CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 2 mars 2023

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margin-left:15.01pt; margin-bottom:3pt; text-align:justify; padding-left:1.99pt; font-family:Arial } .s2D9C6089 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s69DCC830 { margin-top:36pt; margin-bottom:0pt } .sC986E16F { font-family:Arial; color:#ffffff } .s8773B649 { width:25.2pt; display:inline-block } .sB81C5FD1 { width:141.42pt; display:inline-block } .s5A65B3DC { width:46.56pt; display:inline-block } .s44B8752F { width:177.11pt; display:inline-block } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right } .s4BAE41EE { font-family:Arial; font-size:11pt } .s434D37A9 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s44D84940 { page-break-before:left; clear:both; mso-break-type:section-break } .s37CDBE05 { margin-top:0pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid } .sD00444C6 { margin-top:0pt; margin-bottom:14pt } .s75A32C27 { border-collapse:collapse } .s3695F815 { border:0.75pt solid #949494; padding:1.02pt 5.03pt; vertical-align:top; background-color:#dfdfdf } .s2EF62ED2 { margin-top:0pt; margin-bottom:0pt; font-size:12pt } .sEECE831 { font-family:Arial; font-weight:bold; color:#474747 } .sE8934522 { border:0.75pt solid #949494; padding:1.02pt 5.03pt; vertical-align:top }   FIRST SECTION CASE OF CROATIAN RADIO-TELEVISION v. CROATIA (Applications nos. 52132/19 and 19 others)   JUDGMENT Art 34 •   Locus standi • Legislative framework sufficiently guaranteeing public broadcasting organisation’s editorial independence and institutional autonomy to qualify as a “non-governmental organisation” • Not exercising “governmental powers” and not established “for public-administration purposes” Art 6 § 1 (civil) • Fair hearing • Divergent domestic courts’ decisions in applicant’s actions for unjust enrichment overcome by adequate machinery applied through Supreme Court’s decisions providing guidance to ensure uniform application of relevant substantive law   STRASBOURG 2 March 2023   FINAL   02/06/2023   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Croatian Radio-Television v. Croatia, The European Court of Human Rights (First Section), sitting as a Chamber composed of:   Marko Bošnjak , President ,   Péter Paczolay,   Krzysztof Wojtyczek,   Alena Poláčková,   Erik Wennerström,   Raffaele Sabato,   Davor Derenčinović , judges , and Renata Degener, Section Registrar, Having regard to: the applications (nos.   52132/19 and 19 others, see appendix) 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 Croatian Radio-Television (“the applicant institution”), on various dates indicated in the appended table; the decision to give notice to the Croatian Government (“the Government”) of the complaints concerning divergent case-law and access to the Constitutional Court, and to declare inadmissible the remainder of the applications; the parties’ observations; Having deliberated in private on 28 June 2022 and 31 January 2023, Delivers the following judgment, which was adopted on the last ‑ mentioned date: INTRODUCTION 1.     The case concerns divergent decisions of domestic courts in twenty sets of civil proceedings regarding unjust enrichment which the applicant – a national radio and television broadcasting institution – instituted against various individuals to whom one of its employees had paid fees on its behalf for work they had never performed. THE FACTS 2.     The applicant institution, Croatian Radio-Television, is a Croatian public broadcasting organisation which has its seat in Zagreb. Under Croatian law its legal status is that of a public institution ( javna ustanova ), that is, of a non-membership, non-profit legal entity. It was represented by Ms N. Owens, a lawyer practising in Zagreb. 3.     The Government were represented by their Agent, Ms Š. Stažnik. 4.     The facts of the case may be summarised as follows. EVENTS GIVING RISE TO THE DISPUTE 5 .     In October 2009 an internal audit discovered that a certain A.K., an employee in the applicant institution’s finance department, had paid fees for external translation services on behalf of the applicant institution to 176   individuals who had never performed those services. It transpired that those individuals had been contacted by A.K. directly or through an intermediary, a certain M.P., who was also an employee of the applicant institution where he worked as a technician. All payments had been duly processed through the information technology and accounting systems of the applicant institution and deposited in the accounts of the fictitious external contractors. They then returned the sums paid to A.K. or M.P., keeping around 5% of the sums received as a commission. 6 .     In that way the applicant institution lost around 7,500,000 Croatian kunas (HRK), that is, approximately 995,421   euros (EUR). 7.     A.K. was summarily dismissed and the applicant institution lodged a criminal complaint against him. He died soon afterwards, in early 2010. No criminal proceedings were instituted against him. 8 .     In 2010 and 2011 the applicant institution brought more than a hundred civil actions for enrichment without cause (“unjust enrichment”) against various individuals who had received the above-mentioned payments. 