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FIRST
SECTION
CASE OF HUSIĆ v. CROATIA
(Application
no. 14878/04)
JUDGMENT
STRASBOURG
25 October 2007
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 Husić v. Croatia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Mr C.L. Rozakis, President,
Mr L.
Loucaides,
Mrs N. Vajić,
Mr K. Hajiyev,
Mr D.
Spielmann,
Mr S.E. Jebens,
Mr G. Malinverni, judges,
and
Mr S. Nielsen, Section Registrar,
Having
deliberated in private on 4 October 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 14878/04) 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, Mrs Gordana Husić
(“the applicant”), on 29 January 2004.
- The
Croatian Government (“the Government”) were represented
by their Agent, Mrs Š. StaZnik.
- On
9 October 2006 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 1952 and lives in Zagreb.
- Following
her dismissal from work on 7 November 1994 the applicant brought a
civil action in the Zagreb Municipal Court (Općinski sud u
Zagrebu) on 16 December 1994 against her former employer
seeking her reinstatement and the salary arrears. Since the entry
into force of the Convention in respect of Croatia on 5 November
1997, the court held five hearings and obtained an expert opinion.
The expert opinion received by the court on 13 February 2002 could
not be served on the applicant because she had changed her address
without notifying the court.
- On
5 February 2003 the applicant lodged a constitutional complaint under
section 63 (1) of the Constitutional Court Act. On 7 July 2003
the Constitutional Court (Ustavni sud Republike Hrvatske)
accepted the applicant's complaint, finding a violation of her
constitutional right to a hearing within a reasonable time. It
ordered the Zagreb Municipal Court to give a decision in the
applicant's case within six months following its publication in the
Official Gazette and awarded her compensation in the amount of 7,500
Croatian kunas (HRK). The decision was published on 22 July
2003.
- In
its judgment of 4 February 2004 the Zagreb Municipal Court dismissed
the applicant's claim as ill-founded. That judgement was served on
the applicant on 1 April 2004. Following an appeal, on 13 September
2005 the Zagreb County Court (Zupanijski sud u Zagrebu)
quashed the first-instance judgment and remitted the case.
- In
the fresh proceedings before the Zagreb Municipal Court a hearing was
held on 3 March 2006. The hearing scheduled for 23 May 2006 was
adjourned because the summons sent to the applicant had been
returned. At the next hearing held on 6 November 2006 the applicant
extended her claim to another defendant. The proceedings are still
pending.
II. RELEVANT DOMESTIC LAW
- Article
29 § 1 of the Constitution (Ustav Republike
Hrvatske, Official Gazette no. 41/2001 of 7 May 2001) reads as
follows:
“In the determination of his rights and
obligations or of any criminal charge against him, everyone is
entitled to a fair hearing within a reasonable time by an independent
and impartial court established by law.”
- The
relevant part 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:
Section 63
“(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.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that the length of the civil proceedings
concerning her claim for reinstatement and salary arrears were
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 acknowledged, in light of the Constitutional Court's
decision, that there had been a violation of the applicant's right to
a hearing within a reasonable time. However, they maintained that she
had been afforded appropriate redress at the national level.
- 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 7 November 1994,
when the applicant brought her civil action. Thus, they were pending
for about three years before the ratification.
- The
case was still pending on 7 July 2003 when the Constitutional Court
gave its decision. On that date the proceedings had lasted five years
and eight months before one level of jurisdiction.
- The
proceedings have not yet ended. They have lasted another four years
after the decision of the Constitutional Court. Thus, in total, the
case has so far been pending for more than nine and a half years
after the ratification. During that period two decisions were
rendered and the case was examined at two levels of jurisdiction.
A. Admissibility
- The
Government submitted that the applicant could no longer claim to be a
victim within the meaning of Article 34 of the Convention since the
Constitutional Court had accepted the applicant's constitutional
complaint, found a violation of her constitutional right to a hearing
within a reasonable time, and awarded her compensation. The violation
complained of had, therefore, been remedied before the domestic
authorities and the applicant had lost her victim status.
- The
applicant disagreed.
