 contrary to the law, while the same court had later found, on 20 December 2010, that the sale of that property for HRK 70,000 was acceptable. In doing so, in the majority ’ s view, “that court failed to explain how selling the applicant ’ s property for an extra HRK 20,000 addressed the concerns expressed in its earlier decision” (see paragraph 67 of the judgment).

8. In our view, the text of section 97(4) of the Enforcement Act, as amended in 1999, was very clear. It provided that after two unsuccessful attempts to sell the immovable property at a minimum of respectively three-quarters and half of its value, a third auction could take place at which the property could be sold without restrictions regarding the minimum price.

It is true that the Constitutional Court and the Supreme Court indicated that the fact that the law did not set a minimum price to be obtained at the third auction did not mean that the property could be sold at any price whatsoever. Indeed, section 97(4) of the Enforcement Act had to be applied in conformity with Article 29 § 1 of the Constitution (right to fair proceedings), which implied respect for the principle of proportionality as enunciated in Article 16 § 2 of the Constitution (see the Constitutional Court ’ s case-law cited in paragraphs 33-38 of the judgment), and in combination with section 6 of the Enforcement Act, which established the general rule that the enforcement court must respect the debtor ’ s dignity and ensure that the enforcement is the least onerous for him or her (see in particular the Supreme Court ’ s case-law cited in paragraphs 39-40 of the judgment).

However, we do not see how these clarifications, intended to protect debtors against a blind application of section 97(4) of the Enforcement Act, rendered the application of that provision unforeseeable. Nor do we think that the fact that the Sisak County Court arrived at different decisions illustrates that the law was unforeseeable in its application. As we will explain below (see § 10), the circumstances in December 2010 were crucially different from those in April 2009, and those differences justified the difference in outcome.

9. The majority conclude their analysis by stating that the applicable legislation lacked the required protection against arbitrary interferences by the public authorities (see paragraph 69 of the judgment). While the majority are not very clear about the grounds for coming to such a conclusion, we believe that they may in fact be relying on two elements. On the one hand, as indicated above, the majority point to the fact that the law made it possible for the Sisak County Court to uphold the sale of the applicant ’ s house for HRK 70,000, about one and a half years after it had found that a sale for HRK 50,000 did not sufficiently respect the applicant ’ s dignity and was too onerous for him (see paragraph 67 of the judgment). On the other hand, the majority note that, save for the period when the applicable 1999 amendments were in force, the domestic enforcement legislation had never allowed the sale of immovable property for less than one-third of its value (see paragraph 68 of the judgment).

10. We do not think that the different decisions of the Sisak County Court are an illustration of the fact that the law did not offer protection against arbitrary application by the courts. When the Sisak County Court examined on 1 April 2009 the outcome of the third auction (of 10 December 2008), it noted that the purchase price (HRK 50,000) was not sufficient to cover even half of the debt. It therefore concluded that by accepting the offer the first-instance court had breached section 6 of the Enforcement Act, and that the sale in question did not achieve the purpose of the enforcement proceedings (see paragraph 14 of the judgment). When it examined on 20 December 2010 the outcome of the new third auction (of 12 May 2009), the situation was very different: not only had the applicant ’ s house been sold for a higher amount (HRK 70,000), but also, and more importantly, the purpose of enforcement had been achieved because the creditors ’ claim had been settled in full, following the latter ’ s declaration to that effect (see paragraphs 15 and 17 of the judgment). It was in these very different circumstances that the court concluded that the new auction had been carried out in accordance with section 97(4) of the Enforcement Act (see paragraph 18 of the judgment).

We cannot but note that the law made it possible for the competent court to reject the sale when the applicant ’ s rights had not been sufficiently respected, and to uphold it when they had been respected. There is therefore nothing, in our opinion, that warrants the conclusion that the law did not offer sufficient protection against arbitrary interferences by the courts.

The fact that in some of the earlier or later versions of section 97(4) of the Enforcement Act the legislature set a minimum price of one-third of the value of the property to be sold does not mean that the 1999 version did not allow the courts to offer the requisite protection.

Whether the decision to sell the applicant ’ s house constituted an arbitrary or otherwise manifestly unreasonable application of the law

11. Despite the foreseeability of the relevant legal provisions, the domestic courts ’ decision to sell the applicant ’ s house could still be considered arbitrary or manifestly unreasonable, and therefore constitute an “unlawful” application of domestic law, in particular having regard to the fact that the sale price amounted to less than one-fifth of the estimated value of the house (see the applicant ’ s argument as mentioned in paragraph 52 of the judgment). This is an issue not explicitly examined by the majority. In our opinion, given the private-law context of the dispute before the domestic courts, this should have been the focus of the Court ’ s assessment of the lawfulness of the interference with the applicant ’ s property right.

