LOVRIC v. CROATIA - 38458/15 (Judgment : Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings Article 6-1 - Access to court)) [2017] ECHR 317 (04 April 2017)

In the case of Lovrić v. Croatia,

The European Court of Human Rights (Second Section), sitting as a Chamber composed of:

          Işıl Karakaş, President,
          Julia Laffranque,
          Nebojša Vučinić,
          Valeriu Griţco,
          Ksenija Turković,
          Jon Fridrik Kjølbro,
          Stéphanie Mourou-Vikström, judges,
and Hasan Bakırcı, Deputy Section Registrar,

Having deliberated in private on 28 February 2017,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 38458/15) 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, Mr Zvonimir Lovrić (“the applicant”), on 29 July 2015.

2. The applicant was represented first by Mr A. Fiuri and subsequently by Mr I. Bošković, both advocates practising in Požega. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik.

3. The applicant alleged that he had been unable to challenge before judicial authorities the decision (resolution) to exclude him from an association of which he was a member.

4. On 8 October 2015 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

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.

II. RELEVANT DOMESTIC LAW AND PRACTICE

A. The Constitution

19. The relevant Articles of the Croatian Constitution (Ustav Republike Hrvatske, Official Gazette no. 56/90 with subsequent amendments) read as follows:

Article 16

“(1) Rights and freedoms may be restricted only by law in order to protect the rights and freedoms of others, the legal order, public morals or health.

(2) Every restriction of rights and freedoms should be proportional to the nature of the necessity for the restriction in each individual case.”

Article 29(1)

“Everyone shall be entitled to have his rights and obligations, or suspicion or accusation of a criminal offence decided upon fairly and within a reasonable time by an independent and impartial court established by law.”

Article 43

“Everyone shall be guaranteed the right to associate freely for the protection of their interests or promotion of social, economic, political, national, cultural and other convictions or goals. For this purpose, anyone may freely form trade unions and other associations, join them or leave them, in accordance with the law.

The right to associate freely is limited by the prohibition of any violent threat to the democratic constitutional order and the independence, unity, and territorial integrity of the Republic of Croatia.”

Article 134

“International agreements in force which have been concluded and ratified in accordance with the Constitution and made public shall be part of the internal legal order of the Republic of Croatia and shall have precedence over the [domestic] statutes. ...”

B. Relevant legislation

1. Associations Act

20. The Associations Act of 2002 (Zakon o udrugama, Official Gazette no. 11/02), which was in force between 1 January 2002 and 30 September 2014, was the legislation governing associations at the material time.

21. Section 3 provided that rules governing civil-law partnerships (ortaštvo) applied mutatis mutandis to unregistered associations, that is, to associations without the status of a legal entity. Civil-law partnerships were regulated first by the Obligations Act of 1978, and subsequently by the Obligations Act of 2006.

22. Section 26(1) of the Associations Act provided as follows:

V. SUPERVISION

Competence to perform supervision

Section 26(1)

“The conduct of associations is supervised by their members. Any member who finds irregularities in the implementation of the statute [of the association] is entitled to report it to the relevant body of the association designated in the statute, or to the General Meeting if no relevant body has been designated in the statute. 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.”

23. Provisions identical to those in sections 3 and 26(1) of the Associations Act of 2002 are contained in sections 1(3) and 42(2) and (3) of the Associations Act of 2014 (Zakon o udrugama, Official Gazette no. 74/14) , which entered into force on 1 October 2014.

2. Civil Procedure Act

24. The relevant provisions of the Civil Procedure Act (Zakon o parničnom postupku, Official Gazette of the Socialist Federal Republic of Yugoslavia no. 4/77 with subsequent amendments, and Official Gazette of the Republic of Croatia no. 53/91 with subsequent amendments), which has been in force since 1 July 1977, read as follows:

Section 1

“This Act provides for rules of procedure on the basis of which the courts hear and decide disputes concerning fundamental rights and obligations of man and of the citizen, personal and family matters as well as employment, commercial, property and other civil-law disputes, unless for some of these disputes the law provides that the courts shall resolve them by [applying] rules of some other procedure.”

5.a. Reopening of proceedings following a final judgment of the European Court of Human Rights in Strasbourg finding a violation of a fundamental human right or freedom

Section 428a

“(1) When the European Court of Human Rights has found a violation of a human right or fundamental freedom guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms or additional protocols thereto, ratified by the Republic of Croatia, a party may, within thirty days of the judgment of the European Court of Human Rights becoming final, file a petition with the court in the Republic of Croatia which adjudicated at first instance in the proceedings in which the decision violating the human right or fundamental freedom was rendered, to have the decision [in question] set aside.

(2) The proceedings referred to in paragraph 1 of this section shall be conducted by applying, mutatis mutandis, the provisions on the reopening of proceedings.

(3) In the reopened proceedings the courts are required to observe the legal views expressed in the final judgment of the European Court of Human Rights finding a violation of a fundamental human right or freedom.”

