In the case of V.K. v. Croatia,
The European Court of Human Rights (First Section), sitting as
a Chamber composed of:
Isabelle Berro-Lefčvre, President,
Elisabeth Steiner,
Nina Vajić,
Mirjana Lazarova Trajkovska,
Julia Laffranque,
Linos-Alexandre Sicilianos,
Erik Mřse, judges,
and Sřren Nielsen, Section Registrar,
Having deliberated in private on 6 November 2012,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
38380/08) 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 V.K. (“the applicant”),
on 11 July 2008. The Vice-President of the Section acceded to the
applicant’s request not to have his name disclosed (Rule 47 § 3 of the Rules of
Court).
The applicant, who had been granted legal aid,
was represented by Ms K. Tomašić, a lawyer practising in Zagreb. The Croatian Government (“the Government”) were represented by their Agent, Ms Š.
Stažnik.
On 9 February 2010 the complaints concerning the
length of civil proceedings and an effective remedy in that respect, as well as
the applicant’s right to respect for his private and family life and his right
to marry, were communicated to the Government. It was also decided to rule on
the admissibility and merits of the application at the same time (Article 29
§ 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1964 and lives in Zagreb.
On 30 November 2002 the applicant married M., and
on 22 September 2003 a child, K., was born of the marriage.
On 14 April 2004 the applicant filed a petition
for divorce with the Z. Municipal Court (Općinski sud u Z.).
At a hearing on 14 December 2004 the applicant
submitted his proposal concerning contact and child maintenance for K. At the
same hearing the parties agreed that the marriage be dissolved.
On 30 December 2004 M. informed the Z. Municipal
Court that she did not agree with the applicant’s proposal as regards child
maintenance and asked the court to set an appropriate amount.
The applicant lodged a request for expedition of
the proceedings with the Z. Municipal Court on 2 February 2005.
On 2 August 2005 the applicant brought a
separate action in the Z. Municipal Court, contesting his paternity of K.
The applicant further lodged a request with the
Supreme Court (Vrhovni sud Republike Hrvatske) on 25 August 2005 asking
that the proceedings be transferred to another court.
The Z. Municipal Court on 15 September 2005
ordered the parties to submit information concerning their incomes. On 22 September
2005 the applicant, and on 18 October 2005 M., complied with this order and
submitted the requested information.
At a hearing on 31 October 2005 M. failed to
appear. At the same hearing the applicant requested the trial court to issue a
partial judgment by which the marriage would be dissolved. The trial judge dismissed
the applicant’s request and ordered him to submit further documents concerning
his financial status.
The applicant complied with the above order and
submitted the requested documents on 2 November 2005.
On 14 December 2005 the applicant again lodged a
request for expedition of the proceedings with the Z. Municipal Court.
The Z. Municipal Court on 13 March 2006 ordered
M. to submit information concerning the child maintenance payments she had
received from the applicant. On 19 April 2006 she complied with this order and
submitted the requested information.
Another hearing was scheduled for 3 May 2006 but
it was adjourned since the applicant informed the trial court that he was ill
and could not attend the hearing.
At a hearing on 10 July 2006 the applicant asked
the Z. Municipal Court to join the divorce proceedings with the proceedings in
which he was contesting paternity of K. This request was granted, but further
proceedings were stayed pending a Supreme Court decision on the applicant’s
request for transfer of the proceedings to another court.
On 10 November 2006 the applicant asked the Z.
Municipal Court to adopt a partial judgment, in respect of the petition for
divorce alone.
The Supreme Court dismissed the applicant’s
request for transfer of the proceedings to another court on 22 November 2006.
M. informed the Z. Municipal Court on 8 December
2006 and 9 March 2007 that she and K. had been living in Switzerland and that the applicant had refused to give consent for K. to obtain a passport and to
come to Croatia to take part in the paternity proceedings.
On 30 March 2007 the applicant informed the Z.
Municipal Court that he had given his consent for K. to obtain a passport.
A hearing scheduled for 23 April 2007 was
adjourned because the applicant had not been properly summoned.
Another hearing scheduled for 12 June 2007 was
adjourned because the applicant failed to appear. At the same hearing the Z.
Municipal Court ordered a DNA test.
The Z. Municipal Court ordered the applicant to
pay a sum of 10,000 Croatian kunas (HRK) for the DNA test on 26 June 2007.
In the period between 12 September and 21
November 2007 the applicant made four payments in instalments for the DNA test.
He also asked the Z. Municipal Court to extend the time-limit for payment. The
Z. Municipal Court granted the applicant’s request and extended the time-limit
for a further thirty days. On 26 November 2007 he informed the Z. Municipal
Court of the amount he had managed to pay for the DNA test.
On 27 November 2007 the applicant lodged a
complaint about the length of the proceedings with the Constitutional Court (Ustavni
sud Republike Hrvatske) which was forwarded to the Z. County Court (Županijski
sud u Z.) for further examination. In his submissions the applicant
complained that the Z. Municipal Court had dismissed his request for the
partial judgment by which his marriage could be dissolved. He submitted that
the lengthy divorce proceedings had had an adverse effect on his private life
and his dignity and that the delay could prevent his marriage to another woman,
planned for June 2008. The applicant also asked that the Z. Municipal Court be
ordered to adopt a partial judgment by which his marriage with M. would be dissolved.
At a hearing on 11 February 2008 the Z.
Municipal Court found that the applicant had failed to pay the full amount required
for the DNA test, and adjourned the hearing.
Another hearing scheduled for 10 March 2008 was
adjourned because the applicant informed the trial court that he could not
attend the hearing.
On 15 May 2008 the applicant asked the Z.
Municipal Court to exempt him from the duty to pay for the DNA test, relying on
war veterans’ rights, but on 13 June 2008 that court dismissed his request.
Another hearing was held on 9 July 2008; the
applicant failed to appear.
On 25 September 2008 the applicant submitted
further complaints to the Z. County Court about the length of the proceedings: he
argued that he was a practising Christian and would therefore like to marry
again, but had been unable to do so because the Z. Municipal Court had refused
to issue a partial judgment by which he could be divorced. He also stressed
that he would be humiliated if he had to cancel the planned marriage because he
had been unable to divorce.
