European Court of Human Rights

 

 

 

SECOND SECTION

 

 

 

 

 

 

CASE OF MEČIĆ v. CROATIA

 

(Application no. 37226/13)

 

 

 

 

 

 

 

JUDGMENT

 

 

 

STRASBOURG

 

 

 

19 July 2016

 

 

 

 

 

 

This judgment is final. It may be subject to editorial revision.




In the case of Mečić v. Croatia,

The European Court of Human Rights (Second Section), sitting as a Committee composed of:

          Paul Lemmens, President,
          Ksenija Turković,
          Jon Fridrik Kjølbro, judges,

and Hasan Bakırcı, Deputy Section Registrar,

Having deliberated in private on 28 June 2016,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1.  The case originated in an application (no. 37226/13) 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 Igor Mečić (“the applicant”), on 16 April 2013.

2.  The applicant was represented by Ms V. Šnur, an advocate practising in Vinkovci. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik.

3.  The applicant alleged that enforcement of the judgment ordering his former employer to pay him remuneration for overtime work had been unduly delayed.

4.  On 30 August 2013 the complaint concerning the length of the proceedings was communicated to the Government and the remainder of the application was declared inadmissible, pursuant to Rule 54 § 3 of the Rules of Court.

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

5.  The applicant was born in 1974 and lives in Vinkovci.

A.  Background to the case

6.  By a judgment of 1 June 2006 the Vinkovci Municipal Court (Općinski sud u Vinkovcima) ordered the applicant’s former employer, the company MD Profil d.o.o. (hereinafter “the debtor company”), to pay him 20,921.18 Croatian kunas (HRK)[1] as remuneration for overtime work, together with accrued statutory default interest, and HRK 19,495.90[2] in costs. On 10 March 2008 the Vukovar County Court (Županijski sud u Vukovaru) upheld the first-instance court’s judgment, which thereby became final.

7.  By a judgment of 17 January 2008 the Županja Municipal Court (Općinski sud u Županji) found the applicant guilty of the criminal offence of embezzlement committed against his former employer, the debtor company. It sentenced him to ten months’ imprisonment, suspended for a period of two years provided that in that period he did not commit a further offence. The court also ordered the applicant to pay the debtor company HRK 20,311.78[3] in compensation for pecuniary damage caused by his offence.

B.  Enforcement proceedings

8.  On 14 April 2008 the applicant applied to the Đakovo Municipal Court (Općinski sud u Đakovu) for enforcement of the above judgment of 1 June 2006 (see paragraph 6 above).

9.  The next day, on 15 April 2008, that court issued a writ of execution (rješenje o ovrsi) whereby it ordered the seizure of funds in the debtor company’s bank account in order to satisfy the applicant’s claim.

10.  The debtor company lodged an appeal, and on 28 August 2008 the Osijek County Court (Županijski sud u Osijeku) quashed the writ of execution and remitted the case to the first-instance court. It found that the judgment sought to be enforced had not been stamped with a certificate of enforceability and that a grace period for voluntary compliance (paricijski rok) had not been set.

11.  In the new proceedings before the Đakovo Municipal Court the applicant submitted on 25 September 2008 a copy of the judgment that he was seeking to enforce stamped with a certificate of enforceability. At the same time, he asked the court to set a grace period for voluntary compliance, pursuant to the law.

12.  On 7 November 2008 the court issued a new writ of execution. It ordered the debtor company to pay the applicant, within a grace period of eight days (a) the sums it had been ordered to pay under the judgment of 1 June 2006 (that is to say the main debt, together with accrued statutory default interest, and the costs of the civil proceedings, see paragraph 6 above), (b) the statutory default interest accrued on the costs of the civil proceedings from the date of delivery of that judgment, and (c) the costs of enforcement proceedings, together with the statutory default interest accrued on those costs from the date of issuance of the writ of execution.

13.  By a decision of 19 February 2009 the Osijek County Court dismissed the debtor company’s appeal and upheld the writ of execution.

14.  Upon receiving, on 27 February 2009, the final judgment of the criminal court of 17 January 2008 (see paragraph 7 above), the debtor company on 9 March 2009 sent a letter containing a set-off statement to the applicant’s legal representative whereby it set off (prijeboj) its claim for compensation against the applicant stemming from that judgment with his claim for payment of overtime work against the debtor company stemming from the judgment he was seeking to enforce.

15.  On the same day, 9 March 2009, the debtor company informed the court that it had received the above-mentioned final judgment of the criminal court and that it had executed the set-off described above (see the preceding paragraph). The debtor company at the same time lodged an extraordinary appeal against the writ of execution of 7 November 2008 (see paragraph 12 above) and lodged an application to postpone the enforcement.