3. Administrative Disputes Act

25. The relevant part of the Administrative Disputes Act of 1977 (Zakon o upravnim sporovima, Official Gazette of the Socialist Federal Republic of Yugoslavia no. 4/77, and Official Gazette of the Republic of Croatia no. 53/91, with subsequent amendments), which was in force between 1 July 1977 and 31 December 2011, provided as follows:

Section 66

“A request for the protection of a constitutionally guaranteed right or freedom ... if such a right or freedom has been violated by a final individual act [that is, decision], and no other judicial protection is secured, shall be decided by the [Administrative Court], by applying mutatis mutandis the provisions of this Act.”

26. Such a remedy of last resort - to be used, in the absence of any other judicial protection, against decisions of public authorities capable of violating constitutionally guaranteed rights or freedoms - is no longer provided for in the Administrative Disputes Act of 2011 (Zakon o upravnim sporovima, Official Gazette no. 20/10 with subsequent amendments), which entered into force on 1 January 2012.

C. Relevant practice

1. Practice submitted by the Government

(a) Case-law of the Constitutional Court

27. In decision no. U-III-3907/2005 of 11 January 2005 the Constitutional Court held as follows:

“In the present case the relevant provision is section 26(1) of the Associations Act ...

The case file of the Rijeka County Court shows that the complainant sought the setting aside of individual decisions of the relevant bodies of the hunting society S.P., whereby [he] had been found guilty of a breach of discipline and the disciplinary measure of exclusion from the association had been imposed.

In the reasons of the contested decision the Supreme Court stated as follows: ‘It follows from section 26(1) of the Associations Act that the protection of rights by bringing a civil action in a county court may be sought only if the relevant body, or the association’s General Meeting ‘does not examine’ the report of the member about irregularities in the implementation of the statute [of the association], and if such irregularities are not corrected. Therefore, this action ensures the implementation of the statute [of the association], and not the protection which would entail the right to have a particular decision of the relevant body of the association set aside.’

The Constitutional Court considers well-founded the Supreme Court’s view that, because the complainant with his action does not seek from the Rijeka County Court the protection prescribed by section 26(1) of the Associations Act, but [seeks] the setting aside of the impugned decisions of the Disciplinary Commission of the hunting society S.P. to exclude [him] from membership (of which the defendant’s General Meeting is to make a final decision), examination of the plaintiff’s claim in the present case is not within the jurisdiction of the ordinary courts.”

28. The relevant part of the Constitutional Court’s decision no. U-III-217/2001 of 25 April 2007 reads:

“The complainant brought an action in the Administrative Court against the decision to exclude him from a hunting society, on the grounds of lack of jurisdiction of the body that made the decision, erroneous application of procedural rules and failure to establish facts.

The Administrative Court treated the applicant’s action as a request under section 66 of the Administrative Disputes Act [hereinafter “ADA”], [because] the contested decision of the hunting society is not an administrative act [such act being the only act] against which, under section 6 of ADA, administrative-dispute [proceedings] may be instituted.

The Administrative Court, in the reasons for its decision to declare the request under section 66 of ADA inadmissible, expressed the view that in the present case there had been no violation of the right to freedom of association ... since the Constitution does not guarantee to anyone membership of any particular association, nor does the Constitution prescribe conditions under which citizens may enjoy that freedom. Rather, those conditions are provided for in [the relevant] legislation, in the present case, in the Hunting Act.

In the light of the foregoing, the Constitutional Court is of the opinion that the Administrative Court has not violated Article 19 paragraph 2 of the Constitution, namely, that it has not denied the complainant his constitutional right to judicial review of the lawfulness of administrative acts.

This opinion of the Constitutional Court follows from the fact that the entity which issued the act whose lawfulness the complainant had contested before the Administrative Court is not a legal entity vested with public authority, and that therefore the act issued by [such] entity ... is not an administrative act by its legal nature.

In line with the above, the Administrative Court, in accordance with section 66 of ADA, conducted the proceedings providing judicial protection against a final decision against which no other judicial protection is secured, in which proceedings it found, and gave reasons for its view, that in the present case there had been no violation of the constitutional right to freedom of association.”

29. In decision no. U-III-1630/2006 of 17 June 2009 the Constitutional Court expressed the following view:

“In the case of membership of an association of citizens, such as a hunting society, one cannot speak of deciding upon rights and obligations within the meaning of Article 29 paragraph 1 of the Constitution. [Rather, such cases concern] internal rules of an association which is entitled to prescribe the rights, obligations and responsibilities of its members by itself, through its own acts, as well as the requirements for joining or being excluded from it.

Section 26(1) of the Associations Act recognises judicial protection only if the [governing] bodies of the association do not fulfil their obligations ... Since this is not so in this particular case, the Constitutional Court finds that Article 29 paragraph 1 of the Constitution is not relevant.”

30. The relevant part of the Constitutional Court’s decision no. U-III-3829/2010 of 12 May 2011 reads as follows:

“In the opinion of the Administrative Court a request for the protection of a constitutionally guaranteed right or freedom cannot be lodged against a final decision adopted in proceedings for exclusion from a political party, trade union or other association or organisation, because such final decision does not interfere with constitutionally guaranteed rights or freedoms within the meaning of section 66 of the Administrative Disputes Act.