On 26 September 2008 the applicant informed the
Z. Municipal Court that he had made a further payment for the DNA test.
At a hearing on 15 October 2008 the Z. Municipal
Court found that the amount necessary for the DNA blood test had been almost
fully paid, and requested the parties to make an arrangement to have DNA
samples taken.
On 27 October 2008 the applicant, relying on the
Court’s case-law, complained before the Z. County Court about the manner in
which the paternity proceedings and the DNA blood test had been conducted by
the Z. Municipal Court. He pointed out that M. had refused to come to Croatia to have a sample of K.’s DNA taken. He again requested the Z. County Court to order
the Z. Municipal Court to adopt a partial judgment concerning the divorce.
The Z. County Court accepted the applicant’s
complaint about the length of the proceedings on 31 October 2008. It found a
violation of the applicant’s right to a hearing within a reasonable time, awarded
him HRK 5,000 in compensation and ordered the Z. Municipal Court to adopt a
decision as soon as possible, and within six months at the latest. The relevant
part of the decision reads:
“ ... the overall length of these civil proceedings cannot be
said to have complied with the reasonable time requirement. ... Everything suggests that the court has failed to conduct the proceedings in compliance with the
principle of efficiency, since over a period of longer than four years the case
has still not been decided by the first-instance court ...
The applicant, as a plaintiff in the proceedings, has
contributed to the length of the proceedings, since the court’s summons to some
hearings could not be served on him and he failed to appear at these hearings.
His contribution to the length of the proceedings can also be observed through
the fact that he has failed to comply with the court’s orders in time (for
example to pay for the DNA test).”
On the same day the applicant informed the Z.
Municipal Court that he was insisting on a DNA test, although in the meantime
he had been informed by M. that she and K. would not attend to have a DNA
sample taken.
On 20 November 2008 the applicant lodged an
appeal with the Supreme Court against the Z. County Court decision of 31
October 2008 in the part concerning the amount of the awarded compensation. He
also complained that the Z. County Court had ignored his request that the Z.
Municipal Court be ordered to adopt an interim judgment on his divorce.
On 26 January 2009 the applicant submitted to the
Z. Municipal Court a written statement from the Employment Service (Hrvatski
zavod za zapošljavanje) confirming that he was unemployed.
Another hearing scheduled for 2 April 2009 was
adjourned because the applicant informed the trial court that he could not
attend this hearing and M. had failed to inform the court when she and K. would
be able to attend to have a DNA sample taken.
On 23 April 2009 the Supreme Court awarded the
applicant further compensation of HRK 3,000 in respect of the length of the
proceedings. The relevant part of the decision reads:
“... This court considers that the conduct of the applicant had
no influence on the length of the proceedings. On the contrary, the case file
reveals that the applicant has demonstrated a strong resolve to have the
proceedings concluded as soon as possible and within a reasonable time; this
can be seen by his numerous requests that [the court] decide on his petition
for divorce, to which the defendant also agreed at the hearing of 14 December
2004 ... Although the first-instance court pointed out that the applicant had contributed
to the length of the proceedings by not complying with the summons to appear at
the hearings, it is to be noted that it was only the hearing of 12 June
2007 at which he failed to appear despite having been properly summoned. As
regards the hearing of 11 February 2008, the applicant was not properly
summoned, since the court summons was returned with the notice “informed, did
not collect”. As to the applicant’s failure to pay for the DNA test, it is to
be noted that he requested that the time-limit for this payment be extended
since it concerned a significant amount, given his income and his social
circumstances, and the fact that he paid certain amounts in instalments on more
than one occasion, in accordance with his financial means. This demonstrated
his resolve to comply with the court order.”
The applicant further lodged a constitutional
complaint with the Constitutional Court on 22 May 2009 against the above
decision of the Supreme Court.
At a hearing on 7 July 2009 the Z. Municipal
Court commissioned a DNA paternity report from Clinical Hospital Š. (Klinička
bolnica Š.).
M. informed the Z. Municipal Court on 21 July
2009 that she refused to come to Zagreb to have a DNA sample taken.
On 6 August 2009 the applicant lodged a request
for disqualification of the trial judge, president and all judges of the Z.
Municipal Court.
On 10 September 2009 the Constitutional Court
dismissed the applicant’s constitutional complaint in respect of the length of
the proceedings as ill-founded, on the ground that his complaints had been
properly addressed by the lower courts.
The Clinical Hospital Š. on 21 September 2009
informed the Z. Municipal Court that the parties had failed to appear to have DNA
samples taken.
The Z. Municipal Court rejected the applicant’s
request for disqualification of the judges of that court on 23 September 2009.
On 28 September 2009 the applicant again
requested the Z. Municipal Court to commission a DNA report.
The president of the Z. County Court rejected
the applicant’s request for disqualification of the president of the Z.
Municipal Court on 2 October 2009.
On 7 October 2009 the applicant again requested
the Z. Municipal Court to adopt a partial judgment in respect of the divorce
alone.
The president of the Z. Municipal Court
dismissed the applicant’s request for disqualification of the trial judge on 29
October 2009.
The Z. Municipal Court on 13 November 2009 again
summoned the parties to have DNA samples taken.
On 30 November and 1 December 2009 the applicant
informed the Z. Municipal Court that he was withdrawing his action concerning
his paternity of K., on the ground that the payment of the requested sum for
the DNA test had created an intolerable financial burden for him since he was unemployed
and without any source of income. He also asked that the marriage be dissolved
as soon as possible since his social benefits depended on his marital status.
At a hearing on 14 January 2010 the parties reached
an agreement on child maintenance and contact between the applicant and K. On
the same day the Z. Municipal Court dissolved the marriage of the applicant and
M. and decided on the amount of the child maintenance and contact between the
applicant and his child. The parties also declared that they would not lodge appeals
and the judgment thus became final.
On 11 September 2010 the applicant married J.V.
II. RELEVANT DOMESTIC LAW
The relevant provisions of the Constitution of
the Republic of Croatia (Ustav
Republike Hrvatske, Official Gazette no. 56/1990, 135/1997,
113/2000, 28/2001) read as follows:
Article 29
“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.”
Article 61
“Family is under the special protection of the State.
