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FIRST
SECTION
CASE OF LUKAVICA v. CROATIA
(Application
no. 39810/04)
JUDGMENT
STRASBOURG
5 July 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 Lukavica 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 K. Hajiyev,
Mr D.
Spielmann,
Mr S.E. Jebens,
Mr G. Malinverni, judges,
and
Mr S. Nielsen, Section Registrar,
Having
deliberated in private on 14 June 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 39810/04) 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, Ms Ljiljana
Lukavica (“the applicant”), on 19 October 2004.
- The
applicant was represented by Mr B. Spiz, a lawyer practising in
Zagreb. The Croatian Government (“the
Government”) were represented by their Agent, Mrs Š.
StaZnik.
- On
12 April 2006 the Court
decided to communicate the complaints concerning the length of the
proceedings and the right to property 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 1962 and lives in Jastrebarsko.
- On
3 February 1994 the police authorities impounded the applicant's
vehicle suspecting that it had been stolen.
- On
25 November 1994 the Osijek Municipal State Attorney's Office gave a
decision by which it refused to institute criminal proceedings
against a certain M.S. – a person from whom in 1992 the
applicant had bought the car – and dismissed the criminal
complaint relating thereto. It however failed to decide on returning
the vehicle to the applicant.
A. Civil proceedings
- Meanwhile,
on 23 June 1994 the applicant brought a civil action against the
State in the Zagreb Municipal Court (Općinski
sud u Zagrebu) seeking recovery of the impounded vehicle
or, alternatively, pecuniary damages. Subsequently, on 9 November
1999, the applicant withdrew the first claim maintaining the one for
damages.
- On
10 October 1997 the Municipal Court gave judgment dismissing the
applicant's claim. The applicant appealed.
- On
11 May 1999 the Zagreb County Court (Zupanijski
sud u Zagrebu) quashed the first-instance judgment for
misapplication of substantive law and remitted the case.
- In
the resumed proceedings, the Municipal Court held hearings on
5 November 1999, 5 September 2001, 7 March 2003 and 11 March
2004. The hearings scheduled for 16 March 2001 and 2 July 2002 were
adjourned owing to the illness of the judge assigned to hear the
case, and to the applicant's absence, respectively.
- On
11 March 2004 the parties reached an in-court settlement (sudska
nagodba) whereby the State was to return the vehicle to the
applicant, pay her 30,000 Croatian kunas (HRK) in respect of
pecuniary damages, cover the costs of the proceedings in the amount
of HRK 13,664 and pay the statutory default interest on these amounts
accruable from the date of settlement, all within eight days. Under
Croatian law an in-court settlement is equal, in terms of its
effects, to a res judicata judgment and constitutes an
enforcement title.
B. Enforcement proceedings
- Since
the State failed to perform the assumed obligations, on 15 September
2004 the applicant applied to the Zagreb Municipal Court for
enforcement of the part of the above settlement concerning payment of
damages and costs of proceedings. The case was later on transferred
to the Jastrebarsko Municipal Court (Općinski
sud u Jastrebarskom).
- On
15 February 2005 the Jastrebarsko Municipal Court issued a writ of
execution (rješenje o ovrsi),
which was carried out on 5 April 2005.
- The
applicant's vehicle has not been returned to her. The Government
submitted that she had never attempted to enforce that part of the
in-court settlement. The applicant, however, submitted that, relying
on the settlement, she had attempted to retrieve her vehicle from the
police authorities but had been sent from one location to another, at
none of which her car could be found.
C. Proceedings before the Constitutional Court
- Meanwhile,
on 16 July 2002 the applicant lodged a constitutional complaint under
section 63 of the Constitutional Court Act complaining about the
length of the above proceedings. On 29 September 2004 the
Constitutional Court (Ustavni sud Republike Hrvatske)
dismissed her complaint finding that the delay was attributable to
the complexity of the case and the applicant's conduct. In
particular, it found that the applicant had contributed to the length
of the proceedings in that she had failed to attend the hearing of
2 July 2002. As to the conduct of the Municipal Court, the
Constitutional Court observed that there had existed two substantial
periods during which no hearings had been held. However, even though
they altogether amounted to more than two years, they had been
justified because in that period the Municipal Court had been taking
evidence by corresponding with the competent administrative
authorities.