9 .     In approximately half of those cases, the domestic courts ruled in its favour, whereas in the other half they ruled for the defendants, depending on which second-instance court had decided the case. Specifically, the applicant institution submitted that all of the cases examined on appeal by the Zagreb County Court or the Pula County Court had ended in those courts ruling against it. 10 .     The domestic courts which ruled in favour of the applicant institution applied the general rule on unjust enrichment set out in section 1111(1) of the Obligations Act (see paragraph 73 below). They also held that in the given circumstances there was no room for applying the exception set out in section   1112(1) of that Act – which provides that restitution cannot be sought if the person who made the payment knew that nothing was owed (see   paragraph 73 below) – because the defendants had received the funds in bad faith, that is, in full knowledge that there had been no legal basis for the payments. Those courts considered it irrelevant whether A.K. had been authorised to act for and/or on behalf of the applicant institution. 11 .     On the other hand, the domestic courts which found against the applicant institution applied the exception set out in section 1112(1) of the Obligations Act (see paragraph 73 below). They held that A.K., at least in the eyes of the defendants, had had the authority to make the payments in issue on behalf of the applicant institution. Therefore, the applicant institution had known or ought to have known that it had been paying something it had not been liable to pay. PROCEEDINGS IN THE PRESENT CASES Proceedings before the first and second-instance courts 12 .     The present cases concern twenty sets of civil proceedings, eighteen of which were conducted at first instance before the Zagreb Municipal Court and the remaining two before the Pula Municipal Court and the Sesvete Municipal Court respectively. In five of those twenty cases, municipal courts gave judgments in favour of the applicant institution. 13 .     Of these twenty cases, nineteen were examined on appeal by the Zagreb County Court and one by the Pula County Court. In all of those cases, those county courts, in judgments adopted in the period between 15   January 2013 and 22 September 2015, ruled for the defendants. 14 .     Subsequently, in each of those twenty cases, the applicant institution concurrently lodged (a) an extraordinary appeal on points of law ( izvanredna revizija ), a remedy provided in section 382(2) of the Civil Procedure Act for ensuring the uniformity of case-law (see paragraph 71 below), and (b) a constitutional complaint. Proceedings before the Supreme Court 15 .     In its appeals on points of law, the applicant institution argued that the outcome of the proceedings depended on the resolution of certain points of law which were important for ensuring the uniform application of the law because in respect of those points there was conflicting case-law of the second instance courts. It also provided examples of that conflicting case-law. 16 .     In one of those twenty cases (application no. 62358/19), the Supreme Court found the applicant institution’s extraordinary appeal on points of law admissible but dismissed it on the merits. In that case, the applicant institution had raised the following point of law in the form of a question: “Can it be concluded, solely from the indisputable fact that the payment was made without a legal basis, that the person who made the payment knew that he or she was paying something that was not owed, within the meaning of section 1112 of the Obligations Act, or that [that situation] amounts to unjust enrichment as defined in section   1111(1) of [that Act]?” 17 .     The Supreme Court, in decision no. Rev-1660/13-2 of 10 October 2017, considered that point of law important for the uniform application of the law and provided the following answer, explaining the rationale behind the exception set out in section 1112 of the Obligations Act: “Section 1111 of the Obligations Act contains the general rule on unjust enrichment ... Section 1112 of the Obligations Act ... regulates the situation in which the acquirers are entitled to refuse the return of what they acquired ... Since the transfer of the property of the impoverished party into the property of the acquirer occurs precisely by an action of the impoverished party (by making a payment), the conscious payment of something that was not owed is in principle qualified as a gift. Therefore, the impoverished parties in a civil action [for unjust enrichment] based on the payment of something that was not owed must prove [that] payment [took place], the absence of a debt and, possibly, their error, and, if there was no error ..., they must prove that they retained the right to a refund, that they paid to avoid duress or that the payment of the debt depended on the fulfilment of [certain] conditions. Therefore, the answer to the questions raised is that in the situation of the payment of something that was not owed, section 1112 of the Obligations Act applies. The burden of proving ... the exceptions specified in section 1112 of the Obligations Act, namely that ... the payment was made without knowing that nothing was owed, is on the impoverished person – the plaintiff. [In the present case] the lower courts, by properly applying the rules on the burden of proof, correctly applied the substantive law, [namely] section 1112 of the Obligations Act, to the established facts ... in finding the claim unfounded.” 