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FIRST
SECTION
CASE OF ŠAMIJA v. CROATIA
(Application
no. 14898/04)
JUDGMENT
STRASBOURG
7
December 2006
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 Šamija v. Croatia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Mr C.L. Rozakis, President,
Mrs N.
Vajić,
Mr A. Kovler,
Mrs E. Steiner,
Mr K.
Hajiyev,
Mr D. Spielmann,
Mr S.E. Jebens, judges,
and
Mr S. Nielsen, Section Registrar,
Having
deliberated in private on 16 November 2006,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 14898/04) against the
Republic of Croatia lodged with the Court
under Article 34 of the Convention for the Protection
of Human Rights and Fundamental Freedoms (“the Convention”)
by a Croatian national, Mr Borko
Šamija (“the applicant”), on 6 February 2004.
- The
Croatian Government (“the Government”) were represented
by their Agent, Ms Štefica StaZnik.
- On
22 September 2005 the
Court decided to give notice of the application to the Government.
Applying Article 29 § 3 of the Convention, it decided to rule on
the admissibility and merits of the application at the same time.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1942 and lives in Zagreb.
- On
14 April 1992 the Imotski Municipal Court (Općinski sud u
Imotskom) gave judgment ordering a certain A.B. to pay the
applicant the equivalent of 14,000 German marks in Yugoslav dinars.
- On
10 December 1992 the applicant applied for enforcement of the above
judgment. Shortly afterwards the court issued a writ of execution by
seizure of A.B.'s movable property.
- It
appears that before 5 November 1997 (the date of the entry into force
of the Convention in respect of Croatia) the court made several
unsuccessful attempts to seize A.B.'s movables.
- On
17 July 2000 the court ordered A.B. to disclose his assets (prokazni
popis imovine). However, since A.B. failed to comply with that
order, on 3 September 2001 the applicant asked that the enforcement
be carried out on the A.B.'s bank accounts.
- The
court held a hearing on 25 April 2002 concerning the applicant's
proposal and on 14 May 2002 sent letters to all banks in the Imotski
region asking for information of A.B.'s bank accounts.
- Since
the banks' replies lacked certain information, the court again sent
letters to the banks on 12 December 2002 asking for further details
of A.B.'s bank accounts.
- The
hearing scheduled for 2 October 2003 was adjourned because the
applicant failed to appear.
- On
12 January 2004 the applicant asked that the enforcement be carried
out on A.B.'s account in a bank in Zagreb.
- The
court issued a new writ of execution on 13 April 2004.
- On
8 April 2005 the court held a hearing in order to verify compliance
with the writ of execution.
- It
appears that the proceedings are still pending since neither party
informed the Court of the contrary.
- Meanwhile,
on 24 June 2002 the applicant lodged a constitutional complaint with
the Constitutional Court (Ustavni sud Republike Hrvatske)
complaining in substance about the length of the above enforcement
proceedings. On 4 May 2004 that court replied, without issuing a
formal decision, that it lacked jurisdiction since the applicant did
not file his complaint against any individual decision issued by a
State body.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- 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 even before all legal remedies have been
exhausted in cases when a competent court has not decided within a
reasonable time a claim concerning the applicant's rights and
obligations or a criminal charge against him ...
(2) If the constitutional complaint ... under
paragraph 1 of this Section is accepted, the Constitutional Court
shall determine a time-limit within which a competent court shall
decide the case on the merits...
(3) In a decision under paragraph 2 of this
Article, the Constitutional Court shall fix appropriate compensation
for the applicant in respect of the violation found concerning his
constitutional rights ... The compensation shall be paid from the
State budget within a term of three months from the date when the
party lodged a request for its payment.”
- Under
the case-law of the Constitutional Court, constitutional complaints
lodged under section 63 in the context of enforcement proceedings
were to be declared inadmissible. In its decision no.
