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JOVICIC v. CROATIA - 23253/07 [2011] ECHR 976 (21 June 2011)
URL: http://www.bailii.org/eu/cases/ECHR/2011/976.html
Cite as:
[2011] ECHR 976
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FIRST
SECTION
CASE OF JOVIČIĆ v. CROATIA
(Application
no. 23253/07)
JUDGMENT
STRASBOURG
21
June 2011
This
judgment is final but it may be subject to editorial revision.
In
the case of Jovičić v. Croatia,
The
European Court of Human Rights (First Section), sitting as a
Committee composed of:
Peer
Lorenzen,
President,
Elisabeth
Steiner,
Khanlar
Hajiyev, judges,
and
André Wampach, Deputy
Section Registrar,
Having
deliberated in private on 31 May 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application
(no. 23253/07) 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, Ms Radojka Jovičić (“the
applicant”), on 30 April 2007.
The
Croatian Government (“the Government”) were represented
by their Agent, Mrs Š. StaZnik.
On
14 December 2009 the
President of the First Section decided to communicate the complaint
concerning the length of proceedings to the Government.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant, who is of Serbian origin, was born in 1950 and lives in
Innsbruck, Austria.
On
29 July 1987 the Sisak Regional Office of the Croatian Pension Fund
(Hrvatski zavod za mirovinsko osiguranje,
Područna sluZba u Sisku – “the Regional
Office”), after finding that due to her illness the applicant’s
ability to work had been reduced (smanjena
sposobnost za rad), issued a decision awarding her the
right to reduced working hours (pravo na rad s
polovicom radnog vremena). On 15 October 1987 she was
also awarded compensation for the loss of salary resulting from the
reduced working hours (pravo na naknadu osobnog
dohotka zbog rada sa skraćenim radnim vremenom).
The
applicant had been receiving this compensation until September 1991
when she was forced to quit her job and leave Petrinja as the town
was taken by the occupying forces. She settled in Zagreb as an
internally displaced person.
The
applicant submitted that she had instituted administrative
proceedings before the Regional Office with a view that the payment
of compensation for her reduced ability to work be resumed, by making
a request to that end on 17 October 1991. The Government submitted
that the applicant had done so only on 12 June 1995.
On
20 September 1995 the Regional Office decided to discontinue the
administrative proceedings instituted by the applicant’s
request.
Following
an appeal by the applicant, on 29 January 1996 the Central Office of
the Croatian Pension Fund (Hrvatski zavod za
mirovinsko osiguranje, Središnja sluZba –
“the Central Office”) quashed the first-instance decision
and remitted the case to the Regional Office.
In
the fresh first-instance proceedings, on 28 June 1999 the Regional
Office issued a decision abolishing the applicant’s right to
compensation for reduced ability to work as of 21 September
1991. The applicant appealed.
On
29 October 1999 the Central Office dismissed the applicant’s
appeal and upheld the first-instance decision.
On
7 December 1999 the applicant brought an action in
Administrative Court (Upravni sud Republike Hrvatske)
contesting the second-instance decision.
On
14 November 2002 the Administrative Court quashed the Central
Office’s decision of 29 October 1999 for incomplete facts.
In
the fresh appellate proceedings, on 6 February 2003 the Central
Office quashed the first-instance decision of 28 June 1999 and
remitted the case to the Regional Office.
In
the fresh first-instance proceedings, on 23 July 2003 the Regional
Office restored the applicant’s right to compensation for
reduced ability to work and decided that its payment should be
resumed as of 1 July 1995. On 18 August 2003 the applicant appealed,
arguing that she should also be paid the outstanding instalments of
compensation for reduced ability to work in the period before 1 July
1995.
On
6 May 2004 the Central Office dismissed the applicant’s
appeal and upheld the first-instance decision of 23 July 2003.
On
29 June 2004 the applicant brought her second action in the
Administrative Court challenging the second-instance decision of
6 May 2004.
On
25 January 2007 the Administrative Court again quashed the
contested decision for incomplete facts.
In
the fresh appellate proceedings, on 17 May 2007 the Central Office
quashed the first-instance decision of 23 July 2003 and remitted the
case to the Regional Office.
