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FIRST
SECTION
CASE OF MAČINKOVIĆ v. CROATIA
(Application
no. 29759/04)
JUDGMENT
STRASBOURG
7
December 2006
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 Mačinković v. Croatia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Mr C.L. Rozakis, President,
Mrs N.
Vajić,
Mr A. Kovler,
Mrs E. Steiner,
Mr K.
Hajiyev,
Mr D. Spielmann,
Mr S.E. Jebens, judges,
and
Mr S. Nielsen, Section Registrar,
Having
deliberated in private on 16 November 2006,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 29759/04) 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 Marijan
Mačinković (“the applicant”), on 12 July 2004.
- The
applicant was represented by Ms L. Kušan, a lawyer practising
in Ivanić-Grad. The Croatian Government (“the
Government”) were represented by their Agent, Ms Štefica
StaZnik.
- On
5 September 2005 the
Court decided to give notice of the application to the Government.
Applying Article 29 § 3 of the Convention, it decided to rule on
the admissibility and merits of the application at the same time.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1945 and lives in Kloštar Ivanić.
- On
1 September 1999 the Ivanić Grad Municipal Court (Općinski
sud u Ivanić Gradu) adopted a judgment ordering a certain
F.P. to pay some money to the applicant. On 18 May 2000 the applicant
sought enforcement of the above judgment.
- The
Zagreb Municipal Court (Općinski sud u Zagrebu) issued an
enforcement order on 6 July 2000.
- On
20 November 2000 a court bailiff attempted to draft a seizure list of
F.P.'s possessions, but he refused to cooperate.
- On
19 December 2000 the applicant informed the court that F.P. owned a
motor vehicle and proposed to seize it. On 17 April 2001 the court
invited the applicant to advance the costs of the bailiff's
intervention, which the applicant did on 25 April 2001. On 12 April
2002 the court scheduled another on-site intervention for 3 June
2002, which was unsuccessful because F.P. once again refused to
cooperate.
- Pursuant
to the applicant's further motion, on 26 September 2002 the court
decided that another on-site intervention would be scheduled after
the applicant advanced the costs.
- The
applicant asked the court to size F.P.'s passport on 20 February
2003. Following that demand, on 1 July 2003 the court asked the
Ministry of the Interior whether F.P. was the owner of a certain
motor vehicle. The Ministry replied in negative on 22 July 2003.
- The
applicant then on 8 September 2003 asked for another bailiff's
intervention.
- However,
on 24 May 2004 the case-file was transferred to the newly-established
Zaprešić Municipal Court.
- Since
F.P.'s wife presented the evidence that F.P. had paid part of the sum
due to the applicant during the bailiff's intervention on 25 October
2004, the intervention was adjourned with consent of the applicant's
legal representative.
- However,
F.P. did not comply with the rest of his obligation and therefore, on
24 December 2004 the applicant asked for another bailiff's
intervention. The intervention took place on 8 March 2005 and a
seizure list was drafted.
- On
29 September 2005 the applicant asked the court to schedule a public
auction. The auction was scheduled for 22 November 2005.
- The
enforcement proceedings still appear to be pending before the
first-instance court.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- Section
63 of the Constitutional Act on the Constitutional Court (Ustavni
zakon o Ustavnom sudu Republike Hrvatske –Official Gazette
no. 49/2002 of 3 May 2002; “the Constitutional Court Act”)
reads as follows:
“(1) The Constitutional Court shall examine
a constitutional complaint even before all legal remedies have been
exhausted in cases when a competent court has not decided within a
reasonable time a claim concerning the applicant's rights and
obligations or a criminal charge against him ...
(2) If the constitutional complaint ... under
paragraph 1 of this Section is accepted, the Constitutional Court
shall determine a time-limit within which a competent court shall
decide the case on the merits...
(3) In a decision under paragraph 2 of this
Article, the Constitutional Court shall fix appropriate compensation
for the applicant in respect of the violation found concerning his
constitutional rights ... The compensation shall be paid from the
State budget within a term of three months from the date when the
party lodged a request for its payment.”
- Under
the case-law of the Constitutional Court, constitutional complaints
lodged under section 63 in the context of enforcement proceedings
were to be declared inadmissible. In its decision no. U -IA/1165/2003
of 12 September 2003 the Constitutional Court interpreted
section 63 as follows:
“The Constitutional Court shall institute
proceedings pursuant to a constitutional complaint lodged under
section 63 of the Constitutional Act [on the Constitutional Court]
for the length of proceedings only in cases where the court has not
decided within a reasonable time on the merits of the rights and
obligations of the complainant, that is, where it has failed to
deliver a decision on the merits within a reasonable time.
In the present case the constitutional complaint has
been lodged for non-enforcement of a final decision by which the
party's rights and obligations had already been decided.
Taking into consideration the above cited provisions of
the Constitutional Act [on the Constitutional Court] ..., the
Constitutional Court is of the opinion that in this case the
conditions for applicability of section 63 were not met.”
In
its decision no. U-IIIA/781/2003 of 14 May 2004 the Constitutional
Court provided further interpretation of section 63:
“Taking into consideration the above cited
provisions of the Constitutional Act [on the Constitutional Court]
and the fact that the constitutional complaint was not lodged for a
failure to deliver a decision within a reasonable time but rather
because the enforcement was not carried out, the Constitutional Court
is of the opinion that in this case the conditions for applicability
of section 63 were not met.”
