CEDH · CASELAW;DECISIONS;ADMISSIBILITYCOM;ENG — 27 mai 2025

.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 } .sC986E16F { font-family:Arial; color:#ffffff } .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 } .s819344C9 { margin-top:14pt; margin-left:18pt; margin-bottom:12pt; text-indent:-18pt; text-align:justify; font-size:14pt } .s6B505E72 { margin:0pt; padding-left:0pt } .s6C5BED22 { margin-left:25.5pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-family:Arial; font-weight:bold } .s5E8F5A28 { margin-top:14pt; margin-left:25.5pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-family:Arial; font-weight:bold } .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 } .sB6A7F5BF { width:17.54pt; display:inline-block } .s235C1871 { width:137.76pt; display:inline-block } .s5D826FD4 { width:25.88pt; display:inline-block } .s1B61D60 { width:156.43pt; display:inline-block }     SECOND SECTION DECISION Application no. 20811/20 BANKRUPTCY ESTATE OF CM-EXPERT LTD. against Croatia   The European Court of Human Rights (Second Section), sitting on 27 May 2025 as a Committee composed of:   Jovan Ilievski , President ,   Péter Paczolay,   Davor Derenčinović , judges , and Dorothee von Arnim, Deputy Section Registrar, Having regard to: the application (no.   20811/20) 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 14 May 2020 by Bankruptcy Estate of CM-EXPERT Ltd. Consulting and Project Management in Bankruptcy, that is, the assets of the bankrupt limited liability company CM-EXPERT that used to be incorporated under Croatian law and had its registered office in Slavonski Brod (“the applicant company”), which was represented by Ms R. Štaba, a lawyer practising in Varaždin; the decision to give notice of the application to the Croatian Government (“the Government”), represented by their Agent, Ms Š. Stažnik; the parties’ observations; Having deliberated, decides as follows: SUBJECT MATTER OF THE CASE 1.     The application concerns the Supreme Court’s alleged departure from its earlier decision in the applicant company’s case. 2.     In 1998 the applicant company brought a civil action in the Đakovo Municipal Court against the town of Đakovo seeking payment for consulting services rendered under a contract of 8 March 1994 with company D., of which the town was the sole shareholder. The applicant company argued that the town had standing to be sued because on 8   December 1994 it amended the decision establishing company D. in a way that made it jointly and severally liable for the debts of that company. 3.     By a judgment of 24 May 2005, which was upheld on appeal by the Osijek County Court on 29 November 2007, the Đakovo Municipal Court dismissed the applicant company’s action. The court held that the town of Đakovo was liable only for those debts of the company D. which had arisen after the town had, by a decision of 8 December 1994, assumed joint and several liability for the debts of that company whereas the debt to the applicant company had arisen before that. 4 .     On 18 March 2010, following the applicant company’s appeal on points of law ( revizija ), the Supreme Court quashed the lower courts’ judgments and remitted the case. It held that the wording of the town’s decision of 8   December 1994 did not make it clear whether the town’s liability extended only to future debts of the company D. or also included those incurred prior to that date. That court therefore instructed the lower courts to determine the town’s intention in that regard by other means. 5 .     In the fresh proceedings, the Municipal Court, by a judgment of 8   November 2011, which was upheld on appeal by the judgment of the Osijek County Court of 12 April 2012, again dismissed the applicant company’s action. It established, based on additional evidence, that the town’s decision of 8   December 1994 had not had retroactive effect. The court also dismissed the applicant company’s further argument that, in a factually and legally identical case involving another plaintiff, the civil courts had ruled for the plaintiff holding the town liable for company D.’s debts. The court explained that in that other case, the town had not contested its standing to be sued and that the civil courts had therefore not addressed that issue. 6 .     On 11 November 2014 the Supreme Court dismissed the applicant company’s second appeal on points of law holding, this time, that the town’s decision of 8 December 1994 was null and void. The court held that the decision contravened a fundamental principle of company law, namely that shareholders of a company could not be held liable for the debts of their company. 7 .     The applicant company then lodged a constitutional complaint in which it complained that the domestic courts had misapplied the relevant domestic law and that the proceedings had been unfair. Specifically, as regards the latter complaint, the applicant company argued that there had been a breach of its right to fair proceedings guaranteed by the Croatian Constitution because the Supreme Court had not only departed from its earlier decision in the case (see paragraph 4 above) but also from its decision of 19 November 2003 in a factually and legally identical case, where the plaintiff had been another company (see paragraph 5 above). 8.     On 14 November 2019 the Constitutional Court dismissed that constitutional complaint, and on 28   November 2019 notified the applicant company’s representative of its decision. 9 .     The Constitutional Court held that there was indeed “a certain inconsistency” between the two decisions of the Supreme Court. Specifically, the Supreme Court had initially failed to examine, of its own motion, the validity of the town’s decision of 8 December 1994. However, this did not render the Supreme Court’s subsequent judgment – where that omission was rectified – arbitrary or unfair. Courts were allowed to change their views, and it was precisely within the Supreme Court’s constitutional mandate to ensure the uniform application of the law by remedying inconsistencies or errors, even within its own case-law. 10 .     