BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
[New search]
[Contents list]
[Printable RTF version]
[Help]
FIRST SECTION
CASE OF DEBELIĆ v. CROATIA
(Application no. 9235/04)
JUDGMENT
STRASBOURG
12 October 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 Debelić v. Croatia,
The European Court of Human Rights (First Section), sitting as a
Chamber composed of:
Mr C.L. Rozakis,
President,
Mrs N. Vajić,
Mr A. Kovler,
Mrs E.
Steiner,
Mr K. Hajiyev,
Mr D. Spielmann,
Mr S.E. Jebens,
judges,
and Mr S. Nielsen, Section Registrar,
Having deliberated in private on 21 September 2006,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
- The case originated in an
application (no. 9235/04) 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 Nedeljko
Debelić (“the applicant”), on 1 March 2004.
- The applicant was
represented by Mr. I. Debelić, a lawyer practising in Rab. The
Croatian Government (“the Government”) were represented
by their Agent, Ms Š. Stažnik.
- On 13 June 2005
the Court decided to give notice of the application to the
Government. Applying Article 29 § 3 of the Convention, it
decided to rule on the admissibility and merits of the application at
the same time.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The applicant, Mr Nedeljko Debelić, is a Croatian
national who was born in 1948 and lives in Rab.
- On 21 December 1998 three individuals, P.M., J.B. and
M.C., the owners of a plot of land on the island of Rab, neighbouring
another plot of land, allegedly owned by R.Š., instituted
proceedings for the determination of land borders (uređenje
međa) before the Rab Municipal Court (Općinski sud u
Rabu) against R.Š. because there was no agreement among
them on the matter.
- On 31 March 2000 the applicant filed submissions with
the court claiming that he should also be a party to these
proceedings because already in 1983 he had bought the plot of land in
question from R.Š., although he was not immediately entered as
the owner in the land registry. However, he had been in possession of
that plot of land ever since. By the Rab Municipal Court judgment of
27 December 1991 the applicant was established as the owner and on 6
March 1998 he applied to the same court to enforce that judgment. The
enforcement order to register the applicant as the owner of the plot
of land in question into the land registry was issued on 12 March
1998.
- It appears that the Rab Municipal Court did not answer
the applicant's request to participate in the proceedings for the
determination of the land borders by any formal decision.
- From the transcript of the hearing held on 11 April
2000 it transpires that Ivan Debelić was present at the hearing
as the applicant's legal representative and he repeated his previous
request that the land borders be determined.
- On 1 June 2000 the court carried out an on the spot
inquiry. The applicant was present in person and it was stated that
the applicant was the successor of R.Š.
- From the transcript of the inquiry it transpires that
the parties could not agree on the determination of the land borders.
- There was also an expert present at the inquiry who
gave his report and on the same date the court adopted a decision
determining the land borders. The text of the decision states that
the land border among the parties was in dispute. That decision was
served on the applicant on 24 December 2002.
- In 2002 the applicant filed a constitutional complaint
concerning the length of the proceedings. On 13 February 2004 the
Constitutional Court (Ustavni sud Republike Hrvatske) declared
his complaint inadmissible for lack of capacity to conduct legal
proceedings, establishing that the applicant had not been a party to
the proceedings complained of. The relevant parts of the
Constitutional Court's decision no. U-IIIA-668/2002 of 13 February
2004 read as follows:
“2. The present proceedings, conducted before the
Rab Municipal Court under the case file no. R.I.25/98, concern
determination of the land borders. ...
4. Pursuant to section 69 paragraph 1(2) of the
Constitutional Act, the Constitutional Court invited the Rab
Municipal Court to file their observations in respect of the
constitutional complaint.
In their observations the Rab Municipal Court stated:
“Ivan Debelić is not the legal representative of Nedjeljko
Debelić in the proceedings concerning determination of land
borders which had been instituted before that court under case file
no. R.I. 25/98. Nedjeljko Debelić has not filed an application
for determination of land borders in these proceedings. Furthermore,
Nedjeljko Debelić has not been named the respondent party in
these proceedings ...”
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...”
- The Government contested that argument.
- The proceedings for determination of the land borders
began on 21 December 1998, but the period to be taken into
consideration began only on 31 March 2000 when the applicant asked to
join the proceedings. That period ended on 24 December 2002. The
proceedings involving the applicant thus lasted for two years, eight
months and twenty four days before one level of jurisdiction.
