LAZAREVIĆ v. CROATIA
Inadmissible
Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens
The applicant, Mrs Snježana Lazarević, is a national of Bosnia and Herzegovina of Serbian origin who was born in 1967 and lives in Ugrinovci (Serbia). She was represented before the Court by Mrs S. Petrović, an advocate practising in Beograd. The Croatian Government (“the Government”) were represented by their Agent, Mrs Š. Stažnik. The Government of Bosnia and Herzegovina, having been informed of their right to intervene (Article 36 § 1 of the Convention and Rule 44 § 2 (a) of the Rules of Court), did not avail themselves of this right. The facts of the case, as submitted by the parties, may be summarised as follows. On 21 November 1991 the applicant's parents were awarded a house in Čeminac (Croatia) for temporary use by the occupying forces who, at that time, controlled Čeminac. The house was owned by Mrs M.G., who had been forced to leave Čeminac in August 1991 shortly before the village was taken by the occupying forces. The applicant's parents moved out of the house between 13 and 16 March 1997 and went to live in Prijedor (Bosnia and Herzegovina). On 26 March 1997 M.G. brought a civil action against the applicant's parents in the Beli Manastir Municipal Court (Općinski sud u Belom Manastiru). She claimed that they had looted her house when they moved out of it, and sought 252,000 Croatian kunas (HRK) in compensation, which was her estimate of the value of the household items allegedly stolen by the applicant's parents. As the defendants' address was unknown, the court appointed Mr M.Š., an advocate from Osijek, to act as their temporary representative (privremeni zastupnik) in the proceedings. On 21 September 1998 the applicant's mother died. During the proceedings the court called three witnesses proposed by the plaintiff. At the request of the plaintiff, on 25 March 2002 the court decided to obtain an expert opinion on the value of the household items missing from the plaintiff's house and appointed Mr F.V., an expert witness in economics, for that purpose. On 14 June 2002 the expert witness prepared his opinion and submitted it to the court three days later. He assessed the value of the objects in question at HRK 97,427. At a hearing held on 2 July 2002 the court called the expert witness. On the same day, the court issued a judgment in which it found for the plaintiff and ordered the applicant's parents to pay M.G. HRK 97,427 in compensation for the looted property, together with accrued statutory default interest running from 26 March 1997. The relevant part of that judgment reads as follows: “Having consulted the opinion of expert witness F.V., who was also heard in person, the court has established beyond dispute that the value of the household items appropriated from the plaintiff's house in 1991 amounted to 97,427 kunas. ... In deciding the amount of pecuniary damages ... on the basis of the expert opinion, which the court accepted because it had been prepared meticulously and competently, the court considers that the plaintiff should be awarded ... the sum of 97,427 kunas ...” In the absence of any appeal, the judgment became final on 3 October 2002. On 29 September 2003 the applicant's father, represented by an advocate, lodged a petition to reopen the above-mentioned civil proceedings with the Beli Manastir Municipal Court. On 13 May 2004 the applicant's father died. On 29 March 2005 the applicant was declared the sole heir of her parents. On 9 May 2005 the applicant, as her father's heir, took over the proceedings from him. She gave a power of attorney to the same advocate who had represented her father in the proceedings. On 28 November 2005 the court reopened the proceedings and set aside its previous judgment of 2 July 2002. At a hearing held on 3 October 2006 in the reopened proceedings, the court provided the applicant's representative with the plaintiff's statement of claim (tužba) dated 26 March 1997, its prior judgment of 2 July 2002 and a transcript of the previous proceedings. At subsequent hearings held on 21 February, 19 March, 16 April, 16 May and 2 July 2007, the court called the defendant, the plaintiff, four witnesses for the defendant, one witness for the plaintiff that it had already heard in the previous proceedings and three new witnesses for the plaintiff. However, in the reopened proceedings, the court did not call the expert witness or two other witnesses for the plaintiff whom it had called in the previous proceedings. Instead, at a hearing held on 7 February 2007, the court read out the transcripts of the testimony given by those witnesses in the previous proceedings. On 12 July 2007 the Beli Manastir Municipal Court again ruled for the plaintiff. It ordered the applicant to pay HRK 97,427 to M.G. in compensation for the property appropriated from M.G., together with accrued statutory default interest running from 26 March 1997. The relevant part of the judgment reads as follows: “... The court accepted the opinion of the expert economic witness in its entirety because it considers that it was prepared