European Court of Human Rights

 

 

SECOND SECTION

CASE OF ORAŠANIN v. CROATIA

(Application no. 24811/16)

 

 

 

 

 

 

JUDGMENT

 

STRASBOURG

21 March 2023

 

This judgment is final but it may be subject to editorial revision.

In the case of Orašanin v. Croatia,

The European Court of Human Rights (Second Section), sitting as a Committee composed of:

  Pauliine Koskelo , President ,
  Lorraine Schembri Orland,
  Davor Derenčinović , judges ,
and Dorothee von Arnim, Deputy Section Registrar,

Having regard to:

the application (no.   24811/16) 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") on 28 April 2016 by a Croatian national, Ms Ljubica Orašanin, born in 1945 and living in Zagreb ("the applicant"), who was represented by Mr N. Antolić, a lawyer practising in Zagreb;

the decision to give notice of the complaints under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 concerning non-enforcement of a final domestic court's judgment, to the Croatian Government ("the Government"), represented by their Agent, Ms Š. Stažnik, and to declare inadmissible the remainder of the application;

the parties' observations;

Having deliberated in private on 28 February 2023,

Delivers the following judgment, which was adopted on that date:

SUBJECT MATTER OF THE CASE

1.     The case concerns the outcome and the length of enforcement proceedings the applicant instituted in 1994 against a private individual, which were eventually discontinued. The applicant complained, under Article   6 § 1 of the Convention and Article 1 of Protocol No. 1 thereto, that due to delays and errors of the domestic courts in those proceedings, the judgment rendered in her favour had remained unenforced.

2 .     On 9 November 1994 the applicant applied for enforcement of a final judgment of 6 May 1994 ordering the defendant to pay her 1,585,220 German marks. She sought enforcement by seizure and sale of the enforcement debtor's two flats and of her movable property in those flats.

3.     On 11 June 1997 the enforcement court issued a writ of execution. On 25 June 1997 the enforcement debtor lodged an objection against the writ arguing, inter alia , that she was not the owner of the two flats in question.

4 .     At the hearing held on 23 May 2013 the enforcement court established that one of the flats did not exist (it seems that the applicant indicated the wrong house number in her application for enforcement) and that the enforcement debtor was not the owner of the other flat. The court also established that the enforcement debtor had not been living in the second flat for the past fifteen years. In view of those findings, the applicant left the decision whether to pursue the enforcement in respect of the two flats to the court's discretion. On the other hand, she invited the court to obtain information on the enforcement debtor's domicile from the police and order the seizure of her movable property at that address.

5 .     By a decision of 3 December 2013, the enforcement court discontinued the enforcement. It held that the enforcement in respect of the two flats and the movable property in them could not be carried out because one of those flats did not exist and the other was neither owned by the enforcement debtor nor had she been living in it for the past fifteen years.

6 .     The applicant appealed mainly arguing that the enforcement court had ignored her proposal to obtain information on the enforcement debtor's domicile and to order the seizure of her movable property at that address (see paragraph 4 above). She also pointed out that the enforcement proceedings had thus far lasted more than nineteen years during which the enforcement court had never taken any steps to seize the debtor's movable property, and that at the time she had lodged her application for enforcement, the enforcement debtor had lived at the address of the second flat.

7 .     On 14 July 2015 the second-instance court dismissed the applicant's appeal without answering her main argument, and on 2 September 2015 notified her representative of its decision.

8 .     On 20 January 2016 the Constitutional Court declared inadmissible the applicant's subsequent constitutional complaint and on 10   February 2016 notified her representative of its decision. It held that under its longstanding case-law decisions on discontinuation of enforcement were not open to constitutional review.

THE COURT'S ASSESSMENT

1. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION ON ACCOUNT OF NON-ENFORCEMENT
   1. Admissibility
      1. Exhaustion of domestic remedies

9 .     The Court notes that in so far as the applicant's length complaint concerns the period before 13 March 2013, it is inadmissible for non - exhaustion of domestic remedies because in that period she had at her disposal effective remedies to complain of their length but did not use them (see Mesić v. Croatia , no. 19362/18, §§ 122-124, 5 May 2022, and Mirjana   Marić v. Croatia , no. 9849/15, §§ 33-38, 30 July 2020). The Government's objection based on non-exhaustion of domestic remedies in this regard must therefore be accepted.

2. Compliance with the six-month time-limit

10.     As regards the applicant's complaint about the outcome of the enforcement proceedings, namely the domestic courts' decision to discontinue the enforcement, the Government submitted that she had not complied with the six-month time-limit because she had erroneously believed that her constitutional complaint was an effective remedy to be exhausted for the purposes of Article 35 § 1 of the Convention and thus capable of interrupting the running of the six-month time-limit. They explained that under the longstanding case-law of the Constitutional Court a constitutional complaint could not be lodged against a decision on discontinuation of enforcement. Consequently, the final decision within the meaning of Article   35 § 1 of the Convention, for the purposes of calculating the six - month time-limit, was not the Constitutional Court's decision of 20   January 2016 (see paragraph 8 above) but the second-instance decision of 14   July 2015, which had been served on the applicant on 2 September 2015 (see paragraph 7 above). However, her application to the Court had been lodged on 28 April 2016, that is, more than six months later.

