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FIRST
SECTION
CASE OF ŠOŠTARIĆ v. CROATIA
(Application
no. 39659/04)
JUDGMENT
STRASBOURG
12
April 2007
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Šoštarić v. Croatia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Mr L. Loucaides, 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 22 March 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 39659/04) 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 Nenad
Šoštarić (“the applicant”), on 29
September 2004.
- The
applicant was represented by Mrs L. Kušan, a lawyer
practising in Ivanić Grad. The Croatian Government
(“the Government”) were represented by their Agent, Mrs
Š. StaZnik.
- On
18 October 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 1973 and lives in KriZ.
- On
8 March 2000 the Ivanić Grad Municipal Court (Općinski
sud u Ivanić Gradu) gave judgment ordering a certain S.R. to
pay the applicant 9,600 German marks (DEM). The judgment became final
and enforceable on 17 June 2000.
- On
28 November 2001 the applicant sought enforcement of the above
judgment. On 7 December 2001 the Sisak Municipal Court (Općinski
sud u Sisku) issued an enforcement order. It decided to
seize S.R.'s movable property and sell it at a public auction. On 5
March 2002 the applicant informed the court that he advanced the
costs of the proceedings.
- The
court bailiff attempted to conduct the first on-site inspection on 22
April 2002, but S.R. was not found on the address provided by the
applicant. His parents, I. and J.R., informed the bailiff that S.R.
had not lived at that address for the past three years.
- The
court scheduled another on-site inspection for 3 September 2002.
However, the court bailiff could not enter S.R.'s house, because it
was locked. On 4 September 2002 the applicant asked the court to set
another date for the bailiff's intervention with the assistance of
the police and the locksmith. He also requested temporary seizure of
S.R.'s passport.
- On
2 October 2002 the court held a hearing. It invited the applicant to
again advance the costs and scheduled another on-site inspection for
30 October 2002. The inspection again failed since S.R.'s house
was locked. On 4 November 2002 the applicant requested the temporary
seizure of S.R's passport.
- The
court scheduled yet another on-site inspection for 3 February 2003,
with the assistance of the police and a locksmith. On that date, the
court bailiff entered S.R.'s house and seized the following movables:
two motorbikes, a lawnmower, a welding machine, a TV and a stereo.
One day later, the applicant repeated his request for seizure of the
passport.
- On
13 February 2003 the debtor's parents as third parties filed an
objection against the enforcement on the seized movables, claiming
they were the owners of the seized property which could therefore not
be the object of enforcement. On 22 May 2003 the court invited the
applicant to respond to the objection raised. Eight days later the
applicant did so by contesting the third parties' allegations.
- On
9 January 2004 the applicant repeated his request for temporary
seizure of S.R.'s passport. Finally, on 2 March 2004 the court
dismissed the applicant's motion in this respect. On appeal, on 4
October 2004 the second-instance court upheld the first-instance
decision finding that the seizure of the passport was not allowed
under the legislation in force.
- On
25 February 2005 the court inquired with the police about S.R.'s
place of residence. The police replied that S.R. left for Germany.
- Subsequently,
on 25 March 2005 the applicant invited the court to continue with the
enforcement on the seized movables.
- On
2 November 2005 the court instructed S.R.'s parents, to institute
separate civil proceedings to declare the enforcement on the seized
movables inadmissible. The third parties did so and it would appear
that those proceedings are still pending.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- 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 applicant's rights and obligations or a criminal charge against
him or her within a reasonable time ...
(2) If a constitutional complaint ... under paragraph 1
of this section is upheld, the Constitutional Court shall set a
time-limit within which the competent court must decide the case on
the merits...
(3) In a decision issued under paragraph 2 of this
section, the Constitutional Court shall assess appropriate
compensation for the applicant for the violation of his or her
constitutional rights ... The compensation shall be paid out of the
State budget within three months from the date a request for payment
is lodged.”
- 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 constitutional complaint and
awarding 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 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
Court reiterates that execution of a judgment given by any court must
be regarded as an integral part of the “hearing” for the
purposes of Article 6 (see Hornsby v. Greece, judgment of
19 March 1997, Reports of Judgments and Decisions
1997-II, pp. 510–11, § 40). Therefore, the enforcement
proceedings must be regarded as the second stage of civil proceedings
(see Zappia v. Italy, judgment of 26 September 1996,
Reports of Judgments and Decisions 1996-IV, pp. 1411-1412,
§ 20).
- The
period to be taken into consideration began on 28 November 2001 when
the applicant applied for enforcement and has not yet ended. It has
thus lasted five years and three months.
A. Admissibility
- The
Government invited the Court to reject the application for
non-exhaustion of domestic remedies. They submitted that the
applicant could have lodged a constitutional complaint under section
63 of the Constitutional Court Act. In support of their argument, the
Government produced a copy of the Constitutional Court decision of
2 February 2005 (see paragraph 18 above) in which that
court had found a violation of the complainant's right to a hearing
within a reasonable time on account of lengthy enforcement
proceedings.