As regards the complainant’s reference to the Constitutional Court’s decision no. U-III-1283/2000 of 12 February 2003, the Constitutional Court notes that a decision on membership of an association of citizens, such as a hunting society, is not a decision on rights and obligations within the meaning of Article 29 paragraph 1 of the Constitution. [Rather, such cases concern] the internal rules of an association which is entitled to prescribe the rights, obligations and responsibilities of its members by itself, through its own acts, as well as the requirements for joining or being excluded from it.”

31. In decision no. U-III-5688/2014 of 5 November 2014 the Constitutional Court held:

“In the present case the Varaždin County Court found that the courts had no jurisdiction and declared inadmissible the complainant’s [civil] action [whereby he sought to] have the decision of the defendant, hunting society F., whereby [he] had been excluded from membership of that society, declared null and void. Making a decision on such claim does not fall within the jurisdiction of the municipal courts since it is not a dispute under section 1 of the Civil Procedure Act for which section 34 of [the same] Act prescribes jurisdiction of that type of court. Neither is it a dispute that would fall within the jurisdiction of a county court within the meaning of section 26(1) of the Associations Act because that legislation grants the members of an association the right to supervise the association’s bodies in issuing general rules, and not the right to protect the rights violated by [the association’s] decisions. Moreover, an association within the meaning of section 1 of the Associations Act is not an entity vested with public authority, and decisions it issues are not administrative acts, so adjudication on the complainant’s claim ... does not fall within the jurisdiction of the administrative courts.”

(b) Case-law of the Supreme Court

32. In decision no. Gž-9/15 of 12 May 2015 the Supreme Court held as follows:

“[Given that] pursuant to [section 26] of the Associations Act, judicial protection could be sought by a member of a society (association) only to correct irregularities in the implementation of the statute [of the association], which was not corrected in the manner described in that provision, the courts have no jurisdiction to decide on the validity or lawfulness of a decision of an association imposing a sanction of exclusion from membership. In particular, membership of an association does not give a member rights that would, in terms of section 1 of the Civil Procedure Act, enjoy judicial protection against the sanction of exclusion from membership.”

2. Other relevant practice

(a) Case-law of the Constitutional Court

33. The relevant part of the Constitutional Court’s decision no. U-III-730/99 of 15 November 2000 reads:

“Likewise, the complainant’s constitutional right to freedom of association was not violated by the contested decisions, because that right, in the opinion of the Constitutional Court, does not exclude the possibility of determining liability of members of a certain association in accordance with relevant [internal] regulations, and consequently, the possibility of expelling a member from the association after he or she was found liable for breaching these regulations.”

(b) Case-law of the Supreme Court

34. In decision no. Gž 20/06-2 of 7 February 2007 the Supreme Court held:

“This court agrees with the assessment of the Virovitica County Court that it had no jurisdiction in this matter. The appellant’s reliance on section 26 of the Associations Act is ill-founded because that provision defines jurisdiction of the courts in relation to the right of members to supervise the conduct of [their] association. That right of supervision does not entail [the right] to contest the validity of the defendant [association]’s decision adopted in the disciplinary proceedings against the plaintiff as a member of the association. It was therefore correct for the Virovitica County Court to decline its subject-matter jurisdiction.

...

[However], the assessment of the Virovitica County Court that deciding on membership and membership rights, as well as resolving disputes arising from membership of a voluntary association, does not fall within the jurisdiction of the courts, not even under section 66 and ... of the Administrative Disputes Act, is incorrect.

Section 66 of the Administrative Disputes Act provides that a request for the protection of a constitutionally guaranteed right or freedom, if such a right or freedom has been violated by a final individual act [that is, decision], and no other judicial protection is secured, will be decided by the [Administrative Court] by applying mutatis mutandis the provisions of that Act. Under Article 29 paragraph 1 of the Croatian Constitution and Article 6 § 1 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, everyone is entitled to have an independent and impartial court established by law decide on his rights and obligations of a civil nature.

Having regard to the cited provisions and given that the final decision of the defendant [association] on the plaintiff’s expulsion is a final individual act which may violate a constitutional right and the freedom of association of citizens, the plaintiff who considers that his rights as a citizen and a member of the association were violated by the decisions of the disciplinary tribunal of the defendant [association], is entitled to judicial protection[, in particular] before the Administrative Court.

Therefore, the Administrative Court has jurisdiction under section 66 of the Administrative Disputes Act to decide on such request because otherwise the plaintiff would be deprived of his civil and constitutional right to judicial protection in relation to his right to membership of an association, which is a right of a civil nature, in respect of which he is guaranteed judicial protection.

Since it is therefore the Administrative Court that has jurisdiction in this case, the first-instance court, by declaring the plaintiff’s action inadmissible, wrongly applied [the relevant provision] of the Civil Procedure Act ... and committed a serious breach of rules of civil procedure.”

