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LONZA v. CROATIA - 14062/07 [2010] ECHR 432 (1 April 2010)
URL: http://www.bailii.org/eu/cases/ECHR/2010/432.html
Cite as:
[2010] ECHR 432
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FIRST
SECTION
CASE OF LONZA v. CROATIA
(Application
no. 14062/07)
JUDGMENT
STRASBOURG
1 April 2010
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 Lonza v. Croatia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos Rozakis, President,
Nina
Vajić,
Anatoly Kovler,
Elisabeth
Steiner,
Khanlar Hajiyev,
Giorgio
Malinverni,
George Nicolaou, judges,
and André
Wampach, Deputy
Section Registrar,
Having
deliberated in private on 11 March 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 14062/07) 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 Vlaho Lonza (“the
applicant”), on 23 February 2007.
The
applicant was represented by Mr T. Vukičević, a lawyer
practicing in Split. The Croatian Government (“the Government”)
were represented by their Agent, Ms Š. StaZnik.
On
19 June 2008 the President of the First Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant is a Croatian national who was born in 1944 and lives in
Dubrovnik.
On
25 July 1984 the applicant brought a civil action in the Split
Municipal Court (Općinski sud u Splitu) against two
private individuals, seeking to be declared the owner of a flat in
Dubrovnik.
In
the period before the entry into force of the Convention in respect
of Croatia (5 November 1997), the Municipal Court held fourteen
hearings.
In
the period after 5 November 1997 the Municipal Court held further
sixteen hearings and on 22 November 2001 gave its judgment for the
applicant.
On
6 February 2002 the respondents lodged an appeal with the Split
County Court (Zupanijski sud u Splitu). However, since it was
established that one of the respondents had died in May 2004, the
case was returned to the Municipal Court which, after the inheritance
proceedings had been completed in February 2006, stayed the
proceedings on 28 June 2006.
Meanwhile,
on 12 January 2005 the applicant lodged a constitutional complaint
under section 63 of the Constitutional Court Act complaining about
the length of the above proceedings.
After
the Municipal Court established that the inheritance proceedings
after the respondent who had died had ended with a final decision on
24 February 2006, the court invited his son to take over the
proceedings and on 27 November 2006 again sent the case-file to the
Split County Court to decide on the appeal by the respondents.
On
1 March 2007 the Constitutional Court found a violation of the
applicant's constitutional right to a hearing within a reasonable
time. It awarded him 12,500 Croatian kunas (HRK) in compensation and
ordered the Split County Court to give a decision in the applicant's
case in the shortest time possible but no longer than ten months
following the publication of its decision in the Official Gazette.
The Constitutional Court's decision was published on 13 April 2007.
The Constitutional Court found that the delays in the proceedings had
been caused by the inefficiency of the Municipal Court.
On
19 December 2008 the Split County Court dismissed the appeal by the
respondents and upheld the first-instance judgment of 22 November
2001.
II. RELEVANT DOMESTIC LAW
The
relevant part 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:
Section 63
“(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.”
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. The applicant also
complained that the compensation he had been awarded for the length
of proceedings was not adequate. Article 6 § 1 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 these arguments.
The
Court considers that the period to be taken into consideration began
on 6 November 1997, the day after the entry into force of the
Convention in respect of Croatia. However, in assessing the
reasonableness of the time that elapsed after that date, account must
be taken of the state of proceedings at the time of ratification. In
this connection the Court notes that the proceedings commenced on 25
July 1984, when the applicant brought his civil action. Consequently,
they were pending for more than thirteen years before the
ratification.
The
case was still pending on 1 March 2007 when the Constitutional Court
gave its decision. On that date the proceedings had lasted some nine
years and four months after the ratification, at two levels of
jurisdiction.
The
period to be taken into consideration ended on 19 December 2008 when
the Split County Court gave its judgment. Thus, in total, the
proceedings lasted twenty four years and five months at two levels of
jurisdiction, of which more than eleven years were after Croatia's
ratification of the Convention.
A. Admissibility
1. The applicant's victim status
The
Government submitted that the Constitutional Court had accepted the
applicant's request, found a violation of his right to a hearing
within reasonable time and awarded him appropriate compensation. The
violation complained of had, therefore, been remedied before the
domestic authorities and, as a result, the applicant had lost his
victim status.