meticulously and competently. ... In deciding the amount of the plaintiff's claim, the court considers that on the basis of the expert opinion the plaintiff should be awarded ... the sum of 97,427 kunas ...” On 4 August 2007 the applicant appealed. In her appeal she argued, inter alia, that the value of the property she had inherited from her parents was less than the amount of the award of damages she had been ordered to pay. The applicant also argued that the first-instance court had merely deferred to the expert opinion of 14 June 2002 without critically examining it. In her appeal the applicant wrote, inter alia: “The defendant [i.e. the appellant] primarily emphasises that she entered the proceedings as an heir of her deceased parents ... The defendant as an heir is liable for the debts of her parents only up to the value of the inherited property. It cannot be disputed that the value of the property inherited from the deceased, M.T. and R.M., is significantly less than the sum the defendant was ordered to pay by the [contested] judgment ... Namely, the defendant Snježana Lazarević, inherited practically worthless plots of land from her parents... ...[A] total of 4.5 hectares of scattered and worthless land is [her] inherited property, whereas the court obliges the defendant to pay a sum, the principal amount of which already exceeds the value of the inherited property by several times. ... Furthermore, the manner in which the first-instance court determined the value of the plaintiff's claim is unacceptable, and the defendant considers that the manner [in which the court of first instance] established the facts is contrary to the principle of free evaluation of evidence provided for in section 8 of the Civil Procedure Act. The first-instance court's bases its decision on the amount of pecuniary damage exclusively on the expert opinion, whereas it [i.e. the court] did not critically assess that evidence in any way, as it was obliged to do in accordance with the principle of seeking the material truth [i.e. its fact-finding role]. The duty of the expert economic witness was to determine the real market value of the appropriated household items ... in accordance with prices [pertaining] at the time the judicial decision was rendered. From the expert opinion it cannot be discerned what were the prices used to assess the value of the household items. The expert did not have at his disposal photographs which were subsequently submitted. Had he had them, it is likely that the value of [those] items would have been [assessed] significantly lower. The state of [repair of] [those] objects, their age and quality is significantly below average, let alone better than average as assessed by the expert. The defendant considers that the main reason for the flaws in the expert opinion is the fact that the decision of the court to obtain an expert opinion was not sufficiently clear and specific. Thus, it did not give the expert clear instructions ..., which in the defendant's view, significantly affected the lawfulness and correctness of the contested judgment.” On 25 October 2007 the Osijek County Court (Županijski sud u Osijeku) dismissed the applicant's appeal in respect of the part of the first-instance judgment ordering the applicant to pay the plaintiff HRK 97,427. It allowed her appeal and reversed the first-instance judgment only in respect of the award of statutory default interest, finding that interest should run from 12 July 2007 and not from 26 March 1997. The court held that during the course of the proceedings before the court of first instance, the applicant had not submitted any evidence as regards the value of the property inherited by her and that she had never objected to the expert opinion. The relevant part of the County Court's judgment reads as follows: “The defendant correctly notes that under the Inheritance Act an heir is liable for the debts of the decedent up to the value of the inherited property. It is uncontested that the defendant inherited the immovable property listed in the enclosed decision on inheritance. However, a court in civil proceedings does not determine the value of that immovable property of its own motion, and in the [instant] proceedings the defendant did not indicate the value of the inherited immovable property nor propose evidence to determine that value. ... The value of household items appropriated from the plaintiff was determined according to the expert opinion ... Following a petition by the defendant, the first-instance court allowed the reopening of the previous civil proceedings... and the final judgment obliging M.T. and R.T. to pay an amount of money was set aside. Therefore, the defendant was aware of [the expert opinion] and she did not object to [it].” On 8 December 2007 the applicant lodged a constitutional complaint against the County Court's judgment, alleging violations of her constitutional rights to equality before the law and to a fair hearing. She argued, inter alia, that the amount of the award of damages had been established on the basis of the expert opinion of 14 June 2002. However, as