(Application no. 39810/04)
5 July 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 Lukavica v. Croatia,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
Mr C.L. Rozakis, President,
Mr L. Loucaides,
Mrs N. Vajić,
Mr K. Hajiyev,
Mr D. Spielmann,
Mr S.E. Jebens,
Mr G. Malinverni, judges,
and Mr S. Nielsen, Section Registrar,
Having deliberated in private on 14 June 2007,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
A. Civil proceedings
B. Enforcement proceedings
C. Proceedings before the Constitutional Court
II. RELEVANT DOMESTIC LAW
“(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.”
Objects of evidentiary value shall be impounded temporarily and returned to the owner after the conclusion of the proceedings. If such an object is indispensable to the owner, it may be returned to him or her even before the conclusion of the proceedings but he or she shall be obliged to bring it upon request.
If there is a risk of delay, the police authorities may even before the commencement of the investigation temporarily impound objects pursuant to the provision of section 201 of this Act ...
(1) Objects which have to be seized pursuant to the Criminal Code, or which may be used as evidence in criminal proceedings, shall be temporarily impounded and deposited with a court, or their safe-keeping shall be secured in another way.
(4) The police authorities may impound the objects referred to in paragraph (1) when acting under the provisions of [inter alia, section] ... 145 of this Act, or when executing a court order.
The objects which were temporarily impounded in the course of the criminal proceedings shall be returned to their owner or holder upon the termination of the proceedings if their seizure is not required (section 487).
(1) Objects that must be seized according to the Criminal Code shall also be seized when criminal proceedings do not end with a judgment convicting the accused, provided that this is required by considerations of public safety or the protection of morals.
(2) The authority before which the proceedings were pending at the time they ended or were discontinued shall render a separate decision thereon.
(3) The decision on the seizure of objects referred to in paragraph (1) of this section shall also be given by a court when it has failed to give such a decision in a judgment convicting the accused.
(4) A certified written copy of the decision on the seizure of objects shall be served on the owner of the object, if he is known.
(5) The owner of the object is entitled to appeal against the decision referred to in paragraphs (2) and (3) of this section if he or she considers that no legal ground for the seizure of the object existed. If the decision referred to in paragraph (2) of this section was not given by a court, the panel of the competent first-instance court shall decide on the appeal.
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”
There has accordingly been a breach of Article 6 § 1.
II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
1 Exhaustion of domestic remedies
2. The applicant's victim status
There has accordingly been a breach of Article 1 of Protocol No. 1.
III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
“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.”
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“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.”
B. Costs and expenses
C. Default interest
FOR THESE REASONS, THE COURT UNANIMOUSLY
(a) that the respondent State shall secure, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, by appropriate means, the enforcement of the in-court settlement of 11 March 2004 in so far as it relates to the return of the applicant's vehicle;
(b) 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 4,800 (four thousand eight hundred euros) in respect of non-pecuniary damage, to be converted into the national currency of the respondent State at a rate applicable at the date of settlement, plus any tax that may be chargeable;
(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;
Done in English, and notified in writing on 5 July 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis