CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 19 novembre 2020

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display:inline-block } .s9975F4A9 { margin-top:18pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right } .s1721E4C5 { margin-top:14pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .sA1D3DA2E { margin-top:0pt; margin-bottom:0pt; text-align:justify } .s76CF415B { page-break-before:always; clear:both } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s1E2B8B97 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-align:justify; font-size:10pt } .s2D297EB4 { margin-top:14pt; margin-left:36.55pt; margin-bottom:6pt; page-break-inside:avoid; page-break-after:avoid } .s1A3E49B9 { margin-top:12pt; margin-left:36.55pt; margin-bottom:6pt; page-break-inside:avoid; page-break-after:avoid }     FIRST SECTION CASE OF PROJECT-TRADE D.O.O. v. CROATIA (Application no. 1920/14)     JUDGMENT   Art 1 P1 • Control of the use of property • Art 6 § 1 (civil) • Access to court • Cancellation and revocation of applicant company’s shares in private bank directly affecting their right to protection of property and going beyond merely upsetting their position in the bank’s governance structure • Victim status upheld • Government decision not reviewable by any judicial authority Art 6 § 1 (civil) • Reasonable time • Excessive length of proceedings lasting almost five years at one level of jurisdiction   STRASBOURG 19 November 2020   FINAL   19/04/2021   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Project-Trade d.o.o. v. Croatia, The European Court of Human Rights (First Section), sitting as a Chamber composed of:   Krzysztof Wojtyczek, President,   Ksenija Turković,   Aleš Pejchal,   Pauliine Koskelo,   Tim Eicke,   Jovan Ilievski,   Raffaele Sabato, judges, and Renata Degener, Deputy Section Registrar, Having regard to: the application against the Republic of Croatia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by Project-Trade d.o.o. (“the applicant company”), a commercial company incorporated under Croatian law, on 20 December 2013; the decision to give notice to the Croatian Government (“the Government”) of the complaints concerning access to court, the reasoning of the Constitutional Court’s decision, the length of the proceedings and peaceful enjoyment of possessions and to declare the remainder of the application inadmissible; the parties’ observations; Having deliberated in private on 22 September 2020, Delivers the following judgment, which was adopted on that date: INTRODUCTION 1.     The case mainly concerns the deprivation of property arising from the Government Decision on the restructuring and recovery of a commercial bank depriving the bank’s shareholders, including the applicant company, of their shares, and the lack of access to court in that regard. THE FACTS 2.     The applicant company is a limited liability company incorporated under Croatian law which has its registered office in Zagreb. It was initially represented by Mr J. Butigan, and then from 15 October 2018 by Mr   F.   Galić, both lawyers practising in Zagreb. 3.     The Government were represented by their Agent, Ms Š. Stažnik. 4.     The facts of the case, as submitted by the parties, may be summarised as follows. events giving rise to the dispute 5.     The applicant company was a shareholder of Croatia Bank ( Croatia banka d.d. – hereinafter “the bank”), a joint-stock company incorporated under Croatian law which has its registered office in Zagreb. The bank was wholly owned by private individuals and companies. The applicant company held 1,251 shares with a nominal value of 200 Croatian kunas (HRK) each. 6.     On 23 February 1999 the Croatian National Bank ( Hrvatska narodna banka – hereinafter “the CNB”) adopted a decision appointing a temporary administrator at the bank. Under section 84(2) of the Banks Act, from the date of service of such a decision, all powers of the bank’s governing bodies were transferred to the temporary administrator (see paragraph 25 below). On 23 August 1999 the CNB extended the temporary administrator’s term of office for a further two months. 7.     Meanwhile, on the basis of an expert report indicating that the bank’s debts largely outweighed its share capital and that it therefore presented a risk to the general stability of the financial market, on 18 June 1999 the CNB proposed to the Government of Croatia that the process of recovery ( sanacija ) and restructuring of the bank be commenced, as provided for by domestic law. 8.     In accordance with that proposal, on 23 September 1999 the Government of Croatia adopted a decision on the recovery and restructuring of Croatia Bank ( Odluka o sanaciji i restrukturiranju Croatia banke d.d., Zagreb , Official Gazette nos. 98/99 and 53/00 – hereinafter “the Government Decision”). The Decision was published in the Official Gazette on 27 September 1999. From that date, all shares held by the bank’s shareholders were revoked and cancelled. Following the recovery process, the bank was to issue new shares, all in the name of the State Agency for Deposit Insurance and Bank Resolution ( Državna agencija za osiguranja štednih uloga i sanaciju banaka – hereinafter “the DAB”). The powers of the bank’s governing bodies and the rights of shareholders were extinguished with the entry into force of the Decision. DAB’s director had to appoint a person responsible to represent