FIRST SECTION
DECISION
Application no. 51166/10
Josip HABULINEC and Anita FILIPOVIC
against Croatia
The European Court of Human Rights (First Section), sitting on
4 June 2013 as a Chamber composed of:
Isabelle Berro-Lefèvre, President,
Elisabeth Steiner,
Khanlar Hajiyev,
Linos-Alexandre Sicilianos,
Erik Møse,
Ksenija Turković,
Dmitry Dedov, judges,
and Søren Nielsen, Section Registrar,
Having regard to the above application lodged on 9 August 2010,
Having regard to the observations submitted by the respondent
Government and the observations in reply submitted by the applicants,
Having deliberated, decides as follows:
THE FACTS
1. The applicants, Mr Josip Habulinec and Ms Anita Filipović, are
Croatian nationals who were born in 1968 and 1972 respectively and live in
Krapinske Toplice. They were represented before the Court by Ms I. Bojić,
a lawyer practising in Zagreb.
2. The Croatian Government (“the Government”) were represented by
their Agent, Ms Š. Stažnik.
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HABULINEC AND FILIPOVIĆ v. CROATIA DECISION
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised
as follows.
4. The applicants are cohabitees who have two children together, born in
2007 and 2008.
5. On 26 January 2010 the second applicant gave birth to A., who died a
day later in Zabok General Hospital.
6. On 28 January 2010 the birth of A. was registered at the Zabok
Register Office and the second applicant was registered as A.’s mother,
while data about the child’s father were not registered.
7. In March 2010 the first applicant went to the Zabok Register Office
asking to be registered as A.’s father, but was told that it was not possible to
recognise paternity of a deceased child.
8. On 2 July 2010 the applicants contacted the Zabok Register Office
through their representative, seeking registration of the first applicant’s
paternity.
9. On 9 July 2010 the applicants’ counsel was informed by letter that
registration of the first applicant’s paternity was not possible because the
child was deceased.
B. Relevant domestic law and practice
1. The Constitution
(a) Relevant provisions
10. The relevant provisions of the Constitution of the Republic of
Croatia (Ustav Republike Hrvatske, Official Gazette nos. 56/1990,
135/1997, 8/1998 (consolidated text), 113/2000, 124/2000 (consolidated
text), 28/2001 and 41/2001 (consolidated text), 55/2001 (corrigendum)
and 76/2010) read as follows:
Article 14
“Everyone in the Republic of Croatia shall enjoy rights and freedoms regardless of
their race, colour, sex, language, religion, political or other belief, national or social
origin, property, birth, education, social status or other characteristics.
All shall be equal before the law.”
Article 35
“Everyone has the right to respect for and legal protection of his or her private and
family life, dignity, reputation and honour.”
HABULINEC AND FILIPOVIĆ v. CROATIA DECISION
3
Article 140
“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 in terms of their legal
effects over the [domestic] statutes. ...”
(b) The Constitutional Court’s jurisprudence
11. In its decisions nos. U-I-892/1994 of 14 November 1994 (Official
Gazette no. 83/1994) and U-I-130/1995 of 20 February 1995 (Official
Gazette no. 112/1995) the Constitutional Court held that all rights
guaranteed in the Convention and its Protocols were also to be considered
constitutional rights having legal force equal to the provisions of the
Constitution.
2. The Constitutional Act on the Constitutional Court
12. Section 62(1) of the Constitutional Act on the Constitutional Court
(Ustavni zakon o Ustavnom sudu, Official Gazette no. 29/2002) reads:
“1. Everyone may lodge a constitutional complaint with the Constitutional Court if
he or she deems that a decision (pojedinačni akt) of a State body, a body of local or
regional self-government, or a legal person with public authority, which has decided
on his or her rights and obligations, or on a suspicion or accusation in respect of a
criminal act, has violated his or her human rights or fundamental freedoms, ...
guaranteed by the Constitution (hereinafter: ‘constitutional right’) ...”
