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FIRST
SECTION
CASE OF PERIĆ v. CROATIA
(Application
no. 34499/06)
JUDGMENT
STRASBOURG
27 March
2008
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Perić v. Croatia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos Rozakis, President,
Nina
Vajić,
Khanlar Hajiyev,
Dean
Spielmann,
Sverre Erik Jebens,
Giorgio
Malinverni,
George Nicolaou, judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 6 March 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 34499/06) 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”) by a Croatian national, Mrs Ilonka Perić
(“the applicant”), on 8 August 2006.
- The
applicant was represented by Mr M. Zrilić, a lawyer practising
in Rijeka. The Croatian Government (“the Government”)
were represented by their Agent, Mrs Š. StaZnik.
- On
10 April 2007 the Court decided to communicate the complaint
concerning the applicant's right to a fair trial to the Government.
Under the provisions of Article 29 § 3 of the Convention, it
decided to examine the merits of the application at the same time as
its admissibility.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1919 and lives in Opatija.
- On
23 October 2002 the applicant brought a civil action in the Opatija
Municipal Court (Općinski sud u Opatiji) against D. K.
and J. K., seeking termination of a contract for lifelong maintenance
(ugovor o doZivotnom uzdrZavanju). She enclosed a copy of the
contract in question, drawn up on 3 August 1993, and its annex of 30
November 1999. The contract stipulated that the defendants were to
care for the applicant until her death in order to acquire all her
property post mortem. She also asked that two witnesses, E. P.
and Š. T., be heard. The defendants submitted receipts for
monthly payments for the applicant's maintenance and asked that four
witnesses be heard.
- At
the hearing held on 6 February 2003 the Municipal Court heard
evidence from the parties and after that, in the presence of the
applicant's counsel, scheduled the next hearing for 17 March 2003.
The applicant's counsel fell ill and had to be hospitalised pending
urgent surgery. On 11 March 2003 he sent a fax to the Municipal
Court excusing himself from the hearing scheduled for 17 March and
asked for an adjournment of the hearing. However, the Municipal Court
proceeded with the hearing and heard two witnesses, Lj. M. and Š.
M., the parents of one of the defendants. It also scheduled a further
hearing for 23 April 2003 and ordered that two other witnesses, also
called on behalf of the defendants, be heard. Neither the applicant
nor her counsel were notified of the hearing.
- The
counsel did attend the hearing of 23 April 2003, which he had learned
about by chance when at the Opatija Municipal Court on that day for
other reasons. The Municipal Court heard two witnesses for the
defendants, A. A. and I. P., as scheduled, but refused the proposal
of the applicant's counsel that five other witnesses be heard. The
relevant parts of the transcript of the hearing read as follows:
“Counsel for the plaintiff asks that the
plaintiff's neighbours M. C., S. R., V. G., N. I. and N. Z. be heard
as witnesses about the circumstances of the applicant's daily life
and the care she has received from them in the past two years and in
particular in the period of four months following her release from a
hospital, when she was immobile.
...
Counsel for the plaintiff withdraws his request that E.
P. be called as a witness since, according to the plaintiff, that
person is not able to attend a hearing at the court.
The judge decides that evidence is not to be heard from
Š. T., E. P., M. C., S. R., V. G., N. I. and N. Z. and no
further evidence is to be presented.”
The
Municipal Court proceeded by closing the proceedings and pronouncing
its judgment, dismissing the applicant's claim. The relevant part of
the judgment read as follows:
“In view of the above, the court considers that
the factual background has been fully established on the basis of the
parties' testimony and in particular in the contract for lifelong
maintenance and its annex and the enclosed receipts for payment. For
that reason the court declined to hear evidence from the witnesses
called on behalf of the plaintiff, because these witnesses cannot
tell the court anything of influence on its judgment, save for the
fact that they, owing to the plaintiff's age, have been increasingly
assisting her on a daily basis. For precisely that reason the court
is not relying on the evidence heard from the witnesses Lj. M., Š.