and administer the bank during the process of recovery and restructuring. That process was completed on   13   September 2000. The Decision, which was slightly amended on   25   May 2000, and in respect of which the Constitutional Court later on held that, by its legal nature, it was subordinate legislation ( podzakonski općenormativni akt (propis) ) rather than an individual legal act (see   paragraph 11 below), read as follows: I. “Recovery and restructuring process of Croatia bank... is hereby initiated. The process of recovery and restructuring of the bank is conducted by [DAB] in accordance with the Recovery and Restructuring of Banks Act and the State Agency for Securing Savings Deposits and Resolution of Banks Act.” II. “It is established that on 31 May 1999 the bank has: (a) risky investments and potential liabilities in the amount of 1,797.5 million kunas, including potential losses of HRK 517 million; (b) suspected and disputed claims ... in the amount of HRK 446 million; (c)   business losses incurred in 1998 and between 1 January and 31 May 1999 in the amount of HRK 622.3 million.” III. “The operating losses are written off against the gross share capital reduced by the cost of acquiring treasury shares in the amount of HRK 264.8 million and against special reserves for non-identified losses in the amount of HRK 8.6 million.” IV. “[DAB] shall secure HRK 553.5 million for the recovery of the bank, including: (a) an amount of HRK 348.9 million to cover the operating losses which could not be written off against the gross share capital reduced by the cost of acquiring treasury shares and/or the special reserves for non-identified losses and (b) an amount of HRK 204.6 million as funds necessary for an initial recapitalisation of the bank. The amount of the part of the risky investments which include potential losses of the bank in the amount of HRK 348.9 million shall be transferred to [DAB].” V. “For the recovery of the bank referred to in point IV. of this Decision [DAB] shall issue bonds in the amount of HRK 553.5 million with a maturity date of 20 April 2000 and an interest [rate] of 7.5%.” VI. “A new opening balance sheet of the bank shall be prepared to reflect the situation on 1 June 1999.” VII. “On the day of the publication of this Decision all existing shares of the Bank shall be revoked and cancelled. The Bank shall issue new shares in the amount of HRK 204.6 million, which shall be entirely owned by [DAB].” VIII. “The powers of the bank’s General Meeting, Supervisory Board and of the bank’s Management Board, as well as the rights of the bank’s shareholders based on the existing shares, shall be extinguished on the day of publication of this Decision. The Director of [DAB] shall appoint a person authorised to manage and represent the bank during the bank’s recovery process...” 9.     In 1999 and 2000 five shareholders of the bank (including the applicants in the case of Batinović and Point Trade d.o.o. v. Croatia (dec.), no. 30426/03, 10 July 2007, see paragraphs 48-50 below), but not the applicant company, filed four separate petitions with the Constitutional Court ( Ustavni sud Republike Hrvatske ) for a review of the conformity of the Government Decision with the Constitution and with the relevant primary legislation ( prijedlog za ocjenu ustavnosti i zakonitosti ). They complained that, as shareholders of the bank, the Decision violated their constitutional rights guaranteed by Article 48 § 1, Article 49 § 4 and Article   50 of the Croatian Constitution (see paragraph 20 below). They also claimed that the bank had been in good standing and that the Decision was therefore unnecessary. 10.     During the proceedings the Constitutional Court obtained opinions from two financial experts and two professors of commercial and company law. The financial experts suggested that the Government Decision was not economically justified or necessary, while the law professors suggested that it was contrary to Article 49 § 4 of the Constitution (see paragraph 20 below). 11.     On 30 January 2003 the Constitutional Court discontinued the proceedings because the legislation on which the Decision was based, namely the 1994 Recovery and Restructuring of Banks Act (see   paragraph   26 below), had in the meantime, on 31 May 2000, been repealed. It added: “The contested Decision is, by its legal nature, subordinate (secondary) legislation but the legal effects [of some of its provisions] directly interfere with the individual rights of a certain category of citizens (founders and former shareholders of Croatia Bank). ... The Constitutional Court notes that the Croatian legal system guarantees to every founder and/or shareholder of Croatia Bank who considers his or her rights to have been violated by ... the contested decisions, the ... ability to obtain judicial protection. ... It is evident from the existing case-law that individual legal protection is also available in civil proceedings by applying the relevant provisions of the Obligations Act. Judicial protection against possible infringements of the rights of founders and former shareholders of Croatia Bank, brought about by the contested Decision, is also available in proceedings based on section 19(2) of the [1994] Courts Act, under which the commercial courts have jurisdiction in disputes concerning the disposition of membership and membership rights in companies. Lastly, each plaintiff (former shareholder of Croatia Bank) is entitled to lodge a constitutional complaint against the judgment of a competent court and [thereby] institute proceedings before the Constitutional Court if he or she deems that a court judgment has violated certain human rights or fundamental freedoms guaranteed by the ... Constitution.” 