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FIRST
SECTION
CASE OF NOGOLICA v. CROATIA (NO. 3)
(Application
no. 9204/04)
JUDGMENT
STRASBOURG
7
December 2006
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Nogolica v. Croatia (No. 3),
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Mr C.L. Rozakis, President,
Mr L.
Loucaides,
Mrs F. Tulkens,
Mrs N. Vajić,
Mr A.
Kovler,
Mr D. Spielmann,
Mr S.E. Jebens, judges,
and
Mr S. Nielsen, Section Registrar,
Having
deliberated in private on 16 November 2006,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 9204/04) 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 Zvonko Nogolica (“the
applicant”), on 24 February 2004.
- The
applicant was represented by Mrs Lj. Nogolica, a lawyer practising in
Zagreb. The Croatian Government (“the Government”) were
represented by their Agent, Ms Š. StaZnik.
- On
25 April 2005 the Court decided to give notice of the application to
the Government. Under the provisions of Article 29 § 3 of the
Convention, it decided to examine the merits of the application at
the same time as its admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1962 and lives in Zagreb.
- On
5 October 1995 the applicant filed a civil action seeking damages
with the Zagreb Municipal Court (Općinski sud u Zagrebu)
against the weekly magazine A. (“the respondent”),
claiming that it had published a libellous article about him.
- The
court held several hearings before 5 November 1997, the date of the
entry into force of the Convention in respect of Croatia.
- At
the hearing on 1 October 1998 the court heard a witness.
- The
hearing scheduled for 19 November 1998 was adjourned for 12 March
1999 when the court heard another witness and an expert.
- At
the next hearing on 2 February 2000 the court heard yet another
witness and concluded the main hearing. On the same day, it gave
judgment dismissing the applicant's claim. The judgment was served on
the applicant on 10 April 2000.
- On
14 April 2000 the applicant appealed against the first instance
judgment. On 15 October 2002 the Zagreb County Court (Zupanijski
sud u Zagrebu) quashed that judgment and remitted the case.
- On
10 December 2002 the applicant filed a constitutional complaint with
the Constitutional Court (Ustavni sud Republike Hrvatske),
complaining about the length of the proceedings.
- On
22 March 2004 the Zagreb Municipal Court held a hearing and adopted a
new judgment granting the applicant's claim in part. The applicant
appealed against the judgment and the proceedings are still pending
before the second instance court.
- On
17 June 2004 the Constitutional Court dismissed the applicant's
complaint of 10 December 2002 as ill-founded. It took into
consideration the period of some five years (between the entry into
force of the Convention in respect of Croatia and the filing of the
constitutional complaint by the applicant), finding that the
competent courts had acted expeditiously, while it observed that the
proceedings had been somewhat complex.
II. RELEVANT DOMESTIC LAW
- The
relevant part of section 63 of the Constitutional Act on the
Constitutional Court (Ustavni zakon o Ustavnom sudu Republike
Hrvatske –Official Gazette no. 49/2002 of 3 May 2002; “the
Constitutional Court Act”) reads as follows:
“(1) The Constitutional Court shall examine
a constitutional complaint even before all legal remedies have been
exhausted in cases when a competent court has not decided within a
reasonable time a claim concerning the applicant's rights and
obligations or a criminal charge against him ...
(2) If the constitutional complaint ... under
paragraph 1 of this Section is accepted, the Constitutional Court
shall determine a time-limit within which a competent court shall
decide the case on the merits...
(3) In a decision under paragraph 2 of this
Article, the Constitutional Court shall fix appropriate compensation
for the applicant in respect of the violation found concerning his
constitutional rights ... The compensation shall be paid from the
State budget within a term of three months from the date when the
party lodged a request
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that the length of the proceedings had been
incompatible with the “reasonable time” requirement, laid
down in Article 6 § 1 of the Convention, which reads as follows:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal...”
16. The
Court considers that the period to be taken into consideration began
on 6 November 1997, the day after the entry into force of the
Convention in respect of Croatia. However, in assessing the
reasonableness of the time that elapsed after that date, account must
be taken of the state of proceedings at the time. In this connection
the Court notes that the proceedings commenced on 5 October 1995,
when the applicant brought his civil action seeking damages against a
Croatian weekly magazine. Consequently, the case was already pending
for one year and eleven months before the ratification.
