BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
[New search]
[Contents list]
[Printable RTF version]
[Help]
FIRST
SECTION
CASE OF MAHMUTOVIĆ v. CROATIA
(Application
no. 9505/03)
JUDGMENT
STRASBOURG
15
February 2007
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 Mahmutović v. Croatia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Mr L. Loucaides, 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 25 January 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 9505/03) 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 Šefko
Mahmutović (“the applicant”), on 26 February 2003.
- The
Croatian Government (“the Government”) were represented
by their Agent, Ms Štefica StaZnik.
- On
8 December 2005 the
Court declared the application partly inadmissible and decided to
communicate the complaint concerning the length of the proceedings 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 1949 and lives in PoZega.
- On
13 July 1990 the applicant lent a certain amount of money to T.T. who
failed to pay it back within the agreed time-period. On 24 June 1992
the PoZega Municipal Court gave judgment ordering T.T. to pay back
the money to the applicant.
- As
T.T. failed to pay, on 11 February 1998 the applicant submitted a
motion for enforcement (prijedlog za ovrhu). On 12 February
1998 the PoZega Municipal Court issued an enforcement order (rješenje
o ovrsi) with a view to seizing T.T.'s movable property. On 17
March 1998 T.T. filed an appeal against that order, which was
dismissed by the PoZega County Court on 10 November 1998.
- On
2 December 1998 the Municipal Court decided to register and
evaluate T.T.'s movables, including his car.
- On
7 December 1998 T.T.'s wife, D.T., filed an objection with the court,
claiming that she was the owner of the car which had been registered
as T.T.'s property.
- On
26 July 1999 the Municipal Court instructed D.T. to institute civil
proceedings against the applicant, in order to declare the
enforcement on the car inadmissible. On 25 August 1999 D.T. filed a
civil action against the applicant to that end. The court accordingly
stayed the enforcement proceedings. Subsequently, on 27 March 2001
D.T. withdrew her claim and the enforcement proceedings resumed.
- On
27 May 2002 the Municipal Court scheduled an on-site inspection for
20 June 2002 with a view to seizing T.T.'s car. However, the
court bailiff failed to seize the car.
- On
26 November 2002 the court scheduled another on-site inspection for
17 December 2002. However, the court decision could not be
served on T.T. because he had meanwhile changed his residence.
- Subsequently,
on 15 October 2003 the parties concluded a court settlement. On 5 May
2004 the applicant's lawyer withdrew the enforcement request.
Accordingly, on 6 May 2004 the PoZega Municipal Court issued a
decision terminating the enforcement proceedings.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- The
relevant part of 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 whether or not all legal remedies have been
exhausted if the competent court fails to decide a claim concerning
the applicant'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 the applicant for the violation of his or her
constitutional rights ... The compensation shall be paid out of the
State budget within three months from the date a request for payment
is lodged.”
- 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-IIIA/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 constitutional complaint and
awarding 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 claiming that the proceedings were
complex and that the applicant significantly contributed to their
length.
- The
period to be taken into consideration began on 11 February 1998 and
ended on 6 May 2004. It thus lasted six years, two months and
twenty-five days for one level of jurisdiction.
A. Admissibility
- The
Government invited the Court to reject the application for
non-exhaustion of domestic remedies. They submitted that the
applicant could have lodged a constitutional complaint under section
63 of the Constitutional Court Act. In support of their argument, the
Government produced a copy of the Constitutional Court decision of
2 February 2005 (see paragraph 15 above) in which that
court had found a violation of the complainant's right to a hearing
within a reasonable time on account of lengthy enforcement
proceedings.
- The
applicant contested that argument.
- The Court 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)).
- In
the instant case, the applicant did not lodge a constitutional
complaint, but instead, on 26 February 2003 he introduced his
application with the Court. It was not until two years later that the
Constitutional Court held for the first time that there had been a
violation of the right to a hearing within reasonable time in respect
of the length of enforcement proceedings. Accordingly, the applicant
could not have been expected to lodge such a complaint, which at that
time did not offer him any reasonable prospects of success. The
Government's objection must therefore be dismissed.
- The
Court notes that the remainder of the application is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
B. Merits
- The
Court reiterates that the State has an obligation to organise a
system of enforcement of judgments that is effective both in law and
in practice and ensures their enforcement without any undue delay
(see Fuklev v. Ukraine, no. 71186/01, § 84, 7 June
2005).
- 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,
to be published in ECHR 2006; and Frydlender v. France
[GC], no. 30979/96, § 43, ECHR 2000-VII). The Court 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).
- The Court considers that the length of the enforcement
proceedings at issue, that lasted more than six years, is a priori
unreasonable and calls for a global assessment. Their overall
length could be justified only under exceptional circumstances.
However, the Government's arguments concerning the complexity of the
case and the conduct of the applicant cannot sufficiently explain
such a substantial delay, which was, in the Court's view, caused
mainly by the failure of the domestic courts to effectively control
the enforcement proceedings.
- 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, Estima Jorge v. Portugal, judgment of
21 April 1998, Reports of Judgments and Decisions 1998-II;
Heger v. Slovakia, no. 62194/00, 17 May 2005 and
Poláčik v. Slovakia, no. 58707/00, 15 November 2005).
- 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. 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 30,000 German Marks less 40,000 Croatian Kunas
which he was paid following the settlement with the debtor, plus
interest, in respect of pecuniary damage. He further claimed, in
substance, that he suffered distress due to the excessive length of
the enforcement proceedings in question, without specifying any
particular amount in this respect.
- The
Government contested these claims as being excessive.
- 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, the Court considers that the applicant must have
sustained non-pecuniary damage. Ruling on an equitable basis, it
awards him EUR 3,000 under that head, plus any tax that may be
chargeable on this amount.
B. Costs and expenses
- The
applicant claimed costs for his representation by a lawyer in the
course of domestic proceedings and the court expenses. However, he
failed to submit any documents supporting these claims. Therefore,
the Court is not able to award the applicant any sum on that account.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the remainder of 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, EUR 3,000
(three thousand euros) in respect of non-pecuniary damage, to be
converted into Croatian Kunas at the rate applicable at the date of
settlement, plus any tax that may be chargeable on this amount;
(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 15 February 2007,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Loukis Loucaides
Registrar President