12.     Two judges of the Constitutional Court expressed dissenting opinions. They argued that the court could have continued the abstract review proceedings and that it had had jurisdiction to examine whether the Government Decision was in compliance with the Constitution and relevant primary legislation (statute). They also opined that the Government Decision was contrary to the Constitution. One of the dissenting judges stated that under domestic law there was no remedy, much less a judicial one, against the Decision. The other dissenting judge specifically contested the view expressed by the majority that the bank’s shareholders could seek the protection of their rights in ordinary civil proceedings. He averred that the shareholders could not successfully do so without the Constitutional Court finding that the Government Decision was unconstitutional. Civil proceedings in the applicant company’s case 13.     On 12 September 2003 the applicant company brought a civil action in the Zagreb Commercial Court ( Trgovački sud u Zagrebu ) against the bank and the DAB, asking the court to (a) issue a declaratory judgment confirming that the company was still the holder of 1,251 shares, (b) order the DAB to transfer the corresponding number of shares from its portfolio to the company, and (c) order the bank to record the company as holder of that number of shares in the bank’s register of shareholders. 14.     During the proceedings, the applicant company argued that the Government Decision revoking and cancelling its shares was unjustified in economic terms because the bank had been in good standing. It further argued that relevant statutory requirements had not been satisfied, and that the Decision was contrary to Article 48 § 1, Article 49 § 4 and Article 50 of the Constitution (see paragraph 20 below), as had been acknowledged by the High Commercial Court ( Visoki trgovački sud Republike Hrvatske ) in its judgment of 21   December 2004 in another case (see paragraph 33 below). 15.     By a judgment of 21 February 2006 the Zagreb Commercial Court dismissed the applicant company’s action. 16.     By a judgment of 18 June 2008 the High Commercial Court dismissed an appeal by the applicant company and upheld the first-instance judgment. On 16 September 2008 it served its judgment on the applicant company’s representative. The relevant parts read as follows: “The [applicant company] in the statement of claim states that it is a shareholder of Croatia Bank, holding 1,251 shares with a nominal value of HRK 200 each. However, on a proposal from the Croatian National Bank (hereinafter “the CNB”) of 18 June 1999, the Government of Croatia adopted on 23 September 1999, without any grounds, the Decision on the recovery and restructuring of Croatia Bank ... [The applicant company] alleges that its property was taken by that Decision and that it was prevented beforehand from participating in the management of the bank’s affairs and deciding its fate. The [applicant company] states that the Government Decision [was] based on an incorrect assumption ... because the potential losses of the bank were declared actual losses, which is not supported by any arguments or evidence. The bank’s claims totalling HRK 446,000,000 were declared uncollectable by the CNB and the Government, even though potential losses are not actual losses, and all these claims were secured by various means of guaranteeing payment, such as mortgages and so forth. The [applicant company] considers that the shares of all the shareholders, including its own, were cancelled on the basis of incorrectly established facts ... The [applicant company] further submits that throughout the proceedings which preceded the adoption of the Government Decision, the shareholders did not have the opportunity to participate or ... protect their entrepreneurial or property rights attached to the shares they had lawfully obtained but which were unlawfully taken away from them. The [applicant company] considers that ... the Government Decision was adopted without satisfying the statutory requirements, that is, on the basis of an unrealistic assessment of potential losses and other arbitrary parameters. ... The first-instance court consulted the Government Decision on the recovery and restructuring of Croatia Bank ... from which it established the bank’s losses, the amount secured for its restructuring and initial recapitalisation, and established that point 7 provided that on the date of publication of the Decision all the existing shares of the bank would be revoked and cancelled, and that the bank would issue new shares in the amount of HRK 217,000,000 which would all be transferred into the ownership of [the DAB] and that ... the rights belonging to shareholders on the basis of the existing shares would be extinguished. The first-instance court also consulted the Constitutional Court’s decision and established that the proceedings for reviewing the conformity of the Government Decision on the recovery and restructuring of Croatia Bank with the Constitution and primary legislation had been