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FIRST
SECTION
CASE OF KOZLICA v. CROATIA
(Application
no. 29182/03)
JUDGMENT
STRASBOURG
2 November 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 Kozlica 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 12 October 2006,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 29182/03) 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 Kadrija
Kozlica (“the applicant”), on 8 July 2003.
- The
applicant was represented by Mr B. Spiz, a lawyer practising in
Zagreb. The Croatian Government (“the
Government”) were represented by their Agent, Mrs Š. Stažnik.
- On
12 January 2005 the
Court decided to communicate the complaint concerning the length of
the proceedings. 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 was born in 1938 and lives in Orašje, Bosnia and
Herzegovina.
A. Civil proceedings
5. On
25 November 1994 the applicant brought a civil action against the
company V. (“the employer”) and the insurance company
C.O. in the Zagreb Municipal Court (Općinski sud u Zagrebu)
seeking damages for a work-related injury in the amount of 96,700
Croatian kunas (HRK).
- The
court held hearings on 2 June and 30 November 1999 and 21 February
2001.
- In
the period between May 1998 and October 2000 the applicant filed four
rush notes urging the court to schedule a hearing and speed up the
proceedings.
- On
21 February 2001 the Municipal Court gave judgment dismissing the
applicant’s claim. The applicant appealed on 6 March 2001 to
the Zagreb County Court (Županijski sud u Zagrebu).
- On
26 March 2001 the applicant applied to be exempted from the court fee
for the appeal. Since it was the Municipal Court that was competent
to decide on the applicant’s request for exemption, the County
Court returned the case-file to it with a view to reaching a decision
thereon. A hearing before the Municipal Court scheduled for
14 January 2003 was adjourned since the applicant had not
received the summons due to his change of address. The next hearing
scheduled for 3 June 2003 was adjourned owing to the illness of
the judge assigned to hear the case. Lastly, a hearing at which the
applicant gave a declaration of his income and assets was held on
13 May 2004. On 24 May 2004 the applicant was served with the
decision in his favour exempting him from the court fee for the
appeal. The case-file was then sent back to the County Court with a
view to deciding on the applicant’s appeal.
- On
5 April 2005 the County Court dismissed the appeal. The judgment was
served on the applicant on 25 April 2005. No appeal on points of law
(revizija) lay to the Supreme Court against this judgment (see
paragraph 14 below).
B. Proceedings before the Constitutional Court
- Meanwhile,
on 23 July 2002 the applicant lodged a constitutional complaint with
the Constitutional Court (Ustavni sud Republike Hrvatske)
complaining about the length of the civil proceedings.
- On
17 April 2003 the Constitutional Court dismissed the applicant’s
complaint. It held that the delay was attributable to the complexity
of the case and the applicant’s conduct. It found that the
applicant had contributed to the length of the proceedings in that he
had applied for exemption from the court fee only after he had
appealed against the first-instance judgment.
II. RELEVANT DOMESTIC LAW
A. The Constitutional Court Act
- 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 whether or not all legal remedies have been
exhausted if the competent court fails to decide a claim concerning
the applicant’s rights and obligations or a criminal charge
against him or her within a reasonable time ...
(2) If a constitutional complaint ... under paragraph 1
of this section is upheld, the Constitutional Court shall set a
time-limit within which the competent court must decide the case on
the merits...
(3) In a decision issued under paragraph 2 of this
section, the Constitutional Court shall assess appropriate
compensation for the applicant for the violation of his or her
constitutional rights ... The compensation shall be paid out of the
State budget within three months from the date a request for payment
is lodged.”
B. Amendments to the Civil Procedure Act
- On
6 November 1999 the Amendments to the Civil Procedure Act (Zakon o
izmjenama i dopunama Zakona o parničnom postupku, Official
Gazette no. 112/1999 of 29 October 1999) entered into force. They
raised the statutory threshold for lodging an appeal on points of law
(revizija) to the Supreme Court from HRK 3,000 to 100,000.
That is to say that, from then on, for such an appeal to be
admissible ratione valoris in non-commercial matters, the
value of the subject matter in dispute had to exceed the
last-mentioned amount. The Amendments also provided for their
immediate application to pending proceedings except to those cases in
which an appeal on points of law had already been lodged.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION ON ACCOUNT OF THE LENGTH OF THE PROCEEDINGS
- The
applicant complained that the length of the proceedings had been
incompatible with the “reasonable time” requirement,
provided 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
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 25 November
1994, when the applicant brought his civil action against the
employer and the insurance company C.O. Consequently, they were
already pending for almost three years before the ratification.
- The
case was still pending on 17 April 2003 when the Constitutional Court
gave its decision. On that date the proceedings had lasted some five
and a half years for two levels of jurisdiction.
- The
proceedings ended on 25 April 2005 when the judgment of the County
Court was served on the applicant, that is, some two years after the
decision of the Constitutional Court. Thus, in total, the proceedings
lasted almost seven and a half years after the ratification for two
levels of jurisdiction.