16.  By a decision of 27 March 2009 the Đakovo Municipal Court decided on the debtor company’s motion for postponement, instructing the debtor company to institute separate civil proceedings for the enforcement to be declared inadmissible (in full or in part). At the same time it postponed the enforcement pending the final outcome of those proceedings.

17.  The debtor company instituted those civil proceedings on 14 April 2009. They ended on 31 March 2011, when the Osijek County Court upheld the first-instance judgment of the Đakovo Municipal Court of 21 October 2010, whereby the enforcement of up to HRK 20,095.30[4] was declared inadmissible. The second-instance judgment was served on the debtor company on 11 May 2011 and on the applicant a day later.

18.  Following an appeal lodged by the applicant, on 21 January 2010 the Osijek County Court quashed the first-instance decision of 27 March 2009 (see paragraph 16 above) in so far as it allowed the postponement of the enforcement and in this respect remitted the case. It dismissed the remainder of the applicant’s appeal and upheld the first-instance decision in the remaining part.

19.  In the resumed proceedings, by a decision of 17 June 2010 the Đakovo Municipal Court again postponed the enforcement.

20.  On 3 February 2011 the Osijek County Court dismissed the applicant’s appeal against that decision and upheld it.

21.  On 24 May 2011 the applicant informed the Đakovo Municipal Court that the judgment declaring the enforcement inadmissible in part had become final (see paragraph 17 above) and asked it to continue with the enforcement in the remaining part.

22.  By a decision of 2 June 2011 that court decided to resume the enforcement in the remaining part. By another decision of the same date that court ordered the debtor company to pay the applicant: (a) HRK 599.40[5] for unpaid overtime work, together with statutory default interest accrued since 11 March 2009, (b) HRK 19,495.90[6] in costs of civil proceedings, together with statutory default interest accrued since 1 June 2006, and (c) HRK 2,606.25[7] in costs of enforcement proceedings, together with statutory default interest accrued since 7 November 2008. This decision became final on 17 June 2011.

23.  On 20 June 2011 the court informed the Domestic Payments Agency (Financijska agencija - FINA) of its second decision of 2 June 2011 (see the preceding paragraph). In the execution of that decision the agency on 21 July 2011 transferred HRK 38,306.87[8] from the debtor company’s bank account to those of the applicant and his legal representative.

C.  Proceedings following the applicant’s request for protection of the right to a hearing within a reasonable time

24.  Meanwhile, on 9 October 2009 the applicant lodged a request for protection of the right to a hearing within a reasonable time (zahtjev za zaštitu prava na suđenje u razumnom roku) with the Osijek County Court, complaining about the length of the above enforcement proceedings.

25.  By a decision of 9 November 2010 the Osijek County Court dismissed the applicant’s request. It held that, while the case was indeed important for the applicant, the proceedings complained of were complex and he had contributed to their length in that he had not initially submitted a copy of the judgment he was seeking to enforce stamped with a certificate of enforceability (see paragraphs 8-11 above).

26.  On 25 November 2010 the applicant appealed against that decision.

27.  By a decision of 6 June 2011 the Supreme Court (Vrhovni sud Republike Hrvatske) dismissed the applicant’s appeal and served its decision on his representative on 26 August 2011.

28.  On 23 September 2011 the applicant lodged a constitutional complaint against the second-instance decision.

29.  By a decision of 12 December 2012 the Constitutional Court (Ustavni sud Republike Hrvatske) declared inadmissible the applicant’s constitutional complaint and served that decision on his representative on 31 December 2012. It held that the contested second-instance decision was not open to constitutional review.

II.  RELEVANT DOMESTIC LAW AND PRACTICE

30.  The relevant domestic law and practice is set out in Vrtar v. Croatia, no. 39380/13, §§ 50, 52-56 and 61-63, 7 January 2016.

THE LAW

I.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

31.  The applicant complained that the delays in the enforcement proceedings had been incompatible with the “reasonable time” requirement laid down in Article 6 § 1 of the Convention and that he had not received any compensation at the domestic level on that account. The relevant part of that Article 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...”

32.  The Government contested that argument.

33.  The period to be taken into consideration began on 14 April 2008, when the applicant applied for enforcement (see paragraph 8 above), and ended on 21 July 2011, when the Domestic Payment Agency transferred an amount corresponding to the revised judgment debt to the bank accounts of the applicant and his legal representative (see paragraph 23 above). It thus lasted some three years and three months.