discontinued. The [first-instance court] on the basis of point 7 of the [Government Decision] ... established that all the existing shares of the bank had been extinguished and that new shares had been issued, which were fully owned by [the DAB]. On the basis of the facts thus established, the first-instance court considered that the [applicant company’s] shares no longer existed, which is evident from (point 7 of) the Government Decision ... Since the [applicant company’s] shares had thus been cancelled and revoked the [first-instance court] held that the plaintiff company could not have its shares returned to it because [the DAB] had obtained its [own] shares on the basis of its capital investment during the recapitalisation process. ... The appeal is unfounded. ... It follows from the appeal that the [applicant company] considers that the first ‑ instance court misapplied the substantive law because it based its decision on the Government Decision which was adopted on the basis of the [1994] Recovery and Restructuring of Banks Act... while the plaintiff company in the ... appeal gives reasons as to why the Government Decision is unconstitutional. [The applicant company] therefore argues that the Government of Croatia had to compensate it for the market value of the revoked shares, in accordance with Article 50 § 1 of the ... Constitution. For these reasons, the [applicant company] considers that the first ‑ instance court ... did not have to apply the Government Decision on the recovery and restructuring of Croatia Bank. This court cannot accept such ... arguments... In examining whether the action was well- or ill-founded, the first-instance court had to assess whether the defendants, in making their decision, had acted in accordance with the Government Decision ... From the first-instance decision it is evident that the first-instance court consulted the Constitutional Court’s decision and established that the proceedings for reviewing the conformity of the Government Decision ... with the Constitution and primary legislation had been discontinued. That means that the [Government Decision] was not examined by the Constitutional Court, let alone invalidated. Given that the Government Decision was fully implemented, that is, the [applicant company’s] shares were cancelled and revoked, the first ‑ instance court correctly held that the [applicant company] could no longer have its shares returned to it. This court accepts the [applicant company’s] argument that the Constitutional Court’s decision no. U-III-3471/03 of 16   March 2006, relied on by the defendants, is not binding for this court. However, this court accepts the view expressed in the decision of the Constitutional Court, which held that the [Government Decision] was subordinate legislation which had been adopted on the basis of the relevant provisions of the [1994 Recovery and Restructuring of Banks Act] and within the powers prescribed by that Act, which is why the Constitutional Court held that Article 48 of the Constitution had not been violated. Lastly, the [applicant company] itself claims that the Government of Croatia had to compensate it for the market value of the revoked shares, not the defendants, which had only implemented the Government Decision. This court therefore considers that the first ‑ instance court correctly applied the relevant substantive law on the established facts when dismissing the [applicant company’s] action.” 17.     On 14 October 2008 the applicant company lodged a constitutional complaint, claiming a violation of its constitutional rights guaranteed by the above-mentioned Articles of the Constitution (see paragraph 14 above). 18.     By a decision of 2 October 2013 the Constitutional Court dismissed the applicant company’s constitutional complaint and on 10 October 2013 served that decision on the company’s representative. 19.     That court examined the case under Article 29 § 1 of the Constitution, which guarantees the right to fair proceedings, and, referring to its findings in the case no. U-III-736/2005 (see paragraph 34 below), found no violation of that right. It held: “Regarding the complainant’s argument ... that in ‘these proceedings the first ‑ instance ... and second-instance court had to directly apply the Constitution and the law, not the [Government Decision]’ the complainant is referred to points 14 to 17 of the reasons given in the Constitutional Court’s decision U-III-736/2005 of 8 July 2013.” RELEVANT LEGAL FRAMEWORK AND PRACTICE The Constitution 20.     The relevant Articles of the Constitution of the Republic of Croatia ( Ustav Republike Hrvatske , Official Gazette no. 56/90 with subsequent amendments) read: Article 48 § 1 “The right of ownership shall be guaranteed.” Article 49 § 4 “Rights acquired through the investment of capital shall not be diminished by statute or by any other legal act ...” Article 50 “1. Ownership may be restricted or taken in accordance with the law and in the interest of the Republic of Croatia subject to payment of compensation equal to the market value.   2. Entrepreneurial freedom and ownership rights may, on an exceptional basis, be restricted by law for the protection of the interests and security of the Republic of Croatia, nature, the environment or public health.” 21.     Article 115 § 3 of the Constitution reads as follows: Article 115 § 3 “The courts shall decide [cases] on the basis of the Constitution, statute, international agreements and other valid sources of law.” 22.     