CASE OF LOVRIĆ v. CROATIA
Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court)
Jon Fridrik Kjølbro;Julia Laffranque;Nebojša Vučinić;Stéphanie Mourou-Vikström;Ksenija Turković
5. The applicant lives in Čaglin. 6. The applicant was a member of a hunting association, V., based in Čaglin (hereafter “the association”). 7. On 17 June 2012 the association’s executive board initiated internal proceedings against the applicant before its disciplinary commission. The executive board sought the applicant’s suspension until the next session of the association’s general meeting (skupština) for reporting a member of the association to the police, falsely accusing him of the criminal offence of intimidation. The executive board argued that by doing so the applicant had committed a serious breach of his duties as a member, a disciplinary offence stipulated in the association’s internal regulations. 8. By a decision of 25 August 2012 the disciplinary commission dismissed the disciplinary action against the applicant. No appeals were lodged against that decision. 9. The executive board nevertheless referred the matter to the general meeting for re-examination, convening an extraordinary session. 10. On 2 September 2012 the general meeting adopted, by twenty votes to seven, a resolution expelling the applicant from the association. He was informed that he could appeal against that decision and that any appeal would be examined at the general meeting’s (regular) annual session. 11. The applicant appealed, but the general meeting’s resolution was upheld by twenty-one votes to three following the adoption of another resolution at the annual session held on 20 February 2013. 12. The general meeting did not give any reasons for expelling the applicant in either of its resolutions. 13. On 11 January 2014 the applicant brought a civil action against the hunting association in the Požega County Court (Županijski sud u Požegi), whereby he asked the court to declare unlawful the general meeting’s resolution of 20 February 2013 and to reinstate him as a member. He relied on section 26(1) of the Associations Act (see paragraph 22 below) and argued that the decision to expel him had been adopted in breach of the procedure provided for in the association’s statute and its internal regulations on disciplinary proceedings. In particular, he submitted that, in the absence of appeals against the disciplinary commission’s decision of 25 August 2012 (see paragraph 8 above), the general meeting could not have overridden that decision because under the association’s statute that commission was the only body authorised to decide on the expulsion of a member. 14. By a decision of 4 March 2014 the County Court declared the applicant’s action inadmissible, on the grounds that the matter was outside the jurisdiction of the courts. The relevant part of that decision reads as follows: “Section 26(1) of the Associations Act suggests that legal protection by way of civil action in the county court could be sought only if the General Meeting or the other relevant body of the association had failed to examine a member’s report regarding irregularities in the implementation of the statute [of the association], or had failed to correct such irregularities. Such a civil action would therefore be aimed at securing the implementation of the statute of the association, and thus would not provide for legal protection in the sense that a specific decision ... of the association could be declared unlawful. Under section 50 of the defendant association’s Statute [Statut] the disciplinary tribunal imposes disciplinary measures against members who have breached their duties stipulated in the statute. According to section 7(2) of the defendant association’s Rules on Disciplinary Proceedings and Disciplinary Liability of Members, a request for review may be lodged with the General Meeting [to contest] the Disciplinary Tribunal’s decision to expel [a member]. The time-limit for the General Meeting to adopt a resolution on the request is not stipulated. The General Meeting’s resolution is final. ... since the plaintiff in his action does not seek [legal] protection envisaged in section 26(1) of the Associations Act, but asks [the court] to declare unlawful the defendant’s resolution to expel him, on which [issue] it is for the General Meeting to make a final decision ... this case does not fall within the jurisdiction of the courts ...” 15. The applicant then appealed against that decision to the Supreme Court (Vrhovni sud Republike Hrvatske). 16. By a decision of 2 April 2014 the Supreme Court dismissed the applicant’s appeal and upheld the first-instance decision, reasoning as follows: “The first-instance court was correct in declaring the action inadmissible, because the case does not fall within the jurisdiction of the courts ... In particular, pursuant to section 26(1) of the Associations Act ... the conduct of associations is supervised by their members, and if a member finds irregularities in the implementation of the statute he or she is entitled to report it to the relevant body of the association designated in the statute or to the General Meeting if there is no relevant body designated in the statute. Furthermore, if the written report is not examined at the General Meeting or by the relevant body of the association designated in the statute within thirty days of its submission, or if irregularities are not corrected, the member may bring a civil action in the county court within whose area of jurisdiction the registered office of the association is situated, with a view to protecting his or her rights as stipulated in the statute. The said provision ... governs jurisdiction of the courts regarding the right of the members of an association to supervise its conduct. That right does not entail the power to contest the lawfulness of a decision adopted in disciplinary proceedings against the plaintiff as a member, as correctly explained in the impugned [first-instance] decision. In this connection it should be taken into account that the case concerns membership of a ... voluntary organisation [where] members may under the internal rules regulate the protection of [their] membership rights. Therefore, the decision to expel a member does not fall within the jurisdiction of the courts under section 26(1) of the Associations Act. The defendant association is not an entity vested with public authority, and the decisions it adopts are not administrative acts, which means that the plaintiff’s action could not even be examined by the Administrative Court under the [relevant provisions] of the Administrative Disputes Act. That is also the opinion of the Constitutional Court, as expressed in the case U-III-140/2006. It follows that the county court was correct in deciding that courts have no jurisdiction to decide on the plaintiff’s action ...” 17. On 12 June 2014 the applicant lodged a constitutional complaint against the Supreme Court’s decision. He alleged violations of his right to a fair procedure guaranteed by Article 29 paragraph 1 of the Croatian Constitution (see paragraph 19 below), and also explicitly relied on Article 6 § 1 of the Convention. 18. By a decision of 18 December 2014 the Constitutional Court (Ustavni sud Republike Hrvatske) declared the applicant’s constitutional complaint inadmissible and served its decision on his representative on 30 January 2015. It found that the case did not raise any constitutional issues.