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FIRST
SECTION
CASE OF ČIKLIĆ v. CROATIA
(Application
no. 40033/07)
JUDGMENT
STRASBOURG
22 April
2010
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 Čiklić v.
Croatia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos
Rozakis,
President,
Nina
Vajić,
Khanlar
Hajiyev,
Dean
Spielmann,
Sverre
Erik Jebens,
Giorgio
Malinverni,
George
Nicolaou,
judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 25 March 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 40033/07) 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 Jelena Čiklić
(“the applicant”), on 4 August 2007.
- The
Croatian Government (“the Government”) were represented
by their Agent, Mrs Š. StaZnik.
- On
9 July 2008 the President of the First Section decided to give notice
of the application. It was also decided to examine the merits of the
application at the same time as its admissibility (Article 29 §
3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant, who is a Croatian national was born in 1957 and lives in
Zadar, Croatia.
- On
16 July 1996 the applicant brought a civil action against the company
Z. in the Zadar Municipal Court (Općinski sud u Zadru)
challenging her dismissal from work and seeking salary arrears.
- The
court held six hearings and on 10 October 1997 dismissed the action.
The applicant appealed.
- On
15 March 2000 the Zadar County Court (Zupanijski sud u Zadru)
quashed the impugned judgment and remitted the case to the court of
first instance.
- In
the resumed proceedings, the Zadar Municipal Court held six hearings
and on 16 April 2003 stayed the proceedings (prekid postupka)
because the bankruptcy proceedings had meanwhile been opened against
the defendant.
- On
14 July 2003 the Municipal Court found that it no longer had
jurisdiction in the matter because of the opening of the bankruptcy
proceedings and transferred the case to the Zadar Commercial Court
(Trgovački sud u Zadru). The Commercial Court held three
hearings and on 1 June 2004 adopted a judgment. The applicant
appealed to the High Commercial Court (Visoki trgovački sud
Republike Hrvatske).
- On
3 May 2006 the applicant lodged a request for the protection of the
right to a hearing within a reasonable time with the Supreme Court
(Vrhovni sud Republike Hrvatske).
- On
12 September 2006 the High Commercial Court quashed the
first-instance judgment and remitted the case. In the resumed
proceedings the Zadar Commercial Court gave its judgment on 6
February 2007 against which both parties appealed to the High
Commercial Court.
- On
6 March 2007 the Supreme Court found a violation of the
applicant's right to a hearing within a reasonable time and
attributed delays in the proceedings to the inefficiency of the Zadar
Municipal Court and the High Commercial Court. It awarded the
applicant 15,000 Croatian kuna in compensation and ordered the High
Commercial Court to give a decision in the applicant's case within
one month following the service of its decision. The Supreme
Court's decision was served on the High Commercial Court on 2 July
2007, although the latter already gave its decision in that case (see
§ 11 above).
- On
26 September 2007 the High Commercial Court quashed the
first-instance judgment of 6 February 2007 and remitted the case. On
22 January 2009 the Zadar Commercial Court gave its judgment
against which both parties appealed to the High Commercial Court.
- On
7 October 2009 the High Commercial Court upheld the first instance
judgment in part and in the remaining part quashed and remitted to
the Zadar Commercial Court before which the proceedings are currently
pending.
II. RELEVANT DOMESTIC LAW
- The
relevant part of the Courts Act (Zakon o sudovima, Official
Gazette nos. 150/05 and 16/07), which entered into force on
29 December 2005, reads as follows:
III. PROTECTION OF THE
RIGHT TO A HEARING WITHIN A REASONABLE TIME
Section 27
“(1) A party to court proceedings who considers
that the competent court failed to decide within a reasonable time on
his or her rights or obligations or a criminal charge against him or
her, may lodge a request for the protection of the right to a hearing
within a reasonable time with the immediately higher court.
(2) If the request concerns proceedings pending before
the High Commercial Court of the Republic of Croatia, the High Petty
Offences Court of the Republic of Croatia or the Administrative Court
of the Republic of Croatia, the request shall be decided by the
Supreme Court of the Republic of Croatia.
(3) The proceedings for deciding the request referred to
in paragraph 1 of this section shall be urgent.
Section 28
(1) If the court referred to in section 27 of this Act
finds the request well founded, it shall set a time-limit within
which the court before which the proceedings are pending must decide
on a right or obligation of, or a criminal charge against, the person
who lodged the request, and shall award him or her appropriate
compensation for the violation of his or her right to a hearing
within a reasonable time.
(2) The compensation shall be paid out of the State
budget within three months from the date the party's request for
payment is lodged.
(3) An appeal, to be lodged within fifteen days with the
Supreme Court, lies against a decision on the request for the
protection of the right to a hearing within a reasonable time. No
appeal lies against the Supreme Court's decision but one may lodge a
constitutional complaint.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that the length of the civil proceedings was
incompatible with the “reasonable time” requirement, laid
down in Article 6 § 1 of the Convention. In particular, she
complained that the amount of compensation she had been awarded for
the breach of her right to a hearing within reasonable time was not
adequate and that the impugned proceedings are still pending. Article
6 § 1 of the Convention reads as follows:
“In the determination of his civil rights and
obligations ... everyone is entitled to a fair ... hearing ... by [a]
... tribunal ...”
- The
Government contested these arguments.
- 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 of ratification. In
this connection the Court notes that the proceedings commenced on 16
July 1996 and have so far been pending for some thirteen years and
five months at two levels of jurisdiction, of which about a year and
three months before the ratification and for more than twelve years
after the ratification of the Convention.