18 .     In the remaining nineteen cases, in decisions adopted in the period between 31 October 2017 and 27 March 2019, the Supreme Court declared inadmissible the applicant institution’s extraordinary appeals on points of law because the points raised were not important for ensuring the uniform application of the law. It emphasised that the points of law raised had to be of a general nature, so that the legal view taken regarding that point could be applied in the future in an unlimited number of cases. In the absence of such a point of law of a general nature, a mere reference to decisions where other courts had ruled differently could not render the point of law raised important and, consequently, an extraordinary appeal on points of law admissible. More specifically, in the nineteen cases in question, the Supreme Court declared the applicant institution’s extraordinary appeals on points of law inadmissible for one or more of the following reasons: –     because the resolution of the point of law had clearly and unambiguously followed from the relevant provisions, the application of which depended on the factual and legal circumstances of each case; –     because the points of law raised had been based on the factual circumstances of the specific case, which meant that those points could only be relevant for the correct application of the law in that case but not for ensuring the uniform application of the law; and –     because the points of law raised had been based on assumptions that had not corresponded to the findings of facts of the lower courts, which meant that those points had not been decisive for the outcome of the case. Proceedings before the Constitutional Court 19 .     The Constitutional Court ( Ustavni sud Republike Hrvatske ) declared inadmissible the applicant institution’s constitutional complaint in each of the twenty cases (see paragraph 14 above). Relying on section 72 of the Constitutional Court Act (see paragraph 70 below), the court held that the applicant institution – as a public institution closely organisationally and functionally connected with the State – could not be considered a bearer of the rights guaranteed by the Constitution and thus it did not have standing to lodge a constitutional complaint. The Constitutional Court also relied on the Court’s decision in the case of JKP Vodovod Kraljevo v. Serbia ((dec.), nos.   57691/09 and 19719/10, 16   October 2018) and on the decision of the former European Commission of Human Rights in the case of RENFE v.   Spain (no. 35216/97, Commission decision of 8   September 1997, Decisions and Reports (DR)   90 ‑ B, p. 179). 20 .     That reasoning reflected a significant shift in the Constitutional Court’s case-law as regards the locus standi of public entities from an earlier, rather permissive, approach to a new, more restrictive, one, which occurred in March 2015 with decision no. U-III-2119/2010 in the case concerning the Croatian Health Insurance Fund. Despite that change in its case-law, in 2017 the Constitutional Court nevertheless examined a constitutional complaint lodged by the applicant institution on the merits. It would appear that it was only in its first decision in the present cases, which was adopted on   26   February 2019, that the Constitutional Court, sitting in a plenary session, decided to extend its new case-law to the applicant institution as a public broadcasting organisation. The relevant part of that decision reads as follows: “3.     ... the complainant is a legal entity which has the status of a public institution whose activities, function and content of the public services [it provides], funding, management, supervision and manner of operation are regulated by the Croatian Radio ‑ Television Act ... and [subordinate] legislation enacted on its basis. The complainant’s founder is the [State], and the founders’ rights are exercised by the Government of Croatia. The complainant ... provides public broadcasting services and the [State] provides it with independent and autonomous funding in accordance with the Croatian Radio ‑ Television Act and the rules on State aid for public broadcasting services. ... 6.     The Constitutional Court notes that even though public authorities [can] be parties to proceedings before courts, this does not automatically mean that they [can] also be holders of ... constitutional rights ... ... 7.1.     In [decision no. U-III-2119/2010 concerning] the Croatian Health Insurance Fund, the Constitutional Court, harmonising its position on public entities as complainants [before it], ... changed its previous practice and took a more restrictive approach regarding the locus standi of institutions whose main activity is providing public services ... [It] was pointed out that, since the [State] is not entitled to lodge a constitutional complaint because, by the nature of things, a [decision] cannot violate its human rights and fundamental freedoms, an institution (a public authority) whose founder is the [State] and which is closely organisationally and functionally connected with [its] founder in providing the public service, is not entitled to lodge a constitutional complaint either. 