U-IIIA/1165/2003 of 12 September 2003 the Constitutional Court
interpreted section 63 as follows:
“The Constitutional Court shall institute
proceedings pursuant to a constitutional complaint lodged under
section 63 of the Constitutional Act [on the Constitutional Court]
for the length of proceedings only in cases where the court has not
decided within a reasonable time on the merits of the rights and
obligations of the complainant, that is, where it has failed to
deliver a decision on the merits within a reasonable time.
In the present case the constitutional complaint has
been lodged for non-enforcement of a final decision by which the
party's rights and obligations had already been decided.
Taking into consideration the above cited provisions of
the Constitutional Act [on the Constitutional Court] ..., the
Constitutional Court is of the opinion that in this case the
conditions for applicability of section 63 were not met.”
In
its decision no. U-IIIA/781/2003 of 14 May 2004 the Constitutional
Court provided further interpretation of section 63:
“Taking into consideration the above cited
provisions of the Constitutional Act [on the Constitutional Court]
and the fact that the constitutional complaint was not lodged for a
failure to deliver a decision within a reasonable time but rather
because the enforcement was not carried out, the Constitutional Court
is of the opinion that in this case the conditions for applicability
of section 63 were not met.”
- In
decision no. U-IIIA/1128/2004 of 2 February 2005 the Constitutional
Court changed its practice, accepting a complainant's constitutional
complaint and awarding him compensation as well as ordering the
competent court to conclude the enforcement proceedings within six
months from its decision. In doing so, the Constitutional Court
expressly relied on the Court's case-law on the matter.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that the length of the enforcement proceedings
had been incompatible with the “reasonable time”
requirement, laid down in Article 6 § 1 of the Convention, which
reads as follows:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal...”
- The
Government contested that argument.
- The
period to be taken into consideration began only on 6 November 1997,
the day after the entry into force of the Convention in respect of
Croatia. However, in assessing the reasonableness of the time that
elapsed after that date, account must be taken of the state of
proceedings at the time. In this connection the Court notes that the
proceedings commenced on 10 December 1992, when the applicant
applied for the enforcement of the Imotski Municipal Court's judgment
of 14 April 1992. Consequently, the case was already pending for four
years, ten months and twenty-five days before the ratification.
- The
period in question has not yet ended. It has thus lasted about nine
years.
A. Admissibility
- The
Government invited the Court to reject the applicant's complaint for
non-exhaustion of domestic remedies, claiming that the applicant's
submission to the Constitutional Court was not a proper
constitutional complaint since it only asked the Constitutional Court
to oblige the State to pay him the amount established by the Imotski
Municipal Court's judgment.
They
further argued that in 2002 Section 63 of the Constitutional Act on
the Constitutional Court introduced an effective domestic remedy in
respect of the length of proceedings. On 2 February 2005 the
Constitutional Court adopted a decision whereby it applied the
reasonable time requirements in respect of the pending enforcement
proceedings.
- The
applicant contested these arguments.
- The
Court firstly notes that the Government's assertion that the
applicant's submission could not have been regarded as a
constitutional complaint about the length of proceedings does not
have to be addressed because, be it as it may, the applicant was not
at all obliged to file a constitutional complaint for the following
reasons.
- The
Court reiterates that under Article 35 § 1 of the
Convention it may only deal with a matter after all domestic remedies
have been exhausted. The purpose of the exhaustion rule is to afford
the Contracting States the opportunity of preventing or putting right
the violations alleged against them before those allegations are
submitted to it (see, among many other authorities,
Selmouni v. France [GC], no. 25803/94, § 74,
ECHR 1999-IV). The obligation to exhaust domestic remedies requires
that an applicant make normal use of remedies which are effective,
sufficient and accessible in respect of his Convention grievances.
- The Court further recalls that as of 22 March 2002 a
constitutional complaint under section 63 of the Constitutional Court
Act is considered an effective remedy in respect of the length of
proceedings still pending in Croatia (see Slaviček v. Croatia
(dec.), no. 20862/02, ECHR 2002-VII). However, at that time it was
not clear whether the new remedy would at all apply to the length of
enforcement proceedings (see Pibernik v. Croatia (dec.), no.
