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 PLAZONIĆ v. CROATIA
(Application
no. 26455/04)
JUDGMENT
STRASBOURG
6 March 2008
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 Plazonić v. Croatia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos
Rozakis,
President,
Nina
Vajić,
Anatoli
Kovler,
Khanlar
Hajiyev,
Dean
Spielmann,
Giorgio
Malinverni,
George
Nicolaou,
judges,
and Mr S. Nielsen, Section Registrar,
Having
deliberated in private on 12 February 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 26455/04) 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 Ivan
Plazonić (“the applicant”), on 28 May 2004.
- The
Croatian Government (“the Government”) were represented
by their Agent, Mrs Š. StaZnik.
- On
19 September 2006 the
Court decided to communicate the complaint concerning the length of
the three sets of proceedings. 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 1936 and lives in Koška.
A. The first set of proceedings
1. Civil proceedings
- On
8 October 1996 the applicant brought a civil action against a certain
artisan B.P. in the Pula Municipal Court (Općinski sud u
Puli) seeking payment.
- The
court held hearings on 12 November (in the applicant's absence) and
19 December 1997, 28 January 1998, 3 September and 4
October 1999, 3 February, 3 March and 5 December 2000 and 9
January and 7 May 2001.
- The
hearings scheduled for 15 July 1998 and 16 November 1999 were
adjourned on the applicant's request. Those scheduled for 14 December
1999 and 14 March 2001 were also adjourned.
- The
hearing scheduled for 31 October 2000 was adjourned since the parties
attempted to reach an in-court settlement (sudska nagodba).
- At
the hearing held on 7 May 2001 the Municipal Court gave judgment
accepting the applicant's claim in part. The respondent appealed on
24 December 2001 and on 1 February 2002 his appeal was together with
the case-file forwarded to the Pula County Court (Zupanijski sud u
Puli).
- On
13 October 2003 the Pula County Court quashed the first-instance
judgment and remitted the case.
- In
the resumed proceedings, the Pula Municipal Court held hearings on
2 March and 22 November 2004 and 21 February 2005.
- At
the hearing held on 7 March 2005 the court gave new judgment
accepting the applicant's claim in part.
- On
16 January 2006 the Pula County Court dismissed the respondent's
appeal and upheld the first-instance judgment.
2. Enforcement proceedings
- On
24 March 2006 the applicant applied to the Pula Municipal Court for
enforcement of the above judgment by garnishment of funds from the
debtor's bank accounts. On 29 March 2006 the court issued a writ of
execution (rješenje o ovrsi)
garnishing temporarily the funds on all debtor's bank accounts. After
having received the relevant information from the banks, on 9 May
2006 the court invited the applicant to specify, within eight days,
from which savings account the funds should be seized. Since the
applicant did not do so within the prescribed period, on 3 July
2006 the court issued a decision discontinuing the enforcement
proceedings. The decision became final on 16 July 2006.
- Meanwhile,
on 7 June 2006 the applicant instituted new enforcement proceedings
before the same court seeking execution of the same judgment.
However, in these proceedings he sought to satisfy his claim,
alternatively, by garnishment of funds from the debtor's bank account
or by seizure and sale of his movable property. On 9 June 2006 the
court issued a writ of execution. On 27 November 2006 the court
scheduled the intervention of the bailiff (sudski ovršitelj)
for 17 January 2007. A day before the intervention the applicant
asked for postponement of enforcement. The request was granted and
the enforcement postponed until 8 May 2007. Afterwards the court
continued the proceedings and on 15 June 2007 served the
writ of execution to the debtor's bank with a view to seizing the
funds and transferring them to the applicant's account. Following the
applicant's request of 19 July 2007 to continue with the seizure of
the debtor's movables, the court scheduled the bailiff's intervention
for 19 November 2007. The bailiff effected the in situ
inspection as scheduled but found no movable property susceptible to
seizure.
It
appears that the proceedings are still pending.
B. The second set of proceedings
1. Civil proceedings
- On
30 December 1996 the applicant brought a civil action against his
former employer the company P. in the Pula Municipal Court seeking
payment of salary arrears.
- Following
a change in legislation governing territorial jurisdiction in October
1997, on 14 May 1998 the case was transferred to the Pazin Municipal
Court (Općinski sud u Pazinu).
- The
court held hearings on 4 April, 4 and 20 May and 14 September 1999.
The hearings scheduled for 4 March and 24 August 1999 were
postponed because the applicant had not received the summons whereas
the one scheduled for 7 October 1999 was postponed at his request.
The hearing scheduled for 2 November 1999 was postponed because the
summoned witness failed to attend.
- As
the applicant did not attend two successive hearings held on
2 December 1999 and 2 May 2000, the court issued a decision
declaring that his action was considered withdrawn. The applicant
then filed a request for restoring the proceedings to the status
quo ante (prijedlog za povrat u prijašnje stanje),
which the court granted on 20 June 2000.
- At
the hearing held on 26 September 2000 the Pazin Municipal Court
adopted a judgment ruling in part for the applicant.
