The European Court of Human Rights (First Section), in the case Ezegeta v. Croatia – 7 September 2017 (Application no. 40562/12) was faced with a complaint that the decision was rendered by a court not to be regarded as a “tribunal established by law” in the sense of Article 6, par. 1 of the Convention.
- By a contract concluded in 1971 between a company, G.P. (hereinafter “the claimant”), and the Novigrad Municipality certain plots of land were given to the former for its permanent use with a view to the construction of residential buildings thereon. These plots of land were registered in the land register as being publicly owned. In accordance with the contract, the claimant built residential buildings and sold all of them. During and after the construction of the residential buildings, the claimant instituted several sets of land register correction proceedings with regard to the land at issue in order to harmonise the record in the land register with the new situation. In one of the land register correction proceedings the Novigrad Municipality objected to the claimant’s application for a correction and therefore on 2 October 2000 the Land Registry Department of the Buje Municipal Court instructed the parties to initiate civil proceedings.
- On 6 October 2000 the claimant brought a civil action before the Buje Municipal Court (Općinski sud u Bujama) against the Novigrad Municipality (hereinafter “the defendant”), seeking that the data concerning the size of certain plots of land be corrected in the land register of that court. Meanwhile, on 27 December 1999, the applicant and the claimant had concluded a purchase agreement in respect of the plots of land that surrounded the residential buildings the claimant had built and that were the subject of the proceedings instituted on 6 October 2000.
- On 23 October 2000 the applicant asked to join the claimant in the proceedings as an intervener since she had bought some of the plots of land at issue.
- On 25 February 2005 the Buje Municipal Court allowed the claim.
- Upon an appeal by the defendant lodged on 5 February 2007 the Pula County Court (Županijski sud u Puli) quashed the first-instance judgment and remitted the case for a fresh examination. On 26 May 2009 the first-instance court dismissed the claim as ill-founded.
- The applicant lodged an appeal complaining, inter alia, that her case had been heard and decided by a court administrator who had not been authorised to conduct the impugned proceedings under the relevant procedural rules. She proposed that evidence be heard from J.G., as well as the parties to the proceedings and their legal counsel. On 18 October 2010 the Pula County Court upheld the first-instance judgment. The applicant then lodged simultaneously an appeal on points of law and a constitutional complaint. She complained, among other things, that her case had neither been heard nor decided by a tribunal established by law because the proceedings had been conducted and the judgment drafted and pronounced by a court administrator. She stated that the judge had not been present at the hearings and that the judge had signed the records of the hearings afterwards.
- On 14 October 2011 the Supreme Court declared the applicant’s appeal on points of law inadmissible ratione valoris, considering that the value of the claim did not reach the statutory threshold of HRK 100,000. It held, contrary to the lower courts’ findings, that the value of the claim was the one indicated in the civil action because the claimant would have been allowed to alter that value only if it had also amended its claim at the same time.
- On 2 December 2011 the applicant informed the Constitutional Court that her appeal on points of law had been declared inadmissible and that she wished to add the Supreme Court’s decision to her constitutional complaint. She argued that the Supreme Court had applied the relevant procedural provisions concerning the value of the claim in an arbitrary manner.
- On 29 March 2012 the Constitutional Court dismissed the applicant’s constitutional complaint as manifestly ill-founded. In its decision no. U-III-2677/2007 of 14 February 2012 the Constitutional Court quashed the decisions of the lower courts and ordered a fresh consideration of the case. It found that the lower courts, when dismissing an appeal by an intervener because the defendant, who the intervener had joined in the proceedings complained of, had withdrawn her appeal against the first-instance judgment, had violated the intervener’s right of access to court.
- The applicant complained that the Buje Municipal Court could not be considered “a tribunal established by law” since the proceedings had been conducted and the judgment had been drafted and pronounced by a court administrator who had not been authorised to do so under the relevant domestic law. She also complained that she had been deprived of access to the Supreme Court. She relied on Article 6 par. 1 of the Convention.
- As to the admissibility of the complaint, the Government alleged that the applicant did not have victim status because she had not been a party to the proceedings, but only an intervener. According to the Government, an intervener could conduct only those actions that were in the party’s favour; moreover, a party which an intervener had joined was allowed to withdraw at any given moment actions of the intervener that were not in the former’s interest. Therefore, if an intervener deemed that he or she was entitled to a specific right regarding the subject of dispute in which he or she participated in such a capacity, he or she was authorised to lodge a civil action on his or her own behalf before a competent court.