- The
case was still pending on 17 June 2004 when the Constitutional Court
gave its decision. On that date the proceedings had lasted some six
years and eight months after the ratification.
- The
period in question has thus lasted about nine years before three
levels of jurisdiction after the Convention entered into force in
respect of Croatia, and still has not ended.
A. Admissibility
- The
Government invited the Court to reject the application on the ground
that the applicant had failed to exhaust domestic remedies as
required under Article 35 § 1 of the Convention. They
maintained that the applicant had not lodged a second constitutional
complaint with the Constitutional Court. The Government observed that
he had previously lodged such a complaint on 10 December 2002, and
that the Constitutional Court dismissed it on 17 June 2004. However,
in doing so, that court had examined only the period between the date
of the entry into force of the Convention in respect of Croatia and
the date of the lodging of the constitutional complaint. Having
regard to the fact that the proceedings were not concluded, the
lodging of a second constitutional complaint would have had
reasonable prospects of success since it would have enabled the
Constitutional Court to examine the overall length of the
proceedings, taking into consideration their duration after its
previous decision.
- The
applicant contested that argument.
- The
Court finds that the question of exhaustion of domestic remedies is
inextricably linked to the merits of this complaint. Therefore, to
avoid prejudging the latter, both questions should be examined
together. Accordingly, the Court holds that the question of
exhaustion of domestic remedies should be joined to the merits.
- The
Court further notes that this complaint is not manifestly ill-founded
within the meaning of Article 35 § 3 of the Convention. It also
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
- The
Court observes at the outset that the applicant availed himself of an
effective domestic remedy in respect of the length of the proceedings
– a constitutional complaint (see Slaviček v. Croatia
(dec.), no. 20862/02, ECHR 2002-VII) – and that the
Constitutional Court dismissed his complaint. In these circumstances,
the Court is required to verify whether the way in which the
Constitutional Court interpreted and applied the relevant provisions
of the domestic law produces consequences that are consistent with
the principles of the Convention as interpreted in the light of the
Court's case-law (see, mutatis mutandis, Cocchiarella v.
Italy [GC], no. 64886/01, § 82, to
be published in ECHR 2006). In doing so, the Court has to
examine the period between the date of the entry into force of the
Convention in respect of Croatia and the date of the Constitutional
Court's decision (see, by analogy, Cocchiarella v. Italy [GC],
cited above, § 103). If the Constitutional Court's
decision is consistent with Convention principles, the Court will,
when examining the question of exhaustion of domestic remedies,
refrain from dealing with the length of the proceedings subsequent to
that decision. Otherwise, a genuine examination of the total length
after the ratification is warranted.
- The
Court reiterates that the reasonableness of the length of proceedings
must be assessed in the light of the circumstances of the case and
with reference to the following criteria: the complexity of the case,
the conduct of the applicant and the relevant authorities and what
was at stake for the applicant in the dispute (see, among many other
authorities, Cocchiarella v. Italy [GC],
cited above, § 68; and Frydlender v. France
[GC], no. 30979/96, § 43, ECHR 2000-VII).
- The
Government submitted that the applicant contributed to the length of
proceedings because he filed an appeal against the first instance
judgment although the first instance court partially accepted his
claim. Furthermore, the defendant in the case called witnesses who
did not comply with the court's summons to attend the hearings which
caused that those hearings had to be postponed.
- The
applicant contested that view.
- In respect of the arguments put forward by the
Government the Court notes that it is the normal task of an appellate
court in judicial proceedings to decide upon admissible appeals
against first instance judgments. The Court further recalls that it
is for the Contracting States to organise their legal systems in such
a way that their courts can guarantee everyone's right to obtain a
final decision on disputes relating to civil rights and obligations
within a reasonable time (see, among other authorities, Cocchiarella
v. Italy [GC], no. 64886/01, § 119, ECHR 2006-... and Horvat
v. Croatia, no. 51585/99, § 59, ECHR 2001-VIII).
