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Cite as: [2007] ECHR 277

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FIRST SECTION

CASE OF ŠOŠTARIĆ v. CROATIA

(Application no. 39659/04)

JUDGMENT

STRASBOURG

12 April 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 Šoštarić v. Croatia,

The European Court of Human Rights (First Section), sitting as a Chamber composed of:

Mr L. Loucaides, President,
Mrs N. Vajić,
Mr A. Kovler,
Mrs E. Steiner,
Mr K. Hajiyev,
Mr D. Spielmann,
Mr S.E. Jebens, judges,
and Mr S. Nielsen, Section Registrar,

Having deliberated in private on 22 March 2007,

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

PROCEDURE

The case originated in an application (no. 39659/04) 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 Nenad Šoštarić (“the applicant”), on 29 September 2004.

The applicant was represented by Mrs L. Kušan, a lawyer practising in Ivanić Grad. The Croatian Government (“the Government”) were represented by their Agent, Mrs Š. StaZnik.

On 18 October 2005 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

The applicant was born in 1973 and lives in KriZ.

On 8 March 2000 the Ivanić Grad Municipal Court (Općinski sud u Ivanić Gradu) gave judgment ordering a certain S.R. to pay the applicant 9,600 German marks (DEM). The judgment became final and enforceable on 17 June 2000.

On 28 November 2001 the applicant sought enforcement of the above judgment. On 7 December 2001 the Sisak Municipal Court (Općinski sud u Sisku) issued an enforcement order. It decided to seize S.R.'s movable property and sell it at a public auction. On 5 March 2002 the applicant informed the court that he advanced the costs of the proceedings.

The court bailiff attempted to conduct the first on-site inspection on 22 April 2002, but S.R. was not found on the address provided by the applicant. His parents, I. and J.R., informed the bailiff that S.R. had not lived at that address for the past three years.

The court scheduled another on-site inspection for 3 September 2002. However, the court bailiff could not enter S.R.'s house, because it was locked. On 4 September 2002 the applicant asked the court to set another date for the bailiff's intervention with the assistance of the police and the locksmith. He also requested temporary seizure of S.R.'s passport.

On 2 October 2002 the court held a hearing. It invited the applicant to again advance the costs and scheduled another on-site inspection for 30 October 2002. The inspection again failed since S.R.'s house was locked. On 4 November 2002 the applicant requested the temporary seizure of S.R's passport.

The court scheduled yet another on-site inspection for 3 February 2003, with the assistance of the police and a locksmith. On that date, the court bailiff entered S.R.'s house and seized the following movables: two motorbikes, a lawnmower, a welding machine, a TV and a stereo. One day later, the applicant repeated his request for seizure of the passport.

On 13 February 2003 the debtor's parents as third parties filed an objection against the enforcement on the seized movables, claiming they were the owners of the seized property which could therefore not be the object of enforcement. On 22 May 2003 the court invited the applicant to respond to the objection raised. Eight days later the applicant did so by contesting the third parties' allegations.

On 9 January 2004 the applicant repeated his request for temporary seizure of S.R.'s passport. Finally, on 2 March 2004 the court dismissed the applicant's motion in this respect. On appeal, on 4 October 2004 the second-instance court upheld the first-instance decision finding that the seizure of the passport was not allowed under the legislation in force.

On 25 February 2005 the court inquired with the police about S.R.'s place of residence. The police replied that S.R. left for Germany.

Subsequently, on 25 March 2005 the applicant invited the court to continue with the enforcement on the seized movables.

On 2 November 2005 the court instructed S.R.'s parents, to institute separate civil proceedings to declare the enforcement on the seized movables inadmissible. The third parties did so and it would appear that those proceedings are still pending.

II. RELEVANT DOMESTIC LAW AND PRACTICE

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 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.”

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.”

In decision no. U-IIIA/1128/2004 of 2 February 2005 the Constitutional Court changed its practice, accepting a constitutional complaint and awarding 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

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...”

The Government contested that argument.

The Court reiterates that execution of a judgment given by any court must be regarded as an integral part of the “hearing” for the purposes of Article 6 (see Hornsby v. Greece, judgment of 19 March 1997, Reports of Judgments and Decisions 1997-II, pp. 510–11, § 40). Therefore, the enforcement proceedings must be regarded as the second stage of civil proceedings (see Zappia v. Italy, judgment of 26 September 1996, Reports of Judgments and Decisions 1996-IV, pp. 1411-1412, § 20).

The period to be taken into consideration began on 28 November 2001 when the applicant applied for enforcement and has not yet ended. It has thus lasted five years and three months.

