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FIRST
SECTION
CASE OF BUTKOVIĆ v. CROATIA
(Application
no. 32264/03)
JUDGMENT
STRASBOURG
24 May 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 Butković v. Croatia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Mr C.L. Rozakis, President,
Mr L.
Loucaides,
Mr A. Kovler,
Mr D. Spielmann,
Mr S.E.
Jebens,
Mr G. Malinverni, judges,
Ms K. Buljan, ad hoc
judge,
and Mr S. Nielsen, Section Registrar,
Having
deliberated in private on 3 May 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 32264/03) 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 Hrvoje
Butković (“the applicant”), on 27 May 2003.
- The
Croatian Government (“the Government”) were represented
by their Agent, Ms Štefica StaZnik.
- On
29 August 2006 the
Court decided to communicate the complaint concerning the length of
the proceedings 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 1963 and lives in Zagreb.
1. Proceedings concerning regulation of rent and the
tenants' eviction
- The
applicant is the owner of a flat in Zagreb in which lived S.V. under
a specially protected tenancy arrangement. S.V.'s wife, M.V., as well
as three other persons, A, B and C, were part of the household and
their legal position in respect of the flat depended on S.V.'s
position.
- On
22 October 1996, the Lease Act (Zakon o najmu stanova),
was enacted. It abolishes the specially protected tenancies and
regulates the conditions of leasing privately-owned flats, including
those previously let under the specially protected tenancy
arrangements.
- On
9 June 1997 the applicant filed a civil action against S.V. and his
household with the Zagreb Municipal Court (Općinski sud u
Zagrebu) challenging the defendants' right to a protected rent as
stipulated by the Lease Act. At the same time the applicant filed a
separate action against the defendants seeking their eviction from
the flat. S.V. died in September 1997 but the above proceedings
continued, now with M.V. being the person benefiting from the
protected rent arrangement.
- On
12 November 1997 the Municipal Court decided to join the two civil
suits.
- A
hearing was held on 14 May 1998 following which judgment was
pronounced dismissing the applicant's claims. The judgment was served
on him on 27 November 1998. The applicant appealed against the
judgment to the Zagreb County Court (Zupanijski sud u Zagrebu)
on 2 December 1998.
- On
12 December 2000 the Zagreb County Court (Zupanijski sud u
Zagrebu) pronounced judgment in the case. The Court rejected, as
did the Municipal Court, the applicant's claim for eviction of the
defendants. As regards the applicant's challenge to the defendants'
right to a protected rent the County Court quashed the judgment of
the Municipal Court and remitted the case to that court for a new
examination.
- To
the extent the County Court had rejected his claim for the eviction
of the defendants from his flat, the applicant filed a constitutional
complaint with the Constitutional Court (Ustavni sud Republike
Hrvatske). On 13 October 2004 the Constitutional Court rejected
the complaint.
- In
the meantime the Municipal Court resumed its examination of the
remaining part of the civil suit, i.e. the question of the
defendants' right to a protected rent. On 9 November 2001 the court
performed an on the spot inquiry and an expert opinion was obtained
on 19 November 2001. A hearing was held on 25 September 2002 whereas
two subsequent hearings scheduled for 20 February 2003 and 4 February
2004 were cancelled.
- On
25 February 2004 the Municipal Court adjourned the proceedings
pending the outcome of a civil suit instituted by M.V. before the
same court concerning the conclusion of a lease agreement between her
and the applicant (see below). The applicant appealed against this
decision. On 9 November 2004 the Zagreb County Court rejected the
appeal in so far as it concerned M.V. but quashed the decision to
adjourn the proceedings in so far as it concerned A, B and C.
- By
judgment of 30 September 2005 the Municipal Court rejected the
applicant's claims for an increased rent in regard of A, B and C as
these defendants were not tenants but only members of the tenant's,
M.V.'s, household. The applicant appealed against the judgment to the
Zagreb County Court. It appears that the proceedings are at present
pending.
- It
appears that the proceedings concerning M.V. which were adjourned by
the Municipal Court on 24 February 2004, are still pending before
that court.
- As
regards the length of the above proceedings the applicant lodged, on
2 March 2004, a complaint with the Constitutional Court. On 9
November 2005 the Constitutional Court dismissed the applicant's
complaint in respect of the length of proceedings as manifestly
ill-founded. It does not appear that the applicant has subsequently
addressed himself to the Constitutional Court regarding the length of
the proceedings before the Municipal Court and the County Court.
2. Proceedings concerning the lease contract
- As
indicated above (§ 13) M.V. instituted proceedings, on 23
October 1998, against the applicant in the Zagreb Municipal Court in
order to obtain the conclusion of a lease agreement. As this dispute
apparently remained unresolved the applicant lodged, on 2 March 2004,
a complaint with the Constitutional Court in respect of the length of
the proceedings.