8.     The above views are also applicable to the complainant. Since the complainant is a public institution organisationally, functionally and financially connected with the [State], the Constitutional Court finds that ... the complainant cannot be the holder of ... constitutional rights and does not have locus standi to lodge the constitutional complaints in question. 8.1.     In the present case the case-law of the European Court of Human Rights in the case of JKP Vodovod Kraljevo v. Serbia ((dec.), nos. 57691/09 and 19719/10, 16   October 2018) and of the European Commission in the case of Spanish Railways – RENFE v. Spain (no. 35216/97, Commission decision of 8 September 1997, DR 90-B) is also relevant. 9.     The relevant part of section 72 of the Constitutional Court Act reads: Section 72 ‘The Constitutional Court shall by a decision declare the constitutional complaint inadmissible ... if the complaint was lodged by a legal entity which cannot be a holder of constitutional rights.’ 10.     Given that the complainant’s constitutional complaint in the present case is inadmissible on the basis of section 72 of the Constitutional Court Act, it was decided as stated in the operative provisions.” 21.     One of the judges of the Constitutional Court submitted a dissenting opinion, and one submitted a concurring opinion. 22.     The judge who submitted the dissenting opinion stated that the conditions governing individual applications under the Convention were not necessarily the same as national criteria relating to locus standi . National rules in this respect could serve purposes different from those contemplated by Article 34 of the Convention and, while those purposes could sometimes be analogous, they need not always be so. He relied on the Court’s judgments in the cases of A.K. and L. v. Croatia (no. 37956/11, § 46, 8 January 2013) and Norris v. Ireland (26 October 1988, § 31, Series A no. 142). The judge in question referred in addition to Radio France and Others v. France ((dec.), no. 53984/00, ECHR 2003 ‑ X (extracts)) and Österreichischer Rundfunk v.   Austria (no. 35841/02, 7   December 2006), where the Court had held that those public broadcasting organisations were non-governmental organisations within the meaning of Article 34 of the Convention because the Austrian and French States had devised a legislative framework designed to guarantee their editorial independence and institutional autonomy. He then pointed out that the applicant institution did not exercise any public powers and that its editorial independence was guaranteed by the law. He therefore concluded that the Constitutional Court’s approach adopted in the applicant institution’s case had been more restrictive than that of the Court and that it had unnecessarily restricted access to the Constitutional Court. 23.     The judge who submitted the concurring opinion stated that in the applicant institution’s case he would have been ready to make an exception to the general rule that legal entities which were closely organisationally, functionally and financially connected with the State did not have locus   standi to lodge a constitutional complaint. He would have been willing to do so because Croatian Radio-Television had been conceived and established by law as a public broadcasting service. In order to fulfil that role, the applicant institution had, according to the Croatian Radio-Television Act, to “respect the highest professional standards and ethical principles as well as professionally recognised standards of independent journalism” (see   paragraph 53 below). However, in that judge’s view: “... the practice of disciplining its own (and other) journalists by bringing lawsuits [against them] does not seem to fit into ‘the highest ethical principles’ and certainly negatively affects ‘the standards of independent journalism’. Since, in my opinion, in view of the above, Croatian Radio-Television does not act as a public service, it does not deserve to be exempted from [the general rule on the locus standi of public entities] according to the above criterion. If Croatian Radio-Television brings its activities in line with its statutorily conceived role, in future cases I will be ready to reconsider [my] view ...” OTHER RELEVANT FACTS 24 .     In a number of cases stemming from the same events (see   paragraphs   5-6 above), in which the first and/or the second-instance courts had ruled in favour of the applicant institution, the Supreme Court allowed extraordinary or ordinary appeals on points of law lodged by the defendants. It held that the points raised in those extraordinary appeals were important for the uniform application of the law. It then quashed the contested judgments and remitted the cases to the first-instance courts, as it found that the lower courts had failed to establish some important facts such as: whether A.K. had been authorised by the nature of his job or otherwise to make the disputed payments and who had eventually received the money paid back by the defendants to A.K. and M.P. (see paragraph 5 above) (them or the applicant institution). Specifically, the Supreme Court adopted those decisions in cases nos. Rev-2800/15-5 of 3 November 2016, Rev-650/14-2 of 4 October 2017, Rev-1892/14-2 of 6 December 2017, Rev-124/2014-2 of 18   September 2018, Rev-2828/2015-2 of 4 December 2018, Rev ‑ 1380/2016 ‑ 2 of 27 August 2019, Rev-1905/2016-2 of 12 May 2020 and Rev-1365/2017-2 of 1 July 2020. 