- In
decision no. U-IIIA/1128/2004 of 2 February 2005 the Constitutional
Court changed its practice, accepting a complainant's constitutional
complaint and awarding him compensation as well as ordering the
competent court to conclude the enforcement proceedings within six
months from its decision. In doing so, the Constitutional Court
expressly relied on the Court's case-law on the matter.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that the length of the enforcement 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
period to be taken into consideration began on 8 May 2000 and has not
yet ended. It has thus lasted about six years and six months.
A. Admissibility
- The
Government invited the Court to reject the applicant's complaint for
non-exhaustion of domestic remedies, claiming that in 2002 Section 63
of the Constitutional Act on the Constitutional Court introduced an
effective domestic remedy in respect of the length of proceedings. On
2 February 2005 the Constitutional Court adopted a decision whereby
it applied the reasonable time requirements in respect of the pending
enforcement proceedings.
- The
applicant contested these arguments.
- The
Court reiterates that under Article 35 § 1 of the
Convention it may only deal with a matter after all domestic remedies
have been exhausted. The purpose of the exhaustion rule is to afford
the Contracting States the opportunity of preventing or putting right
the violations alleged against them before those allegations are
submitted to it (see, among many other authorities,
Selmouni v. France [GC], no. 25803/94, § 74,
ECHR 1999-IV). The obligation to exhaust domestic remedies requires
that an applicant make normal use of remedies which are effective,
sufficient and accessible in respect of his Convention grievances.
- The Court further recalls that as of 22 March 2002 a
constitutional complaint under section 63 of the Constitutional Court
Act is considered an effective remedy in respect of the length of
proceedings still pending in Croatia (see Slaviček v. Croatia
(dec.), no. 20862/02, ECHR 2002-VII). However, at that time it was
not clear whether the new remedy would at all apply to the length of
enforcement proceedings (see Pibernik v. Croatia (dec.), no.
75139/01, 4 September 2003). The subsequent developments in the
Constitutional Court's case-law showed that only as of 2 February
2005 did a constitutional complaint become an effective remedy for
the length of enforcement proceedings (see KaradZić
v.Croatia, no. 35030/04, § 38, 15 December 2005).
- 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
(extracts)). This rule is subject to exceptions which may be
justified by the specific circumstances of each case (see Nogolica
v. Croatia (dec.), no. 77784/01, ECHR 2002-VIII).
- Turning
to the present case, the Court observes that the applicant lodged his
application with the Court on 12 July 2004. It was not until more
than a year and a half later that the Constitutional Court held for
the first time that there had been a violation of the right of access
to a court in a similar case. Accordingly, the applicant could not
have been expected to file such a complaint, which at that time did
not offer him any reasonable prospect of success.
- As
to a possible departure from the general rule of non-exhaustion, the
Court does not find any special circumstances which would justify
making an exception to that rule in the present case (see Omerović
v. Croatia, no. 36071/03, 1 June 2006)
- In
these circumstances, the Court considers that the applicant's
complaint cannot be rejected for failure to exhaust domestic
remedies.
- The
Court further notes that the application 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 applicant and the relevant authorities and what
was at stake for the applicant in the dispute (see, among many other
authorities, Frydlender v. France [GC], no. 30979/96, §
43, ECHR 2000-VII).
- The
Government submitted that the proceedings were complex and not of a
significant importance to the applicant. They stressed that F.P. had
paid almost half of his whole debt to the applicant. As to the
conduct of the applicant the Government argued that the applicant had
contributed to the length of proceedings because he had agreed that
the intervention scheduled for 25 October 2004 be postponed. As to
the conduct of the domestic authorities the Government submit that
the domestic courts in the enforcement proceedings were bound by the
contents of the applicant's application and that it was on the
applicant to choose the best means of enforcement.
-
The applicant contested these arguments.
- The
Court reiterates that it is for the Contracting States to organise
their legal systems in such a way that their courts can guarantee to
everyone the right to obtain a final decision on disputes relating to
civil rights and obligations within a reasonable time (see, among
other authorities, Horvat v. Croatia, no. 51585/99, §
59, ECHR 2001-VIII).
- 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 Estima Joge v. Portugal, judgment of
21 April 1998, Reports of judgments and decisions 1998-II, and
Vodopyanovy v. Ukraine, no. 22214/02, 17 January 2006 and
Omerović v. Croatia, no. 36071/03, 1 June 2006).
- 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
enforcement proceedings 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
- 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 10,000 euros (EUR) in respect of non-pecuniary
damage.
- The
Government submitted that the amount claimed was excessive and that
there was no correlation between the sum claimed and the applicant's
financial expectations.
- As
to the non-pecuniary damage sought, the Court, ruling on an equitable
basis and taking into account that the case has been pending for
about six and half years, awards the applicant 3,000 euros (EUR) in
respect of non-pecuniary damage, plus any tax that may be chargeable
on this amount.
B. Costs and expenses
- The
applicant also claimed EUR 1,830 for the costs and expenses incurred
before the Court.
- The
Government did not express an opinion on the matter.
- According
to the Court's case-law, an applicant is entitled to reimbursement of
his 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. In the present case, regard being had to the information in
its possession and the above criteria, the Court considers it
reasonable to award the sum of EUR 1,500 for costs and expenses in
the proceedings before the Court.
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 according to
Article 44 § 2 of the Convention, the following
amount which should be converted into Croatian kunas at the rate
applicable at the date of settlement:
(i) EUR
3,000 (three thousand euros) in respect of non-pecuniary damage;
(ii)
EUR 1,500 (one thousand and five hundred euros) in respect of costs
and expenses; and
(ii) any
tax that may be chargeable 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 amount 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 7 December 2006, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
