AS TO THE ADMISSIBILITY OF
by Atlantida ROJE
The European Court of Human Rights (First Section), sitting on 25 June 2009 as a Chamber composed of:
Sverre Erik Jebens,
George Nicolaou, judges,
and Søren Nielsen, Section Registrar,
Having regard to the above application lodged on 9 February 2006,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
The applicant, Ms Atlantida Roje, is a Croatian national who was born in 1953 and lives in Split. She is represented before the Court by Mr O. Roje, a lawyer practising in Split. The Croatian Government (“the Government”) are represented by their Agent, Mrs Š. StaZnik.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 18 December 1992 the applicant brought a civil action against her employer, company D.-V. d.d., in the Split Municipal Court (Općinski sud u Splitu), seeking payment of her salary arrears and that the defendant be ordered to pay the mandatory contributions to the relevant funds. She also applied for an interim measure (privremena mjera) to secure the payment.
In the period before the entry into force of the Convention in respect of Croatia (5 November 1997), the court held several hearings, and a financial expert report was drawn up. The applicant was absolved from bearing the costs of proceedings.
On 19 June 1997 the applicant brought another civil action in the Split Municipal Court against the company D. d.d,, which was the sole shareholder of her employer. Her claim was the same as the one in the proceedings instituted in 1992.
On 25 March 1998 the Split Municipal Court joined these two sets of proceedings.
At a hearing held on 9 October 2001 the Split Municipal Court gave a judgment, accepting in part the applicant’s claim for the payment of her salary arrears. It declared the part of the applicant’s claim that the defendants be ordered to pay the mandatory contributions inadmissible for lack of jurisdiction. It also dismissed the applicant’s request for an interim measure.
On 10 October 2001 the defendants lodged an appeal against the above judgment. The applicant lodged an appeal on 12 October 2001, and the case-file was forwarded to the Split County Court (Zupanijski sud u Splitu).
On 20 November 2003 the Split Commercial Court (Trgovački sud u Splitu) opened bankruptcy proceedings against company D.-V. d.d. The applicant subsequently submitted her claims in the bankruptcy proceedings.
On 13 May 2004 the applicant lodged a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske), complaining about the length of civil proceedings pending before the Split County Court.
On 28 September 2006 the Split County Court stayed the proceedings against company D.-V. d.d., since the bankruptcy proceedings had meanwhile been opened against it. As to the claim against company D. d.d., it upheld the first-instance judgment as regards the applicant’s salary arrears, and quashed the decision on lack of jurisdiction as regards the remaining applicant’s claims. Thus the decision concerning the applicant’s salary arrears became final and as to the remainder of the applicant’s claim the case was remitted to the first-instance court.
Following the constitutional complaint by the applicant, on 25 October 2006 the Constitutional Court found a violation of the applicant’s right to a hearing within a reasonable time. It awarded the applicant a sum of 11,500 Croatian kunas (HRK), and also ordered the Split Municipal Court to decide the case in the shortest time possible but no later than six months after the publication of the decision of the Constitutional Court in the Official Gazette.
The Constitutional Court’s decision was published in the Official Gazette of 29 November 2006, and the six-month period expired on 29 May 2007.
On 17 March 2008 the applicant lodged a fresh complaint about the length of proceedings with the Split County Court. On 10 October 2008 that court found a violation of the applicant’s right to a hearing within a reasonable time for the period after the Constitutional court’s decision. It awarded the applicant a sum of HRK 4,500 and also ordered the Split Municipal Court to decide the case in the shortest time possible but no later than six months form the receipt of the case file at that court. The case file was returned to the Split Municipal Court on 21 November 2008.
At the hearing held on 27 April 2009 the applicant withdrew her claim and sought only the costs of the proceedings.
On 27 April 2009 the Split Municipal Court terminated the proceedings on the ground that the applicant had withdrawn her claim and awarded the applicant the costs of the proceedings. Thus the proceedings were finally concluded.
The applicant complained under Article 6 § 1 and Article 13 of the Convention about the length of the proceedings and the lack of an effective remedy in that respect.