Marriage and legal relations in marriage, extra-marital
relationship and family shall be governed by law.”
The relevant provisions of the Family Act (Obiteljski
zakon, Official Gazette nos. 116/2003, 17/2004, 136/2004, 107/2007) read as
follows:
Section 29
“Marriage cannot be concluded by a person who is already
married.”
Section 34
“(1) Irrespective of the form in which it was contracted, a
marriage ceases upon: the death of a spouse, the pronouncement that a missing
spouse is deceased, annulment or divorce.
(2) A marriage ceases by annulment or divorce when the
judgement of a court concerning the annulment or divorce becomes final ...“
Section 263
“(1) This Act governs special civil proceedings,
non-contentious proceedings and special enforcement proceedings concerning the
marital and family affairs under this Act.
(2) Proceedings as in paragraph 1 are urgent.”
Section 264
“The provisions of the Civil Procedure Act and the Enforcement
Act shall be applicable to proceedings under section 263 of this Act, unless
otherwise provided under this Act.”
The relevant provisions of the Civil Procedure
Act (Zakon o parničnom postupku, Official Gazette of the Socialist
Federal Republic of Yugoslavia nos. 4/1977, 36/1977 (corrigendum), 36/1980,
69/1982, 58/1984, 74/1987, 57/1989, 20/1990, 27/1990 and 35/1991, and the
Official Gazette of the Republic of Croatia nos. 53/1991, 91/1992, 58/1993,
112/1999, 88/2001, 117/2003, 88/2005, 2/2007, 84/2008, and 123/2008), read as
follows:
Partial Judgment
Section 329
“(1) If only some of a number of claims are ready for a final
decision on the basis of the litigation, or if only part of one claim is ready
for a final decision, the court may conclude the trial and adopt a judgment
(partial judgment) in respect of the claims or the part of the claim that are
ready.
(2) The court is obliged to adopt a partial judgment without
delay if, on the basis of admission or waiver of several claims put forward
only some become ready for a final decision, or if only part of one claim is
ready for this decision ...“
The relevant provisions of the Courts Act (Zakon
o sudovima, Official Gazette nos. 150/2005, 16/2007 and 113/2008), as in
force at the material time, read as follows:
III. PROTECTION OF THE RIGHT TO A TRIAL WITHIN A
REASONABLE TIME
Section 27
“(1) A party to court proceedings who considers that the court has
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 a court at the next
higher level of jurisdiction.
(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) Proceedings for deciding on a request as 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 may
award him or her appropriate compensation for a 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.”
Amendments to the Courts Act in connection with
the length-of-proceedings complaint procedure, enacted on 11 December 2009 (Zakon
o izmjenama i dopunama Zakona o sudovima, Official Gazette, no. 153/2009),
read as follows:
Section 7
“Section 28 [of the Courts Act] now reads:
...
(5) 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. A further appeal, to be lodged
with a panel of judges of the Supreme Court, lies against the decision of the
Supreme Court. The panel shall adopt its decision within three months.
(6) The panel of judges referred to in paragraph 5 shall be
composed of three Supreme Court’s judges. They shall be elected by a plenary
session of the Supreme Court.
... “
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
The applicant complained about the length of the
civil proceedings before the Z. Municipal Court. He relied on Article 6 of the
Convention, which, in so far as relevant, 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 ... “
A. Admissibility
1. The applicant’s victim status
The Government argued that the domestic
authorities, relying on the principles established in the Court’s case-law, had
examined the applicant’s complaint about the length of the proceedings,
expressly acknowledged that there had been a violation of his right to a
hearing within a reasonable time, and awarded him appropriate compensation.
Therefore, in their view the applicant could not claim to be a victim of a
violation of his rights under the Convention.
The applicant contested that view. He considered
that the domestic authorities had failed to examine all relevant facts
concerning the length of the proceedings, and pointed out that the
first-instance court had failed to adopt a decision within the time-limit set
out by the higher courts. Therefore, he considered that he could still claim to
be a victim of a violation of his right to a hearing within a reasonable time
under the Convention.
The Court notes that the last decision at the domestic
level concerning the applicant’s complaint about the length of the proceedings
at issue was adopted by the Constitutional Court on 10 September 2009. At that
time the proceedings had been pending for more than five years and four months. For this whole period, just satisfaction was awarded by the Z.
County Court and the Supreme Court in the total amount of HRK 8,000. It 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. Furthermore, although the
County Court ordered the Municipal Court to adopt a decision within six months
at the latest, the Municipal Court failed to comply with that order and the
decision was adopted more than a year after the County Court’s order.
The compensation awarded cannot therefore be
regarded as adequate in the circumstances of the case (see the principles
established in 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). In these
circumstances the applicant has not lost his status as a victim within the
meaning of Article 34 of the Convention.
2. Exhaustion of domestic remedies
The Government submitted, relying on the Court’s
case-law in Lazić v. Croatia (dec.), no. 55507/07, 22 April 2010,
that the applicant had failed to exhaust domestic remedies, since he had not
lodged a new length-of-proceedings complaint concerning the period after the Z.
County Court had found a violation of his right to a hearing within a
reasonable time.
The applicant argued that the case-law relied
upon by the Government could not be applied when the complaints concerned the
overall length of proceedings, which was the situation in the present case. In
his view the principles from the Lazić case were applicable only in
respect of the complaints concerning a new violation of the right to a hearing
within reasonable time which had taken place in the period after the first
domestic court’s decision on that matter. Therefore, he considered that, by
lodging his complaint about the overall length of proceedings with the Constitutional Court, he had exhausted domestic remedies.
The Court notes that in the course of exhaustion
of domestic remedies concerning his length-of-proceedings complaint, the
applicant brought his complaint before the Z. County Court and an appeal,
against the decision of that court, to the Supreme Court. Against the decision
of the Supreme Court, the applicant lodged a constitutional complaint with the Constitutional Court. On 10 September 2009 the Constitutional Court examined his complaint
on merits and dismissed it as ill-founded endorsing the decisions of the lower
courts.