Prior to its amendment by the Amendments to the Constitution ( Promjena Ustava Republike Hrvatske , Official Gazette no. 76/10) in 2010, the provision read as follows: Article 115 § 3 “The courts shall decide [cases] on the basis of the Constitution and statute.” 23.     Article 125 of the Constitution defines the jurisdiction of the Constitutional Court. The first three subparagraphs, which specify the powers of the Constitutional Court in so-called abstract-review proceedings, read as follows: Article 125 “The Constitutional Court of the Republic of Croatia: - shall decide on the conformity of statute with the Constitution; - shall decide on the conformity of subordinate legislation with the Constitution and statute; - may examine the constitutionality of statute and the constitutionality and legality of other [subordinate legislation] which is no longer in force, provided that from the moment they were repealed until the submission of an application or a petition for [review] proceedings to be instituted [before the Constitutional Court] no more than one year has passed. ...” 24.     The third subparagraph in Article 125, which allows the Constitutional Court to examine the constitutionality of statute and subordinate legislation no longer in force, was added by the 2000 Amendments to the Constitution ( Promjena Ustava Republike Hrvatske , Official Gazette no.   113/00), which entered into force on 9 November 2000. Relevant legislation Legislation governing recovery and restructuring of banks The Banks Act 25.     The relevant provisions of the Banks Act ( Zakon o bankama , Official Gazette no. 161/98), which was in force between 26 December 1998 and 25 July 2002, read as follows: XV.   TEMPORARY ADMINISTRATOR Section 82 “When the Croatian National Bank establishes that the potential losses of a bank ... are higher than that bank’s share capital and in cases where a bank is insolvent, it shall appoint a temporary administrator to that bank, or shall file a petition with the competent court with a view to opening bankruptcy proceedings against that bank.” Section 84(2) “From the date of service of the decision on the appointment of a temporary administrator, all powers of the management board, supervisory board and shareholders’ general meeting shall cease and shall at the same time be transferred to the temporary administrator.” XVI.   RECOVERY OF BANKS Section 90 “On the proposal of the Croatian National Bank, the Government of Croatia may decide to commence the process of recovery of a bank if it establishes that this is in the State’s special interest and if it finds that the other possibilities of preventing disturbance in the stability of the overall financial system of the State have been exhausted.” Recovery and Restructuring of Banks Act 26.     The relevant provisions of the Recovery and Restructuring of Banks Act ( Zakon o sanaciji i restrukturiranju banaka , Official Gazette no. 44/94), which was in force between 11 June 1994 and 23 May 2000, read as follows: Section 11(1) “The decision on recovery and restructuring of a bank shall be given by the Government of Croatia on the proposal of the Croatian National Bank.” Legislation governing the organisation of the judiciary 27.     Section 5 of the 1994 Courts Act ( Zakon o sudovima , Official Gazette no. 3/94 with subsequent amendments), in force between 22   January 1994 and 28 December 2005, provided as follows: Section 5 “1. The courts shall decide [cases] on the basis of the Constitution and statute. 2. The courts shall also decide [cases] on the basis of international agreements which are part of the [internal] legal order of the Republic of Croatia. The courts shall also apply other [subordinate] legislation enacted in accordance with the Constitution, international agreements or statute.” 28.     The wording of section 5 of the 2005 Courts Act (Official Gazette no.   150/05 with subsequent amendments), in force between 29   December 2005 and 13 March 2013, is nearly identical. The Constitutional Court Act 29.     Section 37 of the Constitutional Act on the Constitutional Court of the Republic of Croatia ( Ustavni zakon o Ustavnom sudu Republike Hrvatske , Official Gazette no. 99/99 with subsequent amendments – “the Constitutional Court Act”), which has been in force since 24   September   1999, reads as follows: Section 37   “(1) If the [ordinary] court in proceedings finds that the statute to be applied or some of its provisions are not in accordance with the Constitution, it shall stop the proceedings and submit an application to the Constitutional Court for a review of the conformity of the statute or its provisions with the Constitution. (2) If the [ordinary] court in proceedings finds that other [subordinate] legislation to be applied, or some of its provisions, are not in accordance with the Constitution or statute, it shall directly apply the statute [ exceptio illegalis ] and [at the same time] submit an application to the Constitutional Court for a review of the conformity of the impugned [subordinate] legislation or its provisions with the Constitution and the [relevant] statute.” Other legislation 30.     