II. RELEVANT DOMESTIC LAW
- The
relevant part 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:
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
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.”
- The
relevant provisions of the Criminal Procedure Act (Zakon o
krivičnom postupku, Official Gazette nos. 53/91, 91/92,
34/93 (consolidated text), 38/93 (errata) and 28/96), as in force at
the material time, provided as follows:
Section 105(3)
Objects
of evidentiary value shall be impounded temporarily and returned to
the owner after the conclusion of the proceedings. If such an object
is indispensable to the owner, it may be returned to him or her even
before the conclusion of the proceedings but he or she shall be
obliged to bring it upon request.
Section 145(1)
If
there is a risk of delay, the police authorities may even before the
commencement of the investigation temporarily impound objects
pursuant to the provision of section 201 of this Act ...
Section 201
(1)
Objects which have to be seized pursuant to the Criminal Code, or
which may be used as evidence in criminal proceedings, shall be
temporarily impounded and deposited with a court, or their
safe-keeping shall be secured in another way.
...
(4)
The police authorities may impound the objects referred to in
paragraph (1) when acting under the provisions of [inter alia,
section] ... 145 of this Act, or when executing a court order.
Section 205
The objects which were temporarily impounded in the
course of the criminal proceedings shall be returned to their owner
or holder upon the termination of the proceedings if their seizure is
not required (section 487).
Section 487
(1) Objects that must be seized according to the
Criminal Code shall also be seized when criminal proceedings do not
end with a judgment convicting the accused, provided that this is
required by considerations of public safety or the protection of
morals.
(2) The authority before which the proceedings were
pending at the time they ended or were discontinued shall render a
separate decision thereon.
(3) The decision on the seizure of objects referred to
in paragraph (1) of this section shall also be given by a court when
it has failed to give such a decision in a judgment convicting the
accused.
(4) A certified written copy of the decision on the
seizure of objects shall be served on the owner of the object, if he
is known.
(5) The owner of the object is entitled to appeal
against the decision referred to in paragraphs (2) and (3) of this
section if he or she considers that no legal ground for the seizure
of the object existed. If the decision referred to in paragraph (2)
of this section was not given by a court, the panel of the competent
first-instance court shall decide on the appeal.
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
Court considers that the period to be taken into consideration began
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. In this connection
the Court notes that the proceedings commenced on 23 June 1994, when
the applicant brought her civil action against the State.
Consequently, they were already pending for more than three years
before the ratification.
- The
proceedings on the merits ended on 11 March 2004 when the parties
reached an in-court settlement.
- The
Court notes that to date the above in-court settlement has not been
enforced in its entirety. While the part of the settlement concerning
payment was executed on 5 April 2005, the applicant's vehicle has
never been returned to her. Therefore, and bearing in mind that
execution of a judgment given by any court must be regarded as an
integral part of the “hearing” for the purposes of
Article 6 (see Hornsby v. Greece, judgment of 19 March
1997, Reports of Judgments and Decisions 1997 II, pp.
510–511, § 40), the Court considers that the proceedings
in question have not yet ended. They have so far lasted some nine and
a half years after the ratification.
A. Admissibility
- The
Court notes that this complaint 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 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 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, Kozlica v. Croatia,
no. 29182/03, 2 November 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 proceedings was excessive
and failed to meet the “reasonable time” requirement.
There
has accordingly been a breach of Article 6 § 1.