The Court observes that the relevant legislation
in Croatia, namely the Courts Act, was amended in December 2009 after the Constitutional Court adopted its decision in the applicant’s case. The domestic law has been
amended to the effect that a further appeal lies against the second-instance
decision of the Supreme Court. The examination of this further appeal is no
longer within the competence of the Constitutional Court, but of a panel of
judges of the Supreme Court which in this case acts as a court of
third-instance (see paragraph 61). Having regard to the fact that the above
amendments were introduced subsequent to the facts of the present case, the
Court will base its decision on its case-law related to the previous
legislation.
In this respect the Court has held that a
constitutional complaint was an effective remedy in Croatia as regards
complaints about length of proceedings (see Slaviček v. Croatia (dec.), no. 20862/02, ECHR 2002-VII). In view of that conclusion, the Court has
found that if findings of a violation of the applicant’s right to a hearing
within a reasonable time and award of just satisfaction by the domestic courts
are in compliance with Convention standards and if the applicant cannot claim
to be a victim for the period prior to the final domestic courts’ decision, the
applicant was obliged to use available domestic remedies in respect of the
length of the proceedings, including a fresh constitutional complaint if
applicable as regards the period after such decision (see Juravić v.
Croatia (dec.), no. 3806/03, 24 October 2006; Becová v. Slovakia (dec.),
no. 3788/06, 18 September 2007; Lazić cited above, and Hrivňák
v. Slovakia (dec.), no. 35170/05, 14 December 2010).
The Court notes, however, that in the present
case the applicant could still claim to be a victim of a violation of the right
to a hearing within a reasonable time for the period examined by the Constitutional Court (see paragraph 66). 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 Antonić-Tomasović v.
Croatia, no. 5208/03, §§ 25-34, 10 November 2005, and Sukobljević
v. Croatia, no. 5129/03, § 52, 2 November 2006).
Therefore, the Court considers that the
Government’s arguments concerning the exhaustion of domestic remedies must be
rejected.
3. Conclusion
Having regard to the above, the Court considers
that this complaint is not manifestly ill-founded within the meaning of Article
35 § 3 (a) of the Convention. It also notes that it is not inadmissible on any
other grounds. It must therefore be declared admissible.
B. Merits
1. The
parties’ arguments
The applicant submitted that the civil
proceedings concerning his paternity and his marital status had lasted an excessively
long time. He argued that the divorce should have been resolved five years
earlier, when the parties reached agreement on it, and that paternity would
have been resolved earlier had the Z. Municipal Court prevented the other party
from obstructing the course of the proceedings. As to his conduct during the
proceedings, he pointed out that he had not provided a DNA sample because M.
had expressly refused to have a sample taken from the child. He also claimed
that he had had problems with delivery of mail to his address, which was the
reason for his absence from some hearings. Finally, he argued that the
proceedings had been concluded not due to the diligence of the Z. Municipal
Court but because he had withdrawn his action concerning paternity, which he
had done just so as to be able to get the divorce, although this would leave
him in eternal doubt about his paternity of the child.
The Government accepted the domestic courts’ findings
that the length of the proceedings at issue had exceeded the “reasonable time”
requirement, but they did not agree that the delays which occurred after the
decision of the Supreme Court had been attributable to the national courts.
They argued that the case at issue had been very complex, since it dealt with three
closely interrelated legal issues (divorce, paternity, and child maintenance)
and that the Z. Municipal Court had conducted the proceedings diligently,
particularly having in mind that one of the parties lived outside Croatia. They also pointed out that the Z. Municipal Court had adopted its judgment with a
minimum delay from the time-limit ordered by the higher courts.
As to the conduct of the applicant, the
Government argued that by his absence from the hearings, not complying with
orders for DNA samples to be taken, and unfounded requests for disqualification
of the Z. Municipal Court judges, the applicant, together with the other party,
had caused the delays in the proceedings. They also pointed out that after he
had lodged his paternity petition in 2005 the applicant had withdrawn it in
2009, which had significantly contributed to the overall length of the
proceedings.
2. The
Court’s assessment
(a) General prinicples
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
would also reiterate that particular diligence is required in cases concerning
civil status and capacity (see Bock v. Germany, judgment of
29 March 1989, Series A no. 150, p. 23, § 49) and that the competent
national authorities are required by Article 6 § 1 to act with particular
diligence in ensuring the progress of the proceedings (see Mikulić v. Croatia, no. 53176/99, § 44, ECHR 2002-I). In such cases, what is at stake for
the applicant is also a relevant consideration, and special diligence is
required in view of the possible consequences which the excessive length of
proceedings may have, notably on enjoyment of the right to respect for family
life (see Laino v. Italy [GC], no. 3158/96, § 18, ECHR 1999-I).
(b) Application of these principles to the present
case
The Court considers that the period to be taken
into account started on 14 April 2004, when the applicant lodged his petition
for divorce with the Z. Municipal Court, and ended on 14 January 2010, when the
judgment of the Z. Municipal Court was adopted and became final. Thus, the
period to be taken into account amounted to five years and eight months at one
level of jurisdiction.
The Court considers that the overall length of the proceedings concerning the applicant’s
civil status and his paternity could be justified only under exceptional
circumstances which must be convincingly demonstrated. In this connection, the
Court firstly notes that, contrary to the Government’s submissions, the Supreme
Court had not attributed any delays to the applicant but to inefficiency on the
part of the Municipal Court. Therefore the Court cannot accept the explanations
given by the Government for the length of proceedings, particularly in view of
the refusal of the other party to have the DNA test and lack of appropriate response
by the trial court in that respect.
As to the applicant’s conduct during the proceedings,
the Court notes that the applicant had on more than one occasion requested the
expedition of the proceedings and complained about the manner in which the
proceedings before the first-instance court had been conducted, asking that
they be terminated as soon as possible, which is itself incompatible with the
argument that, by using his procedural rights and seeking disqualification of
the judges who in his view had not conducted the proceedings properly, the
delays in the proceedings can be attributed to him. In this respect the Court
would reiterate that an applicant cannot be blamed for taking full advantage of
the remedies afforded by national law in the defence of his interests (see Nankov
v. “the former Yugoslav Republic of Macedonia”, no. 26541/02, § 47, 29
November 2007).