A. Admissibility

The Government invited the Court to reject the application for non-exhaustion of domestic remedies. They submitted that the applicant could have lodged a constitutional complaint under section 63 of the Constitutional Court Act. In support of their argument, the Government produced a copy of the Constitutional Court decision of 2 February 2005 (see paragraph 18 above) in which that court had found a violation of the complainant's right to a hearing within a reasonable time on account of lengthy enforcement proceedings.

The applicant contested that argument. He noted that the Constitutional Court had changed its practice to extend the guarantees of section 63 of the Constitutional Court Act to enforcement proceedings only in February 2005, whereas he had introduced his application with the Court already in 2004.

The Court 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 Slaviček v. Croatia (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 Pibernik v. Croatia (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 KaradZić v. Croatia, no. 35030/04, § 38, 15 December 2005).

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 Baumann v. France, 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 Nogolica v. Croatia (dec.), no. 77784/01, ECHR 2002-VIII).

Turning to the present case, the Court observes that the applicant introduced his application with the Court on 29 September 2004. It was only after that date that the Constitutional Court held for the first time that there had been a violation of the right to a hearing within reasonable time in respect of the length of enforcement proceedings. Accordingly, the applicant could not have been expected to lodge such a complaint, which at that time did not offer him any reasonable prospects of success.

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 Mačinković v. Croatia, no. 29759/04, § 29, 7 December 2006; Šamija v. Croatia, no. 14898/04, § 31, 7 December 2006)

In these circumstances, the Court considers that the applicant's complaint cannot be rejected for failure to exhaust domestic remedies.

The Court further notes that this complaint 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

The Court reiterates that the State has an obligation to organise a system of enforcement of judgments that is effective both in law and in practice and ensures their enforcement without any undue delay (see Fuklev v. Ukraine, no. 71186/01, § 84, 7 June 2005). However, a possible failure to enforce a judgment because of the debtor's indigence cannot be held against the State unless and to the extent that it is imputable to the domestic authorities, for example, to their errors or delay in proceeding with the enforcement (see, mutatis mutandis, Omasta v. Slovakia (dec.), no. 40221/98, 10 December 2002).

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, Cocchiarella v. Italy [GC], no. 64886/01, § 68, to be published in ECHR 2006; and Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII). The Court reiterates that enforcement proceedings by their very nature need to be dealt with expeditiously (see Comingersoll S.A. v. Portugal [GC], no. 35382/97, § 23, ECHR 2000-IV).

The Court considers that the length of the enforcement proceedings at issue, which have so far lasted more than five years and are still pending, is a priori unreasonable and calls for a global assessment. Their overall length could be justified only under exceptional circumstances.

The Government argued that the instant case was somewhat complex due to S.R.'s absence and that the applicant's ill-founded request for seizure of his passport unnecessarily prolonged the proceedings. However, none of these factors can sufficiently explain the substantial delay that occurred in the present case. The Court firstly recalls that the parties are free to use all procedural means available to them with a view to satisfying their claim. It further observes that, in any event, deciding the applicant's motion for seizure of S.R.'s passport lasted for only about six months. On the other hand, the Court observes several substantive periods of inactivity of the first-instance court (between 22 May 2003 and 2 March 2004 and then again from that date until 25 February 2005).

Moreover, as it transpires from the case-file, the first-instance court instructed third parties to institute proceedings to have the enforcement on the seized movables declared inadmissible two years and nine months after they had lodged their initial objection. Such an objection under the domestic law does not, however, suspend the enforcement. In this connection, the Court notes that the Government provided no explanation for the fact that the movables seized on 3 February 2003 have to date not been sold at a public auction so as to – at least in part - satisfy the applicant's claim.

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, Poláčik v. Slovakia, no. 58707/00, 15 November 2005; Heger v. Slovakia, no. 62194/00, 17 May 2005; and Estima Jorge v. Portugal, judgment of 21 April 1998, Reports of Judgments and Decisions 1998-II).

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.

There has accordingly 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 4,896 euros (EUR) in respect of pecuniary and EUR 5,000 in respect of non-pecuniary damage.

The Government contested these claims.

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 3,000 in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount.

B. Costs and expenses

The applicant also claimed EUR 1,830 for the costs and expenses incurred before the Court.

The Government contested this claim claims.

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 1,500 for the proceedings before it, 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 application admissible;

Holds that there has been a violation of Article 6 § 1 of the Convention;

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 should be converted into Croatian kunas at the rate applicable at the date of settlement:

(i) EUR 3,000 (three thousand euros) in respect of non-pecuniary damage;

(ii) EUR 1,500 (one thousand 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 12 April 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Søren Nielsen Loukis Loucaides
Registrar President