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PAVIC v. CROATIA - 21846/08 [2010] ECHR 69 (28 January 2010)
URL: http://www.bailii.org/eu/cases/ECHR/2010/69.html
Cite as:
[2010] ECHR 69
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FIRST
SECTION
CASE OF PAVIĆ v. CROATIA
(Application
no. 21846/08)
JUDGMENT
STRASBOURG
28 January 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 Pavić 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 André Wampach, Deputy
Section Registrar,
Having
deliberated in private on 7 January 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 21846/08) 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 Pavić (“the
applicant”), on 9 April 2008.
The
applicant was represented by Mrs M. Okić,
a lawyer practising in Zagreb. The Croatian Government (“the
Government”) were represented by their Agent, Mrs Š.
StaZnik.
On
16 March 2009 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 was born in 1971 and lives in Golubinci, Serbia.
On
14 March 1988 the applicant brought a civil action against his
then employer in the Zagreb Basic Court of Associated Labour (Osnovni
sud udruZenog rada u Zagrebu), seeking damages in connection with
an employment-related accident. The case was later on transferred to
the Zagreb Municipal Court (Općinski sud u Zagrebu).
On
29 May 2006 the applicant lodged a request for the protection of the
right to a hearing within a reasonable time with the Zagreb County
Court (Zupanijski sud u Zagrebu) complaining about the length
of the above civil proceedings.
On
14 March 2007 the Zagreb Municipal Court orally pronounced its ruling
as to the applicant’s civil claim and awarded him compensation
for the employment-related accident. At this moment in time, however,
the applicant did not receive a written copy of the judgment ( see
paragraph 12 below).
On
25 April 2007 the Zagreb County Court found a violation of the
applicant’s right to a hearing within a reasonable time. It
awarded him compensation in the amount of 6,500 Croatian kuna (HRK),
and ordered the Zagreb Municipal Court to decide the case as quickly
as possible but in any case within six months.
On
21 May 2007 the applicant appealed against the Zagreb County Court
decision, contesting the amount of compensation awarded, the
six-month time-limit and the dismissal of his claim for the costs of
proceedings.
On
4 October 2007 the applicant’s appeal was forwarded to the
Supreme Court of the Republic of Croatia (Vrhovni sud Republike
Hrvatske).
On
11 January 2008 the applicant lodged a constitutional complaint as he
did not receive the Municipal Court decision within six months as
ordered by the County Court. In a letter of 23 January 2008 the
Constitutional Court notified the applicant that it was not competent
to supervise the implementation of the higher court’s decisions
ordering lower courts to decide a case within a certain time-limit.
The
written copy of the Zagreb Municipal Court’s judgment of
14 March 2007 (see paragraph 7 above) was served on the
applicant’s counsel on 22 February 2008. In the meantime, on 14
January 2008 the defendant had lodged an appeal against the first
instance judgment with the Zagreb County Court.
On
30 June 2008 the Supreme Court accepted the applicant’s appeal
of 21 May 2007 against the County Court’s decision of 25 April
2007, concerning the length of proceedings and awarded him an
additional amount of HRK 6,500 in compensation.
On
13 January 2009 the County Court partly upheld the first instance
judgment of 14 March 2007.
II. RELEVANT DOMESTIC LAW
Article
29 § 1 of the Constitution (Ustav Republike
Hrvatske, Official Gazette no. 41/2001 of 7 May 2001) reads as
follows:
“In the determination of his rights and
obligations or of any criminal charge against him, everyone is
entitled to a fair hearing within a reasonable time by an independent
and impartial court established by law.”
The
relevant part of the Courts Act (Zakon o sudovima, Official
Gazette nos. 150/05, 16/07 and 113/08), 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 Court
for Administrative Offences 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. The rules of
non-contentious procedure shall apply mutatis mutandis in
those proceedings and, in principle, no hearing shall be held.