The relevant provisions of the 1978 Obligations Act, in force between 1 October 1978 and 31 December 2005, concerning statutory limitation periods ( zastara ), namely sections 360, 376, 388 and 392, are cited in Baničević v. Croatia ((dec.), no. 44252/10, § 13, 2 October 2012). In particular, section 376 provided that a claim for damages became statute ‑ barred three years after the injured party became aware of the damage and the identity of the wrongdoer and, in any event, five years after the damage occurred. 31.     The relevant provision of the Civil Procedure Act concerning the reopening of proceedings following a final judgment of the European Court of Human Rights, namely section 428a, is cited in Lovrić v. Croatia (no.   38458/15, § 24, 4 April 2017). 32.     The relevant legislative provisions concerning length-of-proceedings remedies in Croatia in the period between 29   December 2005 and 13 March 2013 are set out in the case of Vrtar v. Croatia (no. 39380/13, §§ 52-55, 7   January 2016). Relevant practice Relevant practice concerning civil actions of Croatia Bank’s former shareholders against the bank and the DAB 33.     In judgments nos. Pž-6234/04-2 of 21 December 2004 and Pž ‑ 6233/04-3 of 19 January 2005 the High Commercial Court ruled in cases where the plaintiffs, shareholders of Croatia Bank, had sued the bank and the DAB in the competent commercial court, claiming that they had been deprived of their shares and the rights attached to them without any compensation. They asked the court to (a) issue declaratory judgments confirming that they were still holders of a specific number of shares, (b) order the DAB to transfer the corresponding number of shares from its portfolio to them, and (c) order the bank to record them as holders of the specified number of shares in the bank’s register of shareholders. Finding for the plaintiffs, the High Commercial Court directly applied Article 48 § 1 and Article   49 § 4 of the Constitution (see paragraph 20 above). It expressly stated that the Government Decision of 23 September 1999 was contrary to the latter Article. It reasoned as follows: “In particular, any restriction or deprivation of the rights attached to shares would be contrary to that provision of the Constitution, as it would constitute diminution or deprivation of membership rights acquired through the investment of capital in a joint ‑ stock company.” 34.     Both judgments were, following constitutional complaints by Croatia Bank, subject to a review by the Constitutional Court. In decisions nos.   U ‑ III-736/2005 and U-III/1706/2005, adopted on 8 July 2013 and published in the Official Gazette on 24 and 31 July 2013 respectively, the Constitutional Court found for the bank. It quashed the High Commercial Court’s judgments and remitted the cases. The Constitutional Court held, inter alia , that it had never decided on the conformity of the Government Decision of 23 September 1999 with the Constitution or with primary legislation because the relevant abstract constitutional review proceedings had been discontinued (see paragraph 11 above). This meant that the Decision had to be presumed to be in conformity with the Constitution. By calling into question the constitutionality of the Decision, the High Commercial Court had exceeded its jurisdiction. In so holding the Constitutional Court did not in any way refer to its decision no.   U ‑ III ‑ 3471/2003 of 16 March 2006 (see paragraph 36 below). Relevant practice concerning civil actions for compensation of Croatia Bank’s former shareholders against the State 35.     In judgment no. Rev-x 1053/15-2 of 24 May 2016 the Supreme Court ( Vrhovni sud Republike Hrvatske ) dismissed an appeal on points of law ( revizija ) lodged by a former shareholder of Croatia Bank against judgments of the lower courts dismissing his civil action for compensation against the State. The relevant part of its judgment reads as follows: “What is disputed in the proceedings on the appeal on points of law is whether the plaintiff is entitled to compensation for the damage sustained by the revocation and cancellation of 2,079 shares of Croatia Bank, a revocation which was effected pursuant to the Government Decision on the recovery and restructuring of Croatia Bank of ... 23 September 1999 ... ... The first-instance court clearly listed the requirements which had to be met for the awarding of compensation: the existence ... of the wrongdoer and the injured party, the wrongful act committed by the wrongdoer, the damage sustained by the injured party, the causal link between the ...wrongful act and the damage sustained by the injured party, and the unlawfulness of the wrongful act. The plaintiff’s arguments set out in the appeal on points of law may in essence be reduced to the argument that ... [the State] is liable because the Government of Croatia adopted an allegedly illegal and unconstitutional Decision on the recovery and restructuring of Croatia Bank. By that allegedly unlawful act the plaintiff sustained damage in that he was deprived of his ownership of shares without either financial compensation or compensation in the form of new shares [the bank] had issued in the recovery process. In this case, however, what is missing is unlawfulness in the actions of [the State] as one of the key elements for establishing ... the right of the plaintiff to obtain compensation from the defendant. ... it should first be noted that the Constitutional Court ... discontinued the proceedings for reviewing the conformity of the Government Decision ... with the Constitution and primary