CEDH · CASELAW;DECISIONS;ADMISSIBILITYCOM;ENG — 16 avril 2024

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s2EF17D91 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s5FFF0A77 { margin-top:0pt; margin-bottom:0pt; font-size:1pt } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sB9D5CABB { width:28.35pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .s3AAE10DF { margin-top:14pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s3CA22BA { font-family:Arial; text-transform:uppercase } .s9F46BEC9 { margin-top:14pt; margin-bottom:12pt; text-align:justify; font-size:14pt } .s2D9C6089 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s84651E4E { margin-top:14pt; margin-left:14.2pt; margin-bottom:3pt; text-align:justify } .s69DCC830 { margin-top:36pt; margin-bottom:0pt } .sC986E16F { font-family:Arial; color:#ffffff } .sB6A7F5BF { width:17.54pt; display:inline-block } .s6E24AFEB { width:129.08pt; display:inline-block } .s5D826FD4 { width:25.88pt; display:inline-block } .s1B61D60 { width:156.43pt; display:inline-block }     SECOND SECTION DECISION Application no. 65180/17 Rajko LUKIĆ against Croatia   The European Court of Human Rights (Second Section), sitting on 16   April 2024 as a Committee composed of:   Pauliine Koskelo , President ,   Lorraine Schembri Orland,   Davor Derenčinović , judges , and Dorothee von Arnim, Deputy Section Registrar, Having regard to: the application (no.   65180/17) 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”) on 30 August 2017 by a Croatian national, Mr Rajko Lukić (“the applicant”), who was born in 1964, lives in Nova Kapela and was represented by Mr P. Krnić, a lawyer practising in Slavonski Brod; the decision to give notice of the complaint concerning the procedural obligations under Article 1 of Protocol No. 1 to the Convention to the Croatian Government (“the Government”), represented by their Agent, Ms   Š.   Stažnik, and to declare inadmissible the remainder of the application; the parties’ observations; Having deliberated, decides as follows: SUBJECT MATTER OF THE CASE 1.     The case concerns the domestic courts’ dismissal of the applicant’s civil action for repossession against the State whereby he sought handover of two vehicles requisitioned from his late father. 2.     In 1991 the Croatian army requisitioned two vehicles owned by the applicant’s father for military purposes. The Army was obliged to return the vehicles once it no longer needed them. 3 .     In November 2001 the applicant’s father wrote a letter to the Ministry of Defence’s Military Mail Command, stating that both of his vehicles had been destroyed (damaged beyond repair) while being used by the Army and therefore could not have been returned to him; for this reason, in 1999 he had asked for compensation of damage from the War Damages Commission, but his request had not been resolved to date. In December 2001 the applicant’s father received a reply that he should direct his compensation request to the Defence Office which had requisitioned his vehicles. There is no information as to any subsequent developments regarding the applicant’s father’s compensation request. 4 .     In March 2002 the applicant’s father, represented by a lawyer, brought a civil action against the State with the Zagreb Municipal Civil Court, seeking return of his vehicles. At a hearing in November 2007, he stated that both of his vehicles had been destroyed while being in possession of the State; one in a traffic accident which had occurred during the war and the other one in a mine explosion shortly after the war. He also stated that he had been offered to take over the remains of the first vehicle, which he had refused. He did not propose further evidence. 5.     In 2008 the applicant’s father died and the applicant took over the proceedings. He did not request any evidence to be taken, and the hearing was concluded. 6.     In 2011 the Zagreb Municipal Civil Court granted the applicant’s claim, relying on the Act on the liability of the Republic of Croatia for damage caused by members of the Croatian army and police in the performance of their duties during the Homeland War (the relevant provisions of which are outlined in Bursać and Others v. Croatia , no. 78836/16, § 32, 28 April 2022). 7 .     In 2012 that judgment was quashed by the Slavonski Brod County Court. It held that the appliable law in the case was the Property Act ( Zakon o vlasništvu i drugim stvarnim pravima , Official Gazette nos. 91/1996 with subsequent amendments), which in section 161(1) entitled the owner of property to recover it from anyone who possessed it. It referred to section 162 of that Act and instructed the first-instance court to establish whether the vehicles still existed and were in the State’s possession. 8 .     In the resumed proceedings, the applicant stated that the information as to the vehicles’ existence, condition and whereabouts was a military secret and that he was unable to provide it. 9 .     In 2013 the Zagreb Municipal Civil Court dismissed the applicant’s claim on the grounds that he had failed to prove that the vehicles still existed and were in the State’s possession as required by section 162 of the Property Act. It ordered the applicant, under section 154 of the Croatian Civil Procedure Act, to pay the State HRK 16,875 (some 2,250 euros) in costs, comprising the fees chargeable for the State’s representation by the State Attorney’s Office. 10 .     The applicant appealed, reiterating that the information as to the vehicles’ existence, condition and whereabouts was a military secret and that in any event, other than the fact that the State had requisitioned those vehicles, he was unable, and should not be required, to prove their whereabouts. He further argued that he wanted those vehicles to be returned to him, no matter the condition in which they were. 11 .     The Slavonski Brod County Court dismissed the applicant’s appeal. It noted that in 2007 the applicant’s late father himself had confirmed that both vehicles had been destroyed (see paragraph 4 above). In that connection it referred to section 169 of the Property Act, according to which the right of ownership ended once the property ceased to exist; unless there being any remains of the property, in which case the right of ownership continued to exist on those remains. If it had been true that the vehicles had been destroyed, the applicant had failed to specify his claim by describing the property the return of which he sought. It concluded that in such circumstances the applicant’s civil claim, the way it was formulated, could not be granted. It emphasized that the latter did not affect the applicant’s right to seek compensation for the damage caused, provided that the statutory limitation period for doing so had not expired. 