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FIRST
SECTION
CASE OF BALEN v. CROATIA
(Application
no. 43429/05)
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 Balen 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 A. Kovler,
Mrs E.
Steiner,
Mr K. Hajiyev,
Mr D. Spielmann, 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. 43429/05) 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, Ms Nada Balen (“the
applicant”), on 10 November 2005.
- The
Croatian Government (“the Government”) were represented
by their Agent, Mrs Š. StaZnik.
- On
5 February 2007 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 1948 and lives in Zagreb.
- Following
her dismissal from work the applicant brought a civil action in the
Zagreb Municipal Court (Općinski sud u Zagrebu) on 8 May
1997 against her former employer seeking her reinstatement. Since the
entry into force of the Convention in respect of Croatia on
5 November 1997, the Municipal Court held five hearings and on 8
April 1998 a judgment was adopted, dismissing the applicant's claim.
The judgment was served on the applicant on 1 September 1999.
- Following
an appeal the case-file was forwarded to the Zagreb County Court
(Zupanijski sud u Zagrebu) on 4 December 1999 which, however,
returned it to the Municipal Court on 22 December 2000 with the
instruction to request a proper power of attorney from the defendant.
After having complied with this instruction, the Municipal Court
again forwarded the case-file to the County Court on 15 January 2001.
On 23 September 2004 the County Court upheld the first instance
judgment which thus became final.
- Meanwhile,
on 21 July 2003 the applicant lodged a constitutional complaint under
section 63 (1) of the Constitutional Court Act. On 6 April 2005
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
awarded the applicant compensation in the amount of 7,500 Croatian
kunas (HRK).
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 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 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 8 May 1997, when
the applicant brought her civil action. Thus, they were pending for
about six months before the ratification.
- The
case was concluded by the Zagreb County Court's judgment of 23
September 2004. The proceedings thus lasted further six years, ten
months and seventeen days after the ratification. During that period
two decisions were rendered and the case was examined at two levels
of jurisdiction.
- When
the Constitutional Court made its assessment the proceedings had
already been concluded. They lasted six years, ten months and
seventeen days after the ratification of the Convention by Croatia,
before 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 6 April
2005 the Constitutional Court awarded the applicant the equivalent of
approximately 1,000 euros (EUR). The compensation awarded by the
Constitutional Court cannot be considered sufficient having regard to
the Court' case-law. 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 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.
- 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 submitted that the applicant had already been awarded full
compensation by the Constitutional Court.
- 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. (see, mutatis mutandis,
Cocchiarella v. Italy [GC], cited
above, §§ 139-141).
- The
Court recalls that the applicant was awarded about EUR 1,020 by
the Constitutional Court. Having regard to the circumstances of the
present case, the characteristics of the constitutional complaint as
well as the fact that, notwithstanding this domestic remedy, the
Court has found a violation, it considers, ruling on an equitable
basis, that the applicant should be awarded EUR 600.
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 600 (six
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