25 .     Following the Supreme Court’s decision in one of those cases, namely case no. Rev-1380/2016-2, on 4 January 2021 the Zagreb Municipal Civil Court, in the resumed proceedings, adopted a judgment ruling against the applicant institution. In line with the Supreme Court’s instructions (see the previous paragraph), the Municipal Court established that A.K. had been authorised by the nature of his job to make the disputed payments and that the money had never been paid back to the applicant institution. The Municipal Court thus concluded that the applicant institution had known that it had been paying something that was not owed, which meant that the conditions for the application of the exception set out in section 1112(1) of the Obligations Act had been met (see paragraphs 11 above and 73 below). It therefore dismissed the applicant institution’s action. That first-instance judgment, following a subsequent appeal, was upheld by the Zadar County Court on 23   March 2021. On 25   August 2021 the Supreme Court refused the applicant institution’s petition to be granted leave to lodge an appeal on points of law (see paragraph 72 below). 26 .     In decisions nos. Rev-300/14-2 of 13 March 2018, Rev-2877/2014-2 of 15 January 2019 and Rev-2775/2015-2 of 22 January 2019 the Supreme Court allowed extraordinary appeals on points of law, and in decision no.   Rev-2309/15-2 of 29 May 2018 an ordinary appeal on points of law lodged by the applicant institution, quashed the contested judgments and remitted the cases to the first-instance courts. In those cases, the Supreme Court held that the lower courts had not given sufficient reasons for their finding that the applicant institution had made the disputed payments knowing that nothing had been owed. 27 .     In decisions nos. Rev-1073/13-4 of 23 April 2014, Rev-2321/14-7 of 27 October 2015 and Rev-2616/2019-2 of 12 September 2019 the Supreme Court declared inadmissible extraordinary appeals on points of law lodged by the defendants because the appeals did not meet the formal requirements for lodging that remedy set out in section 382(3) of the Civil Procedure Act (see   paragraph 71 below). In decision no. Rev-1415/2016-2 of 10 June 2020 the Supreme Court declared inadmissible such an appeal on points of law lodged by the applicant institution, holding that the points of law raised were not important for ensuring the uniform application of the law because they had been based on the factual circumstances of that case. In decision no.   Revd-2141-2020-2 of 15 September 2020 the Supreme Court declared inadmissible a petition in which the applicant institution had asked that it be granted leave to lodge an appeal on points of law (see paragraph 72 below). It held that the points of law raised were not important for ensuring the uniform application of the law because they had been based on the factual circumstances of that case and on assumptions that had not corresponded to the factual findings of the lower courts. RELEVANT LEGAL FRAMEWORK DOMESTIC LAW The Constitution 28 .     The relevant Articles of the Croatian Constitution ( Ustav Republike Hrvatske , Official Gazette no. 56/90 with subsequent amendments) read as follows: Article 38 “1.     Freedom of thought and expression shall be guaranteed. 2.     Freedom of expression shall include, in particular, freedom of the press and other media, freedom of speech and [the freedom] to speak publicly, and the free establishment of all media institutions. 3.     Censorship shall be forbidden. Journalists shall have the right to freedom of reporting and access to information. ...” Article 116 § 1 “The Supreme Court of the Republic of Croatia, as the highest court, ensures the uniform application of the law and the equality of all in its application.” Media legislation The Media Act 29.     The Media Act ( Zakon o medijima , Official Gazette no. 59/04 with further amendments), which has been in force since 18 May 2004, sets out preconditions for, inter alia , the exercise of the rights to freedom of the media, journalistic freedom and access to public information, the rights and obligations of publishers, the transparency of the ownership of media institutions and competition in the media sector. 30 .     Section 3(1) guarantees freedom of expression and freedom of the media. 31 .     Section 3(2) specifies that freedom of the media comprises, in particular: freedom of expression, the independence of the media, freedom to collect, seek, publish and disseminate information for the purpose of informing the public, the pluralism and diversity of the media, the free flow of information and openness of the media to different opinions, beliefs and various content, the availability of public information, respect for the protection of human personality, privacy and dignity, the freedom to establish media institutions, the printing and distribution of press and other media from within the country and abroad, the production and broadcasting of radio and television programmes as well as other electronic media, and the independence of editors, journalists and other authors. 