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FIRST
SECTION
CASE OF ROGOŠIĆ v. CROATIA
(Application
no. 55520/07)
JUDGMENT
STRASBOURG
20 May
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 Rogošić
v. Croatia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos Rozakis, President,
Nina
Vajić,
Anatoly Kovler,
Elisabeth
Steiner,
Khanlar Hajiyev,
Giorgio
Malinverni,
George Nicolaou, judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 29 April 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 55520/07) 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, Mr Mirko Rogošić
(“the applicant”), on 19 November 2007.
- The
Croatian Government (“the Government”) were represented
by their Agent, Mrs Š. StaZnik.
- On
1 July 2009 the President of the First Section decided to give notice
of the application to the Government. 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, was born in 1932 and lives in Belgrade, Serbia.
- On
31 May 2000 the applicant brought a civil action in the Zadar
Municipal Court (Općinski sud u Zadru), seeking payment
for a house he had sold to a private individual, M.G.
- The
first hearing scheduled for 6 November 2000 was adjourned owing to
the failure of the applicant's representative to submit a proper
authority form. Further hearings were held on 16 January,
15 February, 19 March, 10 and 22 May, 13 June and 9
August 2002.
- At
the hearing held on 29 August 2002 the applicant's representative
asked that the applicant give his evidence before a court in Belgrade
by means of legal assistance between the two States. On the same day
the Zadar Municipal Court requested the competent Municipal Court in
Belgrade for legal assistance in that respect.
- On
19 March 2003 the Zadar Municipal Court received the record of the
applicant's evidence given before the First Municipal Court in
Belgrade.
- The
Zadar Municipal Court held further hearings on 8 June,
9 September, 18 October, 4 November and 2 December 2004 and
5 April 2006.
- Meanwhile,
on 24 October 2005, the applicant lodged a constitutional complaint
under section 63 of the Constitutional Court Act complaining about
the length of the above civil proceedings.
- In
the period between March and September 2006 the Zadar Municipal Court
and the Zadar County Court (Zupanijski sud u Zadru) were
deciding on the applicant's requests for transfer of jurisdiction to
another court and withdrawal of the presiding judge.
- On
12 December 2006 the Municipal Court delivered a judgment ruling for
the applicant in part. Both parties appealed to the Zadar County
Court.
- On
12 February 2007, the applicant sought an interim measure (privremena
mjera) from the Zadar Municipal Court so as to prohibit M.G. from
disposing of the house in question. On 24 April 2007 the Zadar County
Court returned the case to the Municipal Court in order to decide on
the applicant's request for an interim measure.
- On
24 May 2007 the Constitutional Court dismissed the applicant's
complaint about the length of the proceedings finding that the delays
in the proceedings had been attributable to the applicant. The
Constitutional Court's decision was served on the applicant on 8
September 2007.
- On
1 June 2007 the Municipal Court dismissed the applicant's request for
the interim measure and forwarded the case to the Zadar County Court.
On 19 September 2006 the latter quashed the first-instance judgment
of 12 December 2006 and remitted the case. In the resumed proceedings
the Municipal Court invited the applicant to specify his claim
according to the instructions given by the County Court.
- On
30 October 2007 the applicant lodged a request for the protection of
the right to a hearing within a reasonable time (zahtjev
za zaštitu prava na suđenje u razumnom roku)
with the Zadar County Court complaining about the length of the
proceedings upon his request for the interim measure.
- On
8 November 2007 the County Court declared the applicant's request
inadmissible because the applicant, who resided abroad, had not
appointed a special representative in Croatia who would receive the
courts' summons on behalf of the applicant (punomoćnik
za primanje pismena), as required by the relevant
legislation. On 21 April 2008 the Supreme Court (Vrhovni sud
Republike Hrvatske) upheld the County Court's decision.
- In
the resumed civil proceedings, on 11 February 2008 the Municipal
Court gave a judgment for the applicant. Both parties lodged their
appeals. The appeal proceedings are currently pending before the
Zadar County Court.
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 whether or not all legal remedies have been
exhausted if the competent court fails to decide a claim concerning
the individual's rights and obligations or a criminal charge against
him or her within a reasonable time ...
(2) If a constitutional complaint ... under sub-section
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 sub-section 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 on which a request for
payment is lodged.”
- The
relevant part of the Courts Act (Zakon o sudovima, Official
Gazette nos. 150/05, 16/07, 113/08 and 153/09), as
in force at the material time, 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 Court
for Administrative Offences 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 sub-section 1 of this section shall be urgent. The rules of
non-contentious procedure shall apply mutatis mutandis in those
proceedings and, in principle, no hearing shall be held.
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 of the date on which the party's request
for payment is lodged.
(3) An appeal, to be lodged with the Supreme Court
within fifteen days, lies against a decision on the request for the
protection of the right to a hearing within a reasonable time. No
appeal lies against a Supreme Court decision, but a constitutional
complaint may be lodged.”
- The
relevant part of section 146 of the Code of Civil Procedure (Zakon
o parničnom postupku, Official Gazette 53/91, 91/92, 58/93,
112/99, 117/03, 84/08) reads as follows:
Representative for receiving the courts' summons
Section 146
“(1) Where a plaintiff ... residing abroad and not
having a representative in Croatia, does not appoint a representative
for receiving the courts' summons in Croatia at the time of lodging a
civil action, the court [conducting the proceedings] shall declare
the action inadmissible.
