FIRST SECTION

CASE OF ŠAMIJA v. CROATIA

(Application no. 14898/04)

JUDGMENT

STRASBOURG

7 December 2006

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 Šamija v. Croatia,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
	Mr	 , President,
	Mrs	 ,
	Mr	 ,
	Mrs	 ,
	Mr	 ,
	Mr	 	Mr	  judges,
and Mr  , Section Registrar,
Having deliberated in private on 16 November 2006,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in  against  lodged with the  of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by .
2.  The Croatian Government (“the Government”) were represented by their Agent, Ms Štefica Stažnik.
3.  On  the Court decided to give notice of the application 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
4.  The applicant was born in 1942 and lives in Zagreb.
5.  On 14 April 1992 the Imotski Municipal Court (Općinski sud u Imotskom) gave judgment ordering a certain A.B. to pay the applicant the equivalent of 14,000 German marks in Yugoslav dinars.
6.  On 10 December 1992 the applicant applied for enforcement of the above judgment. Shortly afterwards the court issued a writ of execution by seizure of A.B.'s movable property.
7.  It appears that before 5 November 1997 (the date of the entry into force of the Convention in respect of Croatia) the court made several unsuccessful attempts to seize A.B.'s movables.
8.  On 17 July 2000 the court ordered A.B. to disclose his assets (prokazni popis imovine). However, since A.B. failed to comply with that order, on 3 September 2001 the applicant asked that the enforcement be carried out on the A.B.'s bank accounts.
9.  The court held a hearing on 25 April 2002 concerning the applicant's proposal and on 14 May 2002 sent letters to all banks in the Imotski region asking for information of A.B.'s bank accounts.
10.  Since the banks' replies lacked certain information, the court again sent letters to the banks on 12 December 2002 asking for further details of A.B.'s bank accounts.
11.  The hearing scheduled for 2 October 2003 was adjourned because the applicant failed to appear.
12.  On 12 January 2004 the applicant asked that the enforcement be carried out on A.B.'s account in a bank in Zagreb.
13.  The court issued a new writ of execution on 13 April 2004.
14.  On 8 April 2005 the court held a hearing in order to verify compliance with the writ of execution.
15.  It appears that the proceedings are still pending since neither party informed the Court of the contrary.
16.  Meanwhile, on 24 June 2002 the applicant lodged a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske) complaining in substance about the length of the above enforcement proceedings. On 4 May 2004 that court replied, without issuing a formal decision, that it lacked jurisdiction since the applicant did not file his complaint against any individual decision issued by a State body.
II. RELEVANT DOMESTIC LAW AND PRACTICE
17.  Section 63 of the Constitutional Act on the Constitutional Court (–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 for its payment.”
18.  Under the case-law of the Constitutional Court, constitutional complaints lodged under section 63 in the context of enforcement proceedings were to be declared inadmissible. In its decision no. U-IIIA/1165/2003 of 12 September 2003 the Constitutional Court interpreted section 63 as follows:
“The Constitutional Court shall institute proceedings pursuant to a constitutional complaint lodged under section 63 of the Constitutional Act [on the Constitutional Court] for the length of proceedings only in cases where the court has not decided within a reasonable time on the merits of the rights and obligations of the complainant, that is, where it has failed to deliver a decision on the merits within a reasonable time.
In the present case the constitutional complaint has been lodged for non-enforcement of a final decision by which the party's rights and obligations had already been decided.
Taking into consideration the above cited provisions of the Constitutional Act [on the Constitutional Court] ..., the Constitutional Court is of the opinion that in this case the conditions for applicability of section 63 were not met.”
In its decision no. U-IIIA/781/2003 of 14 May 2004 the Constitutional Court provided further interpretation of section 63:
“Taking into consideration the above cited provisions of the Constitutional Act [on the Constitutional Court] and the fact that the constitutional complaint was not lodged for a failure to deliver a decision within a reasonable time but rather because the enforcement was not carried out, the Constitutional Court is of the opinion that in this case the conditions for applicability of section 63 were not met.”
19.  In decision no. U-IIIA/1128/2004 of 2 February 2005 the Constitutional Court changed its practice, accepting a complainant's constitutional complaint and awarding him compensation as well as ordering the competent court to conclude the enforcement proceedings within six months from its decision. In doing so, the Constitutional Court expressly relied on the Court's case-law on the matter.
THE LAW
I.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
20.  The applicant complained that the length of the enforcement 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...”
21.  The Government contested that argument.
22.  The period to be taken into consideration began only 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 10 December 1992, when the applicant applied for the enforcement of the Imotski Municipal Court's judgment of 14 April 1992. Consequently, the case was already pending for four years, ten months and twenty-five days before the ratification.
23.  The period in question has not yet ended. It has thus lasted about nine years.
A.  Admissibility
24.  The Government invited the Court to reject the applicant's complaint for non-exhaustion of domestic remedies, claiming that the applicant's submission to the Constitutional Court was not a proper constitutional complaint since it only asked the Constitutional Court to oblige the State to pay him the amount established by the Imotski Municipal Court's judgment.