32 .     Section 5 provides for the obligation of the State to promote and protect the pluralism and diversity of the media. 33.     Section 35 provides that rules for the protection of market competition apply to publishers, legal persons engaged in media distribution, and other legal persons performing activities related to informing the public. The Electronic Media Act 34 .     The Electronic Media Act of 2009 ( Zakon o elektroničkim medijima , Official Gazette no. 153/09 with subsequent amendments), which was in force between 30 July 2013 and 21 October 2021, regulated the rights, obligations and responsibilities of legal and natural persons providing broadcasting and electronic publication services via electronic communication networks, and the State interest in the field of the electronic media. 35 .     Section 3 guaranteed the rights to freedom of expression and full programming freedom of the electronic media, and provided that no provision of that Act could be construed as allowing censorship or restricting freedom of speech or freedom of expression. 36 .     Section 7 provided that the media service provider independently created the programming policy of the media and was responsible for publication of the programmes. 37 .     Section 28 provided that State authorities and their representatives, as well as trade unions and various interest groups, must not influence television or radio broadcasters as regards the creation of television or radio programmes. 38 .     Section 35 provided that political parties and coalitions could not sponsor television or radio programmes, except during election campaigns in accordance with separate legislation. 39.     Section 65 provided that the rules on the protection of market competition applied to providers of media services and that the rules on State subsidies applied to subsidies granted under that Act. 40.     On 22 October 2021 the new Electronic Media Act ( Zakon o elektroničkim medijima , Official Gazette no. 111/21 with subsequent amendment), which regulates the same matters as the 2009 Electronic Media Act (see paragraph 34 above), came into force. Its sections 4, 9, 32, 41 and 72 correspond to the above-cited sections 3, 7, 28, 35 and 65 of the 2009 Electronic Media Act. 41 .     The 2009 Electronic Media Act established the Electronic Media Agency, an independent legal entity vested with public powers. Its organisation and powers were regulated in the same way in the old and the new Electronic Media Act. The Agency’s governing bodies are the Director and the Electronic Media Council. The chairman of the Electronic Media Council is the Director of the Agency. The statute of the Agency must be approved by the Croatian Parliament. Section 73(3) of the 2021 Electronic Media Act prohibits any form of influence on the work of the Agency which could jeopardise its autonomy or independence. 42 .     The Electronic Media Council is the regulatory authority in the electronic media sector whose role is to monitor the application of the Electronic Media Act. The Council has seven members who are appointed (for a single term of five years) and dismissed by the Croatian Parliament on a proposal by the Government of Croatia after a public call. State officials or officials in the executive branch of government and officials in political parties or trade unions cannot be members of the Council. Likewise, the members of the Council must not own, hold shares in or be directors, managers or members of governing bodies of legal entities (media institutions) to which the Electronic Media Act applies or be in an employment, a contractual or any other legal relationship with those entities which could expose them to a conflict of interests. 43 .     Members of the Council can be removed before their term expires on a limited number of grounds (listed in section 68(11) of the 2009 Electronic Media Act and section 76(14) of the 2021 Electronic Media Act). The Croatian Radio-Television Act (a)    The Croatian Radio-Television Act 44 .     The legal status of Croatian Radio-Television is regulated by the Croatian Radio-Television Act ( Zakon o Hrvatskoj radioteleviziji , Official Gazette no. 137/10 with further amendments) which has been in force since 8 December 2010. 45 .     Section 1(2) provides that Croatian Radio-Television is a public institution whose founder is the State. The founders’ rights are exercised by the Government of Croatia. 46 .     Section 1(3) provides that in carrying out its activities, Croatian Radio-Television is to be independent of any political influence or pressure from promoters of commercial interests. 47 .     Section 1(5) provides that the Electronic Media Act applies to Croatian Radio-Television, unless the Croatian Radio-Television Act provides otherwise. 48 .     