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FIRST
SECTION
CASE OF SKOKANDIĆ v. CROATIA
(Application no. 43714/02)
JUDGMENT
STRASBOURG
31 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 Skokandić 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,
Mr D. Spielmann,
Mr S.E.
Jebens,
Mr G. Malinverni, judges,
and Mr S. Nielsen,
Section Registrar,
Having
deliberated in private on 10 July 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 43714/02) 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 two Croatian nationals, Mr Ante Skokandić and Mr Ivan
Skokandić (“the applicants”), on 10 October 2002.
- The
applicants, who had been granted legal aid, were represented by Mr E.
Havkić, a lawyer practising in Zagreb. The
Croatian Government (“the Government”) were represented
by their Agent, Mrs Š. StaZnik.
- On
16 September 2004 the
Court decided to communicate to the Government the complaints
concerning the length of the proceedings and the lack of remedies in
that respect as well as in respect of the right to property. On 20
February 2007 it decided to apply Article 29 § 3 of the
Convention and to rule on the admissibility and merits of the
application at the same time.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicants, who are brothers, were born in 1939 and 1936 and live in
Pisarovina and Korčula, respectively.
A. Civil proceedings for declaration of ownership
- On
5 September 1974 the applicants brought a civil action against a
certain J.P. and the Town of Korčula in the Korčula
Municipal Court (Općinski sud u Korčuli) seeking to
be declared owners of a plot of land on which a stone-pit has been
located.
- Following
a remittal, on 5 September 1994 the Korčula Municipal Court
(Općinski sud u Korčuli) decided to close the main
hearing.
- Afterwards,
the applicants urged the Municipal Court several times to deliver the
judgment, and filed several complaints with the Ministry of Justice.
- On
10 April 2002 the court sent its judgment dated 5 September 1994 to
the parties. The applicants, who were declared to be the owners of a
part of the disputed land, received the judgment eight days later.
The respondents appealed.
- Meanwhile,
on 19 March 2002 the applicants lodged a constitutional complaint
under section 63 of the Constitutional Court Act complaining about
the length of the above proceedings. On 7 July 2004 the
Constitutional Court (Ustavni sud Republike Hrvatske) found a
violation of their constitutional rights to a hearing within a
reasonable time, awarded them each 8,100 Croatian kunas (HRK) in
compensation, and ordered the Dubrovnik County Court to give a
decision on the appeal in the shortest time possible but no later
than six months following the publication of the decision in the
Official Gazette. The Constitutional Court's decision was published
on 20 July 2004.
- On
7 October 2004 the Dubrovnik County Court (Zupanijski sud u
Dubrovniku) accepted the appeal of the respondents, quashed the
first-instance judgment and remitted the case.
- The
proceedings are currently again pending before the Korčula
Municipal Court as the first-instance court.
B. Proceedings before the Administrative Court
- On
14 June 1995 the Ministry of Economy (Ministarstvo
gospodarstva) concluded an agreement with the company B.M.
(“the company”) granting it a concession for exploitation
of minerals and stone on the land in the above dispute (“the
concession agreement”).
- On
16 April 1997 the competent administrative authority granted the
company a permit (lokacijska dozvola) for the planned
exploitation.
- In
November 2001 the company started works on the property.
- On
21 June 2002 the applicants brought an administrative action in the
Administrative Court (Upravni sud Republike Hrvatske)
challenging the concession agreement and the obtained permit. They
also requested that the works be stopped pending the civil
proceedings determining ownership of the property.
- On
26 June 2002 the Administrative Court invited the applicants to
specify the decisions they were challenging and to submit their
copies.
- On
1 August 2002 the applicants completed their action by specifying the
impugned decisions but failed to submit their copies.
- On
20 November 2002 the Administrative Court declared the applicants'
action inadmissible, finding that they had failed to complete their
action as requested on 26 June 2002.
C. Civil proceedings for trespass
- After
the beginning of the exploitation works, on 21 November 2001 the
second applicant brought an action in trespass (actio negatoria)
in the Korčula Municipal Court against J.P. as the shareholder
of the company B.M., the town of Korčula and the State. He also
applied for an interim measure (privremena mjera) to halt the
exploitation works.
- On
2 June 2004 the Municipal Court dismissed the second applicant's
claim as well as his application for an interim measure. It found
that he had proved neither his ownership of the land at issue nor the
unlawfulness of the exploitation works.