As regards the applicant’s absence from the
hearings, the Court notes that the applicant had claimed certain problems with
delivery of court summons to hearings, which had also been recognised and
accepted by the Supreme Court. In this respect the Court also notes that the
applicant had failed to appear only at three hearings without previously having
given an appropriate reason, which cannot in any respect justify the delay in
the proceedings of more than five years. As to the applicant’s withdrawal of
the paternity petition, the Court considers that it has to be viewed in the light
of all the circumstances of the present case, and in particular of the fact
that the applicant had wanted to have the proceedings before the Z. Municipal
Court concluded as soon as possible, because he had an interest in obtaining a
divorce on account of his marriage plans. In any event the Court considers that
it cannot justify the overall length of the proceedings as the Government
suggested, since Article 6 § 1 of the Convention imposes on the Contracting
States the duty to organise their legal systems in such a way that their courts
can meet each of the requirements of that provision, including the obligation
to hear cases brought by the applicants within a reasonable time (see Sürmeli
v. Germany [GC], no. 75529/01, § 129, ECHR 2006-VII).
The Court has frequently found violations of
Article 6 § 1 of the Convention in cases raising similar issues to the present
one (see, for example, Mikulić, cited above, § 46; Szarapo v. Poland, no. 40835/98, § 45, 23 May 2002; and Kwiatkowski v. Poland, no. 4560/04, § 22, 17 October 2006). It holds that in the period which was subject to the
scrutiny of the national courts the length of the proceedings was already
excessive and failed to meet the “reasonable time” requirement.
In the light of the criteria laid down in its case-law
and having regard to all the circumstances of the case, the Court considers
that the length of the proceedings complained of failed to satisfy the
reasonable time requirement. There has, accordingly, been a violation of
Article 6 § 1 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 8 OF THE
CONVENTION
The applicant complained that the prolonged
uncertainty as to whether he was the father of K. had violated his right to
respect for his private and family life. He relied on Article 8 of the
Convention, which reads as follows:
“1. Everyone has the right to respect for his
private and family life, his home and his correspondence.
2. There shall be no interference by a public
authority with the exercise of this right except such as is in accordance with
the law and is necessary in a democratic society in the interests of national
security, public safety or the economic well-being of the country, for the
prevention of disorder or crime, for the protection of health or morals, or for
the protection of the rights and freedoms of others.”
Admissibility
The applicant contended that he had lodged the
paternity petition after he had learned from M. that he had not been the father
of their child. However, the lack of diligence of the domestic courts during
the divorce proceedings had left him in a position to choose between two
possibilities; to remain married for an uncertain period of time or to withdraw
the paternity petition. He had therefore withdrawn the paternity petition in
order to get the decision on divorce although that had left him without the
possibility to determine his legal and biological relations with the child.
The Government submitted that there had never
been any uncertainty concerning the applicant’s paternity of K. in view of the
fact that the domestic law provided a legal presumption that the mother’s
husband was also the father of any child born to her during the marriage. They
stressed that by withdrawing his paternity petition the applicant had waived
his right to rebut this presumption.
The Court reiterates that Article 8 of the
Convention, for its part, protects not only “family” but also “private” life
and therefore even though the paternity proceedings which the applicant wished
to institute were aimed at the dissolution in law of existing family ties, the
determination of his legal and biological relations with his child undoubtedly
concerned his private life under Article 8 of the Convention (see Rasmussen
v. Denmark, 28 November 1984, § 33, Series A no. 87; Yildirim v. Austria
(dec.), no. 34308/96, 19 October 1999; Shofman v. Russia, no. 74826/01, § 31, 24 November 2005; Tavlı v. Turkey, no. 11449/02, § 26, 9 November 2006; and I.L.V. v. Rumania (dec.), no.
4901/04, § 33, 24 August 2010).
Private life, in the Court’s view, includes a
person’s physical and psychological integrity, and can sometimes embrace
aspects of an individual’s physical and social identity. Respect for “private
life” must also comprise to a certain degree the right to establish
relationships with other human beings (see, mutatis mutandis, Niemietz
v. Germany, judgment of 16 December 1992, Series A no. 251-B, pp.
33-34, § 29).
In the present case the Court notes that the
applicant first lodged his divorce petition with the domestic courts; as part
of those proceedings he sought, inter alia, to have child maintenance
and contact with K. regulated. Only more than a year later did the applicant
lodge another, separate action by which he sought to contest the paternity of
K.
The Court notes however that, unlike in the
other similar cases already dealt with by the Court, as cited above, the applicant
failed to pursue his paternity action and moreover, when the judgment
concerning child maintenance and contact with K. had been passed, the applicant
explicitly waived his right to appeal against that judgment. The Court is aware
of the applicant’s desire for the proceedings at issue to be concluded as soon
as possible but, disregarding the particular motives, the Court considers that
the importance of the legal and biological relations between a parent and a
child required the applicant to pursue his paternity action, having in mind the
importance and prominence of the concept of respect for family and private
life.
Therefore, since the applicant failed to pursue
his action contesting his paternity of K., the Court considers that that this
complaint must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the
Convention.
III. ALLEGED VIOLATION OF ARTICLE 12 OF THE
CONVENTION
The applicant complained that the lengthy
divorce proceedings had impaired his right to marry again. He relied on Article
12 of the Convention, which reads as follows:
“Men and women of marriageable age have the right to marry and
to found a family, according to the national laws governing the exercise of
this right.”
A. Admissibility
The Court considers that this complaint is not
manifestly ill-founded within the meaning of Article 35 § 3 (a) of the
Convention. It also notes that it is not inadmissible on any other grounds. It
must therefore be declared admissible.
B. Merits
1. The parties’ arguments
The applicant submitted that since September
2005 he had been in a serious relationship with J.V., whom he married as soon
as the judgment on his divorce became final. This could have been verified by
calling as a witness and questioning J.V. herself and a number of other
witnesses. He stressed that he was a practising Christian and that it was of
the outmost importance for him to marry J.V. as soon as possible, which the
domestic authorities had prevented by not deciding on his divorce within a
reasonable time.