A. Admissibility
- The Government firstly maintained that Article 6 § 1
of the Convention was not applicable to the present case. The
proceedings in question were non-contentious and did not involve a
dispute of a serious and genuine nature and are therefore
incompatible ratione materiae with the Article 6 § 1
of the Convention.
- The Government further asserted that the applicant was
not a victim of any violation of the rights guaranteed by the
Convention because he was not a party to the proceedings in question.
- The Government further argued that the present
application represented an abuse of the right of application because
the applicant intentionally concealed that he was the owner of the
plot of land that was subject of the domestic proceedings as he did
not seek that his ownership be recorded in the land registry.
- The applicant contested these arguments.
- As to the Government's objection ratione materiae,
the Court recalls that the concept of "civil rights and
obligations" is not to be interpreted solely by reference to the
respondent State's domestic law. Article 6 § 1 applies
irrespective of the status of the parties, of the nature of the
legislation which governs the manner in which the dispute is to be
determined and of the character of the authority which has
jurisdiction in the matter; it is enough that the outcome of the
proceedings should be decisive for private rights and obligations
(see, inter alia, Tre Traktörer AB v. Sweden,
judgment of 7 July 1989, Series A no. 159, p. 18, § 41).
- The Court notes that the proceedings in question
involved the determination of land borders between a land plot owned
by the applicant and a neighbouring land plot owned by another
person. The determination of land borders between plots of land was
closely related to the extent of the ownership of the plots of land
in question and was decisive for the effective exercise of the
applicant's rights, i.e. the free enjoyment of his ownership.
Therefore, the proceedings in question involved determination of the
applicant's civil rights and obligations.
- As to the existence of a dispute the Court refers to
the principles enunciated in its case-law (see, inter alia,
Pudas v. Sweden, judgment of 27 October 1987, Series A
no. 125-A, p. 14, § 31). In particular, the dispute
("contestation") 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 concerning the dispute at issue must be directly decisive
for such a right (see Allan Jacobsson v. Sweden (no.1),
judgment of 25 October 1989, Series A no. 163, p. 19, § 67).
Furthermore, conformity with the spirit of the Convention requires
that the word "contestation" should not be construed too
technically and that it should be given a substantive rather than a
formal meaning (see Moreira de Azevedo v. Portugal, judgment
of 23 October 1990, Series A no. 189, p. 17, § 66)
- Turning to the present case, in respect of the
proceedings concerning the determination of land borders, the Court
notes that there was no agreement among the parties on the matter,
which transpires from the application filed by P.M., J.B. and M.C.
with the Rab Municipal Court (see paragraph 5 above), the transcript
of the on the spot inquiry (see paragraph 10 above), as well as from
the Rab Municipal Court's decision of 1 June 2000 (see paragraph 11
above). These facts lead to the conclusion that there existed a
genuine dispute as to the determination of land borders among the
parties to the proceedings in question.
- It follows that the Government's objection ratione
materiae must be rejected.
- As to the Government's objection that the applicant
was not a victim of any violation of the rights and freedoms
guaranteed by the Convention and that his application represented an
abuse of the right of application, the Court notes that the documents
submitted to it reveal that during the hearing held before the Rab
Municipal Court on 11 April 2000 the applicant was represented by Mr.
I. Debelić, a lawyer practicing in Rab and now also representing
the applicant before the Court. At the on the spot inquiry the
applicant was present in person and it was stated that he was the
legal successor of R.Š. Furthermore, the Rab Municipal Court
decision of 1 June 2000 was served on the applicant. In addition, the
applicant submitted a copy of the same court's judgment of 27
December 1991, declaring him the owner of the plot of land in
question. Therefore, it transpires from the documents submitted to
the Court that the applicant participated in the proceedings in
question and that the court which conducted the proceedings treated
the applicant as a party to these proceedings.
- Having in mind all these circumstances and the
applicant's allegation that the proceedings in question conducted
before the Rab Municipal Court lasted unreasonably long, the Court
cannot but conclude that the Government's objection as to the
applicant's victim status must be rejected.
- The Court notes further that this complaint is not
manifestly ill-founded within the meaning of Article 35 § 3 of
the Convention. It further notes that it is not inadmissible on any
other grounds. It must therefore be declared admissible.
