CASE OF MINDEK v. CROATIA
Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)
Nebojša Vučinić;Paul Lemmens;Stéphanie Mourou-Vikström;Georges Ravarani;Ksenija Turković
5. The applicant was born in 1932 and lives in Domitrovec. 6. On 12 February and 29 August 2003 the daily newspaper Večernji list published two articles in which the applicant accused his neighbour, a certain Mr I.M., of “stealing” his house and orchard. 7. In the ensuing two sets of criminal proceedings instituted by I.M. by way of private prosecution, the applicant was found guilty of two counts of defamation (kleveta). By a judgment of 17 December 2004 the Varaždin Municipal Court (Općinski sud u Varaždinu – hereinafter “the Municipal Court”) fined the applicant 3,475 Croatian kunas (HRK) and ordered him to pay I.M. HRK 2,660 for the costs of the proceedings. By a judgment of 12 January 2005, amended by the Varaždin County Court (Županijski sud u Varaždinu – hereinafter “the County Court”) on 15 November 2005, the Municipal Court judicially admonished (sudska opomena) the applicant and ordered him to pay I.M. HRK 2,208 in costs. 8. In subsequent civil defamation proceedings which I.M. instituted against the applicant, the civil courts also found in favour of the plaintiff and awarded him damages. By a judgment of 31 May 2006, amended by the County Court on 4 September 2007, the Municipal Court ordered the applicant to pay I.M. HRK 20,000 as compensation for non-pecuniary damage, together with statutory default interest and HRK 6,942 in costs. 9. Meanwhile, another set of civil proceedings between the same parties had also ended unfavourably for the applicant. By a judgment of 2 May 2005 the Municipal Court dismissed the applicant’s action to declare an in-court settlement between him and I.M. of 15 January 1997 null and void, and ordered him to pay the defendant HRK 2,318 in costs. 10. Since the applicant did not pay the sums stipulated above (hereinafter “the debt”) on time, on 7 September and 31 October 2007 I.M. instituted two sets of enforcement proceedings in the Municipal Court, seeking enforcement against the applicant’s immovable property, specifically his share in the house and surrounding land he owned with his wife. The property in question consisted of the house, a yard and arable land (fields) measuring 150, 500 and 204 square meters respectively (hereinafter “the property”). 11. On 5 November 2007 and 4 January 2008 respectively the court issued two writs of execution (rješenja o ovrsi) ordering the seizure and sale of the applicant’s share in the property. 12. On 10 March 2008 and 2 June 2009 the Varaždin County Court dismissed appeals lodged by the applicant and upheld the writs. 13. By a decision of 18 March 2010 the Municipal Court joined the two sets of enforcement proceedings. 14. At a hearing on 8 April 2010 the court, on the basis of information provided by the tax authorities, determined that the value of the applicant’s share in the property was HRK 131,200. The applicant did not attend the hearing even though he had been duly notified. 15. By a ruling of 27 July 2010 the court ordered the sale of the applicant’s share in the property (zaključak o prodaji, see paragraph 48 below) and scheduled a public auction for 14 October 2010 at which, in accordance with the law, the property (or share of it) could not be sold for less than two-thirds of its value (see paragraph 50 below). 16. The auction was not attended by any interested buyers. The applicant, however, submitted a certificate confirming that on 8 September 2010 he had paid HRK 14,400 of the debt, and promised to pay the rest by New Year. 17. Since he did not do so, on 12 January 2011 I.M. asked the court to schedule a second public auction. 18. On 17 January 2011 the applicant submitted another certificate confirming that on 14 January 2011 he had paid HRK 7,340 of the debt, and asked the court not to schedule a second auction because he would gradually pay the rest of the debt. 19. On 1 February 2011 I.M. reiterated his request for a second auction and stated that, by repeatedly promising to gradually pay the debt within self-imposed deadlines he did not observe, the applicant was merely protracting the enforcement proceedings which had thus far lasted three and a half years. 20. By a decision of 3 February 2011 the court scheduled the second public auction for 17 March 2011 at which, in accordance with the law, the property (or share of it) could not be sold for less than one-third of its value (see paragraph 50 below). 21. At the second auction only I.M. offered to buy the applicant’s share in the property, for HRK 43,734. This was the minimum price allowed by law and corresponded to one-third of its value. The applicant’s representative asked the court to postpone the auction and promised that the applicant would pay the rest of the debt within three months. The court refused this request and issued a decision declaring that I.M. had “satisfied the conditions to be awarded [the share in] the property”. It also specified that the decision actually awarding him the share in the property (rješenje o dosudi, see paragraphs 25 and 50 below) would be delivered at a later date. 22. On 21 March 2011 the applicant paid HRK 21,450 of the debt. 23. On 2 May 2011 he informed the court that earlier that day he had paid a further HRK 15,225.75, and had thereby settled the debt of HRK 58,415.75 in full (consisting of the principal amount of HRK 34,128.43 and HRK 24,287.32 of statutory default interest). What remained to be paid were the costs of the enforcement proceedings. He therefore asked the court to discontinue the enforcement and issue a decision specifying those costs, which he promised to pay immediately. 24. At a hearing on 26 October 2011 I.M. confirmed that on 2 May 2011 the applicant had paid the debt in full, but had not covered the costs of the enforcement proceedings. He thus asked the court to issue a decision on costs, and the award decision. 