- The
Court notes that in the present case the relevant period (see
paragraph 18 above) amounts to more than eight years and ten months
and that the case is still pending. During that period there existed
several substantial periods of inactivity before the first instance
court (from November 1997 to October 1998, then from March 1999 to
February 2000) amounting altogether to almost two years in which no
hearings were held. After that the appellate proceedings lasted for
two years and six months (from 14 April 2000 until 15 October 2002).
Furthermore, there was yet another substantial period of inactivity
after the case was remitted to the first instance court (from October
2002 until March 2004) amounting to one year, five months and seven
days. All these periods of inactivity are solely attributable to the
authorities. The Court therefore cannot accept the view that the
applicant significantly contributed to the length of the proceedings.
- Having
examined all the material submitted to it, and having regard to its
case-law on the subject, the foregoing considerations are sufficient
to enable the Court to conclude that already in the period which was
susceptible to the Constitutional Court's scrutiny the length of the
proceedings was excessive and failed to meet the “reasonable
time” requirement. It necessarily kept such character
throughout the subsequent period of some two and half years. In these
circumstances, to ask the applicant to lodge a second constitutional
complaint, would overstretch his duties under Article 35 § 1 of
the Convention (see, for example, Antonić-Tomasović v.
Croatia, no. 5208/03, §§ 25-34, 10 November
2005).
- In
conclusion, the Court rejects the Government's objection as to the
exhaustion of domestic remedies and finds that in the present case
there has been a breach of Article 6 § 1 of the Convention
on account of the excessive length of the proceedings.
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
- The
applicant further complained under Article 13 of the Convention taken
in conjunction with Article 6 § 1 that he had not had an
effective remedy in regard to the excessive length of the
proceedings. Article 13 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.”
Admissibility
- The
Court notes that the applicant had at his disposal an effective
domestic remedy to complain about the length of the proceedings –
a constitutional complaint – of which he availed himself. The
mere fact that the outcome of the Constitutional Court proceedings
was not favourable to him does not render the remedy ineffective.
- It
follows that this complaint is inadmissible under Article 35 §
3 as manifestly ill-founded and must be rejected pursuant to
Article 35 § 4 of the Convention.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article
41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed 20,000 euros (EUR) in respect of non-pecuniary
damage.
- The
Government maintained that the applicant's claim for just
satisfaction was unfounded and excessive because there existed no
causal link between the violation complained of and the applicant's
financial expectations.
- As
to the non-pecuniary damage sought, the Court reiterates the
principle enunciated above that if the Constitutional Court's
decision produces consequences that are inconsistent with the
principles of the Convention, the Court has to examine the total
length of the proceedings after the ratification. In the light of its
above findings, the Court, ruling on an equitable basis, awards the
applicant 4,000 euros (EUR) in respect of non-pecuniary damage, plus
any tax that may be chargeable on that amount.
B. Costs and expenses
- The
applicant also claimed EUR 500 for the costs and expenses incurred
before the Court.
- The
Government did not express an opinion on the matter.
- According
to the Court's case-law, an applicant is entitled to reimbursement of
his costs and expenses only in so far as it has been shown that these
have been actually and necessarily incurred and were reasonable as to
quantum. In the present case, regard being had to the information in
its possession and the above criteria, the Court considers it
reasonable to award the sum claimed covering costs for the
proceedings before the Court, plus any tax that may be chargeable on
this amount.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Joins to the merits the Government's objection as to the
exhaustion of domestic remedies and rejects it;
2. Declares the complaint concerning the excessive length of
the proceedings admissible and the remainder of the application
inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention on account of the excessive length of
the proceedings;
4. Holds
(a) that
the respondent State is to pay the applicant,
within three months from the date on which the judgment
becomes final according to Article 44 § 2 of the
Convention, the following amounts which are to be converted
into the national currency of the respondent State at a rate
applicable at the date of settlement:
(i)
EUR 4,000 (four thousand euros) in respect of non-pecuniary damage;
(ii) EUR
500 (five hundred euros) in respect of costs and expenses;
(iii) any
tax that may be chargeable on the above amounts;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 7 December 2006, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