B. Merits
- 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, Frydlender v.
France [GC], no. 30979/96, § 43, ECHR 2000-VII).
- The Government argued that the case was complex and
that the applicant himself contributed to the length of proceedings
because his failure to seek that his ownership be recorded in the
land registry contributed to the confusion about the facts of the
case.
- The applicant contested those arguments.
- The Court notes that the proceedings as such lasted
for about one and a half years (from December 1998 until June 2000),
which in itself is not excessively long. The Court further notes that
the applicant joined the proceedings only in March 2000. However, it
took the Rab Municipal Court more than two and a half years to draft
and serve its decision on the applicant (on 24 December 2002).
- Having examined all the material submitted to it, the
Court does not find that the Government have put forward any fact or
argument capable of justifying the delay in the service of the Rab
Municipal Court's decision. Having regard to its case-law on the
subject, the Court considers that in the instant case the length of
the proceedings was excessive and failed to meet the “reasonable
time” requirement.
There has accordingly been a breach of Article 6 § 1.
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
- The applicant further complained that he had not had
an effective remedy in respect of the length of the above
proceedings. He relied on Article 13 of the Convention, 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.”
- The Government considered that a complaint submitted
to the Constitutional Court about the length of proceedings
represented an effective domestic remedy. The applicant's
constitutional complaint was declared inadmissible simply because the
applicant was not a party to the proceedings in question.
- The applicant contested these arguments.
- The Court recalls that that it recognised a
constitutional complaint under section 63 of the Constitutional Court
Act as an effective remedy for the length of proceedings still
pending in Croatia (see Slaviček v.Croatia (dec.),
no. 20862/02, ECHR 2002-VII). Moreover, in its Nogolica
decision (see Nogolica v. Croatia (dec.), no. 77784/01, ECHR
2002-VIII) the Court held that there existed special circumstances
justifying a departure from the general rule on exhaustion of
domestic remedies (according to which the issue of exhaustion should
normally be determined by reference to the date when an application
was lodged with the Court).
- In the present case the applicant filed a
constitutional complaint pursuant to section 63 of the Constitutional
Court Act in respect of the proceedings that were still pending at
that time. The Constitutional Court, however, declared the complaint
inadmissible finding that the applicant was not a party to the
proceedings complained of.
- The Court notes that a constitutional complaint
concerning the length of proceedings of such a nature as those in
question was in principle allowed pursuant to Section 63 of the
Constitutional Court Act. In its decision of 13 February 2004 the
Constitutional Court stated that the proceedings concerned a
determination of land borders, conducted before the Rab Municipal
Court. It further stated that it communicated the applicant's
complaint to the Rab Municipal Court for observations. Only after
those had been obtained the Constitutional Court found that it
transpired from the observations that the applicant was not a party
to the proceedings in question. For that reason, and that reason
solely, the Constitutional Court declared the application
inadmissible.
- It follows that the applicant was able to file a
constitutional complaint and he was able to put forward his argument.
The Constitutional Court processed his complaint and communicated it
to the court conducting the proceedings in question. It follows that
the applicant's complaint was tot immediately declared inadmissible.
Only after the Constitutional Court concluded that the applicant was
not, in its view, a party to the proceedings in question, it denied
the applicant a possibility of putting into question the length of
the proceedings.
- It follows that in principle the Constitutional Court
would examine the merits of a complaint concerning the length of the
proceedings related to the determination of land borders.
- Furthermore, the effectiveness of that remedy is not
put into question simply because the Constitutional Court's criteria
to judge whether the applicant was a party to the proceedings seemed
to be more formalistic than those applied by the Court.
- 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.
III. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1
- The applicant also invoked Article 1 of Protocol no. 1
without any further substantiation of his claim.
- In the light of all the material in its possession,
and in so far as the matters complained of are within its competence,
the Court considers that the present case does not disclose any
appearance of a violation of Article 1 of Protocol no. 1. It follows
that this complaint is also inadmissible under Article 35 §
3 as being 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.”
- The applicant did not submit a claim for just
satisfaction or for any costs and expenses incurred. Accordingly, the
Court considers that there is no call to award him any sum on that
account.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- 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;
- Holds that there is no call to award just
satisfaction.
Done in English, and notified in writing on 12 October 2006, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