In
the fresh first-instance proceedings, on 4 September 2007 the
Regional Office adopted a new decision and dismissed the applicant’s
request for payment of compensation for reduced ability to work in
the period prior to 1 July 1995. The applicant appealed on 10 October
2007.
On
29 November 2007 the Central Office quashed the first-instance
decision of 4 September 2007 and remitted the case to the Regional
Office.
As
in the fresh first-instance proceedings the Regional Office did not
issue a new decision within the statutory time-limit of sixty days,
on 4 March 2008 the applicant lodged an appeal for failure to
respond (Zalba zbog šutnje administracije) with the
Central Office.
On
13 May 2008 the Central Office allowed the applicant’s appeal
for failure to respond of 4 March 2008 and ordered the Regional
Office to issue a decision in her case within thirty days.
On
16 July 2008 the Regional Office issued a decision dismissing again
the applicant’s request for payment of compensation for the
period prior to 1 July 1995. The applicant appealed on 12 August
2008.
On
1 October 2008 the Central Office dismissed the applicant’s
appeal and upheld the first-instance decision of 16 July 2008.
On
1 December 2008 the applicant brought another action in the
Administrative Court. She contested the decision of the Central
Office of 1 October 2008.
On
10 June 2009 the Administrative Court dismissed the applicant’s
action.
On
19 August 2009 the applicant lodged a constitutional complaint with
the Constitutional Court (Ustavni sud Republike Hrvatske)
against the Administrative Court’s judgment.
On
16 March 2011 the Constitutional Court declared inadmissible the
applicant’s constitutional complaint. It found that the
applicant had not substantiated her complaint by any constitutional
law arguments but had merely repeated the arguments raised in the
proceedings before the Croatian Pension Fund and the Administrative
Court. Therefore, the Constitutional Court had been unable to examine
the merits of her constitutional complaint.
II. RELEVANT DOMESTIC LAW
A. The Constitutional Court Act
1. Relevant provisions
The
relevant part of the 1999 Constitutional Act on the Constitutional
Court of the Republic of Croatia (Ustavni zakon o Ustavnom sudu
Republike Hrvatske, Official Gazette no. 99/1999 of 29 September
1999 – “the Constitutional Court Act”), as amended
by the 2002 Amendments (Ustavni zakon o izmjenama i dopunama
Ustavnog zakona o Ustavnom sudu Republike Hrvatske, Official
Gazette of the Republic of Croatia no. 29/2002 of 22 March 2002),
which entered into force on 15 March 2002, 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
an individual’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 an applicant for a violation of his or her
constitutional rights ... The compensation shall be paid out of the
State budget within three months of the date a request for payment is
lodged.”
2. The Constitutional Court’s jurisprudence
In
the period before 20 June 2007 the Constitutional Court when deciding
constitutional complaints lodged under section 63 of the
Constitutional Court Act concerning the length of proceedings pending
before the Administrative Court, was not taking into consideration
their overall duration as it was excluding the period during which
the case had been pending before the administrative authorities. The
case-law of the Constitutional Court in that period was summarised in
BoZić v. Croatia, no. 22457/02, § 23, 29
June 2006; Počuča v. Croatia, no. 38550/02, §
27, 29 June 2006; Smoje v. Croatia, no. 28074/03, § 34,
11 January 2007; and Štokalo and others v. Croatia, no.
15233/05, §§ 37-38, 16 October 2008).
Following
the Court’s judgments in the BoZić and Počuča
cases, on 20 June 2007 the Constitutional Court adopted a
decision no. U-IIIA/4885/2005, which was published in the Official
Gazette no. 67/2007 of 27 June 2007, whereby it changed its
previous jurisprudence concerning the length of the proceedings
before the Administrative Court. The Constitutional Court indicated
that from then on it would also take into consideration the period
during which the case had been pending before the administrative
authorities if: (a) the complainants demonstrated that in that period
they had resorted to remedies (an appeal and an action) for failure
to respond, or (b) the main cause of the delay in that period had
been repeated remittals mandated by incomplete findings of fact.