11.     The Court has already rejected similar inadmissibility objections in a number of cases against Croatia (see, for example, Vrtar v. Croatia , no.   39380/13, §§ 75-76, 7 January 2016, and Šimecki v. Croatia , no.   15253/10, §§ 28-33, 30 April 2014). It sees no reason to hold otherwise in the present case especially because the applicant provided examples of decisions from 2013 in which the Constitutional Court decided on the merits of constitutional complaints lodged against decisions on discontinuation of enforcement. The Government's objection based on non-compliance with the six-month time-limit must therefore be rejected.

3. Conclusion as regards admissibility

12 .     The Court further notes that the complaints concerning the length of the enforcement proceedings in the period after 13 March 2013 and their outcome are not manifestly ill-founded within the meaning of Article   35 §  
3   (a) of the Convention or inadmissible on any other grounds. They must therefore be declared admissible.

2. Merits

13 .     The general principles concerning the States' positive obligations regarding enforcement of judgments against private persons have been summarised in Raguž v. Serbia , no. 8182/07, §§ 25-27, 7 April 2015, and Sekul v. Croatia (dec.), no. 43569/13, §§ 54-55, 30 June 2015.

14.     In particular, in such cases, which necessitate actions by a debtor who is a private person, the State, as the possessor of public authority, has to act diligently in order to assist a creditor with the execution of a judgment (see Sekul , cited above, § 55). The Court's task in such cases is to examine whether the measures applied by the authorities were adequate and sufficient ( ibid .). Furthermore, enforcement proceedings by their very nature need to be dealt with expeditiously (see Raguž , cited above, § 27).

15 .     The Court notes that in the present case the enforcement proceedings in the relevant period (see paragraphs 8-9 and 12 above) lasted two years and almost eleven months.

16 .     It further notes that at the hearing held on 23 May 2013 the applicant asked the court to obtain information on the enforcement debtor's domicile and order the seizure of her movable property at that address (see paragraph   4 above). However, that court never did so and, instead, discontinued the enforcement (see paragraph 5 above). The applicant raised this issue again in her appeal, but the second-instance court did not address it (see paragraphs 6 and 7 above).

17 .     In those circumstances (see paragraphs 15-16 above), the Court considers that the Croatian authorities did not act diligently or take sufficient steps to enforce the final judgment of 6   May 1994 (see, mutatis mutandis , Raguž , cited above, §§ 28-29, and Poláčik v. Slovakia , no. 58707/00, §§  
54 - 58, 15 November 2005).

18.     There has accordingly been a violation of Article 6 § 1 of the Convention.

2. OTHER COMPLAINTS

19.     The applicant complained of the outcome and the length of the enforcement proceedings in question also under Article 1 of Protocol No. 1 to the Convention. She also complained under Article 6 § 1 of the Convention of various instances of unfairness in those proceedings. Having regard to the facts of the case, the submissions of the parties, and its findings above, the Court considers that it has dealt with the main legal questions raised by the case and that there is no need to examine these remaining complaints (see Centre for Legal Resources on behalf of Valentin Câmpeanu v.   Romania [GC], no.   47848/08, §   156, ECHR 2014).

APPLICATION OF ARTICLE 41 OF THE CONVENTION

20.     The applicant claimed EUR 810,510.12 euros (EUR) in respect of pecuniary damage which corresponded to the amount she had been awarded by the judgment of 6 May 1994 (see paragraph 2 above) that remained unenforced. She also claimed EUR 5,000 in respect of non-pecuniary damage and EUR 63,098.84 in respect of costs and expenses incurred before the domestic courts and before the Court.

21.     The Government contested these claims as excessive.

22.     As regards the claim for pecuniary damage, the Court first reiterates that a failure to enforce a judgment because of the debtor's indigence cannot be held against the State (see Raguž , cited above, § 26). In the present case, the Court cannot speculate as to whether the applicant would have been able to enforce the judgment in question if the enforcement court had ordered the seizure of the enforcement debtor's movable property at the address of her domicile. The Court therefore does not discern a sufficient causal link between the violation found and the pecuniary damage alleged. It therefore rejects this claim.

23.     On the other hand, the Court awards the applicant EUR 5,000, that is, the amount sought, in respect of non-pecuniary damage, plus any tax that may be chargeable.

24.     Having regard to the documents in its possession, the Court considers it reasonable to award EUR 5,500 covering costs and expenses under all heads, plus any tax that may be chargeable to the applicant.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the complaints concerning the length of the enforcement proceedings in the period after 13 March 2013 and their outcome admissible and the complaint concerning their length in the period before that date inadmissible;

2. Holds that there has been a violation of Article 6 § 1 of the Convention as regards the length and outcome of the enforcement proceedings;

3. Holds that there is no need to examine the admissibility and merits of the complaint under Article 1 of Protocol No. 1 and of the remaining complaints under Article 6 § 1 of the Convention;

4. Holds,

(a)   that the respondent State is to pay the applicant, within three months, the following amounts:

(i)   EUR 5,000 (five thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii)   EUR 5,500 (five thousand and five hundred 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;

5. Dismisses the remainder of the applicant's claim for just satisfaction.

Done in English, and notified in writing on 21 March 2023, pursuant to Rule  
77   §§   2 and 3 of the Rules of Court.

  Dorothee von Arnim   Pauliine Koskelo
  Deputy Registrar   President