British
and Irish Legal Information Institute
Freely Available British and Irish Public Legal Information
[
Home]
[
Databases]
[
World Law]
[
Multidatabase Search]
[
Help]
[
Feedback]
European Court of Human Rights
You are here:
BAILII >>
Databases >>
European Court of Human Rights >>
KVARTUC v. CROATIA (No. 2) - 34830/07 [2010] ECHR 627 (22 April 2010)
URL: http://www.bailii.org/eu/cases/ECHR/2010/627.html
Cite as:
[2010] ECHR 627
[
New search]
[
Contents list]
[
Printable RTF version]
[
Help]
FIRST
SECTION
CASE OF KVARTUČ v. CROATIA (No. 2)
(Application
no. 34830/07)
JUDGMENT
STRASBOURG
22
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 Kvartuč v. Croatia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos Rozakis, President,
Nina
Vajić,
Khanlar Hajiyev,
Dean
Spielmann,
Sverre Erik Jebens,
Giorgio
Malinverni,
George Nicolaou, judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 25 March 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 34830/07) 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 Zoran Kvartuč
(“the applicant”), on 29 June 2007.
The
Croatian Government (“the Government”) were represented
by their Agent, Mrs Š. StaZnik.
On
11 December 2008 the President of the First Section decided to give
notice of the application. 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 was born in 1956 and lives in Zadar, Croatia.
On 15 March 1995 the applicant
brought a civil action in the Zadar Municipal Court (Općinski
sud u Zadru) against the Croatian
Privatisation Fund and other two companies, seeking annulment of the
share purchase contract whereby the Fund sold the shares of one
company, in which the applicant holds the shares, to the other one.
On
23 May 1995 the court issued a decision dismissing the second
respondent's plea of lack of jurisdiction ratione materiae
(stvarna nadleZnost). Following an appeal by the second
respondent, on 21 December 1995 the Zadar County Court
(Zupanijski sud u Zadru) reversed the first-instance decision
finding that the ordinary courts had no jurisdiction in the matter
and transferred the case to the Administrative Court (Upravni sud
Republike Hrvatske). On 11 September 1997 the Administrative
Court declined its jurisdiction in the matter and applied to the
Supreme Court (Vrhovni sud Republike Hrvatske) to resolve the
conflict of jurisdiction created thereby. On 1 October 1998 the
Supreme Court decided that the ordinary courts had competence in the
matter. On 11 December 1998 the case was transferred back to the
Zadar Municipal Court.
The
Municipal Court held hearings on 3 May 2000 and 19 February
2002.
On
23 March 2004 the court stayed the proceedings on account of the
insolvency proceedings that had been opened against the second
respondent on 16 November 2000. Those insolvency proceedings
ended on 4 October 2004 when the P.P. company was deleted from
the business register.
Because
of the insolvency proceedings, on 9 February 2005 the Zadar Municipal
Court declined its jurisdiction in the matter and transferred the
case to the Zadar Commercial Court (Trgovački sud u Zadru).
On
24 May 2006 the applicant lodged a request for the protection of the
right to a hearing within a reasonable time (zahtjev
za zaštitu prava na suđenje u razumnom roku)
with the High Commercial Court which request was dismissed on 3
November 2006. The applicant appealed to the Supreme Court.
On
18 October 2006 the Zadar Commercial Court stayed the proceedings
because the second respondent had ceased to exist as a legal entity.
On
10 November 2006 the applicant appealed against that decision to
the High Commercial Court (Visoki trgovački sud Republike
Hrvatske).
On
17 May 2007 the Supreme Court reversed the High Commercial Court's
decision of 3 November 2006 (see paragraph 10 above) by finding a
violation of the applicant's right to a hearing within a reasonable
time. It awarded him 14,000 Croatian kunas (HRK) in compensation and
ordered the Commercial Court to give a decision in the applicant's
case within six months of service of its decision.
The
Supreme Court's decision was served on the Zadar Commercial Court on
29 June 2007.
Since
at that time the case was pending before the High Commercial Court,
on 3 July 2007 the judge of the Zadar Commercial Court, assigned to
hear the case, wrote a letter to the High Commercial Court urging it
to decide on the appeal by the applicant of 10 November 2006
against the first-instance decision. He explained that otherwise he
could not proceed in the case and comply with the Supreme Court's
order of 17 May 2007 to give a decision in the applicant's case
within six months.
On 31 December 2008 the High Commercial Court
dismissed the applicant's appeal from 10 November 2006 in part and
upheld the first-instance decision in respect of the first and the
second respondent. It however quashed the first-instance decision and
remitted the case in respect of the third respondent. The case was
returned to the Commercial Court on 26 January 2009.
The
applicant then lodged an appeal on points of law (revizija)
against the second-instance judgment, which the Supreme Court
(Vrhovni sud Republike Hrvatske) declared inadmissible on 4
June 2009.
On
9 September 2009 the applicant lodged a constitutional complaint
against the Supreme Court's decision. On 26 November 2009 the
Constitutional Court declared applicant's complaint inadmissible.
Meanwhile,
in the resumed proceedings following the High Commercial Court's
decision on remittal of 31 December 2008, on 11 March 2009 the
Zadar Commercial Court delivered a judgment ruling against the
applicant.
The
applicant appealed on 25 April 2009, and the proceedings are
currently pending before the High Commercial Court.
II. RELEVANT DOMESTIC LAW
The
relevant part of the Courts Act (Zakon o sudovima, Official
Gazette nos. 150/05 and 16/07), which entered into force on
29 December 2005, reads as follows:
III. PROTECTION OF THE RIGHT TO A HEARING WITHIN A
REASONABLE TIME
Section 27
“(1) A party to court proceedings who
considers that the competent court failed to decide within a
reasonable time on his or her rights or obligations or a criminal
charge against him or her, may lodge a request for the protection of
the right to a hearing within a reasonable time with the immediately
higher court.