M. and A. A.”
- A
subsequent appeal by the applicant was dismissed by the Rijeka County
Court (Zupanijski sud u Rijeci) on 10 December 2003.
- On
12 February 2004 the applicant lodged a constitutional complaint
alleging, inter alia, that her right to a fair trial had been
infringed, because the hearing of 17 March 2003 had been held in the
absence of her counsel who had duly excused himself due to his urgent
hospitalisation and that she had thus been prevented from questioning
two witnesses. Furthermore, neither she nor her counsel had been
notified of the hearing scheduled for 23 April 2003. Although her
counsel did attend the hearing, which he had learned about by chance
on the very same day, he had not been able to prepare himself to
question the two further witnesses who had been heard at that
hearing. Thus, she had been prevented from questioning any of the
four witnesses, all of whom had been heard on behalf of the
defendants. Finally, she complained that the Opatija Municipal Court
had refused to hear any of her seven witnesses. On 21 June 2006 the
Constitutional Court (Ustavni sud Republike Hrvatske)
dismissed the complaint as ill-founded.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that the civil proceedings instituted by her
were unfair, relying on Article 6 § 1 of the Convention which
reads as follows:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a fair ... hearing ... by
[a] ... tribunal...”
- The
Government contested that argument.
A. Admissibility
- The Court notes that this complaint is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
B. Merits
- The
applicant contended that in the civil proceedings instituted upon her
action the Opatija Municipal Court had refused to hear any of her six
witnesses while it had heard four witnesses on behalf of the
defendants. She further argued that she had been prevented from
questioning two witnesses, Lj. M. and Š. M, heard on behalf of
her opponents, and also that she had not been adequately represented
at the hearing held on 23 April 2003 since neither she nor her
counsel had been notified of the date of the hearing. Although her
counsel had attended the hearing, of which he had learned by chance,
having been at the Opatija Municipal Court on that date for other
reasons, he had not known that two witnesses were to be heard at that
hearing and therefore he had had no chance to prepare himself
properly to question those witnesses.
- The
Government asserted that the applicant had enjoyed the benefits of a
fair trial, stressing that the trial court had accepted the following
as evidence from the applicant: her own testimony and a copy of the
contract for lifelong care with its annex; while on behalf of the
defendants it had heard four witnesses and had seen the receipts for
payment of monthly sums for the applicant's maintenance. They further
contended that the relevant domestic law empowered trial courts to
decide what evidence to admit. In the proceedings at issue the trial
court had established relevant facts from the evidence heard by the
parties and the documents submitted. Hence, there had been no need to
hear the witnesses called on behalf of the applicant. Furthermore,
the trial court had given adequate reasons for dismissing the
applicant's further evidence.
- As
to the applicant's contention that she had not been given an
opportunity to question two witnesses, namely Lj. M. and Š. M,
the second defendant's parents, the Government maintained that the
trial court had expressly stated that its judgment had not relied on
the evidence heard from these witnesses.
- As
to the applicant's allegations that neither she not her counsel had
been duly informed of the hearing held on 23 April 2003, the
Government submitted that the applicant's counsel had nevertheless
attended the hearing in question, questioned the witnesses and asked
that five further witnesses be heard, which showed that the applicant
had been sufficiently and adequately represented at that hearing.
- The
Court reiterates that while Article 6 of the Convention guarantees
the right to a fair hearing, it does not lay down any rules on the
admissibility of evidence or the way it should be assessed, which are
therefore primarily matters for regulation by national law and the
national courts (see Schenk v. Switzerland, judgment of 12
July 1988, Series A no. 140, p. 29, §§ 45-46, and
Garcia Ruiz v. Spain [GC] no. 30544/96, ECHR 1999-I, §
28). Similarly, it is in the first place for the national
authorities, and notably the courts, to interpret domestic law and
the Court will not substitute its own interpretation for theirs in
the absence of arbitrariness. This principle applies, inter alia,
to the application of procedural rules concerning the nomination of
witnesses by parties (see Tamminen v. Finland, no. 40847/98,
§ 38, 15 June 2004). In this connection, the Court further
reiterates that it is not within its province to substitute its own
assessment of the facts for that of the national courts. However,
under the Court's case-law, the requirements of fairness of the
proceedings include the way in which the evidence is taken and
submitted. The Court's task is to ascertain whether the proceedings
in their entirety, including the way in which evidence was taken and
submitted, were fair within the meaning of Article 6 § 1 (see,
inter alia, Dombo Beheer B.V. v. the Netherlands,
judgment of 27 October 1993, Series A no. 274, pp. 18,19,
§ 31.).