25. On 18 November 2011 the court delivered its award decision (rješenje o dosudi, see paragraph 21 above and paragraph 50 below). It specified that the property would be surrendered (transferred) to I.M. after he deposited the purchase price, within three months of the decision becoming final. The court found the fact that the applicant had paid the debt in full on 2 May 2011 irrelevant, since the decision on the sale of the applicant’s share in the property to I.M. had been adopted earlier, on 17 March 2011 (see paragraph 21 above). It noted however that the fact that the applicant had paid off the debt would be taken into account when distributing the proceeds of sale (see paragraph 32 below). In particular, the court held as follows: “Given that the property was sold on 17 March 2011 at the second public auction when it was established that the bidder I.M. had made the best bid and had offered [to pay] HRK 43,734, and thereby met the conditions to be awarded the property, the court adopted [the present] award decision ... regardless of the fact that the enforcement debtor on 2 May 2011 settled the debt in respect of the principal amount and the interest. When settling the enforcement creditor’s claim, the court will deliver a distribution decision whereby it will take into account the fact that the enforcement debtor had settled the debt in respect of the principal amount and the interest.” 26. On 5 December 2011 the applicant appealed against that decision. He argued that he had settled the debt in full several months before the court had issued the contested award decision. In that sense I.M. “had got it both ways” as he had both been paid the debt and acquired the share in the property. There had been no reason to sell his share in the property to pay the same debt. He further stated that he would also have covered the costs of the enforcement proceedings that remained due if the court had issued a decision specifying the amount, which it had not done. 27. On 16 January 2012 the County Court dismissed the applicant’s appeal and upheld the contested decision, which thereby became final. It held that the necessary conditions for selling the applicant’s share in the property to I.M. had already been met on 17 March 2011. The fact that he had later paid off the debt had no bearing on the validity of the sale. In particular, that court held as follows: “Having regard to the fact that on 17 March 2011 the second public auction was held at which the enforcement creditor appeared as a bidder and made the best (the only) bid, and given that after the auction the court established that the enforcement creditor had offered the highest price and had met the conditions to be awarded the property in accordance with section 98(3) of the Enforcement Act, the first-instance court was, pursuant to section 98(4) of [that] Act, entitled (and obliged to) adopt the contested [award] decision ... The fact that the enforcement debtor after the [second public] auction, on 2 May 2011 settled the creditor’s claim in full is of no relevance for the validity of the contested decision, regardless of the unjustified (time) gap between the auction and the adoption of the impugned decision. [That is because] at the auction of 17 March 2011, which was held in line with the [relevant] provisions of the Enforcement Act, it was established that the enforcement creditor offered the highest price and that he met the conditions to be awarded the property. [Therefore] the events that occurred subsequently cannot call into question the award of the property, nor can the said event constitute grounds for discontinuation of enforcement under the Enforcement Act.” 28. On 27 February 2012 the applicant lodged a constitutional complaint against the County Court’s decision, alleging a violation of his constitutional right to fair procedure. 29. On 7 March 2012 I.M. informed the court that he had deposited the purchase price, and submitted proof thereof. 30. By a ruling of 24 April 2012 (zaključak o predaji, see paragraph 51 below) the Municipal Court surrendered (transferred) the applicant’s share in the property to I.M. On 29 June 2012 the court’s land registry department recorded him in the land register as co-owner of the property instead of the applicant. 31. By a decision of 24 May 2012 the Constitutional Court (Ustavni sud Republike Hrvatske) declared the applicant’s constitutional complaint of 27 February 2012 inadmissible (see paragraph 28 above). It held that the contested decision was not open to constitutional review. 32. On 17 September 2012 the Municipal Court issued a distribution decision (rješenje o namirenju, see paragraph 54 below), distributing the HRK 43,734 deposited with the court by I.M. for the applicant’s share in the property. The court specified the costs of the enforcement proceedings, which were incumbent on the applicant, as HRK 10,703.12, and returned that amount to I.M. The remaining HRK 33,030.88 was paid to the applicant. 33. On 14 December 2012 the County Court dismissed an appeal by the applicant against that decision. On 27 February 2013 lodged a constitutional complaint against the decision of the County Court. 34. By a decision of 25 April 2013 the Constitutional Court declared that constitutional complaint inadmissible, holding that the contested decision was not open to constitutional review. 35. By a decision of 20 January 2013 the Municipal Court declared the enforcement completed. An appeal by the applicant against that decision was dismissed by the County Court on 26 March 2013. 36. On 23 May 2013 I.M. instituted non-contentious proceedings in the Municipal Court against the applicant’s wife by lodging a petition for partition of co-ownership. Since the property could not be physically divided, he sought a partition by sale, whereby the proceeds would be distributed to the co-owners. 37. As the applicant’s wife opposed the partition, by a decision of 2 July 2013 the court discontinued the non-contentious proceedings and instructed I.M. to institute separate civil proceedings against her to that end. 38. On 17 July 2013 I.M. brought a civil action against the applicant’s wife as instructed, in the same municipal court. He sought a partition of co-ownership in the same way as in his petition of 23 May 2013. 39. By a judgment of 6 November 2014 the Municipal Court ruled for the plaintiff and ordered a partition by sale and distribution of the proceeds to the co-owners. It also ordered the applicant’s wife to pay the plaintiff HRK 4,050 in costs. 40. She appealed and the proceedings are currently pending before the second-instance court. 41. Meanwhile, on 3 July 2013 I.M., had also instituted another set of civil proceedings before the Municipal Court against the applicant, seeking payment of rent for the use of the property. He explained that the applicant had remained living in the house even after he acquired the applicant’s share. As a co-owner he was thus entitled to seek from the applicant half of the rent under which the house could be rented out. These proceedings are still pending before the first-instance court.