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 to the Constitutional Court. The Government observed that
he had already lodged such a complaint on 23 July 2002, and that the
Constitutional Court dismissed it on 17 April 2003. 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
on which the constitutional complaint had been lodged. Having regard
to the fact that after the filing of the constitutional complaint on
23 July 2002, the proceedings lasted for another two years and eight
months, to lodge a second constitutional complaint while the
proceedings were still pending 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. He argued that it was not
justified to require him to lodge another constitutional complaint
when his previous complaint had been dismissed.
- 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 argued that the case had been complex and that the length
of the proceedings was primarily attributable to the applicant. In
particular, he had applied for an exemption from the court fee only
after having lodged his appeal and had subsequently failed to notify
the Municipal Court of the change of his address, thereby causing the
adjournment of the hearing of 14 January 2003.
- The
applicant replied that he had sought exemption only from the court
fee for the appeal. Consequently, he could not have done so before he
had actually lodged his appeal. As to the change of his address, he
submitted that he had been heard as a party at the hearing held on
6 June 1999 during which he gave, inter alia, his
personal information, including his address which he had changed some
time before that hearing.
- The
Court notes that in the present case the period examined by the
Constitutional Court amounts to five and a half years (see paragraph
17 above). During that period there existed two substantial periods
of inactivity (from November 1997 to June 1999, and from November
1999 to February 2001) amounting altogether to almost three years in
which no hearings were held. They are solely attributable to the
authorities. Moreover, it took the Municipal Court more than a year
and a half to schedule a hearing concerning the applicant’s
request for exemption from the court fee. 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 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 6 § 1 OF THE CONVENTION
TAKEN ALONE AND IN CONJUNCTION WITH ARTICLE 14 THEROF
- The
applicant further complained, for the first time in his written
observations dated 19 May 2005, that his right of access to a court
had been infringed because he had been unable to lodge an appeal on
points of law (revizija) owing to the change in legislation
governing civil procedure which had raised the statutory threshold
for admissibility of such an appeal. He also submitted that limiting
ratione valoris the right to lodge an appeal on points of law
created inequality before the law and was therefore contrary to
Article 14 of the Convention which reads as follows:
“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.”
- The
Government submitted that the applicant was precluded to complain
about the violation of his right of access to a court since this
complaint had not been contained in his original application to the
Court. Rather, he had raised it only in his written observations
dated 19 May 2005.
Admissibility
- The
Court considers that in the present case it can leave open the
question whether the applicant has complied with the six-month
requirement. It reiterates that Article 6 of the Convention does not
compel the Contracting States to set up courts of appeal or of
cassation. However, where such courts do exist, the guarantees of
Article 6 must be complied with, for instance in that it guarantees
to litigants an effective right of access to the courts for the
determination of their “civil rights and obligations”.
The manner in which Article 6 § 1 applies to courts of appeal or
of cassation depends on the special features of the proceedings
concerned and account must be taken of the entirety of the
proceedings conducted in the domestic legal order and the court of
cassation’s role in them; the conditions of admissibility of an
appeal on points of law may be stricter than for an ordinary appeal
(see, inter alia, Brualla Gómez de la Torre v.
Spain, judgment of 19 December 1997, Reports of Judgments and
Decisions 1997 VIII, p. 2956, § 37).
- The
Court notes that the arguments similar to those put forward by the
applicant have been rejected in an earlier case (see, mutatis
mutandis, Brualla Gómez de la Torre v. Spain, cited
above) and sees no reason to reach a different conclusion in the
present case. In particular, the Court considers that increasing the
financial threshold for appeals to the Supreme Court in order to stop
that court being overloaded with cases of lesser importance, was a
legitimate aim. Moreover, the solution adopted in the instant case by
the Croatian legislator followed a generally recognised principle
that procedural rules apply immediately to the pending proceedings
(see, mutatis mutandis, Brualla Gómez de la Torre v.
Spain, cited above, p. 2956, §§ 35-36).
- In
the light of the foregoing and having regard to the proceedings as a
whole, the Court considers that the essence of the applicant’s
right of access to a court was not impaired nor was he discriminated
against on that account. It follows that this part of the application
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 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 150,000 Croatian kunas (HRK) in respect of
pecuniary and non-pecuniary damage.
- The
Government contested the claim.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim.
- As
to the non-pecuniary damage sought, it reiterates the principle
enunciated above (see paragraph 23) 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 (see paragraphs 18 and 28), the Court, ruling
on an equitable basis, awards the applicant 3,600 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 2,000 for the costs and expenses incurred
before the Court.
- The
Government contested the claim.
- 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 of EUR 1,000 for the
proceedings before the Court, plus any tax that may be chargeable on
that 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 3,600 (three thousand six hundred euros) in respect of
non-pecuniary damage;
(ii) EUR
1,000 (thousand 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 2 November 2006,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