Section 3 provides that the activities of Croatian Radio-Television are the production as public services of radio, audio-visual and multimedia programmes, music production, provision of audio and audio-visual media services, multimedia services and electronic publication services. Those activities are carried out, inter alia , by broadcasting two national, general, terrestrial television programme channels and two national, specialised, digital television programme channels, and by broadcasting three national terrestrial radio programme channels. 49.     In addition to the public services set out in section 3, Croatian Radio ‑ Television also carries out certain commercial activities listed in section 4 of the Act. 50 .     Its public-service mission is reflected in its programming principles. In accordance with section 5, in its programmes Croatian Radio-Television must satisfy the interests of the public at the national, regional and local levels and ensure an appropriate representation of news, artistic, cultural, educational, children’s, entertainment, sports and other content. 51 .     Under section 6, in its programmes Croatian Radio-Television must: –     promote national interests, contribute to the respect and promotion of fundamental human rights and freedoms, patriotism, tolerance, understanding and respect for diversity, democratic values and institutions, civil society, and the promotion of a culture of public dialogue; and –     respect the privacy, dignity, reputation and honour and the fundamental rights and freedoms of others, especially children and young people, as well as the elderly and the infirm. 52 .     Section 7(1) provides that Croatian Radio-Television must, inter alia : –     continually, accurately, completely, impartially and in a timely manner inform the public about current affairs; –     respect and encourage the pluralism of political, religious, philosophical and other ideas and enable the public to be acquainted with these ideas, and must not in its programmes advocate the views or interests of a particular political party, or of any other particular political, religious, philosophical or other views or interests; and –     impartially address political, economic, social, religious and other issues, enabling equality in the expression of views from different sources. 53 .     Section 7(2) provides that in its programmes Croatian Radio ‑ Television must adhere to the highest professional standards and ethical principles as well as professionally recognised standards of independent journalism. 54 .     Section 13 provides that the programming obligations of Croatian Radio-Television referred to in the Act and the amount and source of funds to finance them is determined by an agreement with the Government of Croatia concluded for a period of five years, which contains the type, scope and content of all public services provided by Croatian Radio-Television under the Act. 55 .     Under section 18 the governing bodies of Croatian Radio-Television are: the Director General, the Board of Directors, the Supervisory Board and the Programming Council. 56 .     Under section 19a(3) the Director General is appointed (for a term of five years) and removed by the Croatian Parliament by a majority vote of all the members of parliament (MPs). Under section 20(7) the proceedings for removal of the Director General are instituted by the Supervisory Board but the body which is entitled to lodge a formal motion for removal is the Parliament’s Committee for Information, Computerisation and the Media. Under section 20(3) the roles of Director General and editor-in-chief are incompatible with any duty in State or local government bodies or in the governing bodies of political parties. 57.     Section 21a provides that the Board of Directors is composed of the Director General and the directors of Croatian Radio-Television’s organisational units. According to its statute, Croatian Radio-Television has four organisational units whose directors are appointed by the Director General for a term of five years. 58 .     In accordance with section 22a(1) the Supervisory Board has five members. Four members of the Supervisory Board are appointed and removed by the Croatian Parliament by a majority vote of all MPs on the basis of a public competition organised by the Parliament’s Committee for Information, Computerisation and the Media, which proposes their appointment. One member of the Supervisory Board is a representative of employees who is appointed and dismissed in accordance with other provisions of the Act and the relevant employment legislation. 59.     Section 23 provides that the Supervisory Board, inter alia : –     adopts the statute of Croatian Radio-Television on a proposal by the Director General and with the approval of the Croatian Parliament; and –     adopts the work programme of Croatian Radio-Television on a proposal by the Director General and after previously obtaining the opinion of the Programming Council. 60 .     Section 24 provides that the role of the Programming Council is to represent and protect the interests of the public by monitoring and improving programme and other broadcasting and multimedia services. Under section   25 the Croatian Parliament appoints and removes nine of the eleven members of the Programming Council. The appointment of those members is based on a public call published and organised by the Parliament’s Committee for Information, Computerisation and the Media. The remaining two members of the Programming Council are appointed and removed by journalists and other employees of Croatian Radio-Television. 