35. The relevant part of the Supreme Court’s decision no. Gž 1/04-2 of 21 February 2007 reads as follows:

“The plaintiffs, with a view to contesting the lawfulness of the decision of the defendant [association] terminating [their] membership of [that association], sought protection of their rights before the Čakovec County Court relying on section 26(1) of the Associations Act. Under that provision the conduct of associations is supervised by their members ...

In interpreting the cited provision the Čakovec County Court correctly declined its jurisdiction in the matter by holding that section 26 of the Associations Act regulates the issue of jurisdiction of the courts in relation to the right of the members to supervise the conduct of [their] association. That right of supervision certainly does not entail [the right] to contest the validity of the defendant [association]’s decision adopted in the disciplinary proceedings against the plaintiffs as members of the association. It was therefore correct for the Čakovec County Court to decline its subject-matter jurisdiction.

The lack of subject-matter jurisdiction of the Čakovec County Court under section 26(1) of the Associations Act ... does not, however, imply an absolute lack of jurisdiction of the courts in the matter, and that the said action should be declared inadmissible. As previously mentioned, the plaintiffs in these proceedings seek protection of their membership rights in relation to the decision of the disciplinary tribunal of the defendant [association] terminating their membership of the defendant [association].

The right to membership of an association is of a civil nature and as such, in accordance with Article 29 paragraph 1 of the Croatian Constitution and Article 6 § 1 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, enjoys judicial protection. Specifically, according to the cited provisions of the Croatian Constitution and the European Convention on Human Rights, everyone is entitled to have an independent and impartial court established by law decide on his rights and obligations of a civil nature.

Under section 66 of the Administrative Disputes Act a request for the protection of a constitutionally guaranteed right or freedom ... if such a right or freedom has been violated by a final individual act [that is, decision], and no other judicial protection is secured, will be decided by the [Administrative Court], by applying mutatis mutandis the provisions of that Act.

Having regard to the cited provisions of section 66 of the Administrative Disputes Act and given the fact that the decision of the disciplinary tribunal of the defendant [association] is an individual act, the plaintiffs who consider that their rights as citizens and members of the association were violated by the decisions of the disciplinary tribunal of the defendant [association], are entitled to judicial protection before the Administrative Court.

Since, therefore, by declaring the plaintiffs’ action inadmissible, a serious breach of rules of civil procedure had been committed ... the contested decision had to be reversed and the case transferred to the Administrative Court, as the court having jurisdiction.”

36. In decision no. Gž 19/07-2 of 17 April 2008 the Supreme Court expressed the following view:

“The subject of the dispute is the plaintiffs’ claim to have the decision[s] of the defendant [association] adopted by its General Meeting [on] 10 December 2000 ... and 9 July 2001 declared null and void. The plaintiffs further asked the court to declare that they were fully fledged members of the defendant association, and to order the defendant to enable [them] to regularly exercise [their] membership rights established by the statute and other [internal regulations] of the defendant.

...

The question of the admissibility or inadmissibility of the selected avenue of legal protection should be assessed primarily with regard to section 26(1) of the Associations Act, which also applies to the defendant [association] and which, as special legislation, has priority in application compared with the [relevant] provisions of the Civil Procedure Act on declaratory actions.

...

The admissibility requirements for such action are:

- the plaintiffs, as members of the association, found irregularities in the implementation of [its] statute,

- the plaintiffs reported this in writing to the relevant body of the association designated in the statute, or to the General Meeting,

- the report was not examined at the session of the relevant body designated in the statute within thirty days of its submission, or it was examined, but the irregularities were not corrected.

Since the same provision provides, in fine, for the right of action of a member of an association, it is obvious that the aim of instituting proceedings is to remedy the irregularities in the implementation of the statute. If the above requirements are met, a member has the right to bring a civil action in the [relevant] county court ‘with a view to protecting his or her rights as stipulated in the statute’. Therefore there has to be an irregularity in the implementation of the statute, which was not remedied in the described manner, and this irregularity must have violated a right of the member (who is bringing the action) stipulated in the statute.

The way to remedy irregularities in the implementation of the statute [of an association] which have violated a member’s right stipulated in the statute depends on the type of irregularity in question, but any [type of] action envisaged in the Civil Procedure Act cannot be ruled out in advance. One cannot exclude the right of a member to bring a declaratory action with a view to establishing that a certain decision of a [governing] body of an association is null and void or [to bring] a constitutive action seeking to have a decision set aside, because it is possible that the irregularity in the implementation of the statute which violated the member’s right is remedied by the mere finding that the [contested] decision is null and void or by setting it aside, without further ado (action) by the association’s bodies.

For these reasons ... the decision of the first-instance court [to declare the action inadmissible] has to be quashed and the case remitted to that court for fresh proceedings.

...

Finally, it is to be noted that, if [the court] in the fresh proceedings finds that the defendant [association]’s decisions violated the plaintiffs’ rights as citizens and members of the association in the disciplinary proceedings, then the courts, in particular the Administrative Court, would have jurisdiction on the basis of section 66 of the Administrative Disputes Act.”