The Government argued that there is no right to
divorce under Article 12 of the Convention. In any event, the applicant had
failed to substantiate his arguments, both before the Court and before the
domestic authorities, that he had ever seriously intended to remarry. He had
also failed to provide any details of the identity of the person he allegedly
wanted to marry. As to the fact that the domestic courts had failed to adopt an
interim judgment on the divorce, the Government argued that a decision on the
applicant’s divorce could not be adopted without also deciding on the best
interests of the child. Therefore, the domestic courts had to first examine all
matters relevant to child maintenance and contact between the applicant and his
child, as well as the issue of the child’s paternity, before deciding on the
applicant’s petition for divorce. As soon as these issues had been settled, the
domestic courts had adopted their decision on divorce, against which the
applicant had decided not to appeal.
2. The Court’s assessment
(a) General prinicples
The Court reiterates that Article 12 of the
Convention secures the fundamental right of a man and a woman to marry and to
found a family. The exercise of this right gives rise to personal, social and
legal consequences. It is “subject to the national laws of the Contracting
States”, but “the limitations thereby introduced must not restrict or reduce
the right in such a way or to such an extent that the very essence of the right
is impaired” (see Rees v. the United Kingdom, 17 October 1986, p. 19, §
50, Series A no. 106, and F. v. Switzerland, 18 December 1987, § 32,
Series A no. 128).
The Court also reiterates that although a right
to divorce cannot be derived from Article 12 of the Convention (see Johnston
and Others v. Ireland, 18 December 1986, § 54, Series A no. 112), if
national legislation allows divorce, it secures for divorced persons the right
to remarry without unreasonable restrictions (see F. v. Switzerland,
cited above, § 38). In this respect the Court has considered that a failure of
the domestic authorities to conduct divorce proceedings within a reasonable
time could, in certain circumstances, raise an issue under Article 12 of the
Convention (see Aresti Charalambous v. Cyprus, no. 43151/04, § 56, 19
July 2007).
(b) Application of these principles to the present
case
The Court firstly notes that there is no
dispute between the parties that the Croatian legal system allows for divorce
as one of the means of dissolution of a marriage. Moreover, the Family Act
provides detailed substantive and procedural rules governing divorce which
require, inter alia, that divorce proceedings be treated as urgent
cases. The Court also notes that the Croatian legal system adheres to the
principle of monogamy, and does not allow individuals who are already married
to conclude another marriage. Therefore, a failure on the part of the domestic
authorities to conduct divorce proceedings with the required urgency may impair
the right to marry of an individual who has, for example, sought to have his
previous marriage dissolved in order to marry again, or who has acquired a
serious and genuine opportunity to remarry after he had instituted divorce
proceedings.
As to the present case, the Court notes that
the applicant instituted the divorce proceedings in the domestic courts in
April 2004 and that in the same year, at the first hearing held in December (see paragraph 7 above),
the parties agreed that their marriage should be dissolved. At a hearing held
on 10 July 2006 the applicant asked that the divorce proceedings be joined to
those where he contested his paternity of K, which was granted. However, he
subsequently requested the domestic courts on more than one occasion that a
partial judgment be adopted in these proceedings on divorce (see paragraphs 13, 19, 27, 32, 35, 38
and 51 above), and that other issues related to the divorce
proceedings be decided on separately. In this connection the Court notes that
the domestic system provides for a partial judgment in cases when there is an
agreement between the parties concerning a separate issue in the proceedings.
The Court also notes that there is nothing in the domestic law that would
suggest that this provision could not have been applied in the applicant’s
case. However, the domestic courts either dismissed without giving any reasons or
ignored the applicant’s request for a partial judgment for more than five years,
during which the proceedings were pending before the first-instance court.
The Court further notes that at least on two
occasions, when complaining about the length of the proceedings, the applicant
informed the domestic courts that he was planning to remarry, and that the
lengthy divorce proceedings were preventing him from doing so. He specified the
date of his marriage at June 2008, and stressed that he would be humiliated if
he had to cancel the planned marriage because he had not been able to obtain a
divorce owing to the lengthy court proceedings, which has to be viewed in light
of the applicant’s religious feelings which he also raised in his complaints
before the domestic courts (see paragraph 32).
The Court considers that these arguments raised
by the applicant are substantiated by the fact that he had indeed married J.V.
shortly after his marriage to M. was dissolved (see, by contrast, Capoccia v.
Italy, no. 16479/90, decision of the Commission of 13 October 1993;
S.D.P. v. Italy, no. 27962/95, decision of the Commission of 16
April 1996; Bolignari v. Italy, no. 37175/97, decision of the
Commission 22 April 1998; Chau v. France (dec.), no. 39144/02, 14 June
2005; Bacuzzi v. Italy (dec.), no. 43817/04,
24 May 2011; and Aresti Charalambous, cited above).
As to the Government’s arguments that the
applicant had not provided the domestic courts with any personal details about
the woman he wanted to marry, the Court considers that such a requirement has
no basis in domestic law or would otherwise be necessary in order to oblige the
domestic courts to perform their already existing obligation to conduct the
divorce proceedings diligently and expediently. In any event, if the domestic
courts considered this to be a relevant and decisive factor in their taking certain
procedural measures, such as adopting a partial judgment on divorce, as requested
by the applicant, they could have asked for more detailed information which,
however, they never did.
Against the above background, the Court bears
in mind the Government’s and the domestic courts’ acceptance of the protracted
length of the divorce proceedings and the fact that it has also found a
violation of the applicant’s right to a hearing within a reasonable time under
Article 6 § 1 of the Convention. It notes, in addition, that the applicant
substantiated his arguments concerning his intention to remarry (see paragraph
103).
Accordingly, the Court attaches importance to
the failure of the domestic authorities to conduct the divorce proceedings efficiently and to take into account the specific circumstances
of those proceedings, such as the agreement of the parties to divorce, a
possibility of rendering a partial decision and the urgent nature of these
proceedings under domestic law. Consequently, in these particular circumstances
the applicant was left in a state of prolonged uncertainty which amounted to an
unreasonable restriction of his right to marry (see, mutatis mutandis, Mikulić,
cited above, §§ 65-66; and F. v. Switzerland, cited above, § 38).
Therefore the Court considers that there has
been a violation of Article 12 of the Convention.