3. The Courts Act
13. The relevant part of the Courts Act (Zakon o sudovima, Official
Gazette no. 3/1994, 100/96, 131/97, 129/2000, 17/2004, and 141/2004), as
in force at the material time, provided as follows:
Section 5
“1. The courts adjudicate cases on the basis of the Constitution and statutes.
2. The courts adjudicate cases also on the basis of the international agreements
which are the part of the [internal] legal order of the Republic of Croatia ...”
4. The Administrative Procedure Act
14. The relevant provisions of the Administrative Procedure Act (Zakon
o općem upravnom postupku, Official Gazette no. 53/1991 of 8 October
1991) are as follows:
Section 218 (1) provides that in simple matters, where there is no need to
undertake separate examination proceedings, an administrative authority
shall give a decision and serve it on a party within one month following the
submission of an application. In all other, more complex cases, the authority
shall give a decision and serve it on a party within two months.
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HABULINEC AND FILIPOVIĆ v. CROATIA DECISION
Section 218 (2) provides that a party whose application has not been
decided and served within the time-limits set out in paragraph (1) may lodge
an appeal (appeal for failure to respond, žalba zbog šutnje administracije) as
if his or her application had been dismissed.
Section 247 (1) provides that a decision on an appeal shall be given and
served on a party as soon as possible, but at the latest within two months
following the submission of the appeal.
Section 246 (1) provides that the second-instance administrative
authority deciding on an appeal for failure to respond shall request the
first-instance authority to give reasons for its omission. If it finds that the
failure to respond was attributable to the party, or that the reasons for such
an omission were otherwise justified, the second-instance authority shall
order the first-instance authority to give a decision within one month. If it
finds that the omission was not justified, it shall request the case file.
Section 246 (2) provides that if the case file contains sufficient
information, the second-instance administrative authority shall decide the
case. Otherwise, it shall first hear the case and take evidence, and then give
a decision. Exceptionally, if it considers that such a procedure would save
time and costs, it shall order the first-instance authority to hear the case and
take evidence within a specified time-limit, whereupon it shall decide the
case itself. That decision shall be final.
5. The Administrative Disputes Act
15. The relevant provisions of the Administrative Disputes Act (Zakon o
upravnim sporovima, Official Gazette nos. 53/1991, 9/92 and 77/92) are as
follows:
Section 26 (1) provides that if the appellate administrative authority fails
to give a decision on a party’s appeal against a first-instance decision within
sixty days, and fails to do so upon a repeated request within a further period
of seven days, the party may bring an action in the Administrative Court
(action for failure to respond, tužba zbog šutnje administracije), as if his or
her appeal had been dismissed.
Section 26 (2) provides that when the first-instance administrative
authority fails to give a decision against which no appeal lies, the party may
directly bring an action in the Administrative Court.
Section 26 (3) provides that, in matters where the right of appeal exists, if
a first-instance administrative authority fails to give a decision on a party’s
application within sixty days, that party may submit his or her application to
the appellate administrative authority. Against the latter authority’s decision
the party may bring an action in the Administrative Court, and if the
authority fails to give a decision the party may bring an administrative
action under the conditions set out in paragraph 1.
Section 42 (5) provides that when the Administrative Court, following an
action for failure to respond, finds for the plaintiff, it shall either instruct the
HABULINEC AND FILIPOVIĆ v. CROATIA DECISION
5
respondent administrative authority as to how to decide the case on points
of law, or shall itself rule on the application (acting as a court of full
jurisdiction under paragraph 2 of section 64).
Section 64 (1) provides that, in execution of the judgment rendered under
section 42 (5), the administrative authority shall issue its decision
immediately, but at the latest within thirty days. Otherwise, a party may
make a special submission requesting it to do so. If the authority does not
issue a decision within seven days following such a submission, that party
may apply to the Administrative Court.