- The
requirements inherent in the concept of fair hearing are not
necessarily the same in cases concerning the determination of civil
rights and obligations as they are in cases concerning the
determination of a criminal charge. This is borne out by the absence
of detailed provisions such as paragraphs 2 and 3 of Article 6
applying to cases of the former category. Thus, although these
provisions have a certain relevance outside the strict confines of
criminal law (see, mutatis mutandis, Albert and Le Compte
v. Belgium, judgment of 10 February 1983, Series A
no. 58, p. 20, § 39), the Contracting States have
greater latitude when dealing with civil cases concerning civil
rights and obligations than they have when dealing with criminal
cases (see Pitkänen v. Finland, no. 30508/96, § 59,
9 March 2004).
- Nevertheless,
certain principles concerning the notion of a fair hearing in cases
concerning civil rights and obligations emerge from the Court's
case-law. Most significantly for the present case, it is clear that
the requirement of equality of arms, in the sense of a fair balance
between the parties, applies in principle to such cases as well as to
criminal cases (see Feldbrugge v. the Netherlands, judgment of
29 May 1986, Series A no. 99, p. 17, § 44
and Dombo Beheer, cited above, p. 19, § 33). In that
connection the Court considers that as regards litigation involving
opposing private interests, equality of arms implies that each party
must be afforded a reasonable opportunity to present his case -
including his evidence - under conditions that do not place him at a
substantial disadvantage vis-à-vis his opponent. It is
left to the national authorities to ensure in each individual case
that the requirements of a fair hearing are met (see Dombo Beheer,
cited above, p. 19, § 33).
- As
to the present case, the Court notes that the applicant initially,
when bringing her civil action, proposed that evidence be heard from
two witnesses, E. P. and Š. T. Later on, at the hearing held
on 23 April 2003, the applicant withdrew her request that E. P. be
heard, and proposed that the court hear evidence from further five
witnesses, M. C., S. R., V. G., N. I. and N. Z. She stated that the
relevance of their evidence was that they could provide information
on the care provided to her by persons other than the defendants, who
had undertaken an obligation to care for the applicant in order to
acquire all her property post mortem. Thus, the evidence heard
from these witnesses would, in the applicant's view, show that the
defendants had failed to provide her with adequate care and hence had
failed to fulfil their contractual obligations, which entitled the
applicant to seek the termination of the contract in question.
- As to the reasons given by the domestic courts for not
admitting the evidence adduced by the applicant, the Court notes
that, even though a domestic court has a certain margin of
appreciation when choosing arguments in a particular case and
admitting evidence in support of the parties' submissions, an
authority is obliged to justify its activities by giving reasons for
its decisions (see Suominen v. Finland, no. 37801/97,
§ 36, 1 July 2003).
- In
the instant case the Opatija Municipal Court justified its refusal to
hear evidence from six witnesses called on behalf of the applicant by
saying that the factual background of the case had been sufficiently
established from the parties' statements and the supporting
documents, namely the contract for lifelong maintenance and its annex
and the receipts for payments made by the defendants to the
applicant. In this connection, the Court notes that the contract in
question together with its annex was submitted by the applicant as an
enclosure when her civil action was lodged on 23 October 2002. The
receipts for payment were submitted by the defendants at the
beginning of the trial and the parties' evidence was heard at the
hearing held on 6 February 2003.
