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FIRST
SECTION
CASE OF ULJAR AND OTHERS v. CROATIA
(Application
no. 32668/02)
JUDGMENT
STRASBOURG
8 March 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 Uljar and others v. Croatia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Mr C.L. Rozakis, President,
Mr L.
Loucaides,
Mrs N. Vajić,
Mr A. Kovler,
Mrs E.
Steiner,
Mr S.E. Jebens,
Mr G. Malinverni, judges,
and
Mr S. Nielsen, Section Registrar,
Having
deliberated in private on 15 February 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 32668/02) 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 four Croatian nationals, Mrs Biserka Uljar, Mr Ratomir
Brnabić, Mrs Lolita Dabelić and Mrs Eleonora Tijanić
(“the applicants”), on 17 July 2002.
- The
applicants were all represented by Mrs B. Uljar. The
Croatian Government (“the Government”) were represented
by their Agent, Mrs Š. StaZnik.
- On
5 July 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 remainder of
the application at the same time.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicants were born in 1951, 1947, 1970 and 1971 respectively and
live in Rijeka.
- The
applicants are heirs of the late A.B. who died on 14 December 1995.
The first and the second applicant are his children, and the third
and the fourth applicants are his grandchildren (children of his
other daughter).
- In
the context of inheritance proceedings following A.B.'s death, on 16
August 1996 his former wife, M.K., brought a civil action against the
applicants in the Krk Municipal Court (Općinski sud u Krku).
M.K. sought her share in co-ownership of a house on the account of
certain investments she had made while living in common law marriage
(izvanbračna zajednica) with the deceased.
- In
the period between the entry into force of the Convention in respect
of Croatia and the rendering of the first-instance judgment, the Krk
Municipal Court held nine hearings.
- At
the hearing held on 17 March 1998 the applicants moved for evidence
to be taken in order to prove that A.B. had not lived in a common law
marriage with the plaintiff and that he had reconstructed his house
independently with his own means. On 22 April and 3 August 1998
the court heard two and six witnesses respectively.
- The
Krk Municipal Court then requested certain witnesses to be heard
before other courts. In reply, it received minutes of the witness
testimonies from the Zadar Municipal Court and the Split Municipal
Court.
- On
11 August 1999 the applicants filed a counterclaim seeking a
declaration that there had been no common law marriage between the
plaintiff and the late A.B.
- The
next hearing was held on 12 August 1999 at which the court heard nine
witnesses.
- At
the next hearing held on 25 April 2000 the court heard the second and
the third applicant and adjourned the hearing for 10 August 2000,
when the first applicant again sought for a number of witnesses to be
heard.
- At
the next hearings held on 5 June and 13 August 2001 the court heard
yet more witnesses and on 3 December 2001 it closed the main hearing.
- On
3 December 2001 the court gave judgment dismissing both M.K.'s action
and the applicants' counterclaim. On appeal, on 1 October 2003
the Rijeka County Court (Zupanijski sud u Rijeci) quashed the
first-instance judgment and remitted the case finding that it was
necessary to establish the plaintiff's citizenship.
- In
2003 the first and the second applicant filed a constitutional
complaint concerning the length of the proceedings. On 16 January
2004 the Constitutional Court (Ustavni sud Republike Hrvatske)
declared their complaint inadmissible because the County Court had in
the meantime, on 1 October 2003, quashed the first-instance
judgment and remitted the case.
- In
the resumed proceedings, on 4 November 2003 the President of the Krk
Municipal Court accepted the applicants' request for withdrawal of
the first-instance judge and assigned another judge to hear the case.
- The
court held hearings on 12 February 2004 and 17 June 2004.
- On
26 October 2004 the court adopted a decision declaring the
plaintiff's action inadmissible, because as a foreign national, she
had not obtained the necessary permissions for acquisition of
property in line with the domestic legislation. At the same time, the
Krk Municipal Court concluded that the applicants' counterclaim had
been withdrawn. M.K. appealed against that decision but on 9 March
2006 the Rijeka County Court dismissed her appeal.
II. RELEVANT DOMESTIC LAW
- 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 court with jurisdiction 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 court with jurisdiction 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.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicants 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
Court notes that the proceedings started on 16 August 1996, when M.K.
lodged her civil action against the applicants, and ended on 9 March
2006, when the County Court upheld the first-instance decision. They
thus lasted nine years and seven months.
- The
period to be taken into consideration began on 6 November 1997,
after the Convention had entered into force in respect of Croatia and
ended on 9 March 2006. It thus lasted approximately eight years and
four months for two levels of jurisdiction.
- However,
in order to determine the reasonableness of the length of time in
question, regard must be had to the state of the case on
5 November 1997 (see, among other authorities, Styranowski
v. Poland, judgment of 30 October 1998, Reports of
Judgments and Decisions 1998 VIII, p. 3376, § 46).