II. ALLEGED VIOLATION OF
ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION
- The
applicant further complained that the length of the proceedings
complained of and the subsequent non-enforcement of the part of the
in-court settlement of 11 March 2004 concerning the return of her
vehicle had infringed her right to the peaceful enjoyment of her
possessions because she has been unable to use her vehicle for a
prolonged period of time. She relied on Article 1 of Protocol No. 1,
which reads as follows:
“Every natural or legal person is entitled to the
peaceful enjoyment of his possessions. No one shall be deprived of
his possessions except in the public interest and subject to the
conditions provided for by law and by the general principles of
international law.
The preceding provisions shall not, however, in any way
impair the right of a State to enforce such laws as it deems
necessary to control the use of property in accordance with the
general interest or to secure the payment of taxes or other
contributions or penalties.”
- The
Government contested that argument.
A. Admissibility
1 Exhaustion of domestic remedies
- The
Government first invited the Court to reject the complaint on the
ground that the applicant had failed to exhaust domestic remedies as
required under Article 35 § 1 of the Convention.
- In
particular, the Government noted that in her complaint to the
Constitutional Court the applicant had not complained about her
constitutional right to property. Moreover, they submitted that the
applicant had never applied for enforcement of the part of settlement
regarding the return of her vehicle.
- The
applicant disagreed.
-
The Court reiterates that a person who has obtained an enforcement
title against the State cannot be required to resort to enforcement
proceedings in order to have it executed (see, for example and
mutatis mutandis, Reynbakh v. Russia, no. 23405/03,
§ 24, 29 September 2005; and Metaxas v. Greece,
no. 8415/02, § 19, 27 May 2004). The State authorities were
aware of the applicant's claim, and, as soon as the in-court
settlement of 11 March 2004 became enforceable, it was incumbent
on the State to comply with it. Furthermore, it does not appear that
the applicant has given up her claim to have the vehicle returned to
her; she attempted to retrieve it from the police authorities on the
basis of the settlement, but to no avail (see paragraph 14 above).
- In
the light of the foregoing, the Government's objection must be
dismissed.
2. The applicant's victim status
- The
Government further submitted that the applicant could no longer claim
to be a victim within the meaning of Article 34 of the Convention
since on 11 March 2004 she had concluded an in-court settlement
whereby the State had obliged itself not only to return the vehicle
but also to compensate her for the loss of its value. The violation
complained of had, therefore, been remedied at the domestic level and
the applicant had lost her victim status.
- The
applicant pointed out that even after the conclusion of the in-court
settlement of 11 March 2004 the State had failed to honour its
obligations and that therefore she had had to institute enforcement
proceedings for its compulsory execution.
- For
the Court, it is sufficient to note that, to date, the applicant's
vehicle has not been returned to her (see paragraph 14 above).
Accordingly, she can still claim to be a “victim” of a
breach of her right to property, and the Government's objection must
therefore 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
- The
Government admitted that there had been an interference with the
applicant's right to peaceful enjoyment of her possessions when the
police authorities impounded her vehicle. However, they went to argue
that this measure amounted to the control of use of property and that
the interference was justified under Article 1 of Protocol No. 1. In
the alternative, should a violation of Article 6 § 1 of the
Convention be found, the Government invited the Court to find that it
was unnecessary to examine the applicant's complaint under Article 1
of Protocol No. 1 (Zanghì v. Italy, judgment of
19 February 1991, Series A no. 194-C, p. 47, § 23).
- The
applicant disagreed.
-
The Court considers that it does not have to decide whether the very
fact of impounding the applicant's vehicle was justified under
Article 1 of Protocol No. 1 to the Convention. This fact in any event
falls outside the Court's temporal jurisdiction. However, the Court
notes that the applicant was not deprived of her title. Thus, the
only issue to be examined is whether the applicant's inability to use
her car for a prolonged period of time contravened Article 1 of
Protocol No. 1.