A.  Admissibility

34.  The Government disputed the admissibility of this complaint on three grounds. Specifically, they argued that the applicant had failed to observe the six-month rule, that he had not suffered a significant disadvantage, and that he had abused the right of application.

35.  The applicant did not submit observations in reply to those of the Government but only his claim for just satisfaction. Thus, he did not comment on the Government’s inadmissibility objections.

1.  Compliance with the six-month rule

36.  The Government submitted that the applicant had failed to comply with the six-month rule because he had erroneously believed that the constitutional complaint that he had lodged against the Supreme Court’s decision of 6 June 2011 (see paragraphs 27-28 above) had constituted an effective remedy to be exhausted for the purposes of Article 35 § 1 of the Convention and had thus been capable of interrupting the running of the six-month time-limit prescribed in that Article. They explained that after the entry into force on 29 December 2009 of amendments to the relevant legislation providing a remedy for the excessive length of judicial proceedings, a constitutional complaint could no longer be lodged in respect of Supreme Court decisions rendered in proceedings for protection of the right to a hearing within a reasonable time. According to the Government, the Constitutional Court had already adopted that view in its decision no. U-IIIVs-3669/2006 of 2 March 2010, which was published in the Official Gazette on 19 March 2010. The applicant, who had been represented by an advocate, should have been aware of that. Consequently, the final decision, within the meaning of Article 35 § 1 of the Convention, for the purposes of calculating the six-month time limit in the applicant’s case was not the Constitutional Court’s decision of 12 December 2012 (see paragraph 29 above) but the Supreme Court’s decision of 6 June 2011 (see paragraph 27 above). However, the applicant lodged his application with the Court on 16 April 2013 (see paragraph 1 above), that is to say more than six months later.

37.  The Court notes that in another case it has already rejected a similar objection raised by the Government (see Vrtar, cited above, §§ 71-85) and sees no reason to hold otherwise in the present case. It follows that the Government’s objection regarding non-compliance with the six-month rule must be dismissed.

2.  As to whether the applicant suffered a significant disadvantage

38.  The Government submitted that the applicant had sought enforcement of the judgment of 1 June 2006 ordering his former employer to pay him a certain amount of money as remuneration for his overtime work (see paragraphs 6 and 8 above). However, he had subsequently been convicted for embezzling funds belonging to his employer and ordered to pay compensation in an amount approximately corresponding to that of the above-mentioned remuneration (see paragraph 7 above). Specifically, after the set-off of 9 March 2009, the remaining sum his employer had still owed him for his overtime work had amounted to HRK 599.40 only (see paragraphs 14 and 22 above), that is to say some 80 euros (EUR). In this connection the Government referred to cases where the amounts at stake had been higher than that in the present case and had ranged from EUR 90 (see Ionescu v. Romania (dec.), no. 36659/04, 1 June 2010) to EUR 228 (see Burov v. Moldova (dec.), no. 38875/03, 14 June 2011) and even EUR 504 (see Kiousi v. Greece (dec.), no. 52036/09, 20 September 2011). Since the Court had declared those cases inadmissible for lack of a significant disadvantage, the Government invited it to do the same with the applicant’s case.

39.  The Court considers that the judgment debt relevant for the purposes of establishing what was at stake for the applicant is the sum he had initially sought (HRK 20,921.18 for overtime work and HRK 19,495.90 for the costs of civil proceedings, together with the accrued statutory default interest - see paragraphs 6 and 8 above), regardless of the fact that, in view of the set-off of 9 March 2009, the debtor company had eventually owed him a significantly lower amount, cited by the Government, as remuneration for overtime work (see paragraphs 14, 17, 22 and 38 above).

40.  In any event, the Court notes that the debt the applicant’s former employer ultimately had to pay him did not consist only of remuneration for overtime work equaling HRK 599.40, as the Government suggested (see paragraph 38 above). Rather, as specified in the decision of 2 June 2011 (see paragraph 22 above), it also included (i) statutory default interest accrued on that amount from 11 March 2009, (ii) HRK 19,495.90 for the costs of civil proceedings, plus statutory default interest accrued on that amount from 1 June 2006, and (iii) HRK 2,606.25 for the costs of enforcement proceedings, plus interest accrued on that amount from 7 November 2008. In this connection the Court further notes that in the execution of that decision, on 21 July 2011 the Domestic Payments Agency transferred from the debtor company’s account to the accounts of the applicant and his legal representative a total of HRK 38,306.87, that is to say some EUR 5,125.12 (see paragraph 23 above). In the Court’s view, that sum cannot be considered insignificant. The Government’s objection concerning the alleged lack of a significant disadvantage must therefore be dismissed.