A. Admissibility
- The
Government invited the Court to reject the applicants' complaint for
non-exhaustion of domestic remedies.
- They
maintained that the first and the second applicant could have filed
another constitutional complaint, after the Constitutional Court had
declared their first complaint inadmissible on 16 January 2004.
Bearing in mind that the Constitutional Court changed its practice in
this respect, so as to comply with the Court's case-law, the
Government claimed that a complaint under section 63 of the
Constitutional Court Act would have been an effective remedy for the
first and the second applicants' length complaint.
- In
respect of the third and the fourth applicant, the Government pointed
out that they failed to exhaust domestic remedies in that they never
filed a constitutional complaint under section 63 of the
Constitutional Court Act.
- The
applicants disagreed with the Government contesting in the
circumstances the effectiveness of a constitutional complaint in
respect of their length complaint.
- 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 the rule of domestic remedies must be
applied with some degree of flexibility and without excessive
formalism (see Cardot v. France, judgment of 19 March 1991,
Series A no. 200, p. 18, § 34). It has further recognised
that the rule of exhaustion is neither absolute nor capable of being
applied automatically; in reviewing whether it has been observed it
is essential to have regard to the particular circumstances of each
individual case (see Van Oosterwijck v. Belgium, judgment of 6
November 1980, Series A no. 40, p. 18, § 35).
- Applying
those principles in the present case, in respect of the first and the
second applicant the Court recalls that the arguments put forward by
the Government have been rejected in earlier cases (see Zagorec v.
Croatia, no. 10370/03, §§ 18-24, 6 October 2005;
Nogolica v. Croatia (no. 2), no. 29052/03, §§ 19-26,
17 November 2005). It sees no reason to reach a different conclusion
in the present case. It follows that the Government's objection in
that respect must be dismissed.
- As
regards the third and the fourth applicant, the Court observes that
they were parties to the same proceedings as the first two
applicants, who had already unsuccessfully availed themselves of the
remedy in respect of those proceedings. The Court considers that in
this way the domestic authorities were afforded the opportunity to
remedy the violation alleged. It further considers that it would be
excessively formalistic to require the third and the fourth applicant
to have lodged another constitutional complaint themselves seeing
that the one previously lodged by the first two applicants had
failed. In the circumstances of the present case the Government's
argument in this respect should accordingly be rejected.
- The
Court further notes that the applicants' length complaint is not
manifestly ill-founded within the meaning of Article 35 § 3 of
the Convention or 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 considers that the period of eight years and
four months for two levels of jurisdiction is a priori
unreasonable and calls for a global assessment. Their overall
length could be justified only under exceptional circumstances.
- The
Government submitted that the case was of high factual and legal
complexity and that the applicants significantly contributed to its
protraction by filing motions to hear a large number of witnesses as
well as a request for withdrawal of the first-instance judge.
- The
Court considers that the arguments put forward by the Government are
not sufficient to explain a delay of more than eight years for two
court instances. While it is true that the applicants to a certain
extent contributed to the protraction of the case, in the Court's
view, the delay was mainly caused by the failure of the
first-instance court to effectively control the proceedings. It was
that court which had the authority to decide how to conduct the
proceedings, in particular, which evidence to take and how to
evaluate acts or omissions of the parties, while bearing in mind all
procedural requirements guaranteed by Article 6 § 1 of
the Convention. Moreover, the Court observes certain period of
inactivity for which the Government provided no explanation (e.g. the
first-instance court held no hearings between 12 August 1999 and 25
April 2000 or between 10 August 2000 and 5 June 2001; it took the
second-instance court one and a half years to dismiss the plaintiffs'
appeal on 9 March 2006).
- 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 Frydlender, cited above).
- 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
applicants claimed 22,168.17 euros (EUR) in respect of pecuniary and
EUR 10,000 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, the Court considers that the applicants must have
sustained non-pecuniary damage. Ruling on an equitable basis, it
awards award them the amount claimed in full, plus any tax that may
be chargeable thereon.
B. Costs and expenses
- The
applicants also claimed EUR 1,275.20 for the costs and expenses
incurred before the domestic courts and the Court.
-
The Government contested this claim.
- 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 applicants, who were not represented by a
lawyer, the sum of EUR 500 under this head, plus any tax that may be
chargeable 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 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 applicants jointly, within three
months from the date on which the judgment becomes final according to
Article 44 § 2 of the Convention, the following
amounts which should be converted into Croatian kunas at the rate
applicable at the date of settlement:
(i) EUR
10,000 (ten thousand euros) in respect of non-pecuniary damage;
(ii) EUR
500 (five hundred euros) in respect of costs and expenses;
(iii) 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 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 applicants' claim
for just satisfaction.
Done in English, and notified in writing on 8 March 2007, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