- On
9 November 2005 the Constitutional Court found that the applicant's
right to have the dispute determined within a reasonable time was
breached and awarded him just satisfaction in the amount of 6,500
Croatian Kunas. Furthermore, it ordered the Zagreb Municipal Court to
adopt a judgment within six months from the publication of its
decision in the Official Gazette.
- In
compliance with the above the Municipal Court pronounced judgment on
6 December 2005. M.V. appealed against this judgment to the Zagreb
County Court where the case is at present pending.
II. RELVANT DOMESTIC LAW
- 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 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
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that the length of the above sets of 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...”
1. Proceedings concerning regulation of rent and the
tenants' eviction
- The
Court considers that the period to be taken into consideration began
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 9 June 1997, when
the applicant brought two civil actions against S.V., M.V., A, B and
C with the Zagreb Municipal Court (Općinski sud u Zagrebu)
(see § 7 above). Consequently, the case was already pending four
months and twenty-seven days before the ratification.
a. Proceedings concerning the defendants'
eviction
- The
claim concerning the defendants' eviction was finally dealt with by
the Constitutional Court on 13 October 2004. Thus, these proceedings
lasted six years, eleven months and eight days after the
ratification, before three levels of jurisdiction.
A. Admissibility
- The
Government made no observations in respect of these proceedings.
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
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).
27. The
Court notes that the proceedings were pending before the first
instance court one year and twenty-two days after the ratification
and before the appellate court about two years, which periods in
themselves do not appear excessive. However, the proceedings before
the Constitutional Court lasted more than three years and six months.
Although the case may be considered as somewhat complex, the mere
complexity does not justify such an excessive period of examination
of the case before the Constitutional Court, especially having in
mind the importance of the case for the applicant who sought the
eviction of the defendants and re-possession of his flat. In these
circumstances the Court considers that the overall length of
proceedings failed to satisfy the reasonable time requirement.
It
follows that there has been a violation of Article 6 § 1 in
respect of the length of these proceedings.
b. Proceedings concerning regulation of
rent
- As
regards the proceedings for regulation of rent, the Court notes that
they were divided into two sets of proceedings by the County Court's
decision of 9 November 2004 (see § 13 above). The proceedings
concerning M.V. are currently pending before the Zagreb Municipal
Court and the proceedings concerning A, B and C are currently pending
before the Zagreb County Court. However, in its decision of 9
November 2005 the Constitutional Court considered the length of these
proceedings together. On that date the proceedings had lasted eight
years and three days after the ratification. The proceedings in
question have thus lasted about nine years before two levels of
jurisdiction after the Convention entered into force in respect of
Croatia, and are at present pending.
A. Admissibility
- The
Government made no observations in respect of these proceedings.
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
- The Court considers that the length of the proceedings
at issue, which have so far lasted more than nine years each before
two levels of jurisdiction, and are still pending, is a priori
unreasonable and calls for a global assessment. Their overall
length could be justified only in exceptional circumstances. However,
the Government have not put forward any justification for the length
of proceedings.
- 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, Nogolica v. Croatia (no.
3), no. 9204/04, 7 December 2006).
- Having
examined all the material submitted to it, and having regard to its
case-law on the subject, the foregoing considerations are sufficient
to enable the Court to conclude that already in the period which was
susceptible to the Constitutional Court's scrutiny the length of the
proceedings was excessive and failed to meet the “reasonable
time” requirement. It necessarily kept such character
throughout the subsequent period of about one year and two months.
- In
conclusion, the Court finds that in the present case there has been a
breach of Article 6 § 1 of the Convention on account of the
excessive length of these proceedings.
2. Proceedings concerning the lease contract
- In
respect of the proceedings concerning the lease contract the Court
considers that the period to be taken into consideration began on 23
October 1998 when M.V. instituted proceedings against the applicant
before the Zagreb Municipal Court seeking it to order the acceptance
of a lease agreement.
- The
case was still pending on 9 November 2005 when the Constitutional
Court gave its decision. On that date the proceedings had lasted
seven years and sixteen days.
- The
period in question has thus lasted about eight years before two
levels of jurisdiction after the Convention entered into force in
respect of Croatia, and the proceedings are still pending before the
Zagreb County Court.
A. Admissibility
- The
Government submitted that the applicant could no longer claim to be a
victim within the meaning of Article 34 of the Convention because the
Constitutional Court awarded just satisfaction to the applicant in
respect of the length of the proceedings.
- The
applicant contested these arguments and objected to the amount of the
just satisfaction awarded.
