European Court of Human Rights

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URL: http://www.bailii.org/eu/cases/ECHR/2010/1912.html
Cite as: [2010] ECHR 1912

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FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 47814/08
by Milan KOŠČAK
against Croatia

The European Court of Human Rights (First Section), sitting on 4 November 2010 as a Chamber composed of:

Khanlar Hajiyev, President,
Nina Vajić,
Dean Spielmann, judges,
and André Wampach, Deputy Section Registrar.

Having regard to the above application lodged on 26 September 2008,

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 FACTS

The applicant, Mr Milan Koščak, is a Croatian national who was born in 1941 and lives in Slatina. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. StaZnik.

The facts of the case, as submitted by the parties, may be summarised as follows.

On 17 May 2004 the Slatina Municipal Court (Općinski sud u Slatini) issued an enforcement order against the applicant to the effect that he had to pay 46,728.89 Croatian kuna (HRK) to the national telecommunication provider.

The applicant objected to this order and on 15 June 2004 the Municipal Court set aside the enforcement order and civil proceedings were instituted upon the applicant’s objection.

On 11 March 2005 the Municipal Court issued a decision ordering the applicant to pay the national telecommunication provider the amount of HRK 46.395,11 with interests, for telephone services.

On 12 May 2005 the applicant lodged an appeal with the Virovitica County Court (Zupanijski sud u Virovitici). He argued that the services in question which were of erotic nature had been provided unlawfully.

On 16 March 2006 the County Court upheld the Municipal Court’s decision.

On 27 April 2006 the applicant lodged a constitutional complaint arguing that the lower courts’ decisions had been unlawful and unconstitutional and that they had violated his property rights.

On 19 February 2009 the Constitutional Court dismissed the complaint. This decision was served on the applicant on 24 April 2009.

COMPLAINTS

The applicant complained under Article 6 § 1 about the length of the Constitutional Court proceedings.

He also complained that the lower courts had not been impartial.

He complained further under Article 1 of Protocol No. 1 to the Convention that the domestic courts had infringed his right to property by ordering him to pay the telephone services in question.

THE LAW

The applicant complained that the proceedings before the Constitutional Court had not been concluded within reasonable time. He relied on Article 6 § 1 of the Convention, the relevant part of which reads as follows:

Article 6

1. “In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”

The Court notes that the proceedings at issue started on 17 May 2004 and were concluded on 19 February 2009. They thus lasted four years, nine months and two days at three levels of jurisdiction.

In this connection the Court further notes that the proceedings before the ordinary civil courts lasted one year, nine months and twenty-nine days and that there were no delays at these levels. Thus, it cannot be said that these proceedings lasted unreasonably long.

As regards the Constitutional Court proceedings, they lasted two years, nine months and twenty-two days.

In this connection the Court reiterates that the reasonableness of the length of the proceedings is to be assessed in the light of the particular circumstances of the case, regard being had to the criteria laid down in the Court’s case-law, in particular the complexity of the case, the applicant’s conduct and that of the competent authorities, and the importance of what was at stake for the applicants in the litigation (see Süßmann, cited above, § 48, and Pammel and Probstmeier v. Germany, 1 July 1997, Reports 1997-IV, § 60).

The Court firstly observes that the proceedings before the Constitutional Court concerned an individual complaint about the alleged violation of the applicant’s rights in the civil proceedings against him. Although the proceedings before the Constitutional Court did not involve determination of any constitutional issues of broader importance, they are nevertheless to be distinguished from regular appeal proceedings. While the appellate courts normally address the questions such as procedural or factual errors in the proceedings before the lower courts, the Constitutional Court in Croatia addresses issues of the conformity of the proceedings and the decisions taken thereof with the Constitution and the Convention, which is directly applicable.

The Court has already held that the length of proceedings before a Constitutional Court upon an individual constitutional complaint, comparable with the length in the present case, had not fallen short of the reasonable time requirement. Thus, there was no violation of Article 6 § 1 of the Convention as regards the length of proceedings before the Constitutional Court that lasted two years and two months (see D.I.S. v. Slovenia (dec.), no. 35274/97, 4 March 1998) or three and a half years (Posedel-Jelinović v. Croatia, no. 35915/02, § 26, 24 November 2005).

In the case at issue the proceedings before the Constitutional Court lasted two years, nine months and twenty-two days. In view of the special role of the Constitutional Court as the highest court in Croatia and the criteria set down in the above-cited Court’s case-law and the fact that the civil proceedings against the applicant before the ordinary courts lasted less than two years at two levels of jurisdiction, the Court considers that the period in question did not exceed the reasonable-time requirement.

It follows that this complaint is inadmissible under Article 35 §§ 1 and 3 for non-exhaustion of domestic remedies and as manifestly ill-founded, respectively, and that it must be rejected pursuant to Article 35 § 4 of the Convention.

He also complained that the lower courts had not been impartial because they had adjudicated his case on the basis of the false facts and that the domestic courts had infringed his right to property by ordering him to pay the telephone services in question, contrary to Article 1 of Protocol No. 1 to the Convention.

However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.

It follows that this part of the application is also 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.

André Wampach Khanlar Hajiyev
Deputy Registrar President