IV. ALLEGED VIOLATION OF ARTICLE 13 OF THE
CONVENTION
The applicant complained under Article 13,
taken in conjunction with Article 6 § 1 of the Convention, that the Z.
Municipal Court had not complied with the orders of the higher courts to adopt
a judgment within the specified time-limit. He relied on Article 13 of the
Convention, which 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.”
A. Admissibility
The Court considers that this complaint is not
manifestly ill-founded within the meaning of Article 35 § 3 (a) of the
Convention. It also notes that it is not inadmissible on any other grounds. It
must therefore be declared admissible.
B. Merits
1. The parties’ arguments
The applicant submitted that the domestic
length-of-proceedings remedy had been ineffective in his case, because the Z.
Municipal Court had failed to adopt a judgment within the time-limits specified
by the higher courts.
The Government contested that view. They argued
that the domestic length-of-proceedings remedies were effective in respect of length-of-proceedings
complaints which have also been recognised by the Court.
2. The Court’s assessment
The Court reiterates that Article 13 of the
Convention guarantees an effective remedy before a national authority for an alleged
breach of the requirement under Article 6 § 1 to hear a case within a
reasonable time (see Kudła
v. Poland [GC], no. 30210/96, § 156, ECHR 2000-XI).
In the present case, firstly the County Court
and then the Supreme Court both accepted the applicant’s complaints about the
length of proceedings, found a violation of his right to a hearing within a
reasonable time and awarded him compensation. The fact that the compensation
awarded to the applicant at the domestic level does not correspond to the
amount awarded by the Court in comparable cases does not render the remedy
ineffective (see for example, Jakupović v.
Croatia, no. 12419/04, § 28, 31 July 2007, and Rišková
v. Slovakia, no. 58174/00, § 100, 22 August 2006).
However, the Court considers that the obligation of
the States under Article 13 also encompasses the duty to ensure that the
competent authorities enforce remedies when granted, and notes that it has
already found violations on account of a State’s failure to observe that
requirement (see Iatridis
v. Greece [GC], no. 31107/96, § 66, ECHR 1999-II). For the
Court, it would be inconceivable that Article 13 provided the right to
have a remedy, and for it to be effective, without protecting the
implementation of the remedies afforded. To hold the contrary would lead to
situations incompatible with the principle of the rule of law, which the
Contracting States undertook to respect when they ratified the Convention (see,
by analogy, Hornsby
v. Greece, 19 March 1997, § 40, Reports
of Judgments and Decisions 1997-II).
As regards the circumstances of the present case,
the Court notes that the Z. County Court ordered a time-limit for the Z.
Municipal Court to complete the civil proceedings at issue. However, the
Municipal Court failed to comply with the time-limit ordered by the County
Court. In these circumstances the Court cannot accept that the remedies
provided by the national law in respect of the length of proceedings were
effective in the applicant’s case.
This conclusion, however, does not call into
question the effectiveness of the remedy as such or the obligation for other
applicants to lodge a complaint about the length of pending proceedings under
section 27 of the Courts Act and subsequently to pursue their complaints under
section 28 of the Courts Act in order to exhaust domestic remedies
concerning complaints about length of proceedings, before brining their
complaints to the Court (see, mutatis mutandis, Praunsperger v. Croatia, no. 16553/08, § 49, 22 April 2010).
There has accordingly been a violation of
Article 13 in the present case.
V. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
The applicant also complained under Article 5
of Protocol No. 7 without any further substantiation.
In the light of all the material in its
possession, and in so far as the matters complained of are within its
competence, the Court considers that this part of the application does not
disclose any appearance of a violation of the Convention. It follows that it is
inadmissible under Article 35 § 3 as manifestly ill-founded and must be
rejected pursuant to Article 35 § 4 of the Convention.
VI. 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 16,448.16 euros (EUR) in
respect of pecuniary damage, on the grounds that he been travelling to visit
J.V., whom he had not been able to marry owing to the lengthy divorce
proceedings, and of loss of income, since he had not been working because he
had developed health problems caused by the circumstances of the case at issue.
In respect of non-pecuniary damage the applicant claimed EUR 16,000.
The Government considered the applicant’s claims
excessive, unfounded and unsubstantiated.
123. As regards pecuniary damage, the Court
considers that there is no causal link between the violations found and the
amount claimed. Therefore, the applicant’s claim for pecuniary damage is
dismissed.
Having
regard to all the circumstances of the present case, the Court accepts that the
applicant suffered non-pecuniary damage which cannot be compensated for solely
by the finding of a violation. Making its assessment on an equitable basis, the
Court awards the applicant EUR 4,000 in respect of non-pecuniary damage,
plus any tax that may be chargeable to him.
B. Costs and expenses
The applicant also claimed EUR 160 for postal
costs and expenses incurred before the Court.
The Government considered that the applicant had
failed to substantiate his claim for costs and expenses in any way.
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 are
reasonable as to quantum. In the present case, regard being had to the fact
that the applicant was granted legal aid, the Court considers that it is not
necessary to award him any further amount concerning the costs and expenses for
the proceedings before the Court.
C. Default interest rate
The Court considers it appropriate that the
default interest rate 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
1. Declares unanimously the complaint
concerning the length of the civil proceedings and an effective remedy in that
respect as well as the complaint concerning the applicant’s right to marry
admissible and the remainder of the application inadmissible;
2. Holds unanimously that there has been a
violation of Article 6 § 1 of the Convention;
3. Holds by six votes to one that there has
been a violation of Article 12 of the Convention;
4. Holds unanimously that there has been a
violation of Article 13 of the Convention;
5. Holds unanimously
(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
4,000 (four thousand euros), to be converted into Croatian kunas at the rate
applicable at the date of settlement, plus any tax that may be chargeable, in
respect of non-pecuniary damage;
(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;
6. Dismisses unanimously the remainder of the
applicant’s claim for just satisfaction.
Done in English, and notified in writing on 27 November
2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Sřren Nielsen Isabelle
Berro-Lefčvre
Registrar President
In accordance with Article 45 § 2 of the Convention and
Rule 74 § 2 of the Rules of Court, the separate opinion of Judge Berro-Lefčvre
is annexed to this judgment.
I.B.L.
S.N.