The
applicant replied that he could still be considered a victim of the
violation complained of.
The
Court notes that at the time when the Constitutional Court gave its
decision, the proceedings had been pending for more than nine years
after the ratification of the Convention by Croatia, at two levels of
jurisdiction. It awarded the applicant a compensation for
non-pecuniary damages and set a time limit for the Split County Court
to give a decision in the case. The Split County Court failed to
comply with the time-limit for adopting a decision imposed by the
Constitutional Court. In view of these facts, the Court considers
that the redress was insufficient (see the principles established
under the Court's case-law in Cocchiarella v. Italy [GC],
no. 64886/01, §§ 65-107, ECHR 2006-V, or Scordino
v. Italy (no. 1) [GC], no. 36813/97, §§ 178-213,
ECHR 2006-V).
In
these circumstances, in respect of the period covered by the
Constitutional Court's finding, the applicant can still claim to be a
“victim” of a breach of the “reasonable time”
requirement.
2. Exhaustion of domestic remedies
As
regards the length of proceedings following the Constitutional
Court's decision, the Government argued that the applicant should
have again complained to the Constitutional Court or to a higher
court. They relied on the practice of the Constitutional Court,
adopted in its decision no. U-IIIA-3763/2005 of 17 October 2007,
where it found a further violation of the complainant's right to a
hearing within a reasonable time in the circumstances where a lower
court had failed to comply with a time-limit for adopting a decision,
imposed by a previous decision of the Constitutional Court.
The
applicant contested this argument claiming that he had properly
exhausted all available remedies.
The
Court observes at the outset that the applicant availed himself of an
effective domestic remedy in respect of the length of the proceedings
– a constitutional complaint (see Slaviček v. Croatia
(dec.), no. 20862/02, ECHR 2002-VII) – and that the
Constitutional Court found a violation of his right to a hearing
within reasonable time and set a time-limit for the Split County
Court for adopting a decision in the applicant's case. However, this
time-limit was not complied with. In these circumstances the Court
finds that the applicant was not required to lodge a further
constitutional complaint since the decision of the Constitutional
Court adopted upon his first complaint had no effect on the length of
the proceedings he was complaining about.
It
follows that the Government's objection as to the exhaustion of
domestic remedies must be rejected.
3. Conclusion
The
Court considers that this complaint is not manifestly ill-founded
within the meaning of Article 35 § 3 of the Convention. It also
notes, having regard to the foregoing, that it is not inadmissible on
any other grounds. It must therefore be declared admissible.
B. Merits
The
Court reiterates that 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, Frydlender v. France [GC], no. 30979/96, §
43, ECHR 2000-VII).
The
Government accepted that, in view of the findings of the
Constitutional Court, the proceedings had lasted unreasonably long.
The Court sees no reason to hold otherwise as it has frequently found
violations of Article 6 § 1 of the Convention in cases raising
similar issues as the present one (see, for example, Plazonić
v. Croatia, no. 26455/04, 6 March 2008, and Medić
v. Croatia, no. 49916/07, 26
March 2009). Therefore, already in the period which was subject to
the Constitutional Court's scrutiny, the length of the proceedings
was excessive and failed to meet the “reasonable time”
requirement. It necessarily retained that character throughout the
subsequent period of some one year and nine months after the delivery
of the Constitutional Court's decision.
In the light of the foregoing, the Court considers that there has
been a breach of Article 6 § 1.
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
The
applicant also complained under Article 13 of the Convention, taken
in conjunction with Article 6 § 1 thereof, that the Split County
Court had not complied with the Constitutional Court's order to
deliver a decision within the prescribed time-limit. Article 13 reads
as follows:
“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.”
A. Admissibility
The
Court finds 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
1. The parties' arguments
The
applicant called into question the effectiveness of the domestic
remedies in connection with the length of proceedings since the Split
County Court had not complied with the time-limit fixed by the
Constitutional Court.
