CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 22 avril 2010

.s800EAC49 { font-size:12pt } .s523616E0 { margin-top:0pt; margin-bottom:12pt; text-align:center; font-size:14pt } .sBB9EE52A { font-family:Arial } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sB9D5CABB { width:28.35pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .s967D43C6 { margin-top:36pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s7EE1C8F0 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s1D4E86C8 { margin-top:0pt; margin-bottom:0pt; text-indent:11.6pt; text-align:justify } .sC702907E { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sE5273FBD { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:center; font-size:10pt } .s9D48DD53 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s34D46E87 { margin-top:12pt; margin-bottom:6pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s8AB83B9 { width:147.82pt; display:inline-block } .sB90861A5 { font-family:Arial; font-style:italic; letter-spacing:-0.1pt } .s88A92475 { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sDD165512 { margin-top:12pt; margin-left:14.2pt; margin-bottom:0pt; text-align:justify } .s7CB9076 { margin-top:36pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid } .s507451D6 { width:4.53pt; display:inline-block } .s4A0CEAF8 { width:194.77pt; display:inline-block } .s7602FED2 { width:18.21pt; display:inline-block } .sC1AC44A4 { width:228.11pt; display:inline-block } FIRST SECTION DECISION AS TO THE ADMISSIBILITY OF Application no. 55507/07 by Vojin LAZIĆ against Croatia The European Court of Human Rights (First Section), sitting on 22   April   2010 as a Chamber composed of:   Christos Rozakis, President,   Nina Vajić,   Anatoly Kovler,   Elisabeth Steiner,   Khanlar Hajiyev,   Dean Spielmann,   Giorgio Malinverni, judges, and Søren Nielsen, Section Registrar , Having regard to the above application lodged on 26 October 2007, Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant, Having deliberated, decides as follows: THE FACTS The applicant, Mr Vojin Lazić, is a Croatian national who was born in 1951 and lives in Beli Manastir. He was represented before the Court by Mrs B. Paprić, a lawyer practising in Osijek. The Croatian Government (“the Government”) were represented by their Agent, Mrs Š.Stažnik. A.     The circumstances of the case The facts of the case, as submitted by the parties, may be summarised as follows. On 30 September 1998 the applicant brought a civil action against company B. in the Osijek Municipal Court ( Općinski sud u Osijeku ) seeking reinstatement and salary arrears. On 1 January 1999 the case was transferred to the Beli Manastir Municipal Court ( Općinski sud u Belom Manastiru ) which held hearings on 14 April 2000 and 27   February, 15 May and 16 October 2003 and 19 February 2004. The hearings scheduled for 7 April 2000 and for 8 November 2002 were adjourned since either the applicant or his lawyer, or both, failed to appear. The applicant also exceeded the time-limit for submitting his reply in respect of the defendant's submission by almost three years. On 27 February 2004 the Municipal Court declared the applicant's action inadmissible for lack of locus standi on the part of the defendant. On 4 August 2004 the applicant lodged a constitutional complaint under section 63 of the Constitutional Court Act complaining about the length of the above proceedings. Following an appeal by the applicant, on 26 August 2004 the Osijek County Court ( Županijski sud u Osijeku ) quashed the first-instance decision and remitted the case. In the resumed proceedings, on 7 January 2005 the Municipal Court dismissed the applicant's action. The applicant's subsequent appeal was dismissed by the County Court on 3 March 2005. Following an appeal on points of law ( revizija ) by the applicant, on 15   March 2007 the Supreme Court ( Vrhovni sud Republike Hrvatske ) quashed the lower courts' judgments and remitted the case to the first-instance court. On 5 June 2007 the Constitutional Court found a violation of the applicant's constitutional right to a hearing within a reasonable time and attributed some of the delays in the proceedings to the applicant and some to the inefficiency of the Beli Manastir Municipal Court. It awarded the applicant 7,000 Croatian kuna (HRK) in compensation and ordered the Supreme Court to give a decision in the applicant's case as quickly as possible but in any case within six months following the publication of its decision in the Official Gazette. The Constitutional Court's decision was published on 9 July 2007. In the resumed proceedings, the Municipal Court held three hearings and obtained an expert opinion. In a judgment of 1 December 2008 it found for the applicant. Following an appeal by the defendant, on 2 April 2009 the County Court upheld the first-instance judgment in part and in the remaining part quashed it and remitted to the Municipal Court. The defendant appealed on points of law ( revizija ) to the Supreme Court. It appears that the case is still pending before the Municipal Court and the Supreme Court. B. Relevant domestic law and practice 1. The Constitutional Act on the Constitutional Court The relevant part 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: Section 63 “(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.” 