B. The Courts Act
1. Relevant provisions
The Courts Act (Zakon o sudovima, Official Gazette
nos. 150/2005, 16/2007, 113/2008, 153/2009, 116/2010, 122/2010
(consolidated text) and 27/2011) entered into force on 29 December
2005. In its sections 27 and 28 it provided for a new remedy for the
excessive length of proceedings, a request for the protection of the
right to a hearing within a reasonable time. The new remedy replaced
a constitutional complaint under section 63 of the Constitutional
Court Act as the remedy for the length of proceedings. Sections 27
and 28 of the Courts Act, as in force at the material time, read 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.
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.”
Until
the 2009 Amendments to the Courts Act (Zakon o
izmjenama i dopunama Zakona o sudovima, Official Gazette
no. 153/2009), that entered into force on 29 December 2009, a
constitutional complaint under section 63 of the Constitutional
Court Act could still be lodged against the Supreme Court’s
decisions rendered under sections 27(2) on 28(3) of the Courts Act.
2. The case-law of the Supreme Court
In
the period between 29 December 2005 and 25 November 2007 the Supreme
Court when deciding requests for the protection of the right to a
hearing within a reasonable time lodged concerning the length of
proceedings pending before the Administrative Court, followed the
above described jurisprudence of the Constitutional Court (see
paragraph 31 above) and was thus not taking into consideration
their overall duration as it was excluding the period during which
the case had been pending before the administrative authorities.
On
26 November 2007 the Supreme Court adopted a decision no. Uzp
309/07-6 bringing its own case-law in line with the change in the
Constitutional Court’s jurisprudence (see paragraph 32 above).
C. The Administrative Procedure Act
The
relevant provisions of the Administrative Procedure Act (Zakon o
općem upravnom postupku, Official Gazette of the
Socialist Federal Republic of Yugoslavia 47/1986 (consolidated text),
and Official Gazette of the Republic of Croatia no. 53/1991)
governing an appeal for failure to respond (Zalba zbog šutnje
administracije), are set out in Rauš and
Rauš-Radovanović v. Croatia (dec.), no. 43603/05, 2
October 2008.
D. The Administrative Disputes Act
The
relevant provisions of the Administrative Disputes Act (Zakon o
upravnim sporovima, Official Gazette of the Socialist
Federal Republic of Yugoslavia no. 4/1977, and Official Gazette of
the Republic of Croatia nos. 53/1991, 9/1992 and 77/1992)
governing an action for failure to respond, tuZba zbog šutnje
administracije) are set out in Rauš and
Rauš-Radovanović, cited above.
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, which 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 that argument.
The
applicant also complained under Article 13 of the Convention about
the refusal of the administrative authorities to enforce the
judgments of the Administrative Court.
The Court reiterates that it is master of the
characterisation to be given in law to the facts of the case, and
that it is therefore not bound by the characterisation given by the
applicant or the Government. A complaint is characterised by the
facts alleged in it and not merely by the legal grounds or arguments
relied on (see, for example, Şerife Yiğit v. Turkey
[GC], no. 3976/05, § 52, ECHR 2010 ...; Scoppola v.
Italy (no. 2) [GC], no. 10249/03, § 54, ECHR 2009 ...;
and Guerra and Others v. Italy, 19 February 1998, §
44, Reports of Judgments and Decisions 1998 I).
In
the Court’s view the present case does not concern the
non-enforcement in the strict sense where the enforcement of a court
judgment is hindered by unjustified refusal of the domestic
authorities to comply with a court judgment. Rather, the delay of the
Croatian Pension Fund in complying with legal views expressed in the
Administrative Court’s judgments stems not from the Fund’s
refusal to do so but from the length of the administrative
proceedings in question. The Court therefore considers that the
applicant’s complaint under Article 13 is absorbed by her
length complaint.
A. Admissibility
The
Government disputed the admissibility of this complaint arguing that
the applicant had failed to exhaust domestic remedies.
1. The arguments of the parties
The
Government submitted that in so far as the applicant’s
complaint concerned the length of the proceedings in their part
before the Croatian Pension Fund she could have: (a) lodged an appeal
for failure to respond to the Fund’s Central Office under the
Administrative Procedure Act (see paragraph 37 above) each time the
Regional Office had failed to decide on her request within the
statutory time-limit of sixty days, and (b) brought an action for
failure to respond in Administrative Court under the Administrative
Disputes Act (see paragraph 38 above) each time the Central Office
had failed to decide on her appeals within the statutory time-limit
of sixty days. However, she had lodged an appeal for failure to
respond for the first time only in March 2008 (see paragraph 22
above) and never brought an action for failure to respond.