Section 64 (2) provides that if such an application is made, the
Administrative Court shall first ask the administrative authority to give
reasons for its omission. The authority shall reply immediately, but at the
latest within seven days. If the authority fails to do so, or if the reasons
given do not justify the failure to decide, the Administrative Court shall give
a decision which will substitute the decision of the administrative authority.
6. The Family Act
16. The relevant provisions of the Family Act (Obiteljski zakon, Official
Gazette nos. 116/2003, 17/2004, 136/2004 and 107/2007), which entered
into force on 22 July 2003, read as follows:
Section 58 § 2
“Maternity and paternity cannot be recognised after a child’s death, save where a
child has descendants.”
7. The Prevention of Discrimination Act
17. The relevant part of the Prevention of Discrimination Act (Zakon o
suzbijanju diskriminacije, Official Gazette no. 85/2008) reads as follows:
Section 1
“(1) This Act ensures protection and promotion of equality as the highest value of
the constitutional order of the Republic of Croatia; creates conditions for equal
opportunities and regulates protection against discrimination on the basis of race or
ethnic origin or skin colour, gender, language, religion, political or other conviction,
national or social origin, state of wealth, membership of a trade union, education,
social status, marital or family status, age, health condition, invalidity, genetic
inheritance, gender identity, expression or sexual orientation.
(2) Discrimination within the meaning of this Act means putting any person in a
disadvantageous position on any of the grounds under subsection 1 of this section, as
well as his or her close relatives ...”
Section 8
“This Act shall be applied in respect of all State bodies ... legal entities and natural
persons ...”
HABULINEC AND FILIPOVIĆ v. CROATIA DECISION
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Section 16
“Anyone who considers that, owing to discrimination, any of his or her rights has
been violated may seek protection of that right in proceedings in which the
determination of that right is the main issue, and may also seek protection in separate
proceedings under section 17 of this Act.”
Section 17
“A person who claims that he or she has been a victim of discrimination in
accordance with the provisions of this Act may bring a claim and seek:
1. a ruling that the defendant has violated the plaintiff’s right to equal treatment or
that an act or omission by the defendant may lead to the violation of the plaintiff’s
right to equal treatment (claim for an acknowledgment of discrimination);
2. a ban on (the defendant’s) taking actions which violate or may violate the
plaintiff’s right to equal treatment or an order for measures aimed at removing
discrimination or its consequences to be taken (claim for a ban or for removal of
discrimination);
3. compensation for pecuniary and non-pecuniary damage caused by violation of the
rights protected by this Act (claim for damages);
4. an order for a judgment finding a violation of the right to equal treatment to be
published in the media at the defendant’s expense ...”
COMPLAINTS
18. The applicants complained under Article 8 of the Convention that it
was impossible to register the first applicant as A.’s father, and under
Article 14 of the Convention that they had been discriminated against as
parents of a child born out of wedlock.
19. Under Article 13 they complained that they had no remedy at their
disposal for their Convention complaints.
THE LAW
A. Complaint under Article 8 of the Convention, taken alone and in
conjunction with Article 14 of the Convention
20. The applicants complained that it was impossible to register the first
applicant as A.’s father, because the paternity of a dead child could not be
recognised. They also complained that they had been discriminated against
in that respect in comparison to the parents of deceased children born of a
marriage. They relied on Articles 8 and 14 of the Convention, which read as
follows:
HABULINEC AND FILIPOVIĆ v. CROATIA DECISION
7
Article 8
“1. Everyone has the right to respect for his private and family life, his home and
his correspondence.
2. There shall be no interference by a public authority with the exercise of this right
except such as is in accordance with the law and is necessary in a democratic society
in the interests of national security, public safety or the economic well-being of the
country, for the prevention of disorder or crime, for the protection of health or morals,
or for the protection of the rights and freedoms of others.”
Article 14
“The enjoyment of the rights and freedoms set forth in [the] Convention shall be
secured without discrimination on any ground such as sex, race, colour, language,
religion, political or other opinion, national or social origin, association with a
national minority, property, birth or other status.”