legislation ... However, it should also be noted that the Constitutional Court nevertheless expressed its view on that issue in a case brought before it by means of an individual constitutional complaint. The legal opinion of the Constitutional Court is expressed in [its] decision no. U-III-3471/2003, according to which the [Government Decision] revoking and cancelling the shares of Croatia Bank, including those of the plaintiff, without compensation, is not contrary to Article 48 § 1 or Article 49 § 3 of the ... Constitution. ... Therefore, in [order to] resolve this dispute, the legal opinion expressed in the above-mentioned decision of the Constitutional Court must be taken into account. As regards the plaintiff’s argument that the courts should have ... applied the exceptio illegalis rule and refused to apply the Government Decision in the instant case, that is, [that they] should have awarded [him] compensation ..., the [Supreme Court] refers to the legal opinion expressed in the Constitutional Court’s decisions nos. U-III-736/2005 and U-III-736/2005 [both] of 8 July 2013, in which the possibility of applying the exceptio illegalis rule was explicitly excluded... This court did not examine whether the State could be held liable for the effects of the enactment of unconstitutional [primary] legislation or subordinate legislation, because that unconstitutionality was not established in the present case by the Constitutional Court, which was the only [authority] that could have taken such a decision. All constitutional-review proceedings of the Government Decision on the recovery and restructuring of Croatia Bank were discontinued by the Constitutional Court’s decision ... of 30 January 2003. [Under] sections 56, 57 and 58 of the Constitutional Court Act, the finding that a piece of subordinate legislation is unconstitutional or contrary to primary legislation is the key prerequisite for the protection of rights infringed by allegedly unconstitutional subordinate legislation. Therefore, regardless of whether the plaintiff’s ownership rights could have been breached by the implementation of the [Government’s] decision revoking and cancelling the shares of Croatia Bank ... it must be taken into account that there was no unlawfulness in the actions of [the State] authorities. The Constitutional Court never rendered a decision finding that the Government Decision on the recovery was unconstitutional or contrary to primary legislation, nor did it [invalidate] that Decision. ... [T]herefore by implementing [it], the State did not act unlawfully. Since one of the general requirements for tort liability under section 154(1) of the Obligations Act was therefore not met, it was unnecessary to examine whether other requirements set out in the Obligations Act or specific legislation governing State liability were satisfied. For these reasons, the appeal on points of law has to be dismissed.” Other relevant practice 36.     In decision no. U-III-3471/2003 of 16 March 2006, which was published in Official Gazette no. 43/06 of 19 April 2006, the Constitutional Court dismissed a constitutional complaint lodged by Miljenko Kovač (see   paragraphs 48 and 51-52 below), a former shareholder of Croatia Bank, against judgments of the lower courts dismissing his civil action for unjust enrichment against the bank. The relevant part of that decision reads as follows: “The complainant considers that his constitutional rights guaranteed by Article 48 §   1, Article 49 §§ 1, 2 and 4 and Article 50 of the ... Constitution were breached by the judgment of the Bjelovar County Court at issue. He points out that he purchased ordinary shares in the value of HRK 37,200.00 from the defendant bank and that, by the [Government Decision] of 23 September 1999 on the recovery and restructuring of Croatia Bank, he was deprived of ownership of those shares. The complainant alleges that by that Decision he ... lost his shares, while the defendant bank kept the amount paid for the shares purchased. He considers this to be a clear example of unjust enrichment. ... The complainant in the constitutional complaint alleges a violation of Article 48 § 1 of the Constitution, which guarantees the right of ownership, and explains that that constitutional right was breached because by the Government Decision, he lost his right of ownership to the disputed shares. ... In the present case, the complainant’s membership rights, which belonged to him as a shareholder, were extinguished by the cancellation of the shares. Given ... that the Government Decision [cancelling] the complainant’s shares is subordinate legislation enacted on the basis of the relevant provisions of the [1994] Recovery and Restructuring of Banks Act, and within the powers prescribed by that Act, the Constitutional Court finds that the provision of Article 48 § 1 of the Constitution was not violated in the present case. ... Section 90 of the Banks Act provides that the Government of Croatia may, on a proposal from the Croatian National Bank, decide to initiate bank recovery proceedings if it considers it to be of specific interest to the State and if other options for preventing the disruption of the stability of the country’s overall financial system have been exhausted. The Government Decision on the recovery and restructuring of Croatia Bank was adopted on the basis of the [1994 Recovery and Restructuring of Banks Act] and on a proposal from the Croatian National Bank, which considered that the recovery process was possible and economically justified. The bank recovery process is not carried out to protect the interests of shareholders, but to protect specific State interests and prevent disruption of the stability of the country’s overall financial system. In view of the above ... the Constitutional Court finds that the judgment at issue did not violate the complainant’s rights guaranteed by Articles 49 § 4 and 50   §   2 of the Constitution.” THE LAW ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION ON ACCOUNT OF THE LACK OF ACCESS TO COURT AND OF ARTICLE 1 OF protocol nO. 1 THERETO 37.     