- The Court reiterated that, in order to rely on Article 34 of the Convention, an applicant must meet two conditions: he or she must fall into one of the categories of petitioners mentioned in Article 34 and must be able to make out a case that he or she is the victim of a violation of the Convention (see Vallianatos and Others v. Greece [GC], nos. 29381/09 and 32684/09, § 47, ECHR 2013 (extracts)). The word “victim”, in the context of Article 34 of the Convention, denotes the person or persons directly or indirectly affected by the alleged violation (see SARL du Parc d’Activités de Blotzheim v. France, no. 72377/01, § 20, 11 July 2006). Hence, Article 34 concerns not just the direct victim or victims of the alleged violation, but also any indirect victims to whom the violation would cause harm or who would have a valid and personal interest in seeing it brought to an end (see, mutatis mutandis, Defalque v. Belgium, no. 37330/02, § 46, 20 April 2006, and Tourkiki Enosi Xanthis and Others v. Greece, no. 26698/05, § 38, 27 March 2008).
- In the present case, the Court considered that the applicant was directly concerned by the situation because these proceedings had a direct effect on her property rights and thus Article 6 § 1 of the Convention was applicable. Therefore, she had a legitimate personal interest in seeing this situation brought to an end and could be considered a victim of the alleged violation within the meaning of Article 34 of the Convention.
- As to the merits of the complaint, the Court reiterated that the phrase “established by law” covers not only the legal basis for the very existence of a “tribunal”, but also the composition of the bench in each case (see Buscarini v. San Marino (dec.), no. 31657/96, 4 May 2000). The case at issue concerned the parties’ dispute as to whether a court administrator was authorised under national law to conduct the civil proceedings at issue. In this connection, the Court noted that section 120(1) of the Courts Act allows court administrators to independently conduct certain court proceedings, to evaluate evidence and establish facts (see paragraph 24 above). Paragraph 4 of the same provision enumerates the court proceedings which court administrators are authorised to conduct (see paragraph 24 above). It further noted that court administrators are authorised, under Section 120(1) of the Courts Act and section 13(3) of the Civil Procedure Act, to conduct only those litigation proceedings which concern payment of a monetary claim or compensation in respect of damage in which the value of the dispute does not exceed HRK 50,000 (see paragraphs 23 and 24 above). In this connection, the Court observed that the present case concerned litigation proceedings for the correction of the size of certain plots of land in the land register, a specific non-monetary claim and that the national courts did not at all assert that a court administrator was authorised to conduct the proceedings at issue. Rather, their position was that a judge had also been present at hearings and adopted a judgment. In other words, it concerned neither payment of a monetary claim nor compensation for damage. The Court further observed that nothing in the text of the Courts Act, much less in the text of the Civil Procedure Act, indicates that court administrators are authorised to conduct other types of litigation proceedings save for those enumerated in section 120 of the Courts Act and section 13 of the Civil Procedure Act if under the supervision and tutelage of a judge (see paragraphs 23 and 24 above).
- The Court then concluded that the proceedings at issue were conducted by the court administrator who was not authorised under the relevant domestic law to conduct such proceedings. Therefore the Buje Municipal Court which heard the applicant’s case could not be regarded as a “tribunal established by law”. There has accordingly been a violation of Article 6 § 1 of the Convention. In the light of these findings, the Court considered that it was not necessary to examine separately the complaint about the lack of access to the Supreme Court.
- As to the application of Article 41 of the Convention, the Court did not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejected this claim. On the other hand, the Court found that the applicant must have sustained non-pecuniary damage, reiterating that the most appropriate form of redress in cases where it finds that an applicant has not had a fair hearing as required by Article 6 § 1 of the Convention would, as a rule, be to reopen the proceedings in due course and re‑examine the case in keeping with all the requirements of a fair hearing (see, for example, Lungoci v. Romania, no. 62710/00, § 56, 26 January 2006; Yanakiev v. Bulgaria, no. 40476/98, § 90, 10 August 2006; Lesjak v. Croatia, no. 25904/06, § 54, 18 February 2010; and Kardoš v. Croatia, no. 25782/11, § 67, 26 April 2016).