12. At the outset we note that the applicable law did not, by the sole virtue of its provisions, automatically lead to arbitrary or manifestly unreasonable decisions by the courts. Rather, the relevant law tended to ensure a fair balance between the respective rights and interests of the creditor and the debtor in providing for three successive auctions, only the third one being able to lead to a sale for a low price, in the event that the first two auctions were unsuccessful.

Thus, the only question is whether in the present case the decision of the Sisak County Court to approve the sale of the applicant ’ s house, pursuant to section 97(4) of the Enforcement Act in its 1999 version, was arbitrary or manifestly unreasonable.

13. In our view, the outcome of the enforcement proceedings can hardly be described as arbitrary or manifestly unreasonable.

First, it has to be recalled that the debtor (the applicant) had for many years (between 1994 and 2003) had the opportunity to settle his debt voluntarily and thereby to prevent the sale of his house. When he did not come forward, the creditors applied for enforcement of the judgment rendered in their favour, and a writ of execution was issued. In the ensuing enforcement proceedings several attempts between 2005 and 2008 to sell the house were unsuccessful. The house was eventually sold in 2009 for the amount of HRK 70,000.

Second, it is true that this amount equalled only 18.21% of the estimated value of the applicant ’ s house (HRK 384,197). However, this percentage is to be compared to the percentages obtained in the cases that have come before the Constitutional Court and the Supreme Court, cited in paragraphs 33-40 of the judgment. In the cases where judgments of enforcement courts were quashed, the property had been sold for a symbolic price of HRK 1, or for an amount that was respectively 5.5%, 2.57%, 2.43% and 1.15% of the estimated value of the property. The amount in the present case was thus substantially higher than in the cited cases. Moreover, the value of the sale in the present case was sufficient to prompt the creditors to declare their claim to be settled in full and thus to release the applicant from his obligations. Contrary to the situations in the above-mentioned cases, the purpose of enforcement was therefore achieved by the settlement of the creditors ’ claim.

Third, and in line with the foregoing, we want to emphasise that, since the purpose of enforcement proceedings is the settlement of the creditors ’ claim, an additional comparison can be made to assess the relative value of the price obtained: under Croatian law, the theoretical value of the house to be sold is assessed by an independent expert and the outcome of the sale is compared with this value (here: HRK 384,197 to HRK 70,000). In the present case, the owner ’ s debt was alleviated not merely by HRK 70,000, but by an additional HRK 37,974 (the part of the claim abandoned by the creditors), making a total of HRK 107,974. The sale thus reduced his liabilities by HRK 107,974. The ratio of HRK 107,974 to HRK 384,197 amounts to 28.10%. This is the real advantage the applicant received from the sale of his house as his entire debt was subsequently declared settled. This percentage is very close to the minimum of one-third set as the lowest limit at a public auction in some of the later amendments to section 97(4) of the Enforcement Act (see paragraph 68 of the judgment). It is at any rate, in our opinion, too high for the Court to step in and to declare that the outcome in the proceedings was arbitrary or manifestly unreasonable.

14. In the light of the foregoing, we therefore conclude that the domestic courts ’ decision to sell the applicant ’ s house cannot be considered arbitrary or manifestly unreasonable. Contrary to the majority, we are therefore of the opinion that the impugned judgment of the Croatian enforcement court did not constitute an unlawful interference with the applicant ’ s right to the peaceful enjoyment of his possessions.

[1] Approximately 52,067 euros (EUR) at that time.

[2] Approximately EUR 6,940 at that time.

[3] Approximately EUR 14,587 at that time.

[4] Approximately EUR 9,486 at that time.

[5] Approximately EUR 7,779 at the time.

[6] Approximately EUR 0.12 at the time.

[7] Approximately EUR 2,462 at the time.

[8] Approximately EUR 0,13 at the time.

[9] Approximately EUR 36,738 at the time.

[10] Approximately EUR 2,041 at the time.

[11] Approximately EUR 274 at the time.

[12] Approximately EUR 53,119 at the time.

[13] Approximately EUR 1,368 at the time.

[14] Approximately EUR 82,052 at the time.

[15] Approximately EUR 55,430 at the time.

[16] Approximately EUR 1,351 at the time.

[17] Approximately EUR 26,446 at the time.

[18] Approximately EUR 79,254 at the time.

[19] Approximately EUR 609 at the time.

[20] Approximately EUR 61,663 at the time.

[21] Approximately EUR 0.13 at the time.

[22] Approximately EUR 15,422 at the time.

[23] Approximately EUR 26,295 at the time.

[24] Approximately EUR 0.13 at the time.