1. The parties’ arguments
21. The Government argued that the applicants should have used
remedies prescribed by the Administrative Procedure Act and the
Administrative Disputes Act, namely an appeal in respect of the negative
reply of the Zabok Register Office and a complaint with the Administrative
Court. Against the decision of the latter they would also have been able to
lodge a constitutional complaint. The Constitutional Court was vested with
the power to assess whether any statutory provision had been applied in
compliance with the constitutional rights of the person concerned in each
individual case. By not using the said remedies the applicants had not
complied with the principle of subsidiarity.
22. As regards their Article 14 complaint, the applicants could have
brought a claim under the Prevention of Discrimination Act, by which they
would have been able to seek an acknowledgment of any possible
discrimination as set out in that Act, and an order for the removal of the
discrimination and its consequences, as well as compensation.
23. The applicants argued in reply that they had had no remedy to use,
because the Zabok Register Office had not issued a formal written decision
on their request but had only sent a reply by letter.
24. They argued further that it was not possible for the national
authorities to allow the first applicant to have his paternity of A. registered,
because that would have been contrary to a statutory provision, namely
section 58 § 2 of the Family Act. Thus, they would have contravened the
“principle of legality”, which is an underlying principle of the whole legal
system in Croatia.
25. As regards the remedies under the Prevention of Discrimination Act,
the applicants contended that it was unclear against whom they should have
used such remedies. Furthermore, it would have been impossible to ask the
national courts to order the Zabok Register Office to register the first
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HABULINEC AND FILIPOVIĆ v. CROATIA DECISION
applicant’s paternity of A., since that would have been in contravention of
the above-mentioned provision of the Family Act.
2. The Court’s assessment
26. The Court stresses that the principle of subsidiarity is one of the
fundamental principles on which the Convention system is based. It means
that the machinery for the protection of fundamental rights established by
the Convention is subsidiary to the national systems safeguarding human
rights. The Convention does not lay down for the Contracting States any
given manner for ensuring effective implementation of the Convention
within their internal law. The choice as to the most appropriate means of
achieving this is in principle a matter for the domestic authorities, who are
in continuous contact with events and issues in their countries, and are
better placed to assess the opportunities and resources afforded by their
respective domestic legal systems (see Swedish Engine Drivers’ Union
v. Sweden, 6 February 1976, § 50, Series A no. 20; Chapman v. the United
Kingdom [GC], no. 27238/95, § 91, ECHR 2001-I; and Sisojeva and Others
v. Latvia [GC], no. 60654/00, § 90, ECHR 2007-II).
27. In accordance with Article 35 § 1 of the Convention, the Court may
only deal with a matter after all domestic remedies have been exhausted.
The purpose of Article 35 is to afford the Contracting States the opportunity
of preventing or putting right violations alleged against them before those
allegations are submitted to the Court (see, for example, Hentrich v. France,
22 September 1994, § 33, Series A no. 296-A, and Remli v. France,
23 April 1996, § 33, Reports 1996-II). Thus, a complaint submitted to the
Court should first have been made to the appropriate national courts, at least
in substance, in accordance with the formal requirements of domestic law
and within the prescribed time-limits. To hold otherwise would not be
compatible with the subsidiary character of the Convention system (see
Gavril Yosifov v. Bulgaria, no. 74012/01, § 42, 6 November 2008).
Nevertheless, the obligation to exhaust domestic remedies requires only that
an applicant make normal use of remedies which are effective, sufficient
and accessible in respect of his Convention grievances (see Balogh
v. Hungary, no. 47940/99, § 30, 20 July 2004, and John Sammut and Visa
Investments Limited v. Malta (dec.), no. 27023/03, 28 June 2005).