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 of 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 a Supreme Court decision, but a constitutional
complaint may be 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. In particular, he
complained that the compensation he had been awarded for the length
of proceedings 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 ... 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. In this connection
the Court notes that the proceedings commenced on 14 March 1988, when
the applicant brought his civil action. Consequently it was pending
for more than nine years and seven months at one level of
jurisdiction before the ratification. The period to be taken into
consideration ended on 13 January 2009, when the appeal judgment was
adopted. Thus, in total the case was pending for more than twenty
years, of which more than eleven years were after the ratification of
the Convention, at two levels of jurisdiction.
A. Admissibility
The
Government submitted that the County Court and the Supreme Court had
accepted the applicant’s request, found a violation of his
right to a hearing within a 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 ten years and seven months at two levels of jurisdiction, after
the ratification of the Convention by Croatia. The just satisfaction
awarded by the County Court and 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, due account being taken
of the fact that the proceedings concerned an employment-related
dispute.
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). In these circumstances, in respect of the period
covered by the County Court’s and Supreme Court’s
finding, the applicant has not lost his status as victim within the
meaning of Article 34 of the Convention.
Having
regard to the above facts the Court considers 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
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 applicants and the relevant authorities and what
was at stake for the applicants in the dispute (see, among many other
authorities, Frydlender v. France [GC], no. 30979/96, §
43, ECHR 2000-VII). The Court reiterates that special diligence is
necessary in employment disputes (see Ruotolo v. Italy,
27 February 1992, § 17, Series A no. 230-D).
The
Government accepted that, in view of the findings of the County
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). The Court is in particular mindful of the fact that,
although the County Court ordered the Municipal Court to adopt a
decision within six months, the judgment, pronounced orally at a
hearing held before the Municipal Court on 14 March 2007, was served
on the applicant’s counsel on 22 February 2008, that is, about
ten months after the decision of the County Court. The Government
gave no explanation for that delay. In this connection, it is to be
noted that the judgment of 14 March 2007 could not be appealed or
become final before its written copy had been served on the parties.
Therefore,
in the period which was susceptible to the Supreme Court’s
scrutiny the length of the proceedings was already excessive and
failed to meet the “reasonable time” requirement.
In
the light of the foregoing, the Court considers that there has been a
breach of Article 6 § 1 of the Convention.
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 Zagreb
Municipal Court had not complied with the Zagreb County Court 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.”
The
Government contested that argument.
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 on account of
non-enforcement of the County Court’s decision by the Municipal
Court. He maintained that although the Municipal Court had actually
adopted its judgment of 14 March 2007, that is to say even before the
County Court decided on his complaint about the length of the
proceedings at issue, the first-instance judgment had been served on
his counsel some ten months later. In these circumstances, in the
applicant’s view, the remedy used was not effective.
The
Government argued that a complaint about the length of proceedings
under the Courts Act was an effective domestic remedy which provided
both for speeding up of the proceedings at issue and 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. They further submitted
that the Zagreb Municipal Court had adopted the first-instance
judgment even before the Zagreb County Court had decided the
applicant’s complaint about the length of proceedings.
2. The Court’s assessment
The
Court reiterates that Article 13 guarantees an effective remedy
before a national authority for an alleged breach of the requirement
under Article 6 § 1 to hear a case within a reasonable time (see
Kudła v. Poland [GC], no. 30210/96, § 156,
ECHR 2000-XI). The “effectiveness” of a “remedy”
within the meaning of Article 13, however, does not depend on the
certainty of a favourable outcome for the applicant. (see Kudła,
cited above, § 157).
The
Court has already accepted that a complaint to the Constitutional
Court under section 63 of the Constitutional Court Act represented an
effective remedy for length-of-proceedings cases still pending in
Croatia (see Slaviček v. Croatia (dec.), no. 20862/02,
ECHR 2002-VII). The Court was satisfied that this remedy provided
both for a possibility of obtaining monetary just satisfaction and
speeding up of the proceedings at issue. After the introduction of
amendments in the Courts Act in December 2005, a possibility of
lodging a constitutional complaint in respect of the length of
proceedings remained and was complemented by a complaint with the
immediately higher court which has to be exhausted first. All courts
deciding upon such a complaint may award compensation in respect of
the length of proceedings and at the same time impose a time-limit
for a lower court for adopting its decision. The Court therefore
accepts that the changes introduced in December 2005 did not alter
the features of the remedy and accepts it as an effective remedy in
respect of the length of proceedings.