75139/01, 4 September 2003). The subsequent developments in the
Constitutional Court's case-law showed that only as of 2 February
2005 did a constitutional complaint become an effective remedy for
the length of enforcement proceedings (see KaradZić
v.Croatia, no. 35030/04, § 38, 15 December 2005).
- The Court reiterates that the issue whether domestic
remedies have been exhausted is normally determined by reference to
the date when the application was lodged with the Court (see Baumann
v. France, no. 33592/96, § 47, ECHR 2001-V
(extracts)). This rule is subject to exceptions which may be
justified by the specific circumstances of each case (see Nogolica
v. Croatia (dec.), no. 77784/01, ECHR 2002-VIII).
- Turning
to the present case, the Court observes that the applicant lodged his
application with the Court on 6 February 2004. It was not until
almost a year later that the Constitutional Court held for the first
time that there had been a violation of the right of access to a
court in a similar case. Accordingly, the applicant could not have
been expected to file such a complaint, which at that time did not
offer him any reasonable prospect of success.
- As
to a possible departure from the general rule of non-exhaustion, the
Court does not find any special circumstances which would justify
making an exception to that rule in the present case (see Omerović
v. Croatia, no. 36071/03, 1 June 2006)
- In
these circumstances, the Court considers that the applicant's
complaint cannot be rejected for failure to exhaust domestic
remedies.
- The
Court further notes that the application is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It also notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
B. Merits
- The
Court reiterates that the reasonableness of the length of proceedings
must be assessed in the light of the circumstances of the case and
with reference to the following criteria: the complexity of the case,
the conduct of the 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
Government submitted that the proceedings were complex and not of a
significant importance to the applicant. As to the conduct of the
applicant the Government argued that the applicant displayed a
significant level of inactivity because only in April 2000 had he
asked that the court order A.B. to disclose his assets. As to the
conduct of the domestic authorities the Government submit that the
domestic courts in the enforcement proceedings were bound by the
contents of the applicant's application and that it was on the
applicant to choose the best means of enforcement.
-
The applicant contested these arguments.
- The
Court reiterates that it is for the Contracting States to organise
their legal systems in such a way that their courts can guarantee to
everyone the right to obtain a final decision on disputes relating to
civil rights and obligations within a reasonable time (see, among
other authorities, Horvat v. Croatia, no. 51585/99, §
59, ECHR 2001-VIII).
- The Court has frequently found violations of Article 6
§ 1 of the Convention in cases raising issues similar to the one
in the present case (see Estima Jorge v. Portugal, judgment of
21 April 1998, Reports of judgments and decisions 1998-II, and
Vodopyanovy v. Ukraine, no. 22214/02, 17 January 2006 and
Omerović v. Croatia, cited above).
- Having examined all the material submitted to it, the
Court considers that the Government have not put forward any fact or
argument capable of persuading it to reach a different conclusion in
the present case. Having regard to its case-law on the subject, the
Court considers that in the instant case the length of the
enforcement proceedings was excessive and failed to meet the
“reasonable time” requirement.
There
has accordingly 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 100,000 euros (EUR) in respect of non-pecuniary
damage.
- As
to the non-pecuniary damage sought, the Court, ruling on an equitable
basis and taking into account that the case has been pending for more
than nine years after the Convention entered into force in respect of
Croatia, awards the applicant 3,000 euros (EUR) in respect of
non-pecuniary damage, plus any tax that may be chargeable on this
amount.
B. Costs and expenses
- The
Court notes that the applicant did not make any claim in this
respect. Therefore, it makes no awards under this head.
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 according to
Article 44 § 2 of the Convention, EUR 3,000
(three thousand euros) in respect of non-pecuniary damage which
should be converted into Croatian kunas at the rate applicable at the
date of settlement and any tax that may be chargeable on that amount;
(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 7 December 2006, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