III. RELEVANT COUNCIL OF EUROPE INSTRUMENTS

A. Recommendation of the Committee of Ministers on the legal status of non-governmental organisations in Europe

37. The relevant part of Recommendation CM/Rec(2007)14 of the Committee of Ministers to member States on the legal status of non-governmental organisations in Europe, adopted by the Committee of Ministers on 10 October 2007 at the 1006th meeting of the Ministers’ Deputies, reads as follows:

C. Membership

“23. Members of NGOs should be protected from expulsion contrary to their statutes.”

38. The relevant part of the explanatory report to the above recommendation reads as follows:

“59. As with admission, the expulsion of someone from a membership-based NGO is generally a matter for the organisation itself. However, the rules governing membership in its statute must always be observed and national law should thus ensure that someone facing expulsion or who has been expelled has available an effective means on insisting on such observance; see Applic. No. 10550/83, Cheall v. United Kingdom, 42 DR 178 (1985). Moreover the rules governing expulsion should not be wholly unreasonable or arbitrary; in particular there should be a fair hearing before any decision is taken.

119. The best means of ensuring ethical, responsible conduct by NGOs is to promote self-regulation in this sector at the national and international level. ... Nonetheless states have a legitimate interest in regulating NGOs so as to guarantee respect for the rights of third parties (whether donors, employees, members or the public) and to ensure the proper use of public resources and respect for the law.

120. In most instances the interests of third parties can be adequately protected by enabling them to bring the relevant matter before the courts; there should generally be no need for a public body to take any other action on their behalf.”

B. Fundamental Principles on the Status of Non-governmental Organisations in Europe

39. The aforementioned recommendation by the Committee of Ministers is based on the Fundamental Principles on the Status of Non-governmental Organisations in Europe, adopted by participants at multilateral meetings held in Strasbourg from 19 to 20 November 2001, 20 to 22 March 2002 and 5 July 2002. The relevant part of that document reads as follows:

Membership

“22. Members of an NGO should be protected from expulsion contrary to its statutes.

...

Supervision

“66. NGOs may be regulated in order to secure the rights of others, including members and other NGOs, but they should enjoy the benefit of the presumption that any activity is lawful in the absence of contrary evidence.”

40. The relevant part of the explanatory report to the Fundamental Principles on the Status of Non-governmental Organisations in Europe reads as follows:

Supervision

“71. States nevertheless have a legitimate interest in regulating NGOs so as to guarantee respect for the rights of third parties, and this may include action to safeguard the reputation and economic interests of other NGOs in particular. State intervention may also be needed to protect members against abuse of an NGO’s dominant position, particularly against exclusion in breach of the organisation’s rules, imposition of certain unfavourable conditions, or even adoption of wholly unreasonable or arbitrary rules. However, in most instances, the appropriate form of protection would be the possibility for members to bring the matter before the courts; there should generally be no need for a public body to take action on the members’ behalf.”

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

41. The applicant complained that he had not had access to court to contest the decision (resolution) whereby he was expelled from the association of which he was a member. He relied 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 ...”

42. The Government contested that argument.

A. Admissibility

1. The submissions of the parties

(a) The Government

43. The Government argued that Article 6 § 1 of the Convention was inapplicable to the present case because the proceedings complained of had not involved a dispute over the applicant’s civil “rights and obligations”, which were recognised, at least on arguable grounds, under domestic law.

44. In particular, the Government averred that the applicant’s expulsion from the hunting association, V., could only have violated his membership rights arising from the association’s statute. It could not have violated any of his rights recognised by the Constitution, primary or secondary (subordinate) legislation, or an individual decision issued by public authorities. The Government concluded that those membership rights were not rights that were “recognised under domestic law”, and that Article 6 of the Convention was therefore inapplicable.

45. Moreover, in the Government’s view, the applicant could not even claim that those rights, based on the statute of the association, were recognised, at least on “arguable grounds”, under domestic law. The decision to declare the applicant’s civil action inadmissible had been in line with the established case-law of the domestic courts, according to which a decision to expel a member from an association was not a decision concerning rights and obligations within the meaning of Article 29 paragraph 1 of the Croatian Constitution (see paragraphs 29-30 above). Nor did it constitute an interference with his or her freedom of association, as that freedom did not encompass the right to be a member of a particular association (see paragraphs 27 and 30 above).

46. In the alternative, the Government argued that the proceedings complained of did not concern a dispute over the applicant’s rights. They explained that the alleged violation of the applicant’s membership rights could not have been remedied in the proceedings instituted before the judicial authorities under section 26(1) of the Associations Act. The function of such proceedings was to supervise the conduct of the governing bodies of an association, namely to assess whether a given action had been in accordance with the association’s statute. The courts could not make a decision on membership rights potentially violated by such action, nor could they substitute the decision of the relevant governing bodies with their own decision. For the Government, that meant that the proceedings envisaged in section 26(1) of the Associations Act had not been directly decisive for the applicant’s right to be reinstated as a member of the association, and thus had not entailed a dispute over his rights, which was necessary for Article 6 § 1 of the Convention to apply.

