CEDH · CASELAW;CLIN;ENG — 2 mars 2023

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Croatia - 52132/19, 62085/19, 62358/19 et al. Judgment 2.3.2023 [Section I] Article 6 Civil proceedings Article 6-1 Fair hearing Divergent decisions in applicant’s unjust enrichment actions overcome by adequate machinery applied through Supreme Court’s decisions providing guidance for uniform application of substantive law: no violation Article 34 Locus standi Public broadcaster qualifies as a “non-governmental organisation” in light of its editorial independence and institutional autonomy: victim status accepted Facts – The applicant is the national radio and television broadcasting institution. Having discovered that an employee, A.K., had been paying fees on its behalf to 176 individuals for external translation services they had never performed, the applicant brought more than a hundred civil actions for “unjust enrichment” against those individuals. In approximately half of those proceedings, the second instance courts ruled in its favour, whereas in the other half against it. The present case concerns 20 of the latter proceedings. The applicant lodged an extraordinary appeal on points of law before the Supreme Court in each of the 20 cases. In one case the appeal was declared admissible but dismissed on the merits. The remaining appeals were held to be inadmissible because the points raised were not important for ensuring the uniform application of the law. Furthermore, the Constitutional Court declared the applicant’s constitutional complaints in each case inadmissible for lack of standing holding that it was not sufficiently independent of the State as to be considered a bearer of constitutional rights. In a number of other cases stemming from the same events, in which the domestic courts had ruled in favour of the applicant institution, the Supreme Court allowed extraordinary or ordinary appeals on points of law lodged by the defendants holding the points raised in those appeals were important for the uniform application of the law. It then quashed the contested judgments and remitted the cases to the first-instance courts, as the lower courts had failed to establish some important facts. Law – Article 34 ( locus standi ): The main question was whether the applicant qualified as a “non‑governmental organisation” within the meaning of Article   34 entitling it thus to lodge an individual application. The Court replied in the affirmative. The applicant did not exercise governmental powers and had not been established “for public-administration purposes” but provided a public service which consisted of operating a certain number of national television and radio channels. In respect of all its activities it had been subject to the jurisdiction of ordinary courts, save for its power to pass subordinate legislation whose compatibility with the Constitution and laws were reviewed by administrative courts, a fact which was not decisive for its status of “non-governmental organisation”. In view of the Constitutional Court’s finding as to the applicant’s lack of standing, the present case differed from previous cases lodged by public broadcasting organisations before the Court. Although in the specific circumstances of the present cases the criteria before the Court and the Constitutional Court were very similar, the Constitutional Court’s finding had been based on the Court’s and the former Commission’s case-law on locus standi in general, not the more specific case-law concerning the locus standi of public broadcasting organisations and had not consisted of a detailed analysis of the legislative framework. The Court could not thus defer to that finding. The State had founded the applicant, its statute had to be approved by Parliament, its resources were to a large extent public, it provided broadcasting and other services in the interests of the public and it was obliged to enter into an agreement with the Government defining its programming obligations and their financing. In addition, its Director General, a large majority of the members of its Supervisory Board and the Programming Council as well as all the members of the Electronic Media Council were appointed by Parliament. Furthermore, within the bounds of, inter alia , the public-service requirements set out in the Croatian Radio‑Television Act, the applicant did not come under the aegis of the State but enjoyed the freedom of the media guaranteed by the Constitution and the relevant legislation and was independent in its operation. It operated under the control of an independent regulatory authority, it did not have a monopoly over television or radio broadcasting and operated in a sector open to competition which was an important factor. The fact that the applicant was largely dependent on public resources - its activities being financed from a monthly licence (user) fee which it fixed itself - was not a decisive criterion. Accordingly, the legislature had devised a framework designed to guarantee the institution’s editorial independence and its institutional autonomy. Therefore, it could not be said that the applicant institution was under “government control”. Article 6 § 1: The difference the applicant complained of resided in the application of the substantive law by the different domestic courts. Admittedly territorial, differences in the domestic courts’ case-law had existed at the time when the second-instance courts in the present cases had adopted their judgments ruling against the applicant. However, the Court noted that the Supreme Court in the other cases in which it had allowed extraordinary or ordinary appeals on points of law lodged by the defendants, had set out in detail the relevant legal issues that had to be examined in unjust enrichment cases resulting from A.K.’s conduct. Since the lower courts had not addressed those issues and had thus not established all the relevant facts the Supreme Court had then remitted the cases to the first-instance courts, as it could not establish those facts itself. Moreover, in one of the present cases the Supreme Court had held that all the relevant facts had been established by the lower courts and had ruled that the substantive law had been correctly applied. This meant that the domestic law had provided for machinery for overcoming the inconsistencies in the case-law of the second-instance courts and that that machinery had been applied. There was nothing to suggest that the above-mentioned Supreme Court decisions had not had the desired consolidating effect for the case-law of the second-instance courts. Indeed, the available information suggested otherwise. Although those decisions had been delivered before the Supreme Court’s guidelines as to how all similar unjust enrichment cases should be dealt with, and thus could not have been decided in accordance with those guidelines, that fact was not sufficient in itself to violate the principle of legal certainty. In view of the above, the Court did not attach particular importance to the alleged inconsistences in the case-law of the Supreme Court itself, which did not concern the application of substantive law rules on unjust enrichment but admissibility criteria for lodging an extraordinary appeal on points of law. In any event, once the Supreme Court had provided relevant guidelines as to how a certain group of similar cases should be dealt with to achieve the uniform application of the law, it did not have to do so in every future such case. Conclusion: no violation (unanimously). (See also Radio France and Others v. France (dec.), 53984/00, 23 September 2003, Legal Summary ; Österreichischer Rundfunk v.   Austria , 35841/02, 7   December 2006, Legal Summary ; Nejdet Şahin and Perihan Şahin v. Turkey [GC], 13279/05, 20 October 2011, Legal Summary ; Lupeni Greek Catholic Parish and Others v. Romania [GC], 76943/11, 29 November 2016, Legal Summary )   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. To access legal summaries in English or French click here . For non-official translations into other languages click here .