12.     In his subsequent constitutional complaint, the applicant argued that the civil courts had imposed an unattainable burden of proof on him. He did not refer to the appellate court’s remarks that he had failed to specify or amend his claim with respect to the fact that the vehicles had been destroyed. 13.     On 7 February 2017 the Constitutional Court found that the lower courts’ decisions did not breach the applicant’s right to a fair hearing and property rights guaranteed by Articles 29 and 48 of the Croatian Constitution. Two judges submitted a dissenting opinion, deeming that the lower courts had imposed an unattainable burden of proof on the applicant. The decision was served on the applicant on 6 March 2017. 14 .     Before the Court the applicant complained, under Article 1 of Protocol No. 1 to the Convention, about the domestic courts’ dismissal of his claim for repossession of the vehicles, arguing that the requirement to prove that they still existed and were in the State’s possession, and furthermore to pay the costs of the proceedings to the State, had imposed an excessive burden on him. THE COURT’S ASSESSMENT 15.     The Court does not find it necessary to examine the Government’s preliminary objections, as the present application is in any event inadmissible for the following reasons. 16 .     The central issue in the case is whether the domestic proceedings in which the applicant sought repossession of the vehicles requisitioned from his late father complied with the procedural obligations under Article 1 of Protocol No. 1 (see Hentrich v. France , 22 September 1994, § 49, Series A no.   296 A; Bruncrona v. Finland , no. 41673/98, § 69, 16 November 2004; and Zafranas v. Greece , no. 4056/08, § 36, 4 October 2011). The proceedings at issue must have afforded the applicant a reasonable opportunity of putting his case to the responsible authorities for the purpose of effectively challenging the measures interfering with the rights guaranteed by this provision (ibid.). 17.     In determining whether the applicant was afforded that reasonable opportunity of putting his case to the courts, the Court considers at the outset that, given that the State undoubtedly requisitioned the applicant’s father’s vehicles for defence purposes and never returned them, requiring the applicant to prove that they still existed and were in State’s possession could amount to imposing an excessive burden of proof on him (compare, mutatis   mutandis , Trivkanović v. Croatia (no. 2) , no. 54916/16, §§ 79-82, 21   January 2021, and Baljak and Others v. Croatia , no. 41295/19, § 41, 25   November 2021). 18 .     However, the Court notes that under Croatian civil procedure law, civil courts are bound by the relief sought by the plaintiff and the facts the parties relied on. The civil courts therefore cannot award the plaintiff anything different in nature from his or her claim or decide the case on the basis of facts not relied on by the parties (see Marić v. Croatia (dec.), no.   37333/17, § 31, 10 November 2020). 19.     In that connection the Court notes that the applicant’s late father himself confirmed, before and during the civil proceedings, that his two   vehicles had been destroyed (see paragraphs 3 and 4 above). Moreover, the Court notes that at some point before 1999 the applicant’s father was invited by the authorities to collect the remains of one of his vehicles, which he refused (see paragraph 4 above). 20.     In such circumstances, the Court is of the view that the applicant’s late father, and the applicant who took over the civil proceedings, both of whom were represented by a qualified lawyer, should have known from the outset that the civil courts would not be able to grant the claim in the manner it was formulated (to order repossession of the vehicles). 21.     The Court notes that the applicant could have relied on Article   186.b   (3) of the Croatian Civil Procedure Act and asked the civil court to order the State to submit information as to the remains of his father’s vehicles, so that he could specify or amend his claim accordingly. He could then either have asked for return of the vehicles’ remains, or, if it turned out that the remains had meanwhile been disposed of by the State, compensation of damage. 22.     However, in the proceedings before the domestic courts (as well as in those before the Court) the applicant entirely ignored the fact that the vehicles had been destroyed and failed to specify or amend his claim accordingly. In so far as the applicant could have been understood as in substance asking for the return of the vehicles’ remains, the Court notes that he put forward such a request for the first time in his appeal against the first-instance court’s judgment (see paragraph 10 above), that is, too late (see Articles 190 and 191 of the Croatian Civil Procedure Act). 23.     Accordingly, in the circumstances where the applicant’s late father, and then the applicant, insisted exclusively on the return of the vehicles, which had been destroyed years before the civil proceedings were instituted, the Court is of the view that the domestic courts cannot be considered as having dismissed the applicant’s claim without giving him a reasonable opportunity of putting his case to the responsible authorities (compare Marić, cited above, § 57). 24.     Against the above background, it cannot be said that the proceedings complained of failed to comply with the State’s procedural obligations under Article 1 of Protocol No. 1 (see paragraph 16 above). 25.     For the same reasons, the Court is of the view that no issue arises in respect of the applicant’s right to the peaceful enjoyment of his possessions with the fact that he was ordered, on the basis of the “looser pays” rule embodied in section 154(1) of the Civil Procedure Act, to pay the costs of the State’s representation in the civil proceedings (see paragraphs 9, 11 and 14 above), since this was a normal consequence of the civil claim being formulated in a manner that it lacked prospect of success (compare Marić , cited above, §§   50-61, and contrast Bursać and Others , cited above, § 95). 26.     It follows that the application is inadmissible under Article 35 § 3 (a) of the Convention as manifestly ill-founded and must be rejected pursuant to Article 35 § 4. For these reasons, the Court, unanimously, Declares the application inadmissible. Done in English and notified in writing on 23 May 2024.     Dorothee von Arnim   Pauliine Koskelo   Deputy Registrar   President