FIRST SECTION

CASE OF KEKO v. CROATIA

(Application no. 21497/12)

JUDGMENT

STRASBOURG

5 December 2013

This judgment is final. It may be subject to editorial revision.

In the case of Keko v. Croatia,
The European Court of Human Rights (First Section), sitting as a Committee composed of:
	Elisabeth Steiner, President,
	Linos-Alexandre Sicilianos,
	Ksenija Turković, judges,
and André Wampach, Deputy Section Registrar,
Having deliberated in private on 12 November 2013,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 21497/12) 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 Šime Keko (“the applicant”), on 20 March 2012.
2.  The applicant was represented by Mr I. Debelić, a lawyer practising in Rab. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik.
3.  On 28 March 2013 the application was communicated to the Government.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
4.  The applicant was born in 1943 and lives in Rab.
A.  Civil proceedings
5.  On 20 June 2001 the applicant’s brother J.K. brought a civil action against the applicant and their father in the Rab Municipal Court (Općinski sud u Rabu) seeking to be declared a co-owner of the house previously owned by their father.
6.  On 20 February 2002 the applicant lodged a counter-claim against J.K.
7.  By a judgment of 4 October 2004 the single judge of the Rab Municipal Court, Mrs L.P.M., ruled for J.K. and dismissed the applicant’s counter-claim.
8.  By a judgment of 12 December 2007 the Rijeka County Court (Županijski sud u Rijeci) dismissed the applicant’s appeal and upheld the first-instance judgment. This judgment was served on the applicant’s representative on 14 January 2008.
9.  On 23 January 2008 the applicant lodged a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske) against the judgments of the ordinary courts. He complained, inter alia, that the first-instance judgment in his case had been rendered by a person whose appointment as a judge had later on been quashed by the Administrative Court (Upravni sud Republike Hrvatske).
10.  On 6 March 2012 the Constitutional Court dismissed the applicant’s constitutional complaint. The Constitutional Court held that judgments of the Administrative Court quashing judicial appointments had ex nunc effects only and that therefore the first-instance judgment in his case had been reached by a person who had been a judge at the relevant time. This decision was served on the applicant’s representative on 15 March 2012.
B.  Proceedings related to the judge L.P.M.
11.  Meanwhile, on 26 November 2003 National Judicial Council (Državno sudbeno vijeće) appointed Mrs L.P.M. a judge of the Rab Municipal Court. L.P.M. took her office on 15 December 2003.
12.  However, a certain Mrs N.M., who was running for the same office, lodged a request for the protection of a constitutionally guaranteed right (zahtjev za zaštitu ustavom zajamčenog prava i slobode čovjeka i građanina) with the Administrative Court against the above decision of the National Judicial Council claiming that L.P.M. had not satisfied statutory requirements for the appointment.
13.  By a judgment of 2 December 2004 the Administrative Court ruled for N.M. and quashed the National Judicial Council’s decision. It found that L.P.M. had not had the required work experience as a law clerk (sudski savjetnik) at the time when the notice of competition for the judicial office at issue had been published.
14.  On 13 July 2005 the Constitutional Court dismissed subsequent constitutional complaint by L.P.M.
II.  RELEVANT DOMESTIC LAW
15.  The relevant provisions of the Courts Act as in force at the relevant time (Zakon o sudovima, Official Gazette nos. 150/05, 16/07 and 113/08), governing the request for the protection of the right to a hearing within a reasonable time, as the remedy for the length of judicial proceedings in Croatia, are set out in Praunsperger v. Croatia, no. 16553/08, § 21, 22 April 2010.
THE LAW
I.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION ON ACCOUNT OF THE LENGTH OF PROCEEDINGS
16.  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 established by law...”
A.  Admissibility
17.  The Government submitted that the applicant had failed to use the domestic length-of-proceedings remedies concerning the length of the civil proceedings before the ordinary courts.
18.  The applicant contested that argument.
19.  The Court first refers to its decision in the Slaviček case, where it held that since 15 March 2002 a constitutional complaint under section 63 of the Constitutional Court Act had represented an effective domestic remedy in respect of the length of court proceedings in Croatia (see Slaviček v. Croatia (dec.), no. 20862/02, ECHR 2002-VII). It further refers to its judgment in the Pavić case, where it held that as of 29 December 2005 a request for the protection of the right to a hearing within a reasonable time under sections 27 and 28 of the Courts Act has become an effective domestic remedy in respect of the length of court proceedings in Croatia (see Pavić v. Croatia, no. 21846/08, § 36, 28 January 2010). It follows that in the period between 15 March 2002 and 28 December 2005 the applicant could have lodged a constitutional complaint to complain about the length of proceedings in their part before the first- and the second-instance court, and in the period between 29 December 2005 and 14 January 2008 (the date on which the appeal judgment was served on the applicant’s representative) to lodge a request for the protection of the right to a hearing within a reasonable time. However, he did not do so. It follows that in so far as the applicant’s complaint concerns the proceedings in their part before the ordinary courts, it is inadmissible under Article 35 § 1 of the Convention for non-exhaustion of domestic remedies and must be rejected pursuant to Article 35 § 4 thereof.
