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FIRST
SECTION
CASE OF
ALAGIĆ v. CROATIA
(Application
no. 17656/07)
JUDGMENT
STRASBOURG
11
February 2010
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 Alagić v.
Croatia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos
Rozakis,
President,
Nina
Vajić,
Khanlar
Hajiyev,
Dean
Spielmann,
Sverre
Erik Jebens,
Giorgio
Malinverni,
George
Nicolaou,
judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 21 January 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 17656/07) 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 Muhamed Alagić
(“the applicant”), on 10 April 2007.
- The
Croatian Government (“the Government”) were represented
by their Agent, Mrs Š. StaZnik.
- On
21 May 2008 the President of the First Section decided to give notice
of the application to the Government. It was also decided to examine
the merits of the application at the same time as its admissibility
(Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant, who is a Croatian national, was born in 1939 and lives in
Zagreb.
- On
30 December 1993 the applicant brought a civil action against a
private party in the Zagreb Municipal Court
(Općinski sud
u Zagrebu), seeking payment
of a debt and damages related to a breach of contract.
- In
the period before the ratification of the Convention by Croatia
(5 November 1997), the court held four hearings.
- On
16 May 1995 and 8 February 2000 the Municipal Court invited the
applicant to specify his claim. Since he failed to comply, the
Municipal Court decided on 13 March 2000 that the applicant had
withdrawn his action.
- On 24
March 2000 the applicant lodged a request for restoring the
proceedings to the status quo ante (prijedlog
za povrat u prijašnje stanje), which the Municipal
Court granted on 3 November 2000 and set aside its decision of 13
March 2000.
- On
24 December 2004 the applicant lodged a constitutional complaint
about the length of the above proceedings.
- On
13 April 2006 the Municipal Court adopted a judgment dismissing the
applicant’s claim. The applicant appealed against the
first-instance judgment to the Zagreb County Court (Zupanijski
sud u Zagrebu).
- On
1 February 2007 the Constitutional Court found a violation of the
applicant’s constitutional right to a hearing within a
reasonable time. It also found that the delays in the proceedings in
the period before November 2000 were entirely attributable to the
applicant while the further delays in the period from 17 September
2001 until 24 December 2004 were attributable exclusively to the
inactivity of the Municipal Court. The Constitutional Court awarded
the applicant 4,500 Croatian kunas (HRK) in compensation and ordered
the County 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 7 March 2007.
- Meanwhile,
on 13 February 2007 the County Court quashed the first-instance
judgment and remitted the case to the Zagreb Municipal Court before
which the proceedings are currently pending.
II. RELEVANT DOMESTIC LAW
- 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.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that the length of the civil proceedings had
been incompatible with the “reasonable time” requirement,
laid down in Article 6 § 1 of the Convention. In particular, he
complained that the amount of compensation he had been awarded for
the breach of his right to a hearing within reasonable time was not
adequate and that the impugned proceedings are still pending. Article
6 § 1 of the Convention reads as follows:
“In the determination of his civil rights and
obligations ... everyone is entitled to a fair ... hearing ... by [a]
... tribunal ...”
- The
Government contested these arguments.
- 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 of ratification. In
this connection the Court notes that the proceedings commenced on 30
December 1993, when the applicant brought his civil action.
Consequently, they were pending for almost four years before the
ratification.
- The
case was still pending on 1 February 2007 when the Constitutional
Court gave its decision. On that date the proceedings had lasted some
nine years and three months after the ratification, at two levels of
jurisdiction.
- The
period to be taken into consideration has not yet ended. Thus, in
total, the case has so far been pending for almost sixteen years at
two levels of jurisdiction, of which more than twelve years after
Croatia’s ratification of the Convention.
A. Admissibility
1. The applicant’s victim status
- The
Government submitted that the Constitutional Court had accepted the
applicant’s constitutional complaint, found a violation of his
right to a hearing within reasonable time and awarded him appropriate
compensation. The violation complained of had, therefore, been
remedied before the domestic authorities and, as a result, the
applicant had lost his victim status.
- The
applicant replied that he could still be considered a victim of the
violation complained of.
- The
Court notes that at the time when the Constitutional Court gave its
decision, the proceedings had been pending for more than nine years
at two levels of jurisdiction after the ratification of the
Convention by Croatia. The just satisfaction awarded by the
Constitutional Court does not correspond to what the Court would have
been likely to award under Article 41 of the Convention in respect of
the same period.