To
the extent that the applicant’s complaint concerned the length
of the proceedings in their part before the Administrative Court, the
Government argued that in the period between 15 March 2002 and
29 December 2005 the applicant could have lodged a
constitutional complaint under section 63 of the Constitutional Court
Act (see paragraph 30 above), and after the last-mentioned date a
request for the protection of the right to a hearing within a
reasonable time with the Supreme Court (see paragraph 33 above).
However, she had never resorted to either of these remedies.
The
applicant denied the Government’s arguments.
2. The Court’s assessment
(a) As to the appeal and the action for
failure to respond
The
Court reiterates that in the BoZić case it found that the
main cause of the delay had been a deficiency in the procedural
system allowing for repeated remittals mandated by incomplete
findings of fact, and that an appeal and an action for failure to
respond were neither designated for remedying that deficiency nor
capable of doing so (see BoZić, cited above, § 36).
Since, in the Court’s view, the length of the proceedings in
the present case was also mainly caused by repeated remittals owing
to the incomplete findings of fact and not by the failure of the
domestic authorities to give their decisions within the statutory
time-limits, it considers that the applicant, in order to exhaust
domestic remedies, was not obliged to bring an action for failure to
respond or use an appeal for failure to respond more assiduously.
(b) As to the constitutional complaint and
the request for the protection of the right to a hearing within a
reasonable time
Neither
was the applicant obliged to lodge a constitutional complaint under
section 63 of the Constitutional Court Act in the period between
15 March 2002 and 29 December 2005 nor a request for the
protection of the right to a hearing within a reasonable time in the
period between 29 December 2005 and 30 April 2007 (the date on
which she lodged her application with the Court). Namely, as the
Court noted in its judgments in the cases of Počuča,
BoZić
and Štokalo and others (see
Počuča, cited above, § 37; BoZić,
cited above, § 34; and Štokalo and others, cited
above, § 64), the Constitutional
Court, when deciding constitutional complaints concerning the length
of proceedings pending before the Administrative Court, was not
taking into consideration their overall duration as it was excluding
the period during which the case had been pending before the
administrative authorities (see paragraph 31 above). That approach
was followed by county courts and the Supreme Court after a
constitutional complaint, as a remedy for the length of proceedings,
was replaced by a request for the protection of the right to a
hearing within a reasonable time when the new Courts Act entered into
force on 29 December 2005 (see paragraph 35 above).
The
Court has already noted that that approach of the Constitutional
Court differed from the one of the Court as it did not cover all
stages of the proceedings, and held that for that reason a
constitutional complaint alone could not be considered an “effective”
remedy within the meaning of Articles 35 § 1 and 13 of the
Convention in respect of the length of administrative proceedings
(see Počuča, cited above, loc. cit.; and BoZić,
cited above, loc. cit.).
The
Court however notes that, following the Court’s judgments in
the BoZić and Počuča cases, the
Constitutional Court adopted a decision on 20 June 2007 (which was
published in the Official Gazette on 27 June 2007) whereby it changed
its previous jurisprudence concerning the length of the proceedings
before the Administrative Court, and brought it into conformity with
the Court’s case-law (see paragraph 32 above). Nevertheless,
that was after the applicant in the present case lodged her
application with the Court on 30 April 2007. In this connection
the Court reiterates that the issue whether domestic remedies have
been exhausted is normally determined by reference to the date when
the application was lodged with the Court (see Baumann v. France,
no. 33592/96, § 47, ECHR 2001 V). While it is true
that this rule is subject to exceptions which may be justified by the
specific circumstances of each case (see, for example, Brusco v.
Italy (dec.), no. 69789/01, ECHR 2001 IX; and Nogolica
v. Croatia (dec.), no. 77784/01, ECHR 2002 VIII), the
Court considers, having due regard to the subsidiary character of the
Convention machinery, that in the present case there are no special
circumstances to justify making an exception to that rule. Therefore,
the applicant was not bound to lodge a constitutional complaint or a
request for the protection of the right to a hearing within a
reasonable time in order to exhaust domestic remedies as required by
Article 35 § 1 of the Convention.