she had not been served with the opinion, she had not therefore had a chance to submit her comments on the expert's findings, including those relevant to the value of the plaintiff's claim. In her constitutional complaint the applicant wrote, inter alia: “The complainant has never received a decision of the court [of first instance] ordering an expert opinion, appointing an expert and instructing him in respect of which circumstances the opinion should be prepared. The expert opinion was obtained in the initial proceedings, it has never been served on the complainant or read out [before the court] at the main hearing [during the reopened proceedings]. Nor did the parties consent that evidence should be taken by reading out the expert opinion at the main hearing. In this way, the complainant was not given an opportunity to comment on the expert opinion, to object to it or to examine the expert. Nor is she aware in respect of which circumstances the report was prepared, or which household items were the subject of, his report. ... Furthermore, the manner in which the first-instance court determined the value of the plaintiff's claim is unacceptable. Its decision as to the sum of pecuniary damages the first-instance court bases exclusively on the expert opinion, which was not obtained during the [reopened] proceedings nor read out [in court]. The expert did not have at his disposal photographs which were subsequently submitted [when compiling the report]. Had he had them, it is likely that the value of the household items [in question] would have been [assessed at a] lower [price]. The state of [repair of those] objects, their age and quality is below average, let alone better than average as assessed by the expert.” On 23 April 2008 the Constitutional Court (Ustavni sud Republike Hrvatske) dismissed the applicant's complaint and served its decision on her representative on 29 August 2008. The relevant Articles of the Constitution of the Republic of Croatia (Ustav Republike Hrvatske, Official Gazette nos. 56/1990, 135/1997, 8/1998 (consolidated text), 113/2000, 124/2000 (consolidated text), 28/2001 and 41/2001 (consolidated text), 55/2001 (corrigendum)) provide as follows: “All shall be equal before the law.” “In the determination of his rights and obligations or of any criminal charge against him, everyone is entitled to a fair hearing within a reasonable time by an independent and impartial court established by law.” “1. The right of ownership shall be guaranteed. 2. Ownership implies duties. Owners and users of property shall contribute to the general welfare.” “1. Ownership may be restricted or taken in accordance with the law and in the interests of the Republic of Croatia, subject to payment of compensation equal to the market value. 2. The exercise ... of the right of ownership 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.” The relevant part of the 1999 Constitutional Act on the Constitutional Court of the Republic of Croatia (Ustavni zakon o Ustavnom sudu Republike Hrvatske, Official Gazette no. 99/1999 of 29 September 1999 – “the Constitutional Court Act”), as amended by the 2002 Amendments (Ustavni zakon o izmjenama i dopunama Ustavnog zakona o Ustavnom sudu Republike Hrvatske, Official Gazette no. 29/2002 of 22 March 2002), which entered into force on 15 March 2002, reads as follows: “1. Anyone may lodge a constitutional complaint with the Constitutional Court if he or she deems that the decision of a state authority, local or regional government, or a legal person invested with public authority, on his or her rights or obligations, or as regards suspicion or accusation of a criminal offence, has violated his or her human rights or fundamental freedoms, or the right to local or regional government, guaranteed by the Constitution ('constitutional right')... 2. If another legal remedy is available in respect of the violation of the constitutional rights [complained of], the constitutional complaint may be lodged only after this remedy has been exhausted. 3. In matters in which an administrative action or, in civil and non-contentious proceedings, an appeal on points of law [revizija] is available, remedies shall be considered exhausted only after the decision on these legal remedies has been given.” “A constitutional complaint shall contain ... an indication of the constitutional right alleged to have been violated [together] with an indication of the relevant provision of the Constitution guaranteeing that right...” “ ... [t]he Constitutional Court shall examine only the violations of constitutional rights alleged in the constitutional complaint.” Section 139(3) of the Inheritance Act (Zakon o nasljeđivanju, Official Gazette 48/2003 and 163/2003), which entered into force on 3 March 2003 and was applicable as of 3 October 2003, provides as follows: “An heir shall be liable for the debts of the decedent up to the value of the inherited property. The court shall take into account the value of the inherited property and the value of the decedent's debts that the heir has already paid only if the heir raises [that issue].”