...”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION ON ACCOUNT OF THE LENGTH OF THE CIVIL PROCEEDINGS
- The
applicant complained that the length of the civil 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 free... hearing within a
reasonable time by a independent and impartial tribunal ...”
- The
Court notes that the proceedings commenced on 31 May 2000, when the
applicant brought his civil action. On 24 May 2007 when the
Constitutional Court gave its decision and dismissed the applicant's
complaint, the proceedings had lasted some seven years at two levels
of jurisdiction.
- The
proceedings have not yet ended. They have lasted another two years
and eight months after the decision of the Constitutional Court.
Thus, in total, the case has been pending so far for some nine years
and nine months at two levels of jurisdiction.
Admissibility
- The
Government invited the Court to reject the application on the ground
that the applicant had not exhausted all domestic remedies as
required under Article 35 § 1 of the Convention. They maintained
that for the period following the Constitutional Court's decision the
applicant could have lodged a request for the protection of the right
to a hearing within reasonable time with a higher court and a
constitutional complaint against a higher court's decision, which he
had failed to do.
- The
applicant contested these arguments.
- The
Court finds that the question of exhaustion of domestic remedies is
inextricably linked to the merits of this complaint. Accordingly the
Court holds that 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. If the Constitutional Court's
decision is consistent with the 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 (see also Kozlica v. Croatia,
no. 29182/03, § 23, 2 November 2006).
- 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 maintained that even though the case was not complex, it
nevertheless involved a hearing of the applicant before a court in
another state. They argued that the length of proceedings was mainly
attributable to the applicant. In particular, he had not submitted a
proper authority form and his initial civil action had not been
submitted in a proper form which had been the reason for quashing the
first-instance judgment. He also requested to give evidence before a
foreign court which contributed to the length of the proceeding. He
had also requested transfer of jurisdiction to another court and
withdrawal of the presiding judge. Finally he sought an interim
measure at the stage when the proceedings had already been pending
before the appeal court.
- The
applicant contested these arguments.
- The
Court notes that in the present case the period examined by the
Constitutional Court amounts to some seven years (see paragraph 23
above). The Court accepts that the fact that the applicant preferred
to give his evidence before a court in Belgrade instead of appearing
before the Zadar Municipal Court contributed to the length of
proceedings. On the other hand, the Court observes that in the
relevant period there were several substantial periods of the courts'
inactivity (see §§ 6-11 above) altogether exceeding three
years. While it is true that the applicant requested transfer of
jurisdiction, withdrawal of the presiding judge and an interim
measure, the Court considers that it is a normal function of courts
when deciding civil-law matters to adopt various procedural
decisions, such as those in the present case (see, Cerin v.
Croatia, no. 54727/00, § 26, 15 November 2001 and Rajak
v. Croatia, no. 49706/99, § 42, 28 June 2001). In this
connection, the Court reiterates that it is for the Contracting
States to organise their legal systems in such a way that their
courts can guarantee everyone's right to obtain a final decision on
disputes relating civil rights and obligations within a reasonable
time (see, Horvat v. Croatia, no. 51585/99, § 59, ECHR
2001 VIII and Nogolica v. Croatia (no. 3), no. 9204/04, §
27, 7 December 2006).
- In
the light of the foregoing the Court does not find that the length of
the proceedings is attributable to the applicant only and holds that
the above-mentioned delays are mostly attributable to the national
courts. Moreover, the Government provided no explanation in respect
of the length of the proceedings following the Constitutional Court's
decision, which has so far amounted to some two years.
- 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 further request for
protection of the right to a hearing within reasonable time, 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 and
Kozlica v. Croatia, no. 29182/03, §§ 23-28, 2
November 2006).
- In
conclusion, the Court finds that the Constitutional Court's decision
is not consistent with the Convention principles. Therefore 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
violation of Article 6 § 1 of the Convention on account of
the excessive length of the proceedings.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant also complained that the proceedings were unfair and that
the courts were not impartial and that he was discriminated against
because he lived in Serbia.
- The
Court notes that the proceedings at issue are still pending and that
therefore any complaints about their fairness as well as the
complaint that the applicant was discriminated against are premature.
- It
follows that this complaint must be rejected under Article 35
§§ 1 and 4 of the Convention for non-exhaustion
of domestic remedies.
III. 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 EUR 20,000 in respect of non-pecuniary damage.
- The
Government contested the claim.
- The
Court, ruling on an equitable basis, awards the applicant EUR 3,400
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 costs and expenses. Accordingly,
the Court considers that there is no call to award him 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
- Joins to the merits the Government's objection
as to the exhaustion remedies and rejects it;
2. Declares the complaint concerning the length of
the civil proceedings admissible and the remainder of the application
inadmissible;
- 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
3,400, plus any tax that may be chargeable to the applicant, in
respect of non-pecuniary damage, to be converted into
Croatian kuna at the rate applicable at the date of settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount 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 20 May 2010, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos
Rozakis Registrar President