- On
9 December 2005 the Dubrovnik County Court dismissed the second
applicant's appeal and upheld the first-instance judgment.
- On
8 March 2006 the second applicant lodged a regular constitutional
complaint under section 62 of the Constitutional Court Act against
the second-instance judgment. The case is currently pending before
the Constitutional Court.
- Meanwhile,
on 30 July 2004 the second applicant lodged a constitutional
complaint under section 63 of the Constitutional Court Act
complaining about the length of the above proceedings. On 27 April
2006 the Constitutional Court dismissed his complaint finding that
the length of the proceedings had not been excessive.
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 62
“1. Everyone may lodge a constitutional complaint
with the Constitutional Court if he or she deems that the decision of
a state authority, local or regional self-government, or a legal
person invested with public authority, on his or her rights or
obligations, or about suspicion or accusation for a criminal offence,
has violated his or her human rights or fundamental freedoms, or
right to local or regional self-government, guaranteed by the
Constitution (hereinafter: constitutional right)...
2. If another legal remedy is allowed against the
violation of the constitutional rights [complained of], the
constitutional complaint may be lodged only after this remedy has
been exhausted.
3. In matters in which an administrative action or, in
civil and non-contentious proceedings, an appeal on points of law
[revizija] are allowed, remedies shall be considered exhausted
only after the decision on these legal remedies has been given.”
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 individual'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 LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION ON ACCOUNT OF THE LENGTH OF THE CIVIL PROCEEDINGS FOR
DECLARATION OF OWNERSHIP
- The
applicants complained that the length of the civil proceedings for
declaration of ownership 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 5 September 1974,
when the applicants brought their civil action against J.P. and the
Town of Korčula. Consequently, they were pending for more than
23 years before the ratification.
- The
case was still pending on 7 July 2004 when the Constitutional Court
gave its decision. On that date the proceedings had lasted about six
years and eight months.
- The
proceedings have not yet ended. They have lasted another three years
after the decision of the Constitutional Court. Thus, in total, the
case has so far been pending for more than nine and a half years
after the ratification. During that period two decisions were
rendered and the case was examined before two levels of jurisdiction.
A. Admissibility
- The
Government submitted that the applicants could no longer claim to be
victims within the meaning of Article 34 of the Convention since on
7 July 2004 the Constitutional Court had accepted their
constitutional complaint, found a violation of their constitutional
right to a hearing within reasonable time and awarded them
compensation. The violation complained of had, therefore, been
remedied before the domestic authorities and the applicants had lost
their victim status.
- The
applicants disagreed.
- The
Court considers that the question whether the applicants can still
claim to be victims, within the meaning of Article 34 of the
Convention, of a violation of their right to a hearing within a
reasonable time falls to be determined in the light of the principles
recently established under the Court's case-law (see Cocchiarella
v. Italy [GC], no. 64886/01, §§ 69-107, to be
published in ECHR 2006; and Scordino v. Italy (no. 1) [GC],
no. 36813/97, §§ 178-213, to be published in ECHR
2006).
- In
this connection, the Court notes that on 7 July 2004 the
Constitutional Court awarded each applicant the equivalent of
approximately 1,100 euros (EUR) and ordered the County Court to
deliver a decision on the appeal within six months. The County Court
did so in less than three months by quashing the appealed judgment
and remitting the case to the first-instance court. However, taking
into account the special circumstances of the present case, the fact
that the Constitutional Court gave its decision after some two years
and three months from lodging of the constitutional complaint and
that, as a result of the above remittal, the proceedings complained
of are again pending before the first-instance court, the Court
considers that the compensation which amounts to approximately 37 %
of what it generally awards in similar Croatian cases, cannot be
considered sufficient having regard to its case-law. Accordingly, the
applicants can still claim to be “victims” of a breach of
their right to a hearing within reasonable time, and the Government's
objection must therefore be dismissed.
- In
addition, the Court recalls that, if the way in which the
Constitutional Court interpreted and applied the relevant provisions
of the domestic law produces consequences that are inconsistent with
the principles of the Convention, as interpreted in the light of the
Court's case-law, the Court is called upon to examine the overall
length of the impugned proceedings (see, mutatis mutandis,
Kozlica v. Croatia, no. 29182/03, § 23, 2
November 2006). Given the above finding that the applicants may still
claim to be “victims” of the alleged violation –
and that therefore the Constitutional Court's decision in the present
case is inconsistent with the Convention principles – the
examination of the total length is warranted (see Solárová
and Others v. Slovakia, no. 77690/01, §§ 41
and 43, 5 December 2006).
