CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 29 septembre 2020

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s2EF17D91 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s490D418E { margin-top:14pt; margin-left:14.2pt; margin-bottom:3pt; text-align:justify; font-size:1pt } .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 } .s58699FB5 { margin-top:14pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s3CA22BA { font-family:Arial; text-transform:uppercase } .s6B505E72 { margin:0pt; padding-left:0pt } .s6983F43D { margin-top:14pt; margin-left:27.6pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; padding-left:1.6pt; font-family:Arial; font-size:11pt; font-weight:bold } .s9D48DD53 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s91F73ADA { margin-left:27.6pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; padding-left:1.6pt; font-family:Arial; font-size:11pt; font-weight:bold } .s3A692EA6 { margin-top:14pt; margin-bottom:6pt; text-align:center; page-break-after:avoid; font-size:10pt } .s29100277 { font-family:Arial; font-weight:bold } .s2D9C6089 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s84651E4E { margin-top:14pt; margin-left:14.2pt; margin-bottom:3pt; text-align:justify } .s69DCC830 { margin-top:36pt; margin-bottom:0pt } .sFE9336F3 { width:20.68pt; display:inline-block } .s351E4457 { width:144.21pt; display:inline-block } .s8EFC8F8 { width:32.36pt; display:inline-block } .s9C6A147F { width:184.21pt; display:inline-block }     FIRST SECTION DECISION Application no. 9869/17 Dušan HORVATIN against Croatia   The European Court of Human Rights (First Section), sitting on 29   September 2020 as a Chamber composed of:   Krzysztof Wojtyczek, President,   Ksenija Turković,   Aleš Pejchal,   Armen Harutyunyan,   Pauliine Koskelo,   Tim Eicke,   Jovan Ilievski, judges, and Abel Campos, Section Registrar, Having regard to the above application lodged on 25 January 2017, 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 1.     The applicant, Mr Dušan Horvatin, is a Croatian national, who was born in 1947 and lives in Zaprešić. He was represented from 30 January 2018 until 15 March 2019 by Ms V. Škare Ožbolt, a lawyer practising in Zagreb; before and after that period, he represented himself, duly authorised by the President of the Chamber (Rule 36 § 2 of the Rules of Court). 2.     The Croatian Government (“the Government”) were represented by their Agent, Agent, Ms Š. Stažnik. 3.     The facts of the case, as submitted by the parties, may be summarised as follows. 4.     On 12 July 2002 the applicant became the owner of a plot of land in Šibice, near Zaprešić. 5.     The company MGH d.o.o., of which the applicant was the sole shareholder, intended to build a spring pins factory on that land and needed a loan. He obtained a loan, and by an agreement of 5 June 2003, conditionally transferred the ownership of the land in question to the creditor as collateral until the loan was repaid (so-called fiduciary transfer of ownership). Principal proceedings 6.     On 15 November 2007 the applicant brought a civil action in the Zaprešić Municipal Court ( Općinski sud u Zaprešiću ) against municipal utility company   Z. He asked the court to order the defendant company to remove a piezometer – an instrument for measuring water pressure – installed in 1986 on the above-mentioned land on which his company intended to build a factory (see paragraph 5 above). He also asked the court to recognise his standing to sue even though he had transferred the ownership of the land in question to the creditor as collateral for the loan (see paragraph 5 above). 7.     By a judgment of 11 July 2008 the Municipal Court dismissed the applicant’s claim. It held that the applicant had no standing to sue because, due to fiduciary transfer of ownership (see paragraph 5 above), he was no longer the owner of the land in question. 8.     By a judgment of 18 January 2010 the Gospić County Court ( Županijski sud u Gospiću ) dismissed an appeal by the applicant and upheld the first-instance judgment endorsing the reasons given therein. 9.     Following an appeal on points of law ( revizija ) lodged on 16   February 2010 by the applicant, on 4 October 2016 the Supreme Court quashed the lower-instances’ judgments and remitted the case to the first-instance court for fresh consideration. It held that fiduciary transfer ownership was temporary and conditional, and that its purpose was to secure payment of a debt and facilitate enforcement of creditor’s claims against the property given as collateral rather than to deprive the debtor of his or her ownership rights and of the means of protecting those rights in the period before the debt was repaid. Therefore, having regard to the legal nature and the purpose of the fiduciary ownership, the applicant, despite the formal transfer of the title to the land to the creditor, had to be treated as its owner and thus had the standing to sue. 10.     In the fresh proceedings before the Novi Zagreb Municipal Court ( Općinski sud u Novom Zagrebu ), with which the Zaprešić Municipal Court had in the meantime been merged, the court held hearings on 21 November 2017 and 22 February and 27 September 2018. 11.     On 26 January 2018 company D. requested a leave to intervene in the proceedings on the side of the applicant. It stated that, by a judicial decision of 7 January 2013 adopted in the context of the enforcement proceedings against the applicant, it had been awarded the land at issue after buying it at a public auction. 12.     At the hearing held on 22 February 2018 the Municipal Court allowed the request for third-party intervention by company D. At that hearing the applicant for the first time stated that the disputed piezometer had been removed from the land in question in 2014. 13.     