PARTIALLY DISSENTING OPINION
OF JUDGE BERRO-LEFEVRE
(Translation)
My disagreement with the majority is limited to point 3 of the
operative provisions, to the extent that, for the first time and contrary to
the Court’s previous case-law on this question, the Chamber has found a
violation of the right to marry as protected by Article 12 on account of the
length of the divorce proceedings.
For my part, I consider that, in the light of our case-law as
applied to the instant case, there could not have been a breach of the
applicant’s right to marry.
In finding a violation, the majority has based its decision on
the behaviour of the domestic authorities, who failed to conduct the divorce
proceedings efficiently and to take into consideration the specific
circumstances of the case. In the opinion of my colleagues, this situation left
the applicant in a state of prolonged uncertainty which amounted to an
unreasonable restriction of his right to marry (see paragraph 106 of the
judgment).
I would make the following observations - firstly factual and
subsequently legal - with regard to this conclusion:
1. Although the spouses accepted the principle of
divorce fairly quickly after the divorce proceedings were initiated (in April 2004),
it remains the case that the issues of contact and child maintenance continued
to be matters of contention.
More than a year after filing the petition for divorce, the
applicant, on his own initiative, brought a separate action in the same court
contesting his paternity of the child (see paragraph 10).
2. I note that, having initially asked the court to
issue a partial decision on the dissolution of the marriage, in July 2006 the
applicant requested that the two sets of proceedings be joined, a request which
was granted. Thus, he himself was responsible for the situation of which he
subsequently complained; this indicates that, in his opinion, and as the
domestic court also held, there was indeed a link between the two cases (to the
extent that both concerned the child). It cannot therefore be argued that the
court should immediately have granted a divorce as soon as the parties had
agreed to dissolve their marriage.
3. The divorce was pronounced in January 2010, that
is, 5 years and 8 months after the initial petition was filed. Such a
length of proceedings is clearly unacceptable, particularly in the light of the
subject-matter, which, as the Court has frequently reiterated, requires the authorities
to act with particular diligence. This situation, however, has been addressed
through the finding of a violation of Article 6 of the Convention (see paragraph
85).
Did this length of proceedings, admittedly unreasonable, also
entail a violation of Article 12? I do not believe so, and am all the more
convinced of this in the light of our case-law.
The Court has held as follows on the interpretation of the
right safeguarded by Article 12 of the Convention:
“Article 12 secures the fundamental right of a man and a woman
to marry and to found a family. The exercise of this right gives rise to
personal, social and legal consequences. It is ‘subject to the national laws of
the Contracting States’, but ‘the limitations thereby introduced must not
restrict or reduce the right in such a way or to such an extent that the very
essence of the right is impaired’ (see the Rees judgment of 17 October
1986, Series A no. 106, § 50)” (F. v. Switzerland, no. 11329/85, 18 December
1987, § 32).
Accordingly, while the right to marry is not subject to
specific limitations, it is nonetheless integrated into national legislation: its
exercise may be limited, subject to the condition that its very essence is not
impaired.
4. In the case of Aresti Charalambous v. Cyprus
(no. 43151/04, 19 July 2007), the applicant also complained about the
length of divorce proceedings (5 years, 7 months and 21 days for two levels of jurisdiction)
and the fact that this meant he had been unable to remarry. The Court, while
acknowledging that there had been a violation of Article 6 of the Convention in
terms of the excessive length of proceedings, indicated that “the Court would
not exclude that a failure to conduct divorce proceedings within a reasonable
time could in certain circumstances raise an issue under Article 12 of the
Convention. However, in the present case, bearing in mind all the circumstances
and the overall length of the proceedings, the Court finds that the applicant’s
situation was not such that the very essence of that right was impaired” (§
56).
5. Equally, in the decision Wildgruber v.
Germany (nos. 42402/05 and 42423/05, 7 November 2005), the applicant also
complained about the consequences for his right to marry of the district court’s
interim decision not to sever the divorce proceedings from the ancillary
proceedings (particularly with regard to custody of children). After noting
that a divorce had been pronounced 3 years and 9 months after the petition had
been filed, the Court concluded: “despite his age (66 years) and the fact that
he had had a daughter with the woman he wished to marry, the applicant’s
situation was not such that the very essence of his right to marry was impaired”.
6. It is not therefore the length of proceedings as
such and of itself that is likely to raise an issue under Article 12, but the
existence, in this context, of circumstances so specific that they amount to
interference or an impairment of the very essence of the person’s right to
marry. Thus, circumstances that I would describe as essential must be
demonstrated in order for there to have been interference with the very essence
of the right asserted.
Without a definition of such circumstances, one might ask
where the Court will place the “cursor” establishing the waiting period to be considered
reasonable in envisaging a new marriage. Will all violations of Article 6 for
unreasonable length of proceedings entail, ipso facto, a violation of Article
12 if the applicant can demonstrate that he or she has found another soul mate
and is contemplating a fresh attempt at matrimony?
Are we to consider that future spouses who are unable to
extricate themselves from previous marital bonds have had the very essence of
their right to marriage impaired?
7. What are the circumstances of this Croatian case
that would distinguish it from the above-cited examples from the case-law?
The judgment sets them out: the parties’ agreement to divorce,
a possibility of rendering a partial decision and the urgent nature of the
proceedings under domestic law (paragraph 106).
Yet these are merely elements which are clearly to be taken
into account in assessing the length of proceedings, but which cannot be
considered, in and of themselves, as restricting or reducing the right in
question in such a way or to such an extent that the essence of the right is
impaired.
Further, the judgment does not even set out to demonstrate any
such impairment, since it simply refers to a restriction of the applicant’s
right resulting from the state of prolonged uncertainty in which he was left.
In my opinion, a step has been omitted in concluding that there has been a violation:
in what way did this restriction attain the level of intensity required for the
very essence of the right to be impaired? The grounds relied on by the majority
in § 106 (agreement of the parties, lack of partial decision, urgent procedure)
are certainly not sufficient to amount to an impairment of the every essence of
the right to marriage as alleged by the applicant.
The applicant has been able to marry, admittedly at a later
date than he would have wished, and his religious convictions have thus been
respected. Accordingly, I consider that there has been no violation of Article 12
of the Convention.