Before the Court the applicant company, relying on Article   6   §   1 of the Convention, reiterated the same fairness complaint it had raised in its constitutional complaint (see paragraph 7 above). In addition, the applicant company also complained, under Article 13 of the Convention, that the issue of validity of the town’s decision of 8 December 1994 had been raised for the first time by the Supreme Court in its judgment of 11 November 2014 and on its own motion. As a result, the applicant company had not been given an opportunity to contest the Supreme Court’s interpretation of domestic company law expressed in that judgment which resulted in the dismissal of its civil action. THE COURT’S ASSESSMENT Complaint under Article 6 § 1 of the Convention concerning divergent decisions 11.     The Government argued that the applicant company could not claim to be the victim of a violation of its rights under Article 6 § 1 of the Convention. 12.     The Court does not find it necessary to examine the Government’s objection as to the admissibility because this complaint is in any event inadmissible for the reasons set out below. 13.     The relevant principles regarding alleged violations of Article 6 § 1 of the Convention on account of divergent case-law of domestic courts are summarised in the cases of Nejdet Şahin and Perihan Şahin v. Turkey ([GC], no. 13279/05, §§ 49-58, 20 October 2011); and Lupeni Greek Catholic Parish and Others v. Romania ([GC], no. 76943/11, § 116, ECHR 2016 (extracts)). The Court’s assessment of such complaints includes establishing whether “profound and long-standing differences” exist in the relevant case-law, whether the domestic law provides for machinery for overcoming these inconsistencies, whether that machinery has been applied and, if appropriate, to what effect (see Nejdet Şahin and Perihan Şahin , cited above, § 53; and Lukežić v. Croatia (dec.), no. 24660/07, § 52, 10 September 2013). 14.     Furthermore, in instances where the same court has deviated from its earlier rulings within the same case, the Court assessed whether the two decisions concerned the same legal issue and whether the earlier ruling was binding under domestic law (see, for example, Vusić v. Croatia , no.   48101/07, §§ 38-46, 1 July 2010; and Balažoski v. the former Yugoslav Republic of Macedonia , no. 45117/08, §§ 29-34, 25 April 2013). 15.     In so far as the applicant company complained that, in its judgment of 11   November 2014, the Supreme Court had departed from its earlier decision of 19 November 2003 in a factually and legally identical case involving another plaintiff (see paragraphs 5-6 and 10 above), the Court considers that the alleged inconsistency is not sufficient to conclude that there existed “profound and long-standing differences” in the Supreme Court’s case-law. 16.     To the extent that the applicant company complained that the Supreme Court, in its judgment of 11 November 2014, had departed from its own earlier decision in the present case (see paragraphs 4, 6 and 10 above), the Court finds that those two rulings addressed different legal issues. Specifically, the Supreme Court’s initial decision of 18 March 2010 concerned the interpretation of the Đakovo town’s decision of 8   December 1994 whereas its subsequent judgment of 11 November 2014 concerned the validity of the town’s decision. 17.     The present case therefore differs from Vusić , cited above (see also Balažoski , cited above) where the two conflicting Supreme Court decisions adopted in the same case concerned the same legal issue, namely the admissibility ratione valoris of the applicant’s appeal on points of law, and where that court was under domestic law bound by its earlier decision. 18.     The applicant company contended that the Supreme Court had, in its initial decision, implicitly ruled that the town’s decision was valid as its validity constituted a preliminary issue which needed to be resolved prior to addressing matters related to its interpretation. However, the Court reiterates that it is in the first place for the national authorities, notably the courts, to interpret and apply domestic law (see, for example, Radomilja and Others v.   Croatia [GC], nos. 37685/10 and 22768/12, § 149, 20 March 2018), and that the Constitutional Court held that the Supreme Court in its initial decision had omitted to examine whether the town’s decision was valid (see   paragraph   9 above), rather than expressing any definitive position on its validity. 19.     Against this background, it cannot be said that the Supreme Court departed from its earlier decision in the applicant company’s case, as the two   decisions did not concern the same legal issue. 20.     It follows that this complaint is inadmissible under Article 35 § 3 (a) of the Convention for being manifestly ill-founded, and that it must therefore be rejected pursuant to Article 35 § 4 thereof. Other complaints 21.     The applicant company also raised a complaint under Article 13 of the Convention (see paragraph 10 above) which, in the light of the Court’s established case-law on the matter (see Clinique des Acacias and Others v.   France , nos. 65399/01 and 3 others, §§ 30 and 36-38, 13 October 2005; Čepek v. the Czech Republic , no. 9815/10, §§ 27 and 45-50, 5   September 2013; and Alexe v. Romania , no.   66522/09, §§ 24-44, 3   May   2016), falls to be examined under Article 6 §   1 of the Convention. 22.     The Court however finds that the applicant company failed to raise this complaint before the Constitutional Court (see paragraph 7 above). 23.     It follows that this complaint is inadmissible under Article 35 § 1 of the Convention for non-exhaustion of domestic remedies, and that it must therefore 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 19 June 2025.     Dorothee von Arnim   Jovan Ilievski   Deputy Registrar   President