- In
this connection, the Court notes that on 25 November 1994 the Osijek
Municipal State Attorney's Office decided not to institute criminal
proceedings against a person from whom the applicant had bought the
car. Since, in doing so it did not decide to permanently seize the
vehicle as the object of the offence (obiectum sceleris) under
section 487 of the Criminal Procedure Act, the applicant was entitled
to have the car returned to her pursuant to section 205 thereof (see
paragraph 17 above). It follows that the State's continued retention
of the applicant's vehicle after that date and, in particular after
5 November 1997 (being the date of the entry into force of the
Convention in respect of Croatia), has been unlawful (see, mutatis
mutandis, Frizen v. Russia, no. 58254/00, § 36,
24 March 2005). This unjustified interference was only exacerbated by
the excessive length of the civil proceedings the applicant had
instituted in order to either recover her car or obtain compensation
for it, as well as the failure of the State to return the vehicle
even after these proceedings were concluded in her favour. As a
result, the applicant has been left for many years in the situation
of uncertainty during which she was, and still is, unable to enjoy
her possessions (see, mutatis mutandis, Kesyan v. Russia,
no. 36496/02, §§ 79-80, 19 October 2006).
There
has accordingly been a breach of Article 1 of Protocol No. 1.
III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
- The
applicant further complained under Article 13 of the Convention taken
in conjunction with Article 6 § 1 thereof that she had not had
an effective remedy in regard to the excessive length of the
proceedings. Article 13 reads as follows:
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
- The
Court notes that the applicant had at her disposal an effective
domestic remedy to complain about the length of the proceedings –
a constitutional complaint – of which she availed herself. The
mere fact that the outcome of the Constitutional Court proceedings
was not favourable to her does not render the remedy ineffective.
- It
follows that this complaint is inadmissible under Article 35 §
3 as manifestly ill-founded and must be rejected pursuant to
Article 35 § 4 of the Convention.
IV. 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 150,000 Croatian kunas (HRK) in respect of
pecuniary and non-pecuniary damage.
- The
Government contested the claim.
- As regards the pecuniary damage alleged, the Court
notes that the State's outstanding obligation to ensure the effective
enforcement of the in-court settlement of 11
March 2004 is not in dispute. The Court
recalls that the most appropriate form of redress in respect of a
violation of Article 6 is to ensure that an applicant as far as
possible is put in the position he or she would have been had the
requirements of Article 6 not been disregarded (see, for example,
MuZević v. Croatia, no. 39299/02, § 91, 16
November 2006; and Jeličić v. Bosnia and
Herzegovina, no. 41183/02, § 53, to be
published in ECHR 2006). The Court finds that this principle applies
as well in the context of Article 1 of Protocol No. 1 (see, for
example, Reynbakh v. Russia, cited above, §§ 34-35).
It therefore considers that the Government shall secure, by
appropriate means, the enforcement of the in-court
settlement of 11 March 2004 in so far as it relates to the
return of the applicant's vehicle.
- As
regards the non-pecuniary damage, the Court, ruling on an equitable
basis, awards the applicant 4,800 euros (EUR) under that head, plus
any tax that may be chargeable on that amount.
B. Costs and expenses
- The
applicant did not submit a claim for the costs and expenses.
Accordingly, the Court considers that there is no call to award her
any sum on that account.
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 complaints concerning the excessive
length of the proceedings and the right to property admissible and
the remainder of the application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds that there has been a violation of Article
1 of Protocol No. 1 to the Convention;
- Holds
(a) that
the respondent State shall secure, within three months from the date
on which the judgment becomes final in accordance with Article 44 § 2
of the Convention, by appropriate means, the enforcement of the
in-court settlement of 11 March 2004 in
so far as it relates to the return of the applicant's vehicle;
(b) 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 4,800 (four
thousand eight hundred euros) in respect of non-pecuniary damage, to
be converted into the national currency of the respondent State at a
rate applicable at the date of settlement, plus any tax that may be
chargeable;
(c) 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 5 July 2007, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