The applicant complained that the civil proceedings at issue were not concluded within reasonable time and that she had no effective remedy in that respect. She relied on Article 6 § 1 and Article 13 of the Convention, the relevant part of which reads as follows:
1. “In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”
“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.”
The Government argued that the applicant could no longer claim to be a victim because the Constitutional Court had awarded her just satisfaction in respect of the length of the proceedings. Furthermore, the fact that the order of the Constitutional Court to the Split Municipal Court had not been complied with had been remedied by a decision of the Split County Court awarding the applicant further just satisfaction for the length of proceedings after the Constitutional Court’s decision.
The applicant objected to the amount of the just satisfaction awarded.
The Court recalls that an applicant’s status as a “victim” within the meaning of Article 34 of the Convention depends on the fact whether the domestic authorities acknowledged, either expressly or in substance, the alleged infringement of the Convention and, if necessary, provided appropriate redress in relation thereto. Only when these conditions are satisfied does the subsidiary nature of the protective mechanism of the Convention preclude examination of an application (see Cocchiarella v. Italy [GC], no. 64886/01, § 71, to be published in ECHR 2006 and Cataldo v. Italy (dec.), no. 45656/99, 3 June 2004).
The Court notes that the Constitutional Court found that the applicant’s right to a determination of her claim within a reasonable time had been violated and, making an assessment on an equitable basis, provided for redress of a compensatory nature by awarding her just satisfaction in respect of non-pecuniary damage in the amount of HRK 11,500. The Constitutional Court thus acknowledged that there had been a violation of the applicant’s constitutional right to have her civil claim decided within reasonable time. The Court considers that such acknowledgment satisfies in substance the first condition laid down in the Court’s case law.
The applicant’s victim status then depends on whether the redress afforded was adequate and sufficient having regard to just satisfaction as provided for under Article 41 of the Convention (see Dubjaková v. Slovakia (dec.), no. 67299/01, 19 October 2004).
In this connection, the Court recalls that in the length-of-proceedings cases one of the characteristics of sufficient redress which may remove a litigant’s victim status relates to the amount awarded. The amount depends, in particular, on the characteristics and effectiveness of the remedy. Thus, the States which, like Croatia, have opted for a remedy designed both to expedite proceedings and afford compensation is free to award amounts which – while being lower than those awarded by the Court – are not unreasonable (see Cocchiarella v. Italy [GC], cited above, §§ 96, 97).
Turning to the actual sum awarded to the applicants by the Constitutional Court, the Court notes that the compensation granted in the present case is lower compared with the sums awarded for comparable delays in the Court’s case-law. It would emphasise, in this respect, the importance of a reasonable amount of just satisfaction being awarded in the domestic system for the remedy in question to be considered as effective under the Convention. Whether the amount awarded may be regarded as reasonable, however, falls to be assessed in the light of all the circumstances of the case. These include not merely the duration of the proceedings in the specific case but the value of the award judged in the light of the standard of living in the State concerned, and the fact that under the national system compensation will in general be awarded and paid more promptly than would be the case if the matter fell to be decided by the Court under Article 41 of the Convention.
In the light of the material in the file and having regard to the particular circumstances of the case, the Court considers that the sum awarded to the applicant can be considered sufficient and therefore appropriate redress for the violation suffered. In reaching this conclusion the Court has had regard in particular to the fact that after the order of the Constitutional Court that the Split Municipal Court adopt a decision within six months had not been complied with, the Split County Court awarded the applicant further just satisfaction in the amount of HRK 4,500 for the delays occurred after the Constitutional Court’s decision and fixed a new time limit for the Split Municipal Court. The proceedings were finally concluded within the imposed time-limit.
The Court therefore concludes that the applicant can no longer claim to be a “victim” within the meaning of Article 34 of the Convention of the alleged violation of their right to a hearing within a reasonable time. Since in the circumstances of the present case a constitutional complaint in respect of the length of proceedings combined with a further complaint to the Split County Court proved to be an effective remedy, the same applies as regards the applicant’s complaint under Article 13 of the Convention.
It follows that the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Søren Nielsen Christos Rozakis