They further argued that in 2002 Section 63 of the Constitutional Act on the Constitutional Court introduced an effective domestic remedy in respect of the length of proceedings. On 2 February 2005 the Constitutional Court adopted a decision whereby it applied the reasonable time requirements in respect of the pending enforcement proceedings.
25.  The applicant contested these arguments.
26.  The Court firstly notes that the Government's assertion that the applicant's submission could not have been regarded as a constitutional complaint about the length of proceedings does not have to be addressed because, be it as it may, the applicant was not at all obliged to file a constitutional complaint for the following reasons.
27.  The Court reiterates that under Article 35 § 1 of the Convention it may only deal with a matter after all domestic remedies have been exhausted. The purpose of the exhaustion rule is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to it (see, among many other authorities,  [GC], no. 25803/94, § 74, ECHR 1999-IV). The obligation to exhaust domestic remedies requires that an applicant make normal use of remedies which are effective, sufficient and accessible in respect of his Convention grievances.
28.  The Court further recalls that as of 22 March 2002 a constitutional complaint under section 63 of the Constitutional Court Act is considered an effective remedy in respect of the length of proceedings still pending in Croatia (see  (dec.), no. 20862/02, ECHR 2002-VII). However, at that time it was not clear whether the new remedy would at all apply to the length of enforcement proceedings (see  (dec.), no. 75139/01, 4 September 2003). The subsequent developments in the Constitutional Court's case-law showed that only as of 2 February 2005 did a constitutional complaint become an effective remedy for the length of enforcement proceedings (see , no. 35030/04, § 38, 15 December 2005).
29.  The Court reiterates that the issue whether domestic remedies have been exhausted is normally determined by reference to the date when the application was lodged with the Court (see , no. 33592/96, § 47, ECHR 2001-V (extracts)). This rule is subject to exceptions which may be justified by the specific circumstances of each case (see (dec.), no. 77784/01, ECHR 2002-VIII).
30.  Turning to the present case, the Court observes that the applicant lodged his application with the Court on 6 February 2004. It was not until almost a year later that the Constitutional Court held for the first time that there had been a violation of the right of access to a court in a similar case. Accordingly, the applicant could not have been expected to file such a complaint, which at that time did not offer him any reasonable prospect of success.
31.  As to a possible departure from the general rule of non-exhaustion, the Court does not find any special circumstances which would justify making an exception to that rule in the present case (see Omerović v. Croatia, )
32.  In these circumstances, the Court considers that the applicant's complaint cannot be rejected for failure to exhaust domestic remedies.
33.  The Court further notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It also notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
B.  Merits
34.  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,  [GC], no. 30979/96, § 43, ECHR 2000-VII).
35.  The Government submitted that the proceedings were complex and not of a significant importance to the applicant. As to the conduct of the applicant the Government argued that the applicant displayed a significant level of inactivity because only in April 2000 had he asked that the court order A.B. to disclose his assets. As to the conduct of the domestic authorities the Government submit that the domestic courts in the enforcement proceedings were bound by the contents of the applicant's application and that it was on the applicant to choose the best means of enforcement.
36.   The applicant contested these arguments.
37.  The Court reiterates that it is for the Contracting States to organise their legal systems in such a way that their courts can guarantee to everyone the right to obtain a final decision on disputes relating to civil rights and obligations within a reasonable time (see, among other authorities, Horvat v. Croatia, no. 51585/99, § 59, ECHR 2001-VIII).
38.  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 Estima Jorge v. Portugal, judgment of 21 April 1998, Reports of judgments and decisions 1998-II, Omerovi
39.  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 enforcement proceedings was excessive and failed to meet the “reasonable time” requirement.
There has accordingly been a breach of Article 6 § 1.
II.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
40.  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
41.  The applicant claimed 100,000 euros (EUR) in respect of non-pecuniary damage.
42.  As to the non-pecuniary damage sought, the Court, ruling on an equitable basis and taking into account that the case has been pending for more than nine years after the Convention entered into force in respect of Croatia, awards the applicant 3,000 euros (EUR) in respect of non-pecuniary damage, plus any tax that may be chargeable on this amount.
B.  Costs and expenses
43.  The Court notes that the applicant did not make any claim in this respect. Therefore, it makes no awards under this head.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1.  Declares the application admissible;

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 from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, EUR 3,000 (three thousand euros) in respect of non-pecuniary damage which should be converted into Croatian kunas at the rate applicable at the date of settlement and any tax that may be chargeable on that amount;

(b)  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;

4.  Dismisses the remainder of the applicant's claim for just satisfaction.
Done in English, and notified in writing on 7 December 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Søren Christos  
	Registrar	President