- The Court observes that in the present case the
applicant's victim status within the meaning of the Convention
depends on whether the redress afforded to her at the domestic level
was adequate and sufficient having regard to Article 41 of the
Convention. This issue falls to be determined in the light of the
principles established under the Court's case-law (see, most
recently, Scordino v. Italy (no. 1) [GC], no. 36813/97,
§§ 178-213, ECHR 2006-... and Cocchiarella
v. Italy [GC], no. 64886/01, §§ 69-98, ECHR
2006-...).
- In
this connection, the Court notes that on 7 July 2003 the
Constitutional Court awarded the applicant the equivalent of
approximately 1,000 euros (EUR) and ordered the Zagreb Municipal
Court to deliver a decision on the appeal within six months. The
compensation awarded by the Constitutional Court cannot be considered
sufficient having regard to the Court' case-law, in particular
bearing in mind that the proceedings at issue case concerned an
employment dispute related to the applicant's dismissal from work.
Accordingly, the applicant can still claim to be the “victim”
of a breach of her right to a hearing within reasonable time, and the
Government's objection must therefore be dismissed.
- The
Court further recalls that, if the way in which the Constitutional
Court interpreted and applied the relevant provisions of the domestic
law produces consequences that are inconsistent with the principles
of the Convention, as interpreted in the light of the Court's
case-law, the Court is called upon to examine the overall length of
the impugned proceedings (see, mutatis mutandis, Kozlica v.
Croatia, no. 29182/03, § 23, 2 November 2006).
Given the above finding that the applicant may still claim to be a
“victim” of the alleged violation, the examination of the
total length is warranted (see Solárová and
Others v. Slovakia, no. 77690/01, §§ 41
and 43, 5 December 2006).
- In
this connection the Court observes, as noted above, that the
proceedings have so far lasted another four years after the
Constitutional Court's decision (see §§ 7 and 8 above). The
Court shall take this period into consideration when determining the
merits of the case and, if appropriate, the applicant's claim for
just satisfaction under Article 41 of the Convention (see Solárová
and Others v. Slovakia, cited above, § 42; Rišková
v. Slovakia, no. 58174/00, § 90, 22 August 2006).
- 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 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 applicants and the relevant authorities and what
was at stake for the applicants in the dispute (see, among many other
authorities, Frydlender v. France [GC], no. 30979/96, §
43, ECHR 2000-VII).
- The
Court has frequently found violations of Article 6 § 1 of the
Convention in cases raising issues similar to the one in the present
case (see Tatjana Marinović v. Croatia, no. 9627/03,
6 October 2005).
- Having
examined all the material submitted to it, the Court concurs with the
Constitutional Court that in the instant case the length of the
proceedings was excessive and failed to meet the “reasonable
time” requirement.
- As
regards the period subsequent to the delivery of the Constitutional
Court's decision, the Court notes that, following a remittal, the
proceedings are again pending at first instance. In these
circumstances, the Court necessarily concludes that further
unjustified delays occurred after that date.
- In
view of the above considerations, the Court concludes that there has
been a breach of Article 6 § 1.
II. 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 asked the Court to award her damages in the amount
corresponding to its case-law in similar cases.
- The
Government made no comments in this respect.
- The
Court recalls that where an applicant had resorted to an available
domestic remedy and thereby obtained a finding of a violation and was
awarded compensation, but can nevertheless still claim to be a
“victim”, the amount to be awarded under Article 41
may be less than the amounts the Court was awarding in similar cases.
In that case an applicant must be awarded the difference between the
amount obtained from the Constitutional Court and an amount that
would not have been regarded as manifestly unreasonable compared with
the amounts awarded by the Court. An applicant should also be awarded
an amount in respect of stages of the proceedings that may not have
been taken into account by the Constitutional Court (see, mutatis
mutandis, Cocchiarella v. Italy [GC],
cited above, §§ 139-141).
- Accordingly,
the applicant shall be awarded the total sum of EUR 3,300 in respect
of non-pecuniary damage, plus any tax that may be chargeable on that
amount.
B. Costs and expenses
- The
applicant did not submit a claim for the costs and expenses.
Accordingly, the Court considers that there is no call to award her
any sum on that account.
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
- Declares the application admissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 3,300
(three thousand three hundred euros) in respect of non-pecuniary
damage, to be converted into the national currency of the respondent
State at a rate applicable at the date of settlement, plus any tax
that may be chargeable;
(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;
Done in English, and notified in writing on 25 October 2007, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