- The
question whether the applicant can still claim to be a victim, within
the meaning of Article 34 of the Convention, of a violation of his
right to a hearing within a reasonable time falls to be
determined in the light of the principles recently established under
the Court's case-law (Cocchiarella v. Italy [GC],
no. 64886/01, §§ 69-107, ECHR 2006-... and Scordino
v. Italy (no. 1) [GC], no. 36813/97, §§ 178-213,
ECHR 2006 - ...).
- The
Constitutional Court, after having analysed the proceedings
complained of awarded the applicant the equivalent of approximately
880 euros on 9 November 2005.
- The
low amount of just satisfaction awarded to the applicant by the
Constitutional Court, as compared with the amounts usually granted by
the Court, alone leads to the conclusion that the redress provided to
him at domestic level was insufficient. In these circumstances, the
argument that the applicant has lost his “victim” status
cannot be upheld.
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
- The
Government accepted that, in view of the findings of the
Constitutional Court, the proceedings lasted unreasonably long.
- The
underlying principles for assessing the reasonableness of the length
of proceedings are the same as mentioned above (see § 26).
- 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 Frydlender, cited above).
- Having
examined all the material submitted to it, the Court finds no 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 concurs with the Constitutional Court that in the instant case
the length of the proceedings was excessive and failed to meet the
“reasonable time” requirement.
- The
Court has also examined whether further delays occurred after the
delivery of the Constitutional Court's judgment. It notes that the
Municipal Court issued its judgment on 6 December 2005. After the
plaintiff filed her appeal against the first instance judgment on 20
March 2005 the proceedings have been pending before the appellate
court for a period which now amounts to about one year and ten
months.
- In
view of the above considerations, the Court concludes that there has
been a breach of Article 6 § 1 in respect of the length of the
proceedings in issue.
II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION AND
ARTICLE 1 OF PROTOCOL NO. 1
- The
applicant complained under Article 8 of the Convention and Article 1
of Protocol No. 1 alleging that his right to respect for his home as
well as his property rights were violated because the domestic courts
had prevented him from living in his flat.
The
invoked provisions read as follows:
Article 8
“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.”
Article 1 of Protocol No. 1
“Every natural or legal person is entitled to the
peaceful enjoyment of his possessions. No one shall be deprived of
his possessions except in the public interest and subject to the
conditions provided for by law and by the general principles of
international law.
The preceding provisions shall not, however, in any way
impair the right of a State to enforce such laws as it deems
necessary to control the use of property in accordance with the
general interest or to secure the payment of taxes or other
contributions or penalties.”
- The
Court notes at the outset that the applicant instituted two sets of
proceedings against the persons occupying his flat. The first set of
these proceedings, concerning the applicant's claim for the eviction
of the tenants ended with the Constitutional Court's decision of 13
October 2004. In these proceedings the domestic courts dismissed the
applicant's claim. The applicant also instituted proceedings for
regulation of the rent which are still pending. Furthermore, the
tenant, M.V., instituted proceedings against the applicant in order
to secure a lease agreement with a protected rent, pursuant to the
Lease Act. The proceedings are presently pending. The Court considers
that these proceedings are intrinsically linked to the issues raised
by the applicant under Article 8 of the Convention and under Article
1 of Protocol No. 1. The Court cannot speculate what the outcome of
these proceedings would be and how this outcome would affect the
applicant's right to respect for his home and his property rights.
It
follows that this part of the application is premature and must be
rejected under Article 35 §§ 1 and 4 of the Convention.
III. 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 122,000 euros (EUR) in respect of pecuniary damage
and EUR 100,000 in respect of non-pecuniary damage.
- The
Government deemed these sums excessive and argued that there was no
causal link between the violations claimed and the pecuniary damage
sought.
- 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, the Court considers that the applicant must have
sustained non-pecuniary damage - such as distress resulting from the
protracted length of proceedings – which is not sufficiently
compensated by the finding of a violation of the Convention. Ruling
on an equitable basis, it awards him EUR 7,700 under that head, plus
any tax that may be chargeable on that amount.
B. Costs and expenses
- The
applicant also claimed EUR 8,880 for the costs and expenses incurred
before the Court.
- The
Government left it to the Court to assess the necessity of the costs
incurred.
- 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 500 for the proceedings before the
Court 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 complaint concerning the length of
the proceedings admissible and the remainder of the application
inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention on account of the excessive length of
the proceedings;
- 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 are to be converted into the national currency of the
respondent State at a rate applicable at the date of settlement:
(i)
EUR 7,700 (seven thousand and hundred euros) in respect of
non-pecuniary damage;
(ii) EUR
500 (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 24 May 2007,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