2. The Courts Act The relevant part of the Courts Act (Zakon o sudovima, Official Gazette nos.   150/05, 16/07 and 113/08), which entered into force on 29 December 2005, reads as follows: III.   PROTECTION OF THE RIGHT TO A HEARING WITHIN A REASONABLE TIME Section 27   “(1) A party to court proceedings who considers that the competent court failed to decide within a reasonable time on his or her rights or obligations or a criminal charge against him or her, may lodge a request for the protection of the right to a hearing within a reasonable time with the immediately higher court. (2) If the request concerns proceedings pending before the High Commercial Court of the Republic of Croatia, the High Court for Administrative Offences of the Republic of Croatia or the Administrative Court of the Republic of Croatia, the request shall be decided by the Supreme Court of the Republic of Croatia. (3) The proceedings for deciding the request referred to in sub-section 1 of this section shall be urgent. The rules of non-contentious procedure shall apply mutatis mutandis in those proceedings and, in principle, no hearing shall be held. Section 28   (1) If the court referred to in section 27 of this Act finds the request well founded, it shall set a time-limit within which the court before which the proceedings are pending must decide on a right or obligation of, or a criminal charge against, the person who lodged the request, and shall award him or her appropriate compensation for the violation of his or her right to a hearing within a reasonable time. (2) The compensation shall be paid out of the State budget within three months of the date on which the party's request for payment is lodged. (3) An appeal, to be lodged with the Supreme Court within fifteen days, lies against a decision on the request for the protection of the right to a hearing within a reasonable time. No appeal lies against a Supreme Court decision, but a constitutional complaint may be lodged.” COMPLAINT   The applicant complained under Article 6 § 1 of the Convention about the length of the proceedings. THE LAW The applicant complained that the length of the civil proceedings had been incompatible with the “reasonable time” requirement, laid 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 this argument submitting that the applicant could no longer claim to be a victim of the alleged violation on the grounds that the Constitutional Court had acknowledged a violation of his right, had ordered speeding up of the proceedings and had awarded him a just satisfaction, which had not been manifestly inadequate in the circumstances of the case. The violation complained of had, therefore, been remedied before the domestic authorities and, as a result, the applicant had lost his victim status. They further alleged that the Constitutional Court, when assessing the length of the proceedings and determining the amount of just satisfaction, had taken into account the applicant's behaviour which had, to a large extent, contributed to the length of the proceeding, as on several occasions he had failed to act diligently in the proceedings at issue. The Court notes that the period examined by the Constitutional Court started on 30 September 1998, when the applicant lodged his civil claim and ended on 4 August 2004, when the applicant lodged his constitutional complaint, which is some five years and ten months at one level of jurisdiction. However, when examining the compliance of the Constitutional Court's decision with the Convention, the date of the Constitutional Court's decision is to be taken into consideration by the Court, which is 5 June 2007. Thus the period which is susceptible to the Court's scrutiny is eight years and eight months at three levels of jurisdiction. As regards the applicant's “victim” status, the Court reiterates that within the meaning of Article 34 of the Convention it depends, inter alia , on the fact whether the domestic authorities acknowledged, either expressly or in substance, the alleged breach of the Convention and, if necessary, provided appropriate and sufficient redress as set under Article 41 of the Convention. Only when these conditions are satisfied does the subsidiary nature of the protective mechanism of the Convention preclude examination of an