47. For the same reason, the Government submitted, the applicant’s rights as a member of the association, stemming from its statute, were not “civil”, within the meaning of Article 6 § 1 of the Convention. In any event, and to the extent that the applicant was arguing that his freedom of association had been violated by his expulsion, the Government referred to the Court’s case-law according to which freedom of association was not a civil right but a political one, to which Article 6 § 1 of the Convention was inapplicable (see Pierre-Bloch v. France, 21 October 1997, § 50, Reports of Judgments and Decisions 1997-VI; Papon v. France (dec.), no. 344/04, 11 October 2005; and Refah (Prosperity) Party and Others v. Turkey (dec.), nos. 41340/98, 41342/98, 41343/98 and 41344/98, 3 October 2000).

48. For those reasons the Government urged the Court to declare the application inadmissible.

(b) The applicant

49. The applicant replied that an association’s statute was the law for the association and its members, and that therefore the rights arising from the statute were rights recognised under domestic law. Furthermore, the proceedings he complained about had not exclusively concerned violations of the statute; they had also concerned a violation of his freedom of association, which must be respected also by associations themselves.

50. The applicant also submitted that he had been a hunter for a long time and that, because he had been expelled from the association, he had lost the right to hunt on land leased by it. The only way for him to continue exercising that right was to become a member of another hunting association, which would have certainly caused him damage because that association’s hunting land was far from his place of residence.

2. The Court’s assessment

51. The Court reiterates that Article 6 § 1 of the Convention secures to everyone the right to have any claim relating to his civil rights and obligations brought before a court or tribunal. The right of access, namely the right to institute proceedings before a court in civil matters, constitutes one aspect of this “right to a court” (see, among many other authorities, Osman v. the United Kingdom, 28 October 1998, § 147, Reports 1998-VIII, and Golder v. the United Kingdom, 21 February 1975, §§ 28-36, Series A no. 18). This right extends only to disputes (“contestation” in the French text) over “civil rights and obligations” which can be said, at least on arguable grounds, to be recognised under domestic law, irrespective of whether such rights are protected under the Convention. The dispute must be genuine and serious; it may relate not only to the actual existence of a right but also to its scope and the manner of its exercise; and, finally, the result of the proceedings must be directly decisive for the right in question, mere tenuous connections or remote consequences not being sufficient to bring Article 6 § 1 into play (see, among many other authorities, Baka v. Hungary [GC], no. 20261/12, § 100, ECHR 2016). However, Article 6 § 1 does not guarantee any particular content for (civil) “rights and obligations” in the substantive law of the Contracting States: the Court may not create by way of interpretation of Article 6 § 1 a substantive right which has no legal basis in the State concerned (ibid., § 101).

52. As to the existence of “rights and obligations”, the Court firstly observes that section 26(1) of the Associations Act (see paragraph 22 above) entitled members of an association to bring a civil action “with a view to protecting [their] rights as stipulated in the statute [of the association]”. Thus Croatian law not only mentioned but also afforded judicial protection to the members’ rights stemming from the statute of the association to which they belonged. In the present case the applicant, relying precisely on that provision, argued that the decision to expel him had been adopted in breach of the procedure provided for in the association’s statute because, in the absence of appeals against the disciplinary commission’s decision in his favour, the general meeting could not have overridden that decision (see paragraph 13 above). The Court therefore finds it difficult to accept the Government’s contention that those rights were not recognised under domestic law (see paragraphs 44-45 above).

53. That element, together with the fact that the present case concerns the rights of an existing member of an association rather than admission of a potential member, distinguishes it from the Rutkowski case where the Court found that the applicant had not had the right under the domestic law to become a member of a hunting association, and that Article 6 of the Convention had therefore been inapplicable (see Rutkowski v. Poland (dec.), no. 30867/96, 16 April 2002).

54. Secondly, the Court notes that under Croatian law hunting associations are voluntary associations (see the Supreme Court’s decision of 2 April 2014 cited in paragraph 16 above) and that there are no elements to suggest that they could be regarded as public law associations to which Article 11 of the Convention guaranteeing freedom of association would not be applicable (see Herrmann v. Germany, no. 9300/07, § 76, 20 January 2011). Freedom of association is recognised both under the Croatian Constitution and the Convention, which by virtue of Article 134 of the Constitution forms an integral part of the Croatian legal system (see paragraph 19 above). The case-law of the former European Commission of Human Rights suggests that expulsion from an association in breach of its rules, decided pursuant to arbitrary rules or entailing exceptional hardship for the member concerned, could constitute a violation of his or her freedom of association (see Cheall v. the United Kingdom, no. 10550/83, Commission decision of 13 May 1985, Decisions and Reports 42, pp. 178 and 186).