Admissibility
The applicant's victim status
- The
Government submitted that the Supreme Court had accepted the
applicant's request, found a violation of her right to a hearing
within reasonable time and awarded her appropriate compensation. The
violation complained of had, therefore, been remedied before the
domestic authorities and, as a result, the applicant had lost her
victim status.
- The
applicant replied that she could still be considered a victim of the
violation complained of.
- The
Court notes that at the time when the Supreme Court gave its
decision, the proceedings had been pending for more than nine years
at two levels of jurisdiction after the ratification of the
Convention by Croatia. The just satisfaction awarded by the Supreme
Court does not correspond to what the Court would have been likely to
award under Article 41 of the Convention in respect of the same
period.
- The
compensation awarded therefore cannot be regarded as adequate in the
circumstances of the case (see the principles established under the
Court's case-law in Cocchiarella v. Italy [GC],
no. 64886/01, §§ 65-107, ECHR 2006-V, or Scordino
v. Italy (no. 1) [GC], no. 36813/97, §§ 178-213,
ECHR 2006-V). Thus, in respect of the period covered by the Supreme
Court's finding, the applicant has not lost her status as a victim
within the meaning of Article 34 of the Convention.
- The
Court notes further that the proceedings are still pending and that
therefore it is called upon to examine their overall length.
2. Exhaustion of domestic remedies
- The
Government argued that the applicant had not exhausted domestic
remedies and that she should have lodged a constitutional complaint
or another request for the protection of the mentioned right with a
higher court, which she failed to do.
- The
applicant did not reply to this argument.
- The
Court observes at the outset that the applicant availed herself of an
effective domestic remedy in respect of the length of the proceedings
– a request for the protection of the right to a hearing within
a reasonable time- and that the Supreme Court found violation of that
right in her case but failed to award her appropriate compensation.
The Court reiterates that in cases where the applicants'
constitutional complaints were dismissed, it was required to verify
whether the way in which the Constitutional Court interpreted and
applied the relevant provisions of the domestic law produced
consequences that were consistent with the principles of the
Convention, as interpreted in the light of the Court's case-law.
Where the Constitutional Court's decisions were inconsistent with the
Convention principles, the Court held that the applicants were not
required to lodge further constitutional complaints, as that would
overstretch their duties under Article 35 § 1 of the
Convention (see, for example, Kozlica v. Croatia,
no. 29182/03, §§ 23 and 28, 2 November 2006).
- The
Court considers that this reasoning applies with equal force in the
circumstances of the present case. This
is so because given the above conclusion that the applicant is still
a victim of the violation alleged, it cannot be said that the
way in which the Supreme Court interpreted and applied the relevant
provisions of the domestic law produced consequences that were
consistent with the Convention principles.
- It
follows that the Government's objection as to the exhaustion of
domestic remedies must be rejected.
3. Conclusion
- The
Court considers 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
applicant complained that the length of the civil proceedings had
been excessive because of inefficiency of the domestic courts,
particularly in view of the special diligence required in employment
disputes.
- The
Government accepted that, in view of the findings of the Supreme
Court, the proceedings had lasted unreasonably long and that the High
Commercial Court failed to comply with the time-limit ordered by the
Supreme Court.
- 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
Court notes that the Supreme Court found that the proceedings had
lasted unreasonably long and had attributed delays in the proceedings
to the inefficiency of the Zadar Municipal Court and the High
Commercial Court. The Court sees no reason to hold otherwise as it
has frequently found violations of Article 6 § 1 of the
Convention in cases raising similar issues as the present one (see,
for example, Skokandić v. Croatia, no. 43714/02,
31 July 2007; Balen v. Croatia, no. 43429/05, 25 October
2007; and Brajović-Bratanović v. Croatia, no.
9224/06, 9 October 2008). Therefore, already in the period which
was subject to the Supreme Court's scrutiny the length of the
proceedings was excessive and failed to meet the “reasonable
time” requirement. It retained that character throughout the
subsequent period of some two years and ten months after the delivery
of the Supreme Court's decision since the case is still pending.
- In
the light of the foregoing, the Court considers 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 claimed 23.943,66 euros (EUR) in respect of pecuniary and
21.126,76 euros (EUR) in respect of non-pecuniary damage.
- The
Government considered the claimed amount excessive and unfounded.
- The
Court does not discern any casual link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim. On
the other hand, it awards the applicant EUR 2,600 in respect of
non-pecuniary damage.
B. Costs and expenses
- The
applicant also claimed EUR 29,57 for the mailing expenses and
unspecified amount for the cost of translation and duplication of
documents and legal representation before the national courts.
- The
Government contested that claim.
- According to the Court's case-law, an applicant is
entitled to the reimbursement of 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. As the applicant's
request before the Supreme Court was essentially aimed at remedying
the violation of the Convention alleged before the court, the costs
incurred in respect of this remedy may be taken into account in
assessing the claim for costs (see Scordino, cited above,
§ 28; and Medić v. Croatia,
no. 49916/07, § 50, 26 March 2009). In the present case,
regard being had to the information in its possession and the above
criteria, the Court awards the applicant a sum of EUR 50 for costs
and expenses in the domestic proceedings and EUR 500 in respect of
the proceedings before the Court, both plus any tax that may be
chargeable to the applicant 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
- 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, the following
amounts which are to be converted into Croatian kunas at the rate
applicable at the date of settlement:
(i) EUR
2,600 (two thousand six hundred euros) in respect of non-pecuniary
damage;
(ii) EUR
550 (five hundred fifty euros) in respect of costs and expenses;
(iii) any
tax that may be chargeable to the applicant 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 22 April 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
