CULAR v. CROATIA
Inadmissible
Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Giorgio Malinverni;Khanlar Hajiyev
The applicant, Mr Mate Čular, is a Croatian national who was born in 1952 and lives in Zagreb. He was represented before the Court by Mr T. Vukičević, an advocate practising in Split. The Croatian Government (“the Government”) were represented by their Agent, Mrs Š. Stažnik. The facts of the case, as submitted by the parties, may be summarised as follows. On 6 April 1984 the police authorities seized, from a Mr Z.K., 160,000 former Yugoslav dinars (YUD) that belonged to the applicant, under suspicion that the two of them had received it as a bribe. The applicant submits that he wanted to use the money to buy 4,870 kg of pickled (metal) sheet (dekapirani lim), which he intended to use in his recently opened locksmith's business. On 12 November 1989 the competent State Attorney indicted the applicant and Z.K. before the Zagreb Municipal Court (Općinski sud u Zagrebu), charging them with the criminal offence of accepting a bribe. On 20 February 1995 the Zagreb Municipal Court discontinued the criminal proceedings, the State Attorney having dropped the charges against the accused. However, the sum seized was not returned to the applicant. For that reason, on 28 November 1995, the applicant brought a civil action against the State in the Zagreb Municipal Court. In the period between 1984 and 1995 there were several changes to and denominations of domestic currency (see below under Relevant domestic law). So, the applicant initially sought the amount of 0.016 Croatian kunas (HRK) together with the statutory default interest accruable since 6 April 1984. During the proceedings, on 7 November 1997, a court-appointed financial expert prepared a report according to which, taking into account the inflation rate, the value of YUD 160,000 in 1984 was equal to the value of HRK 22,170.50 at the time that he had prepared his report. On the basis of that report, the applicant amended his claim and sought HRK 22,170.50 together with the statutory default interest accruable since 6 April 1984. On 15 December 1997 the Municipal Court ruled in part for the applicant. It held that, by seizing and not returning to the applicant YUD 160,000, the State had enriched itself without cause, and awarded him HRK 22,170.50 together with the statutory default interest accruable since 7 November 1997. The remainder of the applicant's claim, concerning the statutory default interest accrued between 6 April 1984 and 7 November 1997, was dismissed. Following appeals by both parties, on 15 February 2000, the Zagreb County Court (Županijski sud u Zagrebu) quashed the first-instance judgment and remitted the case. It held that the first-instance court had erred when it had adjusted the applicant's claim and awarded him the contemporary value of YUD 160,000, because, under the relevant legislation, he was entitled only to the nominal amount. In the resumed proceedings, on 31 May 2001, the Zagreb Municipal Court awarded the applicant HRK 0.01 (as the amount awarded – HRK 0.016 – could be expressed to only two decimal places), together with the statutory default interest accruable since 28 November 1995. The remainder of the applicant's claim was dismissed and he was ordered to pay the respondent HRK 2,900 for the costs of the proceedings. In the applicant's submission, the sum he was awarded, including the accrued statutory default interest, was HRK 0.03. On 16 December 2003 the Zagreb County Court dismissed the applicant's appeal and upheld the first-instance judgment. On 19 February 2004 the applicant lodged a constitutional complaint against the second-instance judgment alleging a violation of his constitutional right to equality before the courts. The Constitutional Court (Ustavni sud Republike Hrvatske) dismissed the applicant's constitutional complaint on 5 June 2007 and served its decision on his representative on 9 July 2007. The Act on the Change of the Value of the Dinar (Zakon o promjeni vrijednosti dinara, Official Gazette of the Socialist Federal Republic of Yugoslavia no. 83/89) of 21 December 1989 established the new value of the Yugoslav dinar (YUD) so that one new dinar corresponded to 10,000 old dinars. By the Decision on the Introduction of the Croatian Dinar as the Currency on the Territory of the Republic of Croatia (Odluka o uvođenju hrvatskog dinara kao sredstva plaćanja na teritoriju Republike Hrvatske, Official Gazette of the Republic of Croatia no. 71/1991), which entered into force on 23 December 1991, the Republic of Croatia introduced its own currency, Croatian dinar (HRD). The Yugoslav dinar (YUD) was replaced by the Croatian dinar at an exchange rate of YUD 1 to HRD 1. On 13 May 1994 the Decision on the Termination of the Validity of the Decision on the Introduction of the Croatian Dinar as the Currency on the Territory of the Republic of Croatia and on the Manner and Time of Calculation of Sums Expressed in Croatian Dinars into Kunas and Lipas (Odluka o prestanku važenja Odluke o uvođenju hrvatskog dinara kao sredstva plaćanja na teritoriju Republike Hrvatske, te o načinu i vremenu preračunavanja iznosa izraženih u hrvatskim dinarima u kune i lipe, Official Gazette of the Republic of Croatia no. 37/1994) entered into force, introducing the Croatian kuna (HRK) as the currency of the Republic of Croatia. It provided that the Croatian dinar should be replaced by the Croatian kuna at an exchange rate of 1,000 dinars to one kuna. The relevant part of the Obligations Act (Zakon o obveznim odnosima, Official Gazette of the Socialist Federal Republic of Yugoslavia nos. 29/1978, 39/1985 and 57/1989, and Official Gazette of the Republic of Croatia no. 53/1991 with subsequent amendments), which was in force at the material time, provided as follows: ENRICHMENT WITHOUT CAUSE “(1) When a part of the property of one person passes, by any means, into the property of another person, and that transfer has no basis in a legal transaction or a statute [that is, it is without cause], the beneficiary shall be bound to return that property. If restitution is not possible, he or she shall be bound to provide compensation for the value of the benefit received. (2) ... (3) The obligation to return the property or provide compensation for its value shall arise even when something is received on account of a cause which did not come into existence or which subsequently ceased to exist.” “When returning what has been received without cause, the beneficiary shall also be bound to return any profit or benefit accrued, and to pay the default interest, and to do so, if he or she was in bad faith, from the day of the enrichment, or otherwise from the day the request [for the return of the property] was made.” DEFAULT INTEREST “(1) The creditor shall have a right to default interest irrespective of whether or not he sustained any damage on account of the debtor's default. (2) If the damage sustained by the creditor on account of the debtor's default is greater than the amount received as default interest, he or she shall have a right to claim damages up to the full amount of the compensation due.” MONETARY OBLIGATIONS “When an obligation has for its object a sum of money, the debtor is bound to pay the number of monetary units in which the obligation is expressed [that is, its nominal value], unless the law provides otherwise.”