application (see Cocchiarella v. Italy [GC], no. 64886/01, § 71, ECHR 2006 ‑ V and Cataldo v. Italy (dec.), no. 45656/99 ECHR 2004 ‑ VI). The Court also recalls that the reasonableness of the length of the proceedings must be assessed in accordance with the circumstances of the case and the following criteria: the complexity of the case, the behaviour of the applicant and that of the competent authorities and what was at stake for the applicant in the dispute (see among many others Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000 ‑ VII). In this respect the Court notes that the Constitutional Court found a violation of the applicant's right to a hearing within a reasonable time and making assessment on an equitable basis, provided for redress of the violation complained of, by ordering speeding up of the proceedings and awarding the applicant just satisfaction in respect of non-pecuniary damage in the amount of HRK 7,000. The Constitutional Court thus acknowledged that there had been a violation of the applicant's constitutional right to have his civil claim decided within reasonable time. The applicant's victim status further depends on whether the redress afforded was adequate and sufficient having regard to the just satisfaction as provided for under Article 41 of the Convention (see also Dubjaková v. Slovakia (dec.), no. 67299/01, 19 October 2004). In this connection, the Court recalls that in the length-of-proceedings cases, one of the characteristics of sufficient redress relates to the amount awarded. Whether the amount awarded may be regarded as sufficient under Article 41 of the Convention, however, falls to be assessed in the light of all circumstances of the case. Turning to the present case and the actual sum awarded to the applicant by the Constitutional Court, the Court considers, in the light of the criteria established by its case-law, that the sum awarded to the applicant by the Constitutional Court can be considered sufficient and therefore appropriate for the violation suffered. In reaching this conclusion the Court has had regard in particular to the fact that in the period which was susceptible to the Constitutional Court's scrutiny, the applicant substantially contributed to the length of the proceedings. Firstly, he brought his civil action with the court which had no territorial jurisdiction in the matter. Secondly, he failed to appear at two hearings, the first time in 2000 following transfer of jurisdiction, and the second in 2002. Lastly, he exceeded the time-limit of fifteen days for submitting his reply in respect of the defendant's submission by almost three years. In these circumstances the Court agrees with the Constitutional Court's findings and considers that most delays in the proceedings were attributable to the applicant. As regards the complaint about the length of proceedings in the period before the Constitutional Court's decision, the Court concludes, in the light of the material in the file and having regard to the particular circumstances of the case, that the applicant can no longer claim to be a “victim” within the meaning of the Article 34 of the Convention of the alleged violation of his right to a hearing within reasonable time (see, mutatis mutandis , Roje v. Croatia (dec.), no 8301/06, 25 June 2009). It follows that this part of the application is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention. However, the Court notes that the applicant's complaint relates to the overall length of the proceedings at issue, including the period after the Constitutional Court's decision. In this respect the Court firstly notes that it has already held that a constitutional complaint is an effective remedy in Croatia as regards the complaints about the length of the proceedings (see Slaviček v. Croatia (dec.), no. 20862/02, ECHR 2002 ‑ VII). In view of the above conclusion that the findings of a violation of the applicant's right to a hearing within reasonable time and award of just satisfaction by the Constitutional Court were in compliance with the Convention standards and that therefore the applicant could not claim to be a victim for the period prior to the Constitutional Court's decision, the Court finds that as regards the period after the Constitutional Court's decision, the applicant was obliged to use available domestic remedies in respect of the length of the proceedings, including a fresh constitutional complaint (see, mutatis mutandis , Juravić v. Croatia (dec.), no. 3806/03, 24 October 2006). It follows that this part of the application must be rejected under Article   35 §§   1 and   4 of the Convention for non-exhaustion of domestic remedies. For these reasons, the Court unanimously Declares the application inadmissible.   Søren Nielsen   Christos Rozakis   Registrar   President