20.  On the other hand, to the extent that this complaint concerns the length of proceedings in their part before the Constitutional Court, the Court considers that it is not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention. It also notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
B.  Merits
21.  The period to be taken into consideration began on 23 January 2008, when the applicant lodged his constitutional complaint, and ended on 15 March 2012, when the Constitutional Court’s decision was served on the applicant’s representative. It thus lasted some four years and two months.
22.  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).
23.  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 Oršuš and Others v. Croatia [GC], no. 15766/03, §§ 108-110, ECHR 2010 and Šikić v. Croatia, no. 9143/08, §§ 33-38, 15 July 2010).
24.  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.
25.  There has accordingly been a violation of Article 6 § 1.
II.  OTHER ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
26.  The applicant also complained under Article 14 of the Convention, Article 1 of Protocol No. 1 and Article 1 of Protocol No. 12 thereto that he had been discriminated against by the mere fact that the first-instance judgment had been reached by a person whose appointment as a judge was later on quashed.
27.  The Court, being master of the characterisation to be given in law to the facts of the case, considers that this complaint falls to be examined under the “established-by-law” requirement of Article 6 § 1 of the Convention.
28.  In this connection, the Court notes that the Constitutional Court, relying on its previous practice, held that judgments of the Administrative Court quashing judicial appointments can only produce effects ex nunc and that therefore the first-instance judgment in the applicant’s case had been reached by a person who had been a judge at the relevant time. It follows that the first-instance court was “established by law” for the purposes of Article 6 § 1 of the Convention.
29.  Accordingly, this complaint is inadmissible under Article 35 § 3 (a) as manifestly ill-founded and must be rejected pursuant to Article 35 § 4 of the Convention.
III.  ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
30.  Lastly, the applicant complained that he had not had an effective remedy for his complaint about the length of proceedings before the Constitutional Court. He relied on Article 13 of the Convention, which reads as follows:
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
31.  The Court notes that where, as in the instant case, the applicant alleged a violation of the rights conferred by the Convention by the last-instance judicial authority of the domestic legal system, the application of Article 13 is implicitly restricted (see, for example, Juričić v. Croatia, no. 58222/09, §§ 100-101, 26 July 2011).
32.  It follows that this complaint is inadmissible under Article 35 § 3 (a) as manifestly ill-founded and must be rejected pursuant to Article 35 § 4 of the Convention.
IV.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
33.  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
34.  The applicant claimed EUR 50,000 in respect of pecuniary damage and EUR 10,000 in respect of non-pecuniary damage.
35.  The Government contested these claims.
36.  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 2,000 in respect of non-pecuniary damage.
B.  Costs and expenses
37.  The applicant also claimed EUR 4,500 for the costs and expenses incurred before the domestic courts and EUR 847 for those incurred before the Court.
38.  The Government contested the claim.
39.  Regard being had to the documents in its possession and to its case-law, the Court rejects the claim for costs and expenses in the domestic proceedings and considers it reasonable to award the applicant the sum sought for the proceedings before the Court.
C.  Default interest
40.  The Court considers it appropriate that the default interest rate 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,
1.  Declares the complaint concerning the excessive length of the proceedings in their part before the Constitutional Court admissible and the remainder of the application inadmissible;

2.  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, the following amounts, to be converted into Croatian kunas, at the rate applicable at the date of settlement:
(i)  EUR 2,000 (two thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii)  EUR 847 (eight hundred forty seven euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;
(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;

4.  Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 5 December 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	André Wampach	Elisabeth Steiner
	Deputy Registrar	President