MAGDIĆ proti Chorvatsku

FIRST SECTION

DECISION

Application no. 17578/20
Dalibor MAGDIĆ
against Croatia

The European Court of Human Rights (First Section), sitting on 5 July 2022 as a Committee composed of:

Péter Paczolay, President,
Alena Poláčková,
Davor Derenčinović, judges,
and Liv Tigerstedt, Deputy Section Registrar,

Having regard to:

the application (no. 17578/20) 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”) on 15 April 2020 by a Croatian national, Mr Dalibor Magdić, who was born in 1977 and lives in Ogulin (“the applicant”);

the decision to give notice of the complaints concerning freedom of religion, freedom of assembly and freedom of movement to the Croatian Government (“the Government”), represented by their Agent, Ms Š. Stažnik, and to declare inadmissible the remainder of the application;

the observations submitted by the respondent Government;

the comments submitted by the non-governmental organisations Alliance Defending Freedom International and European Centre for Law and Justice, who were granted leave to intervene by the Vice-President of the Section;

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASE

1. The case concerns the first measures adopted by the Croatian authorities in the period between 19 March and 11 May 2020 in the context of prevention of the spreading of the Covid-19 virus.

2. In particular, on 19 March 2020, the Civil Protection Authority (Stožer civilne zaštite) issued a decision whereby it prohibited all public events and gatherings of more than five persons in one place, and suspended the work of all shops except the necessary ones such as pharmacies, grocery stores, etc. Religious gatherings were also suspended.

3. On 23 March 2020 the same authority issued another decision whereby it prohibited leaving the place of domicile and permanent residence, which in practice meant that people were not allowed to leave their territorial unit (county). The prohibition was not absolute as people could leave their county for justified reasons such as travelling for work which could not be done from home, taking care of a sick family member living in another county, etc.

4. On 11 May 2020 the Civil Protection Authority (i) lifted the prohibition of celebrating masses and allowed their celebration in compliance with epidemiological measures, (ii) increased the maximum number of persons allowed to gather in public places from five to 40, and (iii) abolished the prohibition of leaving the place of domicile or residence.

5. The applicant complained under Article 9 and Article 11 of the Convention and under Article 2 of Protocol No. 4 that the measures in question had breached his freedom of religion, freedom of assembly and freedom of movement.

THE COURT’S ASSESSMENT

6. The Government submitted that the application was incomplete, that it amounted to an actio popularis and that therefore the applicant could not claim to be the victim of the violations complained of. In the alternative, the Government argued that the application was incompatible ratione materiae and that that the applicant had failed to exhaust domestic remedies.

7. The Court reiterates that, in order to be able to lodge an application under Article 34 of the Convention, a person, non-governmental organisation or group of individuals must be able to claim to be the victim of a violation of the rights set forth in the Convention. In order to claim to be a victim of a violation, a person must be directly affected by the impugned measure: the Convention does not envisage the bringing of an actio popularis for the interpretation of the rights it contains or permit individuals to complain about a provision of national law simply because they consider, without having been directly affected by it, that it may contravene the Convention (see Tănase v. Moldova [GC], no. 7/08, § 104, ECHR 2010).

8. However, it is open to a person to contend that a law violates his rights, in the absence of an individual measure of implementation, if he is required either to adjust his conduct or risks being prosecuted or if he is a member of a class of people who risk being directly affected by the legislation (see Burden v. the United Kingdom [GC], no. 13378/05, §§ 33 and 34, ECHR 2008; Open Door and Dublin Well Woman v. Ireland, 29 October 1992, § 44, Series A no. 246-A; and Klass and Others v. Germany, 6 September 1978, § 33, Series A no. 28).

9. The Court reiterates in this context that, in order for applicants to be able to claim victim status, they must produce reasonable and convincing evidence of the likelihood that a violation affecting them personally will occur; mere suspicion or conjecture is insufficient in this respect (see Zambrano v. France (dec.), no. 41994/21, § 42, 21 September 2021, and Le Mailloux v. France (dec.) [Committee], no. 18108/20, § 11, 5 November 2020).

10. The Court observes in this regard that the applicant in his application did not provide any information about his personal situation beyond his identity and his occupation. He provided no information to show how exactly the impugned measures affected, or would be likely to affect, him directly, or target him because of his possible individual characteristics (see Zambrano, cited above, § 43). For example, the applicant complained that the measures in question had breached his freedom of religion but failed to indicate to which religious community he belongs. Likewise, while complaining about the breach of his freedom of assembly, he failed to specify which public gatherings he could not attend because of the measures in question. Similarly, he complained of the breach of his freedom of movement without mentioning where and when he intended to travel but could not because of the impugned measures.

11. The complete absence of any such individual particulars makes it impossible for the Court to conduct an individual assessment of the applicant’s situation (compare Lörinc and Others v. Slovakia (dec.) [Committee], no. 27877/21 and 16 others, 5 April 2022). It thus appears that the applicant wishes to complain about the impugned measures in a general manner, contemplating that, as a result of their adoption, his freedoms were automatically violated (see, mutatis mutandis, Le Mailloux, cited above, § 13).

12. The Court considers that, in the light of all the material in its possession and taking into account the above considerations, the application constitutes an actio popularis and that the applicant cannot be regarded as a victim for the purposes of Article 34 of the Convention. The Government’s objection in that regard must therefore be accepted.

13. It follows that the present application is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and that it must be rejected pursuant to Article 35 § 4.

14. In view of this conclusion, the Court does not find it necessary to examine the Government’s remaining objections as to the admissibility (see paragraph 6 above).

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 1 September 2022.

Liv Tigerstedt Péter Paczolay
Deputy Registrar President