55. Freedom of association has both civil and political aspects. The present case does not concern the applicant’s membership of a political party, that is, the political aspect of that freedom, in which case Article 6 § 1 would not be applicable (see, for example, Refah (Prosperity) Party and Others, cited above). Rather, it concerns his membership of a hunting association with a private-law character, that is, the civil aspect of that freedom to which Article 6 § 1 indubitably applies (see APEH Üldözötteinek Szövetsége and Others v. Hungary, no. 32367/96, §§ 30-36, ECHR 2000-X). The Court also reiterates in this connection that, where a State confers rights which can be enforced by means of a judicial remedy (see paragraph 52 above), these can, in principle, be regarded as civil rights within the meaning of Article 6 § 1 (see Oršuš and Others v. Croatia [GC], no. 15766/03, § 105, ECHR 2010).

56. For these reasons, the Court has held in a similar case that the right to be a member of an association is a right of a civil nature, concomitant to the freedom of association, and that Article 6 § 1 therefore applied to proceedings concerning expulsion from an association (see Sakellaropoulos v. Greece (dec.), no. 38110/08, 6 January 2011).

57. Lastly, the Court finds it evident that the proceedings the applicant complained of in the present case concerned a genuine and serious dispute over his freedom of association, in particular over his right to remain a member of the association in question, and that the outcome of those proceedings was directly decisive for the right and the freedom in question.

58. It follows that the Government’s objection as to the applicability of Article 6 § 1 of the Convention must be dismissed.

59. The Court further notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It also notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. The submissions of the parties

(a) The applicant

60. The applicant argued that respect for the autonomy of associations could not be taken as a good reason for refusing judicial protection in cases of obvious infringements of membership rights guaranteed by the law or by the statute of the association. He noted that commercial companies, as membership-based organisations (društva), could also by their constitutive instrument or instrument of incorporation autonomously regulate their internal affairs to a great extent. However, unlike members of (not-for-profit) associations, members of commercial companies were not denied judicial protection of their rights arising from such a legal act, which was of a contractual nature.

61. In support of his argument, the applicant referred to the views expressed by a professor of company law, who had emphasised the necessity of legal protection of association members from unlawful interference with their membership rights by the association’s governing bodies. The applicant added that such interference could often, as in his case, constitute chicanery motivated by personal animosities. In the applicant’s view the necessity of legal protection followed from the nature of joining an association, which was akin to entering into a contract. Therefore, the issue of whether an association was abiding by its own statute had to be subject to judicial review before the relevant courts.

62. Lastly, the applicant submitted that the arguments adduced by the domestic courts and the Government to justify declaring his civil action inadmissible reflected the State’s policy of denying judicial protection in cases of that type, which was motivated by the fear that such disputes would overburden the domestic courts.

(b) The Government

63. The Government submitted that if the Court were to consider that Article 6 § 1 of the Convention was applicable in the applicant’s case, they would concede that he had been deprived of access to court but argue that that restriction had been based on the law, namely the Associations Act and the consistent case-law of the Constitutional Court and the Supreme Court (see paragraphs 27-32 above). They would also argue that it had pursued a legitimate aim and been proportionate.

64. In particular, the legitimate aim of the restriction had been respect for the autonomy of associations. Associations were established on a voluntary basis, were free to choose the means for achieving their goals and were entitled to formulate their internal rules, including criteria for membership, grounds for exclusion of members and mechanisms for protection of members’ rights within the association. By joining an association, its members subjected themselves to its rules. The State had tried to secure maximum freedom of association by avoiding the overregulation of associations and had abstained from interfering with associations’ internal affairs. It had thus regulated only the registration of associations and their activities in general, while limiting its power to interfere with their affairs to inspection and administrative supervision, leaving matters of internal oversight to the members.

65. The Government argued that if each or even only certain decisions of an association could be disputed before the ordinary courts, this would paralyse the operation of associations, significantly reduce their autonomy and render meaningless the power of internal oversight left to the members. It would thus constitute excessive interference of judicial authorities with the internal affairs of associations. Judicial review of associations’ decisions was therefore limited to exceptional circumstances provided in section 26(1) of the Associations Act (see paragraph 22 above), namely, when the following three conditions were satisfied:

- there were irregularities in the implementation of the statute of the association, and

- a member had already undertaken certain steps within the association before addressing the court, and

- those irregularities had infringed his or her rights arising from the association’s statute.

66. As to the proportionality of the restriction, the Government argued that by declaring the applicant’s action inadmissible, the domestic courts had not imposed an excessive burden on him. They further noted that the applicant himself had not stated what kind of prejudice he had suffered as a result of his exclusion from the association, apart from being forced to join another hunting association far from his place of residence in order to continue hunting (see paragraph 50 above).

67. In reply to the applicant’s argument comparing membership rights in associations and commercial companies (see paragraphs 60-61 above), the Government stated that, despite the opinions of legal scholars on which the applicant had relied, those were significantly different types of organisations in many aspects (their goals and purposes, their role in society and their position in the legal order). Those differences justified minimum regulatory interference with the internal affairs of associations, as well as greater judicial protection of members of commercial companies.

68. For those reasons the Government urged the Court to find that there had been no violation of the applicant’s right of access to court in the present case.

