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European Court of Human Rights
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PODORESKI v. CROATIA - 13587/03 [2007] ECHR 634 (19 July 2007)
URL: http://www.bailii.org/eu/cases/ECHR/2007/634.html
Cite as:
[2007] ECHR 634
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FIRST
SECTION
CASE OF PODOREŠKI v. CROATIA
(Application
no. 13587/03)
JUDGMENT
(Friendly
settlement)
STRASBOURG
19
July 2007
This judgment is final
but it may be subject to editorial revision.
In the case of Podoreški 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 A. Kovler,
Mr K.
Hajiyev,
Mr D. Spielmann,
Mr G. Malinverni, judges,
and
Mr S. Nielsen, Section Registrar,
Having
deliberated in private on 28 June 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 13587/03) 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, Mrs Zorica Podoreški
(“the applicant”), on 21 March 2003.
The
applicant was represented by Mr Z. Kostanjšek, a lawyer
practising in Sisak. The Croatian Government (“the Government”)
were represented by their Agent, Mrs Š. StaZnik.
The
applicant alleged a violation of Article 6 § 1 of the Convention
in that she had not had a fair hearing by an impartial tribunal
because her appeal had been decided by the court at which the
president of the civil division was the wife of one of her
counterparties.
On
16 November 2006, after obtaining the parties' observations, the
Court declared the application admissible.
On
29 May 2007 and on 30 May 2007 the Government and the applicant
respectively submitted formal declarations accepting a friendly
settlement of the case.
THE FACTS
The
applicant lives in Sisak.
On
6 October 1989 the applicant concluded a life-long assistance
contract (ugovor o doZivotnom uzdrZavanju; “the
contract”) with Mrs Z. C. The contract stipulated
that the applicant was to inherit Z.C.'s flat, movables and foreign
currency savings, provided that she took care of her until her death.
On
27 June 1996, after the death of Z.C., her husband and relatives
(“the plaintiffs”), including her nephew Mr B.H.,
instituted civil proceedings against the applicant in the Sisak
Municipal Court (Općinski sud u Sisku) seeking annulment
of the contract. They claimed that the applicant had not fulfilled
her obligations arising out of the contract and that it should
therefore be declared void.
During
the first-instance proceedings, the applicant requested withdrawal of
all judges of the Sisak Municipal Court and of the Sisak County Court
(Zupanijski sud u Sisku) claiming that the plaintiffs were
close relatives of one of the Sisak County Court's judges, Mrs L.H.
In particular, B.H. was the husband of L.H., who was at that time the
acting president of the Sisak County Court. The applicant claimed
that the president of a court personally distributed files to the
judges within the court and that L.H. inevitably had an influence on
the appointment of the judge in her case. Moreover, she argued that
the Sisak County Court was a small court, where all judges knew each
other and that this would certainly undermine the impartiality of the
judge assigned to hear the case.
The
applicant therefore requested her case to be transferred to another
court outside the Sisak County Court's territorial jurisdiction.
On
6 March 1997 the Sisak Municipal Court forwarded the applicant's
request to the Supreme Court (Vrhovni sud Republike Hrvatske),
interpreting it as a request for transfer of jurisdiction
(svrsishodna delegacija nadleZnosti) pursuant to section 68 of
the Civil Procedure Act.
On
17 April 1997 the Supreme Court dismissed the applicant's request in
respect of the Sisak Municipal Court as ill-founded, finding no
indication that it might be biased. It further found that it was
premature to decide on the transfer of jurisdiction of the Sisak
County Court, because at that time the proceedings were only pending
before the first-instance court.
On
1 July 1999 the Sisak Municipal Court gave judgment in favour of the
plaintiffs and declared the contract void.
On
8 November 2001 judge L.H. ceased to perform the duties of the acting
president of the Sisak County Court. She remained the president of
the civil division of that court, a position which she had held since
1 May 1998. Under the legislation in force at the material time, the
president of a court having several divisions has the administrative
duty to assign cases to judges within the division.
The
first-instance judgment appears to have been served on the applicant
only in late 2001. On 23 October 2001 the applicant lodged an appeal
with the Sisak County Court. In her appeal, the applicant requested
that the case be reassigned to another County Court for decision.
On
25 April 2002 the Sisak County Court ruled on the merits of her case,
dismissing the applicant's appeal and upholding the first-instance
judgment. The court had not forwarded the applicant's renewed request
for transfer of jurisdiction to the Supreme Court. Instead, it
concluded that such request was ill-founded, as the Supreme Court had
already reached a decision on the same issue at an earlier stage in
the proceedings, namely on 17 April 1997. Judge L.H. was not a member
of the panel of three judges deciding on the appeal.
On
24 June 2002, the applicant filed a constitutional complaint with the
Constitutional Court (Ustavni sud Republike Hrvatske) claiming
inter alia that, by failing to decide on her request for the
transfer of jurisdiction, the Sisak County Court violated her right
to a fair hearing.
On
24 October 2002 the Constitutional Court dismissed the applicant's
complaint, finding that the courts had correctly applied relevant
substantive and procedural law in the applicant's case.
THE LAW
On
29 May 2007 the Court received the following declaration on the
Government's behalf:
“I declare that the Government of Croatia offer to
pay ex gratia 7,000 euros to Mrs Zorica Podoreški with
a view to securing a friendly settlement of the above-mentioned case
pending before the European Court of Human Rights.
This sum, which is to cover any pecuniary and
non-pecuniary damage as well as costs and expenses, will be converted
into the national currency at the rate applicable on the date of
payment, and free of any taxes that may be applicable. It will be
payable within three months from the date of notification of the
decision taken by the Court pursuant to Article 37 § 1 of the
European Convention on Human Rights. In the event of failure to pay
this sum within the said three-month period, the Government undertake
to pay simple interest on it, from expiry of that period until
settlement, at a rate equal to the marginal lending rate of the
European Central Bank during the default period plus three percentage
points. The payment will constitute the final resolution of the case.
The Government further undertake not to request that the
case be referred to the Grand Chamber under Article 43 § 1 of
the Convention.”
On
30 May 2007 the Court received the following declaration signed by
the applicant's representative:
“I note that the Government of Croatia are
prepared to pay ex gratia the sum of 7,000 euros to Mrs Zorica
Podoreški with a view to securing a friendly settlement of the
above-mentioned case pending before the European Court of Human
Rights.
This sum, which is to cover any pecuniary and
non-pecuniary damage as well as costs and expenses, will be converted
into the national currency at the rate applicable on the date of
payment, and free of any taxes that may be applicable. It will be
payable within three months from the date of notification of the
decision taken by the Court pursuant to Article 37 § 1 of the
European Convention on Human Rights. 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.
I accept the proposal and waive any further claims
against Croatia in respect of the facts giving rise to this
application. I declare that this constitutes a final resolution of
the case.
This declaration is made in the context of a friendly
settlement which the Government and the applicant have reached.
I further undertake not to request that the case be
referred to the Grand Chamber under Article 43 § 1 of the
Convention after delivery of the Court's judgment.”
The
Court takes note of the agreement reached between the parties
(Article 39 of the Convention). It is satisfied that the settlement
is based on respect for human rights as defined in the Convention or
its Protocols (Article 37 § 1 in fine of the Convention
and Rule 62 § 3 of the Rules of Court).
Accordingly,
the case should be struck out of the list.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Decides to strike the application out of its
list of cases;
Takes note of the parties' undertaking not to
request a rehearing of the case before the Grand Chamber.
Done in English, and notified in writing on 19 July 2007, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