- The
compensation awarded therefore cannot be regarded as adequate in the
circumstances of the case (see the principles established under the
Court’s case-law in Cocchiarella v. Italy [GC],
no. 64886/01, §§ 65-107, ECHR 2006-V, or Scordino
v. Italy (no. 1) [GC], no. 36813/97, §§ 178-213,
ECHR 2006-V). In these circumstances, in respect of the period
covered by the Constitutional Court’s finding, the applicant
has not lost his status as a victim within the meaning of Article 34
of the Convention.
- The
Court notes further that the proceedings are still pending and that
therefore it is called upon to examine their overall length.
2. Exhaustion of domestic remedies
- The
Government argued that the applicant, in order to remedy violation of
his right to a hearing within reasonable time, should have lodged a
second constitutional complaint or a request for the protection of
the mentioned right with a higher court, which he failed to do.
- The
applicant did not reply to this argument.
- The
Court observes at the outset that the applicant availed himself of an
effective domestic remedy in respect of the length of the proceedings
– a constitutional complaint (see Slaviček v. Croatia
(dec.), no. 20862/02, ECHR 2002-VII) – and that the
Constitutional Court found a violation of his right to a hearing
within reasonable time but failed to award him appropriate
compensation. The Court reiterates that in cases where the
applicants’ constitutional complaints were dismissed, it was
required to verify whether the way in which the Constitutional Court
interpreted and applied the relevant provisions of the domestic law,
produced consequences that were consistent with the principles of the
Convention, as interpreted in the light of the Court’s
case-law. If the Constitutional Court’s decisions were not
consistent with Convention principles, the Court held that the
applicants were not required to lodge further constitutional
complaints, as that would overstretch their duties under Article 35
§ 1 of the Convention (see, for example, Kozlica v. Croatia,
no. 29182/03, §§ 23 and 28, 2 November 2006).
- The
Court considers that this reasoning applies with equal force in the
circumstances such are those prevailing in the present case. This
is so because given the above conclusion that the applicant is still
a victim of the violation alleged, it cannot be said that the
way in which the Constitutional Court interpreted and applied the
relevant provisions of the domestic law produced consequences that
were consistent with the Convention principles.
- It
follows that the Government’s objection as to the exhaustion of
domestic remedies must be rejected.
3. Conclusion
- The
Court considers that this complaint is not manifestly ill-founded
within the meaning of Article 35 § 3 of the Convention. It also
notes, having regard to the foregoing, that it is not inadmissible on
any other grounds. It must therefore be declared admissible.
B. Merits
- The
applicant complained that the length of proceedings had been
excessive and also contested the Government’s arguments that
his behaviour had contributed to the overall length of proceedings
and that the case had been complex.
- The
Government submitted that the Constitutional Court had found that the
delays in the period before the year 2000 had been entirely
attributable to the applicant. They argued that all further delays
had also been attributable to the applicant and that the case had
been complex since it required that a report by a finance expert be
prepared.
- 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
Court notes that, while it is true that the Constitutional Court
found that the applicant had contributed to the delays which occurred
prior to 3 November 2000, it nevertheless
held that the
proceedings had lasted unreasonably long. The Court sees no reason to
hold otherwise as it has frequently found violations of Article 6 §
1 of the Convention in cases raising similar issues as the present
one (see, for example, Skokandić v. Croatia, no.
43714/02, 31 July 2007; Balen v. Croatia, no. 43429/05,
25 October 2007; and Brajović-Bratanović v.
Croatia, no. 9224/06, 9 October 2008). Therefore, already in
the period which was subject to the Constitutional Court’s
scrutiny the length of the proceedings was excessive and failed to
meet the “reasonable time” requirement. It necessarily
retained that character throughout the subsequent period of some two
years and ten months after the delivery of the Constitutional Court’s
decision.
- In
the light of the foregoing, the Court considers that there has 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 40,000 euros (EUR) in respect of a non-pecuniary
damage.
- The
Government deemed the amount claimed excessive.
- The
Court considers that the applicant must have sustained non-pecuniary
damage. Ruling on an equitable basis, it awards award him EUR 2,500
under that head.
B. Costs and expenses
- The
applicant did not submit a claim for costs and expenses. Accordingly,
the Court considers that there is no call to award him any sum on
that account.
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;
3. Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 2,500 (two
thousand five hundred euros), plus any tax that may be chargeable to
the applicant, in respect of non-pecuniary damage, to be converted
into Croatian kunas at the rate applicable at the date of settlement;
(c) 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 11 February 2010,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