- Thus,
according to the Opatija Municipal Court's arguments, the facts had
already been sufficiently established on 6 February 2003, which was
the only reason for not admitting any further evidence proposed by
the applicant. The Court notes however that after that date four more
witnesses called on behalf of the defendants were heard as follows:
at the hearing held on 17 March 2003, in the absence of the applicant
and her counsel, Lj. M. and Š. M., the parents of one of the
defendants, were heard, while on the hearing held on 23 April 2003 R.
P. and A. A. were heard.
- The Court notes that, while refusing to hear any of
the six witnesses called on behalf of the applicant, the trial court
nevertheless heard four witnesses called on behalf of the defendants
even after it considered that the factual background of the case had
already been fully established. In this connection the Court observes
that, although it is not its task to examine whether the court's
refusal to admit the evidence submitted by the applicant was
well-founded, in its assessment of compliance of the procedure in
question with the principle of equality of arms which is a feature of
the wider concept of a fair trial (see Ekbatani v. Sweden,
judgment of 26 May 1988, Series A no. 134, p. 14,
§ 30), significant importance is attached to appearances
and to the increased sensitivity of the public to the fair
administration of justice (see Borgers v. Belgium, judgment of
30 October 1991, Series A no. 214 B, p. 31,
§ 24).
- Bearing
in mind the above considerations viewed in the light of the
applicable principles, the Court finds that the applicant did not
have a fair trial in the proceedings in question, in so far as the
trial court refused to hear evidence from any of the six witnesses
called on behalf of the applicant, for reasons which contradicted the
trial court's agreement to hear evidence from four witnesses called
on behalf of the defendants.
There has therefore been a violation of Article 6 § 1.
- In
view of the above findings the Court does not need to examine the
remainder of the applicant's complaints of fairness of proceedings.
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
- The
applicant complained that she had had no effective remedy in respect
of her Article 6 complaints. She relied on Article 13 of the
Convention which reads as follows:
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
- The
Court notes that the applicant was able to lodge an appeal against
the first instance judgment and a constitutional complaint whereby
she was able to advance the same complaints that she is now
presenting before the Court The fact that the remedies used by the
applicant were unsuccessful does not render them ineffective for the
purposes of Article 13 of the Convention.
- It
follows that this complaint is manifestly ill-founded and must be
rejected in accordance with Article 35 §§ 3 and 4 of the
Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed 100,000 Croatian kunas (HRK) in respect of
non-pecuniary damage.
- The
Government deemed the sum claimed excessive and unfounded as there
had been no causal link between the violations complained of and the
applicant's financial expectations.
- The
Court cannot speculate about the outcome of the trial had it been in
conformity with Article 6 and therefore, an award of just
satisfaction can only be based on the fact that the applicant did not
have the benefit of the guarantees of that Article. The Court,
accepting that the lack of such guarantees has caused the applicant
non-pecuniary damage which cannot be made good by the mere finding of
a violation, awards her 2,000 euros (EUR) in that respect.
B. Costs and expenses
- The
applicant also claimed HRK 4,392 for the costs and expenses incurred
before the domestic courts and HRK 13,505 for those incurred before
the Court.
- The
Government made no comments in this respect.
- According
to the Court's case-law, an applicant is entitled to reimbursement of
his costs and expenses only in so far as it has been shown that these
have been actually and necessarily incurred and are reasonable as to
quantum. In the present case, regard being had to the information in
its possession and the above criteria, the Court rejects the claim
for costs and expenses in the domestic proceedings and considers it
reasonable to award the sum of EUR 1,800 for the proceedings before
the Court.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint concerning the
applicant's right to a fair trial admissible and the remainder of the
application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following
amounts which are to be converted into the national currency of the
respondent State at the rate applicable at the date of settlement:
(i)
EUR 2,000 (two thousand euros) in respect of non-pecuniary damage;
(ii) EUR
1,800 (one thousand eight hundred euros) in respect of costs and
expenses;
(iii) any
tax that may be chargeable on the above amounts;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 27 March 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