3.  Abuse of the right of application

41.  The Government argued that the applicant had abused the right of application in that he had not informed the Court that the enforcement proceedings complained of had ended.

42.  The Court notes that the applicant in the present case complained (primarily) that he had not received any compensation for the delays in the enforcement proceedings (see paragraph 31 above) rather than of the fact that the judgment he had been seeking to enforce had not been enforced. In that context the fact that the enforcement was completed, while indeed important, is nevertheless not of such crucial importance that the applicant’s failure to inform the Court of it would constitute an abuse of the right of application. The present case therefore cannot be compared to the case of Kerechashvili v. Georgia ((dec.), no. 5667/02, 2 May 2006), where the applicant complained of the non-enforcement of a judgment in his favour but concealed the fact that the judgment in question had been enforced in part more than a year before he had lodged his application, and in full before it had been communicated to the respondent Government. It follows that the Government’s objection concerning the alleged abuse of the right of application must also be dismissed.

4.  Conclusion as regards admissibility

43.  The Court further notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It also notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B.  Merits

44.  The Court reiterates that an unreasonably long delay in the enforcement of a binding judgment may breach the Convention (see Burdov v. Russia, no. 59498/00, ECHR 2002-III). It further reiterates that enforcement proceedings by their very nature need to be dealt with expeditiously (see Comingersoll S.A. v. Portugal [GC], no. 35382/97, § 23, ECHR 2000-IV) and that special diligence is necessary in employment disputes (see Ruotolo v. Italy, judgment of 27 February 1992, Series A no. 230-D, p. 39, § 17).

45.  To decide whether the delay was reasonable, the Court will look at the complexity of the enforcement proceedings, how the applicant and the authorities behaved, and the nature of the award (see Raylyan v. Russia, no. 22000/03, § 31, 15 February 2007).

46.  The Court accepts that the applicant contributed to the delay in the proceedings complained of in that he did not immediately submit a copy of the judgment that he was seeking to enforce, stamped with a certificate of enforceability (see paragraphs 10 and 25 above). However, that omission on his part protracted the proceedings by some four months only (see paragraphs 8-11 above). Furthermore, the Court is not persuaded that the proceedings were of such complexity that could justify their remaining length amounting to some two years and eleven months. In particular, the Court is not convinced that the issue of whether the majority of the applicant’s claim for overtime work was extinguished by the set-off of 9 March 2009 (see paragraph 14 above) could not have been resolved earlier than 31 March 2011 (see paragraph 17 above).

47.  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, mutatis mutandis, Chernysheva v. Ukraine, no. 22591/04, §§ 20 and 23, 10 August 2006, and Bormotov v. Russia, no. 24435/04, §§ 17 and 19, 31 July 2008).

48.  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 delay in the enforcement was excessive and failed to meet the “reasonable time” requirement.

There has accordingly been a breach of Article 6 § 1.

II.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

49.  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

50.  The applicant claimed 10,000 euros (EUR) in respect of pecuniary and non-pecuniary damage.

51.  The Government contested that claim.

52.  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 3,250 in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount.

B.  Costs and expenses

53.  The applicant also claimed EUR 6,000 for the costs and expenses incurred before the domestic courts and for those incurred before the Court.

54.  The Government contested that claim.

55.  Regard being had to the documents in its possession and to its case-law, the Court considers it reasonable to award the sum of EUR 1,000 for costs and expenses incurred in the domestic proceedings and EUR 975 for those incurred in the proceedings before the Court, plus any tax that may be chargeable to the applicant on those amounts.

C.  Default interest

56.  The Court considers it appropriate that the default interest rate 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,

1.  Declares the application admissible;

 

2.  Holds that there has been a violation of Article 6 § 1 of the Convention;

 

3.  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 3,250 (three thousand two hundred and fifty euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii)  EUR 1,975 (one thousand nine hundred and seventy-five 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;

 

4.  Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 19 July 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

   Hasan Bakırcı                                                                      Paul Lemmens
Deputy Registrar                                                                       President




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[1] Approximately 2,876.55 euros (EUR) at the time.

[2] Approximately EUR 2,680.58 at the time.

[3] Approximately EUR 2,756.28 at the time.

[4] Approximately EUR 2,716.18 at the time

[5] Approximately EUR 80.27 at the time.

[6] Approximately EUR 2,610.78 at the time.

[7] Approximately EUR 349 at the time.

[8] Approximately EUR 5,125.12 at the time.