- The
applicant contested that argument. He noted that the Constitutional
Court had changed its practice to extend the guarantees of section 63
of the Constitutional Court Act to enforcement proceedings only in
February 2005, whereas he had introduced his application with the
Court already in 2004.
- The
Court 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 introduced
his application with the Court on 29 September 2004. It was only
after that date that the Constitutional Court held for the first time
that there had been a violation of the right to a hearing within
reasonable time in respect of the length of enforcement proceedings.
Accordingly, the applicant could not have been expected to lodge such
a complaint, which at that time did not offer him any reasonable
prospects 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 Mačinković
v. Croatia, no. 29759/04, § 29, 7 December 2006;
Šamija v. Croatia, no. 14898/04, § 31, 7
December 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 this complaint is not manifestly ill-founded
within the meaning of Article 35 § 3 of the Convention. It also
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
- The
Court reiterates that the State has an obligation to organise a
system of enforcement of judgments that is effective both in law and
in practice and ensures their enforcement without any undue delay
(see Fuklev v. Ukraine, no. 71186/01, § 84, 7 June
2005). However, a possible failure to enforce a judgment because of
the debtor's indigence cannot be held against the State unless and to
the extent that it is imputable to the domestic authorities, for
example, to their errors or delay in proceeding with the enforcement
(see, mutatis mutandis, Omasta v. Slovakia (dec.),
no. 40221/98, 10 December 2002).
- 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], no. 64886/01, § 68,
to be published in ECHR 2006; and Frydlender v. France
[GC], no. 30979/96, § 43, ECHR 2000-VII). The Court reiterates
that enforcement proceedings by their very nature need to be dealt
with expeditiously (see Comingersoll S.A. v. Portugal [GC],
no. 35382/97, § 23, ECHR 2000-IV).
- The Court considers that the length of the enforcement
proceedings at issue, which have so far lasted more than five years
and are still pending, is a priori unreasonable and calls for
a global assessment. Their overall length could be justified only
under exceptional circumstances.
- The
Government argued that the instant case was somewhat complex due to
S.R.'s absence and that the applicant's ill-founded request for
seizure of his passport unnecessarily prolonged the proceedings.
However, none of these factors can sufficiently explain the
substantial delay that occurred in the present case. The Court
firstly recalls that the parties are free to use all procedural means
available to them with a view to satisfying their claim. It further
observes that, in any event, deciding the applicant's motion for
seizure of S.R.'s passport lasted for only about six months. On the
other hand, the Court observes several substantive periods of
inactivity of the first-instance court (between 22 May 2003 and 2
March 2004 and then again from that date until 25 February 2005).
- Moreover,
as it transpires from the case-file, the first-instance court
instructed third parties to institute proceedings to have the
enforcement on the seized movables declared inadmissible two years
and nine months after they had lodged their initial objection. Such
an objection under the domestic law does not, however, suspend the
enforcement. In this connection, the Court notes that the Government
provided no explanation for the fact that the movables seized on 3
February 2003 have to date not been sold at a public auction so as to
– at least in part - satisfy the applicant's claim.
- 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, for example, Poláčik v. Slovakia, no.
58707/00, 15 November 2005; Heger v. Slovakia, no. 62194/00,
17 May 2005; and Estima Jorge v. Portugal, judgment of 21
April 1998, Reports of Judgments and Decisions 1998-II).
- 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 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 4,896 euros (EUR) in respect of pecuniary and EUR
5,000 in respect of non-pecuniary damage.
- The
Government contested these claims.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim. On
the other hand, it awards the applicant EUR 3,000 in respect of
non-pecuniary damage, plus any tax that may be chargeable on that
amount.
B. Costs and expenses
- The
applicant also claimed EUR 1,830 for the costs and expenses incurred
before the Court.
- The
Government contested this claim claims.
- According
to the Court's case-law, an applicant is entitled to reimbursement of
his costs and expenses only in so far as it has been shown that these
have been actually and necessarily incurred and were reasonable as to
quantum. In the present case, regard being had to the information in
its possession and the above criteria, the Court considers it
reasonable to award the sum of EUR 1,500 for the proceedings before
it, plus any tax that may be chargeable on that amount.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the application admissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final according to
Article 44 § 2 of the Convention, the following
amounts which should be converted into Croatian kunas at the rate
applicable at the date of settlement:
(i) EUR
3,000 (three thousand euros) in respect of non-pecuniary damage;
(ii) EUR
1,500 (one thousand five hundred euros) in respect of costs and
expenses;
(iii) any
tax that may be chargeable on the above amounts;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a
rate
equal to the marginal lending rate of the European Central Bank
during the default period plus three percentage points;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 12 April 2007, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Loukis Loucaides
Registrar President