(c) As to the aggregate of remedies
The
Court reiterates that even if a single remedy does not by itself
entirely satisfy the requirement of “effectiveness”, the
aggregate of remedies afforded by domestic law may do so (see, for
example, Lukenda v. Slovenia,
no. 23032/02, § 67, 6
October 2005). Therefore it remains to be examined whether or
not the aggregate of remedies could satisfy the requirement
Since,
as already noted above (see paragraph 48 above) an appeal and an
action for failure to respond were not, in the circumstances of the
present case, capable of accelerating the proceedings in their part
before the Croatian Pension Fund, the Court is unable to conclude
that these remedies could have increased the effectiveness of a
constitutional complaint or a request for the protection of the right
to a hearing within a reasonable time. As neither constitutional
complaint nor a request for the protection of the right to a hearing
within a reasonable time alone could be considered effective remedies
for the length of administrative proceedings in the period before 20
June 2007 (see paragraphs 49-51 above), it follows that the aggregate
of available remedies did not in the present case satisfy the
requirement of “effectiveness” under Article 35 §
1 of the Convention (see BoZić, cited above, § 36).
(d) Conclusion
In
the light of the foregoing, it follows that the Government’s
objection of failure to exhaust domestic remedies must be dismissed.
The
Court further notes 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. Period to be taken into consideration
The
period to be taken into consideration began only 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.
The
period in question ended on 16 March 2011. It thus lasted thirteen
years and four months for two levels of jurisdiction.
2. Reasonableness of the length of the proceedings
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, Cocchiarella v. Italy [GC], no. 64886/01,
§ 68, ECHR 2006 V; and Frydlender v. France [GC],
no. 30979/96, § 43, ECHR 2000-VII).
The
Court has frequently found violations of Article 6 § 1 of the
Convention in cases raising issues similar to the one in the present
case (see, for example, Sefcsuk v. Hungary, no. 37501/06, §§
14 and 16-18, 9 December 2008).
Having
examined all the material submitted to it, the Court considers that
the Government have not put forward any fact or argument capable of
persuading it to reach a different conclusion in the present case.
Having regard to its case-law on the subject, the Court considers
that in the instant case the length of the proceedings was excessive
and failed to meet the “reasonable time” requirement.
There
has accordingly been a breach of Article 6 § 1.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
The
applicant further complained under Article 3 of the Convention that
the manner in which the domestic authorities had dealt with her case
amounted to degrading treatment. She also complained under Article 14
of the Convention and Article 1 of Protocol No. 12 thereto that she
had been discriminated against on the basis of her Serbian origin.
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 considers
that the present case does not disclose any appearance of a violation
of any of the above Articles of the Convention. In particular, the
case raises no issue under Article 3 of the Convention and there is
no indication of discriminatory treatment because there is no
evidence that the domestic authorities, when examining the
applicant’s case, were lead by improper motives such as the
applicant’s ethnic origin.
It
follows that these complaints are inadmissible under Article 35 §
3 (a) of the Convention as manifestly ill-founded and must be
rejected pursuant to Article 35 § 4 thereof.
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 53,041 euros (EUR) in respect of pecuniary damage
and EUR 16,000 in respect of non-pecuniary damage.
The
Government contested these claims.
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 9,600 in respect of
non-pecuniary damage.
B. Costs and expenses
The
applicant also claimed EUR 2,528.49 for the costs and expenses
incurred before the Court.
The
Government contested the claim.
Regard
being had to the documents in its possession and to its case-law, the
Court considers it reasonable to award the applicant, who was not
represented by a lawyer, the sum of EUR 100 for the proceedings
before the Court.
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 complaint concerning the excessive
length of the proceedings admissible and the remainder of the
application inadmissible;
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,
the following amounts, to be converted into Croatian kunas at the
rate applicable at the date of settlement:
(i) EUR
9,600 (nine thousand six hundred euros), plus any tax that may be
chargeable, in respect of non-pecuniary damage;
(ii) EUR
100 (hundred euros), plus any tax that may be chargeable to the
applicant, in respect of costs and expenses;
(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 21 June 2011, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
André Wampach Peer
Lorenzen
Deputy Registrar President