At the hearing held on 27 September 2018 the applicant, at the express question of the judge assigned to hear the case, stated that the piezometer had indeed been removed from the land in question in 2014, as a consequence of a judgment adopted in concurrent civil proceedings. 14.     By a judgment of 24 October 2018 the Novi Zagreb Municipal Court dismissed the applicant’s claim and ordered that each party should bear its own costs. It held that, since the piezometer had been removed from the land at issue in 2014, the applicant no longer had any legal interest to pursue his civil action. 15.     That judgment was upheld on appeal on 3 July 2019 by the Karlovac County Court ( Županijski sud u Karlovcu ) and thereby became final. The County Court held that the applicant had no legal interest to pursue his civil action primarily because he had lost the ownership of the land on 7   January 2013 (see paragraph 11 above). The County Court also reversed the decision on costs by ordering the applicant to pay the defendant company HRK   8,281.25. The County Court’s judgment was served on the applicant’s representative on 26 August 2019. Proceedings following the use of remedies for protection of the right to a hearing within a reasonable time 16.     Meanwhile, on 24 August 2016 the applicant lodged a request for protection of the right to a hearing within a reasonable time with the President of the Supreme Court – a purely acceleratory remedy under the 2013 Courts Act (see paragraph 25 below). 17.     On 4 October 2016 the president decided that the applicant’s request was well-founded and ordered that a decision on his appeal on points of law be given within six months. The appeal on points of law was decided on the same day (see paragraph 9 above). 18.     On 18 November 2017 the applicant sent a letter to the Constitutional Court complaining of the length of the above-mentioned civil proceedings (see paragraphs 6-9). In his letter he wrote: “We ask you to bring to an end ... the [civil] proceedings which have been pending since 2007 ... ... We expect your answer, positive or negative, within thirty days, given that the [civil] proceedings [in question] have been pending since 2007 ...” 19.     After establishing that the applicant had exhausted other available remedies (see paragraphs 16-17 above), the Constitutional Court in its decision of 25 April 2018 held that the constitutional complaint was admissible and examined it on the merits. It took into account only the length of the proceedings in the period between the adoption of the decision of 4 October 2016, whereby the applicant’s purely acceleratory remedy had been granted (see paragraph 17 above), and the adoption of its own decision on his constitutional complaint on 25 April 2018. It dismissed his constitutional complaint on the grounds that the proceedings in that period had lasted “over a year”, which could not be considered excessive. RELEVANT LEGAL FRAMEWORK The Constitutional Court Act 20.     The relevant provision of the Constitutional Act on the Constitutional Court of the Republic of Croatia ( Ustavni zakon o Ustavnom sudu Republike Hrvatske , Official Gazette of the Republic of Croatia no.   99/1999 with subsequent amendments – “the Constitutional Court Act”) reads as follows: Section 63 “(1)     The Constitutional Court shall examine a constitutional complaint even before all legal remedies have been exhausted if the relevant court has failed to decide within a reasonable time on the rights or obligations of a party [to the proceedings] or as regards a suspicion or accusation of a criminal offence ... (2)     If it finds the constitutional complaint regarding failure to decide within a reasonable time referred to in paragraph 1 of this section well-founded, the Constitutional Court shall set a time-limit within which the relevant court must decide the case on the merits... (3)     In a decision issued under paragraph 2 of this section, the Constitutional Court shall award appropriate compensation to the complainant for the violation of his or her constitutional right ... to a hearing within a reasonable time. The compensation shall be paid from the State budget within three months of the date on which a request for payment is lodged.” The 2005 Courts Act 21.     Sections 27 and 28 of the 2005 Courts Act ( Zakon o sudovima , Official Gazette no. 150/05 with subsequent amendments), which were the relevant provisions concerning the length-of-proceedings remedies, are set out in Vrtar v. Croatia , no. 39380/13, §§   53-55, 7 January 2016. That Act was in force between 29   December 2005 and 13 March 2013. 22.     Under those provisions litigants could complain of the excessive length of their pending judicial proceedings by lodging a “request for protection of the right to a hearing within a reasonable time” with the court at the next level of jurisdiction. Like the Constitutional Court under section   63 of the Constitutional Court Act (see paragraph 20 above) the higher court could both accelerate the proceedings complained of by ordering the lower court to deliver a decision within a specified time-limit, and award compensation for any non-pecuniary damage sustained. 23.     In the period between 29 December 2005 and 13 March 2013 a request for protection of the right to a hearing within a reasonable time under sections 27 and 28 of the 2005 Courts Act was recognised by the Court as an effective remedy under Article 13 of the Convention. This therefore meant that it had to be exhausted for the purposes of Article 35 § 1 before any complaints concerning the excessive length of judicial proceedings in Croatia were brought before the Court (see Pavić v. Croatia , no. 21846/08, § 36, 28 January 2010). The 2013 Courts Act 24.     The relevant provisions of the 2013 Courts Act ( Zakon o sudovima , Official Gazette no. 28/13 with subsequent amendments) concerning the length-of-proceedings remedies are set out in Novak v. Croatia ((dec.), no. 7877/14, § 23, 7 July 2016). That Act entered into force on 14 March 2013. 