The
Government argued that a constitutional complaint about the length of
proceedings was an effective domestic remedy which provided both for
speeding up of the proceedings at issue and for the award of just
satisfaction. Furthermore, the Court had already accepted a
constitutional complaint about the length of proceedings as an
effective domestic remedy in that respect.
2. The Court's assessment
The
Court notes that the complaint under Article 13 is mainly concerned
with the fact that the Split County Court did not comply with the
time limit for adopting its decision, imposed by the Constitutional
Court. The Court reiterates that it has set out the relevant
principles in respect of the applicant's complaint under Article 13
in the Kaić judgment (see Kaić and Others v.
Croatia, no. 22014/04, § 38 in fine).
As
regards the present case the Court notes that the applicant did not
receive sufficient satisfaction for the inordinate length of the
civil proceedings in view of the fact that the competent court has
failed to comply with the time-limit set in relation to it and
thereby has failed to implement the Constitutional Court's decision.
Therefore, it cannot be held that the complaint the applicant
resorted to was an adequate remedy for the length of those
proceedings.
This
conclusion, however, does not call into question the effectiveness of
the remedy as such or the obligation to lodge a complaint about the
length of pending proceedings under section 27 of the Courts Act and
subsequently also a constitutional complaint under section 63 of the
Constitutional Court Act in order to exhaust domestic remedies
concerning complaints about the length of proceedings.
There
has accordingly been a breach of Article 13 in the present case.
III. ALLEGED VIOLATION OF ARTICLE 1 OF THE OF
PROTOCOL No. 1 TO THE CONVENTION
Lastly,
the applicant complained that the length of the proceedings
complained of had infringed his right to the peaceful enjoyment of
his possessions as guaranteed by Article 1 of Protocol No. 1 on the
grounds that while the proceedings at issue were pending, he had been
prevented from freely disposing of his flat.
The
Government contested that argument.
A. Admissibility
The
Court notes that this complaint is linked to the length complaint
examined above under Article 6 § 1 of the Convention and must
therefore likewise be declared admissible.
B. Merits
Having
regard to its finding under Article 6 § 1, the Court considers
that it is not necessary to examine whether, in this case, there has
been a violation of Article 1 of Protocol No. 1 (see Zanghì
v. Italy, judgment of 19 February 1991, Series A no. 194-C, p.
47, § 23 and Buj v. Croatia, no. 24661/02, 1 June
2006, § 38).
IV. 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 EUR 10,000 in respect of non-pecuniary damage.
The
Government contested that claim.
The
Court considers that the applicant must have sustained non-pecuniary
damage. Ruling on an equitable basis, it awards him EUR 1,700 in this
respect, plus any tax that may be chargeable on that amount.
B. Costs and expenses
The
applicant, who was represented by a lawyer, also claimed an
unspecified amount for the costs of his representation before the
domestic courts and the Court, both in respect of his request for the
protection of the right to a hearing within a reasonable time.
The
Government contested that claim.
According
to the Court's case-law, an applicant is entitled to the
reimbursement of 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. As the applicant's constitutional complaint
was essentially aimed at remedying the violation of the Convention
alleged before the Court, the costs incurred in respect of this
remedy may be taken into account in assessing the claim for costs
(see Scordino, cited above, § 22; and Medić,
cited above, § 31). In the present case, regard being had
to the information in its possession and the above criteria, though
the applicant did not specified the costs of his legal
representation, the Court awards him a sum of EUR 680 for costs and
expenses before the Constitutional Court proceedings and EUR 1,200 in
respect of the proceedings before the Court, plus any tax that may be
chargeable to the applicant on these amounts.
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 that there has been a violation of Article
13 of the Convention;
Holds that no separate issue arises under
Article 1 of Protocol No. 1 to 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 in accordance with
Article 44 § 2 of the Convention, the following
amounts which are to be converted into Croatian kunas at the rate
applicable at the date of settlement:
(i)
EUR 1,700 (one thousand seven hundred euros) in respect of
non-pecuniary damage;
(ii) EUR
1,880 (one thousand eight hundred eighty euros) in respect of costs
and expenses;
(iii) any
tax that may be chargeable to the applicant 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 1 April 2010,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
André Wampach Christos Rozakis
Deputy
Registrar President