61.     Section 25 also provides that in the appointment of the members of the Programming Council, account must be taken of philosophical and other types of pluralism in Croatian society. State officials or persons holding positions in the governing bodies of political parties or local government bodies cannot be members of the Programming Council. 62 .     Section 17 of the Act provides that Croatian Radio-Television is independent in its operation. That independence is to be achieved: –     by carrying out its activities independently and in application of its independent programming and editorial policy, especially in the planning and production of programmes and the establishment of the programming schedule; and –     through the independent and stable financing of its public-service activities. The independence of Croatian Radio-Television is also reflected in its right to regulate: –     its internal affairs and organisation, in accordance with the provisions of the Croatian Radio-Television Act; and –     employment-related issues, in accordance with the law and the collective agreements. 63 .     Section 33 defines Croatian Radio-Television’s sources of income. Its revenue comes from its commercial activities and from public funds, namely from a monthly licence (user) fee which can be up to 1.5% of the average monthly net salary in Croatia. The level of the fee is set every year by the Supervisory Board of Croatian Radio-Television and is levied on every household and business owning a radio or television set. More than 85% of Croatian Radio-Television’s annual revenue comes from the licence fee. 64 .     Section 21(1)(4) and section 36(1) entitle the Director General to adopt subordinate legislation regulating payment of the monthly licence fee. 65 .     Section 37 limits the duration of promotional messages in each television or radio programme to nine minutes per hour, or four minutes per hour in the period between 6 and 10 p.m. It also provides that feature films may be interrupted with promotional messages only once during the duration of the film. 66 .     Section 44 of the Act provides that the operation of Croatian Radio ‑ Television and the application of the Act is to be supervised by the Electronic Media Council, an independent regulatory authority established by the Electronic Media Act (see paragraphs 41-43 above). 67 .     Sections 47 and 48 provide that not registering or using a deregistered radio or television set constitutes a minor offence punishable by a fine. (b)    Decision on the control of payment of the monthly licence fee and deregistration of radio and television sets 68 .     On the basis of section 21(1) subparagraph 4 and section 36(1) of the Croatian Radio-Television Act (see paragraph 64 above), on 18 June 2019 the Director General adopted a decision on the control of payment of the monthly licence fee and deregistration of radio and television sets ( Odluka o kontroli plaćanja mjesečne pristojbe i načinu odjave prijamnika ). On   30   November 2020 the High Administrative Court reviewed the compatibility of the decision with primary legislation and invalidated some of its provisions. 69 .     The decision entitles the applicant institution to (a) institute relevant proceedings before courts for minor offences defined by the Croatian Radio ‑ Television Act (see paragraph 67 above); (b) collect certain data against the will of persons concerned with a view to establishing whether they own a radio or television set; and (c) control the payment of the licence fee directly, through its own services for control and payment. Other legislation Constitutional Court Act 70 .     The relevant provision of the Constitutional Act on the Constitutional Court of the Republic of Croatia ( Ustavni zakon o Ustavnom sudu Republike Hrvatske , Official Gazette of the Republic of Croatia no.   99/99 with subsequent amendments – “the Constitutional Court Act”) reads as follows: Section 72 “The Constitutional Court shall by a decision declare the constitutional complaint inadmissible ... if the complaint was lodged by a legal entity which cannot be a holder of constitutional rights.” Civil Procedure Act 71 .     The relevant provisions of the Civil Procedure Act ( Zakon o parničnom postupku , Official Gazette of the Socialist Federal Republic of Yugoslavia no. 4/77 with subsequent amendments, and Official Gazette of the Republic of Croatia no. 53/91 with subsequent amendments), which has been in force since 1 July 1977, read as follows at the material time: 1.     Appeal on points of law Section 382 “(1)     Parties may lodge an appeal on points of law [ revizija ] against a second-instance judgment: –     if the value of the subject matter of the dispute concerning the contested part of the judgment exceeds HRK 200,000; –     [in certain employment disputes]; or –     if the second-instance judgment was adopted in accordance with section 373a or 373b of this Act [that is, if the second-instance court as