(2) If the
request concerns proceedings pending before the High Commercial Court
of the Republic of Croatia,
the High Petty Offences Court of the Republic of Croatia
or the Administrative Court of the Republic of Croatia,
the request shall be decided by the Supreme Court of the Republic of
Croatia.
(3) The proceedings for deciding the request
referred to in paragraph 1 of this section shall be urgent.”
Section 28
“(1) If the court referred to in section 27
of this Act finds the request well founded, it shall set a time-limit
within which the court before which the proceedings are pending must
decide on a right or obligation of, or a criminal charge against, the
person who lodged the request, and shall award him or her appropriate
compensation for the violation of his or her right to a hearing
within a reasonable time.
(2) The compensation shall be paid out of the State
budget within three months from the date the party's request for
payment is lodged.
(3) An appeal, to be lodged within fifteen days
with the Supreme Court, lies against a decision on the request for
the protection of the right to a hearing within a reasonable time. No
appeal lies against the Supreme Court's decision but one may lodge a
constitutional complaint.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
The
applicant complained that the length of the civil proceedings was
incompatible with the “reasonable time” requirement, laid
down in Article 6 § 1 of the Convention. In particular, he
complained that the amount of compensation he had been awarded for
the breach of his right to a hearing within reasonable time was not
adequate. Article 6 § 1 of the Convention reads as follows:
“In the determination of his civil rights and
obligations ... everyone is entitled to a fair ... hearing ... by [a]
... tribunal ...”
The
Government contested that argument.
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 15
March 1995, when the applicant brought his civil action.
Consequently, they were pending for some two years and eight months
before the ratification.
The
case was still pending on 17 May 2007 when the Supreme Court gave its
decision (see paragraph 13 above). On that date the proceedings had
lasted some nine and a half years after the ratification, at two
levels of jurisdiction.
The
period to be taken into consideration has not yet ended. Thus, in
total, the case has so far been pending for more than fourteen years
and nine months at four levels of jurisdiction, of which more than
twelve years were after Croatia's ratification of the Convention.
A. Admissibility
1. The applicant's victim status
The
Government submitted that the Supreme 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 Supreme Court gave its
decision, the proceedings had been pending for more than nine and a
half years after the ratification of the Convention by Croatia, at
two levels of jurisdiction. The just satisfaction awarded by the
Supreme Court does not correspond to what the Court would have been
likely to award under Article 41 of the Convention in respect of
the same period.
The
compensation awarded therefore cannot be regarded as adequate in the
circumstances of the case (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) especially given the fact that lower courts did not
comply with the Supreme Court's order to deliver a decision within
six months. In these circumstances, in respect of the period covered
by the Supreme Court's finding, the applicant has not lost his status
as a victim within the meaning of Article 34 of the Convention.
The
Court notes that the proceedings are still pending and therefore it
is called upon to examine their overall length.
2. Exhaustion of domestic remedies
As
regards the length of proceedings following the Supreme Court's
decision, the Government argued that the applicant should have lodged
a second request for the protection of the right to a hearing within
reasonable time, which he failed to do.
The
applicant contested that argument.
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 request for the protection of the right to a hearing within
a reasonable time – and that the Supreme Court found a
violation of that right in his case but failed to award him
appropriate compensation. The Court reiterates that in cases where a
similar remedy for the length of proceedings (a constitutional
complaint) was dismissed, it was required to verify whether the way
in which the Constitutional Court interpreted and applied the
relevant provisions of the domestic law, produced consequences that
were consistent with the principles of the Convention, as interpreted
in the light of the Court's case-law. If the Constitutional Court's
decision was not consistent with Convention principles, the Court
held that the applicants were not required to lodge further
constitutional complaints, as that would overstretch their duties
under Article 35 § 1 of the Convention (see, for example,
Kozlica v. Croatia, no. 29182/03, §§ 23 and 28,
2 November 2006).
The
Court considers that this reasoning applies with equal force in the
circumstances such are those prevailing in the present case. This
is so because given the above conclusion that the applicant is still
a victim of the violation alleged, it cannot be said that the
way in which the Supreme Court interpreted and applied the relevant
provisions of the domestic law produced consequences that were
consistent with the Convention principles.
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
Court notes that the Supreme Court found that
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, Butković v. Croatia,
no. 32264/03, 24 May 2007). Therefore, already in the period which
was subject to the Supreme 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 two years and seven months
after the delivery of the Supreme Court's decision.
In
the light of the foregoing, the Court considers that there has been a
breach of Article 6 § 1.
II. 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 2,530,000 in respect of pecuniary and EUR
1,000,000 in respect of non-pecuniary damage.
The
Government contested these claims as being excessive and unfounded.
The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim. On
the other hand, it awards the applicant EUR 2,000 in respect of
non-pecuniary damage, plus any tax that may be chargeable on that
amount.
B. Costs and expenses
The
applicant claimed EUR 10,000 for the costs and expenses incurred
before the domestic courts and before the Court. He was not
represented by a lawyer.
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
request before the High Commercial Court 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, § 28; and Medić v. Croatia,
no. 49916/07, § 50, 26 March 2009). In the present case,
regard being had to the information in its possession and the above
criteria, the Court awards the applicant a sum of EUR 50 for the
costs and expenses in the proceedings before domestic courts and
EUR 500 for costs and expenses in 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
(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 2,000 (two thousand euros) in respect of non-pecuniary damage;
(ii) EUR
550 (five hundred fifty 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 22 April 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis Registrar President