In the present case, firstly the County Court and then
the Supreme Court both accepted the applicant’s complaints
about the length of proceedings, found a violation of his right to a
hearing within a reasonable time and awarded him compensation. The
mere fact that the compensation awarded to the applicant at the
domestic level does not correspond to the amount awarded by the Court
in comparable cases does not render the remedy ineffective (see for
example, Jakupović v. Croatia, no. 12419/04, § 28,
31 July 2007 and Rišková v. Slovakia,
no. 58174/00, § 100, 22 August 2006).
However,
the Court considers that the obligation of the States under Article
13 also encompasses the duty to ensure that the competent authorities
enforce remedies when granted and notes that it has already found
violations on account of a State’s failure to observe that
requirement (see Iatridis v. Greece [GC], no. 31107/96,
§ 66, ECHR 1999-II). For the Court, it would be
inconceivable that Article 13 provided the right to have a
remedy, and for it to be effective, without protecting the
implementation of the remedies afforded. To hold the contrary would
lead to situations incompatible with the principle of the rule of law
which the Contracting States undertook to respect when they ratified
the Convention (see, by analogy, Hornsby v. Greece, 19 March
1997, § 40, Reports of Judgments and Decisions 1997-II).
The
Court considers that the mere fact that the Municipal Court’s
judgment had been pronounced even before the County Court decided
upon the applicant’s complaint about the length of proceedings
cannot be seen as sufficient since the civil proceedings in question
were not thus concluded. The first-instance judgment becomes final
only after the expiry of the time-limit for lodging an appeal which
starts running from the day when the judgment has been served on the
parties. Thus, in the present case, although the first-instance
judgment was pronounced on 14 March 2007, it did not become final or
enforceable from that date. Therefore, the Court cannot accept that
the time-limit imposed by the County Court was complied with by the
Municipal Court since the judgment of 14 March 2007 was served on the
applicant’s counsel only on 22 February 2008, that is to say
some ten months after the decision of the County Court, thus
exceeding the six-month time-limit imposed by that court by four
months.
The
Court is therefore of the view that in the instant case, where the
applicant did not receive sufficient compensation for the inordinate
length of the civil proceedings and where the competent court has
failed to comply with the time-limit set in relation to it and
thereby has failed to implement the County Court’s decision, it
cannot be held that the complaint the applicant resorted to was an
effective remedy for the length of those proceedings. The combination
of these two factors in the particular circumstances of the present
case rendered an otherwise effective remedy ineffective.
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. 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 5,000 Euros (EUR) in respect of non-pecuniary
damage.
The
Government deemed the amount claimed excessive.
The
Court awards the applicant EUR 1,500 in respect of non-pecuniary
damage.
B. Costs and expenses
The
applicant, who was represented by a lawyer, also claimed EUR 1,030
for the costs and expenses incurred before the domestic courts in
respect of his request for the protection of the right to a hearing
within a reasonable time and appeal against the County Court’s
decision, as well as EUR 905 for the costs and expenses incurred
before the Court.
The
Government deemed the amounts claimed excessive.
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 are
reasonable as to quantum. As the applicant’s request before the
County Court and the appeal before the Supreme Court were essentially
aimed at remedying the violation of the Convention alleged before the
Court, the costs incurred in respect of those remedies may be taken
into account in assessing the claim for costs (see Scordino,
cited above, § 284; and Medić,
cited above, § 50). 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 1,030 for costs and expenses
in the domestic proceedings and EUR 905 in respect of the proceedings
before the Court, both plus any tax that may be chargeable to the
applicant on that amount.
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
(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 1,500 (one thousand five hundred euros) in respect of
non-pecuniary damage;
(ii) EUR
1,935 (one thousand nine hundred and thirty five 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 28 January 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
André Wampach Christos Rozakis
Deputy Registrar President