2. The Court’s assessment

69. The Court reiterates that the right of access to a court is not absolute and may be subject to limitations that do not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired. Furthermore, a limitation will not be compatible with Article 6 § 1 if it does not pursue a legitimate aim and if there is not a reasonable relationship of proportionality between the means employed and the aim pursued (see, among many other authorities, Baka, cited above, § 120).

70. Turning to the present case, the Court notes that the executive board of the association initiated internal disciplinary proceedings against the applicant before the disciplinary commission for having reported another member of the association to the police. They considered this a serious breach of his duties as a member (see paragraph 7 above). Once the disciplinary commission dismissed the disciplinary action against the applicant, the executive board referred the matter to the general meeting, which twice (first at an extraordinary meeting and then at its annual session) voted to expel the applicant. No reasons were given for such a decision at either session (see paragraphs 8-12 above). The applicant’s attempt to contest before judicial authorities the resolution to expel him as being in breach of the association’s statute failed because the courts declined jurisdiction in the matter (see paragraphs 13-14 and 16 above). Their reasoning seems to suggest that in their view the relevant legislation, namely section 26(1) of the Associations Act, did not provide a legal basis for such action and that the decision to expel a member concerned the association’s internal affairs, which could not be reviewed by the courts (see paragraphs 14 and 16 above).

71. The Court accepts that the restrictions on the applicant’s right of access to court pursued the legitimate aim stated by the Government, namely respect for the autonomy of associations. In this connection, the Court further reiterates that the organisational autonomy of associations constitutes an important aspect of their freedom of association protected by Article 11 of the Convention (see, mutatis mutandis, cases concerning autonomy of religious communities, Sindicatul “Păstorul cel Bun” v. Romania [GC], no. 2330/09, §§ 136-38, ECHR 2013 (extracts), and Hasan and Chaush v. Bulgaria [GC], no. 30985/96, §§ 65 and 82-83, ECHR 2000-XI) and that it can serve as a legitimate aim for restricting the right of access to court (see, mutatis, mutandis, Müller v. Germany (dec.), no. 12986/04, 6 December 2011). In particular, associations must be able to wield some power of discipline, even to the point of expulsion, without fear of outside interference.

72. However, as Article 11 § 2 of the Convention suggests, freedom of association and, consequently, the organisational autonomy of associations, is not absolute. This means that State interference with the internal affairs of associations cannot be completely excluded. In particular, an association must be held to some minimum standard in expelling a member (see the Council of Europe instruments cited in paragraphs 37-40 above). As already noted above (see paragraph 54-56), expulsion from an association could constitute a violation of the freedom of association of the member concerned (for example, if it is in breach of its rules or arbitrary see Cheall, cited above; see also Sakellaropoulos, cited above).

73. The Court accepts that in such cases the scope of judicial review may be restricted, even to a significant extent, in order to respect the organisational autonomy of associations. However, in the present case the applicant, who contested his expulsion from the association for being in breach of its statute, was completely denied access to court. It is difficult to discern whether that was as a result of imprecise or incomplete legislation, its interpretation by the domestic courts, or both. What is important is that the applicant should have had access to court but was deprived of it.

74. There has accordingly been a violation of Article 6 § 1 of the Convention.

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

75. 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.”

76. The Court reiterates that a judgment in which it finds a breach imposes on the respondent State a legal obligation to put an end to the breach and make reparation for its consequences. If national law does not allow - or allows only partial - reparation to be made, Article 41 empowers the Court to afford the injured party such satisfaction as appears to it to be appropriate (see Iatridis v. Greece (just satisfaction) [GC], no. 31107/96, §§ 32-33, ECHR 2000-XI). In this connection the Court notes that under section 428a of the Civil Procedure Act (see paragraph 24 above), an applicant may seek the reopening of the civil proceedings in respect of which the Court has found a violation of the Convention.

77. Given the nature of the applicant’s complaint and the Court’s reasons for finding a violation of Article 6 § 1 of the Convention, the Court considers that in the present case the most appropriate form of redress would be to reopen the proceedings complained of in due course (see Vrbica v. Croatia, no. 32540/05, § 84, 1 April 2010). As the domestic law allows such reparation to be made, and given that the applicant’s representative did not submit a claim for just satisfaction, the Court considers that there is no call to award him any sum on that account (ibid., § 85).

FOR THESE REASONS, THE COURT

1. Declares, by a majority, the application admissible;

2. Holds, by six votes to one, that there has been a violation of Article 6 § 1 of the Convention.

Done in English, and notified in writing on 4 April 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Hasan Bakırcı Işıl Karakaş
Deputy Registrar President

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judge Kjølbro is annexed to this judgment.

A.I.K.
H.B.

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You are here: BAILII >> Databases >> European Court of Human Rights >> LOVRIC v. CROATIA - 38458/15 (Judgment : Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings Article 6-1 - Access to court)) [2017] ECHR 317 (04 April 2017) URL: http://www.bailii.org/eu/cases/ECHR/2017/317.html Cite as: CE:ECHR:2017:0404JUD003845815, ECLI:CE:ECHR:2017:0404JUD003845815, [2017] ECHR 317