The applicant company complained that, on the basis of the Government Decision of 23 September 1999 (see paragraph 8 above), it had been deprived of its shares without good reason or compensation. In particular, the applicant company complained that the decision in question had been unconstitutional and that the domestic courts had refused to examine its conformity with the Constitution, and consequently, to examine whether it had been justified. The applicant company relied on Article 1 of Protocol No. 1 to the Convention, which reads as follows: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. 38.     Being master of the characterisation to be given in law to the facts of the case (see Guerra and Others v. Italy , 19 February 1998, § 44, Reports 1998‑I, and Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, § 124, 20 March 2018), and having regard to its case-law (see   Capital Bank AD v. Bulgaria , no. 49429/99, §§ 98-166, ECHR 2005 XII (extracts)), the Court, when giving notice of the application to the respondent Government, considered that this complaint should also be examined under Article 6 § 1 of the Convention as an access-to-court complaint. The relevant part of that Article reads as follows: “In the determination of his civil rights and obligations ... everyone is entitled to a fair ...hearing within a reasonable time by [a] ... tribunal ...” Admissibility Submissions by the parties 39.     The Government disputed the admissibility of the complaint under Article 1 of Protocol No. 1 to the Convention, arguing that the applicant company had not properly exhausted domestic remedies. 40.     They argued that the applicant company had had an effective remedy for the protection of its constitutional and Convention rights but had instituted incorrect civil proceedings in which its crucial complaint concerning a violation of its constitutional rights had not and could not have been examined. 41.     The Government submitted that once the recovery and restructuring process of Croatia Bank initiated by the Government Decision of 23   September 1999 had been completed on 13 September 2000 (see   paragraph 8 above), and after the Constitutional Court had on   30   January 2003 discontinued the proceedings to review the constitutionality and legality of that Decision (see paragraph 11 above), its legal effects had become irreversible. The former shareholders, who had considered that their rights had been violated, could have only sought compensation from the State under the general rules of civil and company law. However, the applicant company had not brought a civil action against the State but against the bank and DAB, and had not sought compensation but restitution of its shares (see paragraph 13 above), which had been impracticable because the shares had been cancelled and had no longer existed. 42.     In its observations, the applicant company referred to the arguments it had raised in its application to the Court, contested in general terms the Government’s arguments and submitted that they did not cast any doubt on the admissibility of this complaint. The Court’s assessment (a)    The applicant company’s victim status 43.     The Government did not raise an objection concerning the applicant company’s victim status. However, the issue whether an applicant can claim to be a victim of the violation complained of is a matter which goes to the Court’s jurisdiction, and which the Court must thus examine of its own motion (see Buzadji v. the Republic of Moldova [GC], no. 23755/07, § 70, ECHR 2016 (extracts), and A and B v. Croatia , no. 7144/15, § 88, 20 June 2019). 44.     Having regard to its case-law (see Albert and Others v. Hungary [GC], no. 5294/14, §§ 119-169, 7 July 2020), the Court considers that in the present case it must itself examine whether the applicant company, as a former shareholder of Croatia Bank, can claim to be a victim of the alleged violation of Article 1 of Protocol No. 1 (see paragraph 37 above). 45.     When it comes to cases brought by shareholders of a company, it is crucial to draw a distinction between complaints brought by shareholders about measures affecting their rights as shareholders and those about acts affecting companies, in which they hold shares (see Albert and Others , cited above, § 122, and the cases cited therein). In the former group, shareholders themselves may be considered victims whereas in the latter group the general principle is that shareholders of companies cannot be seen as victims within the meaning of Article 34 of the Convention (see Albert and Others , cited above, §§ 123-124). For shareholders to be able to claim to be the victims the impugned measures or acts must impact their legal rights both di