25.     Under that Act a party to pending judicial proceedings who considers that those proceedings have been unduly protracted has the right to seek a purely acceleratory remedy, namely, to lodge a “request for protection of the right to a hearing within a reasonable time”, and to ask the president of the court before which those proceedings are pending to expedite them by setting a time-limit of a maximum of six months within which the judge hearing the case must give a decision (see sections 65 to 67 of the 2013 Courts Act, cited in Novak , § 23). 26.     A complementary remedy (combining compensatory and acceleratory elements), namely a “request for payment of appropriate compensation”, is available only in cases where the judge hearing the case did not comply with the time-limit for deciding the case specified by the court president when granting the request for the purely acceleratory remedy (see sections 68 and 69 of the 2013 Courts Act, cited in cited in Novak , §   23). COMPLAINT 27.     The applicant complained under Article 6 § 1 of the Convention that the length of the civil proceedings (see paragraphs 6-15 above) in his case had been excessive, and that the domestic authorities had not remedied the situation. THE LAW 28.     The applicant complained that the length of the civil proceedings in his case 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 ...” 29.     The Government contested the admissibility of the application on two grounds. Firstly, they argued that the application was inadmissible because the applicant had not properly exhausted domestic remedies, and secondly, they argued that it was in any event manifestly ill-founded. In their submissions of 14 September 2018, the Government also drew the Court’s attention to certain facts which could suggest that the applicant might have abused the right of application. 30.     The Court does not find it necessary to reproduce the parties’ arguments in detail, as the application is in any event inadmissible for the following reasons. 31.     The Court firstly notes that when on 14 September 2017 the Government were given notice of the applicant’s complaint concerning the length of the proceedings, the President of the Section, acting as a single judge pursuant to Rule 54 § 3 of the Rules of Court, declared his length-of-proceedings complaint inadmissible for non-exhaustion of domestic remedies in so far as it concerned the period before the entry into force of the 2013 Courts Act on 14 March 2013 (see paragraph 24 above). That was so because in that period the applicant had not availed himself of the length-of-proceedings remedy available under the 2005 Courts Act which had been both effective (see paragraphs 22-23 above) and available to him – to complain of the excessive length of the proceedings in his case. Up to then those proceedings had already lasted five years and four months for three levels of jurisdiction (see paragraphs 6-9 above) and the case had been pending before the Supreme Court for more than three years (see paragraph   9 above). 32.     It follows that the relevant period to be examined is the period between 14 March 2013 (when the 2013 Courts Act entered into force – see paragraphs 24 and 31 above) and 26 August 2019 (when the County Court’s judgment of 3 July 2019 was served on the applicant’s representative – see paragraph 15 above). In that period the proceedings lasted six years and more than three months for three levels of jurisdiction (see paragraphs 9-15 above). 33.     The Court notes that the Government did not contest the applicability of Article 6 § 1 to the civil proceedings in question. However, the issue whether a particular Article of the Convention or a Protocol thereto is applicable or not is a matter that goes to the Court’s jurisdiction ratione materiae . The scope of the Court’s jurisdiction is determined by the Convention itself, in particular by its Article 32, and not by the parties’ submissions in a particular case. Accordingly, the Court, has to satisfy itself that it has jurisdiction in any case brought before it, and is therefore obliged to examine the question of its jurisdiction of its own motion (see Blečić v. Croatia [GC], no. 59532/00, § 67, ECHR 2006‑III, and Nylund v. Finland (dec.), no. 27110/95, 29 June 1999). 34.     The Court further reiterates for Article 6 § 1 to be applicable under its civil head the proceedings complained of must concern the determination of the applicant’s civil rights and obligations. 35.     In that connection the Court notes that the applicant was the owner of the land in question until 7 January 2013 when the ownership passed to company D. (see paragraph 11 and 15 above). That transfer of ownership was permanent and unconditional, unlike the previous fiduciary transfer which was temporary and conditional (see paragraphs 5 and 9 above). The Court also notes that after losing the ownership of the land the applicant did not amend his action to claim damages but insisted on his original claim for removal of the piezometer (see paragraphs 10-15 above). 36.     In these circumstances it cannot but be concluded that in the relevant period (see paragraph 32 above) the civil proceedings complained of no longer concerned the determination of his civil rights and obligations. Article 6 § 1 of the Convention was thus not applicable to those proceedings in that period. 37.     It follows that the present application is inadmissible as being incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected pursuant to Article   35   § 4 thereof. For these reasons, the Court, unanimously, Declares the application inadmissible. Done in English and notified in writing on 22 October 2020.   Abel Campos   Krzysztof Wojtyczek   Registrar   President