- In
this connection the Court observes, as noted above, that the
proceedings have so far lasted another three years after the
Constitutional Court's decision. The applicants did not lodge another
constitutional complaint in respect of this period. However, in light
of the above conclusion concerning their victim status, they were not
required to do so. The Court shall take this period into
consideration when determining the merits of the case and, if
appropriate, the applicants' claim for just satisfaction under
Article 41 of the Convention (see Solárová and
Others v. Slovakia, cited above, § 42;
Rišková v. Slovakia, no. 58174/00, § 90,
22 August 2006).
- 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
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], cited above, § 68;
and Frydlender v. France [GC], no. 30979/96, §
43, ECHR 2000-VII).
- The
Government accepted that, in view of the findings of the
Constitutional Court, the proceedings lasted unreasonably long.
- The
Court sees no reason to hold otherwise as it has frequently found
violations of Article 6 § 1 of the Convention in cases raising
issues similar to the present case (see, for example, Tatjana
Marinović v. Croatia, no. 9627/03, 6 October
2005). Therefore, already in the period which was susceptible to the
Constitutional Court's scrutiny the length of the proceedings was
excessive and failed to meet the “reasonable time”
requirement.
- As
regards the period subsequent to the delivery of the Constitutional
Court's decision, the Court notes that, following a remittal, the
proceedings are again pending at first instance. In these
circumstances, the Court necessarily concludes that further
unjustified delays occurred after that date.
- In
the light of the foregoing, the Court considers that there has been a
breach of Article 6 § 1.
II. ALLEGED VIOLATION OF
ARTICLE 13 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 6 §
1 THEREOF
- The
applicants further complained under Article 13 of the Convention,
taken in conjunction with Article 6 § 1 thereof, that they had
not had an effective remedy for the length of the civil proceedings
complained of because the Constitutional Court had not decided their
constitutional complaint in that regard. 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
Government reiterated that on 7 July 2004, that is, after the
applicants introduced their application with the Court, the
Constitutional Court ruled on their constitutional complaint, found a
violation of their constitutional right to a hearing within
reasonable time and awarded them compensation. Against this
background, it could not be argued that the constitutional complaint
had not been an effective remedy in the applicants' case. The
applicants agreed.
- The
Court considers that the applicants have agreed with the Government
that, because the Constitutional Court eventually gave decision on
their constitutional complaint, they were no longer victims of the
violation complained of and sees no reason to hold otherwise. 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.
III. ALLEGED VIOLATION OF
ARTICLE 13 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 1 OF
PROTOCOL No. 1 THERETO
- The
applicants also complained that they had not had an effective remedy
at their disposal in order to stop the exploitation of their
property, since the Korčula Municipal Court failed to decide on
their application for an interim measure of 21 November 2001. Article
1 of Protocol No. 1 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 argued that Article 13 was not applicable in the present
case. That Article was not an independent provision but its
applicability was related to some other right protected by the
Convention, in the instant case, to Article 1 of Protocol No. 1
thereto. However, the applicants had not proven that they were the
owners of the property which was the subject of the exploitation
works.
- The
applicants disagreed.
- As
regards the first applicant, the Court notes that he did not apply
for an interim measure and was thus not a party to the ensuing
proceedings. For that reason he cannot be considered a “victim”
of a violation complained of. It follows that in respect of the first
applicant this complaint is incompatible ratione personae with
the provisions of the Convention, within the meaning of Article
35 § 3, and must be rejected in accordance with
Article 35 § 4.
- As
regards the second applicant, the Court first reiterates that for a
remedy to be effective it must, inter alia, provide relief
rapidly enough to avoid any irreparable harm (see, notably, Čonka v.
Belgium, no. 51564/99, § 79, ECHR 2002 I). It
further considers that regular remedies (for example, a civil action)
may not always be able to do so because they are sometimes too slow
or allow for dilatory manoeuvres. Therefore, Article 13 may
require the availability of provisional remedies in cases where their
absence could result in irreparable harm for the rights guaranteed by
the Convention. In such situations the provisional remedies could be
the only effective remedies.