28. In the present case there is no dispute that the applicants submitted a
written request to the Zabok Register Office for registration of the first
applicant’s paternity. No formal written decision was issued in response to
their request. However, the applicants were able to lodge an appeal for
failure to respond (žalba zbog šutnje administracije) to the Ministry of
Administration (see, mutatis mutandis, Štajcar v. Croatia (dec.),
no. 46279/99, 20 January 2000; and Rauš-Radovanović v. Croatia (dec.),
no. 43603/05, 2 October 2008). Had that Ministry also remained silent, they
could have brought an action for failure to respond in the Administrative
HABULINEC AND FILIPOVIĆ v. CROATIA DECISION
9
Court (tužba zbog šutnje administracije). Had the administrative authorities
issued a negative written response to the first applicant’s request they could
have lodged a regular appeal and subsequently both a complaint with the
Administrative Court and a constitutional complaint.
29. As regards the applicants’ doubts about the prospect of success of
any of the remedies mentioned above (see paragraphs 24 and 25 above), the
Court has already accepted that the mere existence of doubts as to the
effectiveness of a domestic remedy does not automatically absolve the
applicant from the obligation to exhaust it (see, inter alia, Back v. Finland
(dec.), no. 23773/94, 9 April 1996; and Tamm v. Estonia (dec.),
no. 15301/04, 2 September 2008).
30. The Court notes that the Convention forms an integral part of the
Croatian legal system, where it takes precedence over every contrary
statutory provision (Article 140 of the Constitution, see above paragraph 10)
and is directly applicable (Section 5 of the Courts Act). In this connection
the Court notes that its case-law is an integral part of the Convention
system. The Court has already addressed a situation akin to the one in the
present case in the case of Znamenskaya v. Russia (no. 77785/01, 2 June
2005). In that case the central issue was the applicant’s inability to obtain
recognition of Mr G. as the biological father of her dead child. The Court
found a violation of Article 8 of the Convention in that respect. The
judgment in the Znamenskaya case had been adopted before the situation
the applicants in the present case are complaining of occurred. Therefore, it
was open to the applicants in the present case, relying on the Court’s finding
in that case, to argue before the national authorities that in the circumstances
of the case at issue their right to respect for their private and family life had
been violated, contrary to Article 8 of the Convention. They could also have
presented their arguments concerning Article 14 of the Convention, since
the Croatian Constitution also guarantees the right not to be discriminated
against. The national authorities, including the Constitutional Court, would
thus have had the opportunity to give a reply to such arguments. The latter
has already held that rights guaranteed in the Convention and its Protocols
were also to be considered constitutional rights having legal force equal to
the provisions of the Constitution (see paragraph 11 above), and has thus
recognised its competence to examine the alleged violations of the
Convention. In view of this, the applicants’ argument that they had no
prospect of success because there was a statutory provision preventing the
first applicant from having his paternity of A. established bears less
significance, since in the Croatian legal system the Convention has
precedence over domestic statutes (see paragraph 10 above).
31. Against the above background, the Court concludes that the
applicants should have, in accordance with the principle of subsidiarity,
before bringing their application with the Court, presented their arguments
before the national authorities and thus given them the opportunity of
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HABULINEC AND FILIPOVIĆ v. CROATIA DECISION
remedying their situation, and in particular before the Constitutional Court
as the highest Court in Croatia (see Šimunovski v. Croatia (dec.),
no. 42550/08, 21 June 2011).
32. It follows that this part of the application must be rejected under
Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic
remedies.
B. Complaint under Article 13 of the Convention
33. The applicant’s complained also that they had no remedy at their
disposal for their Convention complaints. They relied on Article 13, 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.”
34. The Government contended that the applicants had at their disposal
effective domestic remedies, mentioned above, which they had not used.
35. The applicants replied that the remedies relied on by the Government
could not be considered effective in their situation.
36. The Court has established above that the applicants had at their
disposal several remedies, including a constitutional complaint.
37. It follows that this part of the application is manifestly ill-founded
and must be rejected in accordance with Article 35 §§ 3 and 4 of the
Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Søren Nielsen
Registrar
Isabelle Berro-Lefèvre
President