- However,
the Court reiterates that Article 13 does not
contain a general guarantee of legal protection of all substantive
rights. It relates exclusively to those cases in which an applicant
alleges, on arguable grounds, that one of his or her rights or
freedoms set forth in the Convention has been violated. The
Court observes in this connection that the proceedings the applicants
instituted to be declared the owners of the property at issue are
still pending. Therefore, in so far as the applicants rely on
Article 1 of Protocol No. 1 to the Convention, the Court
considers that it would be premature to take a position on the
applicability of that Article (see, mutatis mutandis,
Grabinski v. Poland (dec.), no. 3702/02, 18 October 2005), to
which their complaint under Article 13 is linked.
51. In
any event, the Court considers that in the present case neither
applicant could have ever claimed, on arguable grounds, that
he was facing irreparable harm on account of the exploitation works
performed on the land at issue. Should the applicants eventually be
declared the owners of the disputed land they will be able to bring a
civil action in damages against the State and the company B.M. and
obtain compensation for any damage they may have sustained.
Therefore, the failure of the Municipal Court to promptly decide on
the second applicant's application for an interim measure, though
regrettable, does not raise an issue under the Convention. It follows
that, even assuming applicability of Article 1 of Protocol No. 1, the
applicants' Article 13 complaint is inadmissible under
Article 35 § 3 as manifestly ill-founded in
respect of the second applicant, and must be rejected pursuant
to Article 35 § 4 of the Convention.
IV. ALLEGED VIOLATION OF
ARTICLE 6 ON ACCOUNT OF THE OUTCOME OF THE ADMINISTRATIVE PROCEEDINGS
- The
applicants complained under Article 6 § 1 of the
Convention about the outcome of the above administrative proceedings.
- The Court notes that the applicants failed to lodge a
constitutional complaint against the Administrative Court's decision
of 20 November 2002. It follows that this part of the application is
inadmissible under Article 35 § 1 for non-exhaustion
of domestic remedies and must be rejected pursuant to Article 35 §
4 of the Convention.
V. OTHER ALLEGED
VIOLATIONS OF THE CONVENTION
- Lastly,
the applicants complained of the infringement of their rights under
Articles 14 and 17 of the Convention, which provide, respectively,
for prohibition of discrimination in the enjoyment of Convention
rights and prohibition of abuse of these rights.
- In
the light of all the material in its possession, and in so far as the
matters complained of were within its competence, the Court considers
that the present case does not disclose any appearance of a violation
of any of the above Articles of the Convention. It follows that these
complaints are inadmissible under Article 35 § 3 as
manifestly ill-founded and must be rejected pursuant to
Article 35 § 4 of the Convention.
VI. 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 6,700 euros (EUR) in respect of non-pecuniary
damage.
- The
Government contested the claim.
- The
Court reiterates that where an applicant had resorted to an available
domestic remedy and thereby obtained a finding of a violation and was
awarded compensation, but can nevertheless still claim to be a
“victim”, the amount to be awarded under Article 41
may be less than the amounts the Court was awarding in similar cases.
In that case an applicant must be awarded the difference between the
amount obtained from the Constitutional Court and an amount that
would not have been regarded as manifestly unreasonable compared with
the amounts awarded by the Court. An applicant should also be awarded
an amount in respect of stages of the proceedings that may not have
been taken into account by the Constitutional Court (see, mutatis
mutandis, Cocchiarella v. Italy [GC], cited above,
§§ 139-141).
- The
Court recalls that each applicant was awarded EUR 1,100 by the
Constitutional Court, which is approximately 37 % of what the
Court would have awarded them. Having regard to the circumstances of
the present case, the characteristics of the constitutional complaint
as well as the fact that, notwithstanding this domestic remedy, the
Court has found a violation, it considers, ruling on an equitable
basis, that the applicants should be awarded jointly the sum of EUR
500 in respect of the period covered by the Constitutional Court's
decision.
- The
Court also awards the applicants jointly the sum of EUR 1,800 for the
further delay in the proceedings following the delivery of the
Constitutional Court's decision of 7 July 2004 (see paragraphs 34-35
above).
- Accordingly,
the applicants shall be awarded jointly the total sum of EUR 2,700 in
respect of non-pecuniary damage, plus any tax that may be chargeable
on that amount.
B. Costs and expenses
- The
applicants, who received legal aid, did not submit a claim for the
costs and expenses. Accordingly, the Court considers that there is no
call to award them 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 complaint concerning the excessive
length of the proceedings admissible and the remainder of the
application inadmissible;
- 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 in
accordance with Article 44 § 2 of the Convention,
EUR 2,700 (two thousand seven 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;
(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 31 July 2007, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