- On
appeal, on 16 September 2002 the Pula County Court quashed the
first-instance decision and remitted the case.
- In
the resumed proceedings, the Pazin Municipal Court held hearings on
23 December 2002 and 24 January 2003.
- On
the last-mentioned date, the Municipal Court again gave judgment
ruling for the applicant in part. In the absence of appeals, the
judgment became final and enforceable shortly afterwards.
2. Enforcement proceedings
- In
January 2003 the applicant applied for enforcement. The enforcement
was completed on 4 March 2003 by garnishment of funds from the debtor
company's bank account.
C. The third set of proceedings
1. Civil proceedings
- On
21 May 1997 the applicant brought a civil action against the company
L. in the Pula Municipal Court seeking payment. As the Pula Municipal
Court had no territorial jurisdiction, on 8 October 1997 the case was
transferred to Rijeka Municipal Court (Općinski sud u
Rijeci).
- The
first hearing was held on 18 June 1998. As neither party attended the
hearing scheduled for 12 July 1999, the court temporarily
suspended the proceedings (mirovanje postupka) for a period of
three months.
- On
26 October 1999 the applicant requested the court to resume the
proceedings.
- The
court held hearings on 19 April, 5 July, 9 October and
12 December 2001 as well as on 5 June, 17 September and
13 November 2002.
- At
the hearing held on 23 January 2003 the court gave judgment for the
applicant.
- On
20 October 2004 the Rijeka County Court (Zupanijski sud u Rijeci)
dismissed the respondent's appeal and upheld the first-instance
judgment.
2. Enforcement proceedings
- On
25 May 2005 the applicant applied to the Rijeka Municipal Court for
enforcement of the above judgment. On 21 July 2005 the court issued a
writ of execution by garnishment of funds from the debtor company's
bank account. The writ was served on the debtor company's bank on
11 October 2005.
- On
28 March 2006 the applicant requested the court to continue the
enforcement by seizure and sale of the debtor company's movable
property in satisfaction of his claim. On 18 April 2006 the
court accepted the applicant's request and issued new writ of
execution.
- On
6 July 2006 the bailiff effected an in situ inspection at the
address provided by the applicant only to find that the debtor
company was no longer doing business at that address. Accordingly, on
6 July 2006 the court issued an instruction inviting the applicant to
submit another address within the following three months in the
absence of which it would discontinue the enforcement proceedings.
The instruction was served on the applicant on 18 October 2006.
- On
15 January 2007 the applicant requested the court to summon the
debtor company's director with a view to disclosing the company's
assets (prokazni popis imovine). The court granted the request
and scheduled a hearing for 25 April 2007, which the summoned
director failed to attend. After the director had failed to appear at
the next hearing scheduled for 13 July 2007, the court requested
the police authorities to inquire about his address. The next hearing
was scheduled for 6 November 2007.
It
appears that the proceedings are still pending.
D. The fourth set of proceedings
- On
3 June 1996 the competent tax authority issued a decision ordering
the applicant to pay 19,427 Croatian kunas of taxes.
- On
27 March 1997 the Ministry of Finance (Ministarstvo financija)
upheld the first-instance decision. The applicant subsequently
brought an administrative action.
- On
2 March 2000 the Administrative Court (Upravni sud Republike
Hrvatske) quashed the decision of 27 March 1997 and remitted the
case.
- In
the resumed proceedings, on 23 October 2000 the competent tax
authority issued a new decision ordering the applicant to pay a lower
amount of taxes.
- The
applicant claimed that he had paid the requested sum, but that the
tax authority had nevertheless continued sending him warning letters
and had refused to unblock his bank account.
E. The proceedings before the Constitutional Court
- Meanwhile,
on 4 December 2002 the applicant lodged a constitutional complaint
under section 63 of the Constitutional Court Act complaining about
the length of the first and the second set of the above proceedings.
On 3 May 2004 he lodged a second constitutional complaint complaining
about the length of the third set of proceedings.
- On
23 December 2004 the Constitutional Court dismissed the
applicant's first complaint in respect of the first set of
proceedings. Having regard in particular to the applicant's conduct
(who failed to attend one hearing and asked for adjournment of
another two hearings), it held that the first proceedings had not
exceeded a reasonable time.
- However,
it would appear that the Constitutional Court is still examining the
applicant's first complaint in respect of the second set of
proceedings.
- On
7 April 2005 the Constitutional Court also dismissed the applicant's
second constitutional complaint. Taking into account particularly the
applicant's conduct (who brought his action in the first-instance
court having no territorial jurisdiction), it held that the length of
the proceedings complained of 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 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 PROCEEDINGS
- The
applicant complained that the length of the first, the second and the
third set of 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.
1. Period to be taken into consideration
- 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. Furthermore, the
Court reiterates that the 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 first and the third proceedings were still pending when the
Constitutional Court decided on their length. On 23 December
2004 the first proceedings had lasted some seven years and one month
for two levels of jurisdiction. On 7 April 2005 the third
proceedings had lasted some seven years and five months, during which
the case was examined also before two levels of jurisdiction. The
Constitutional Court has not yet decided on the length of the second
proceedings (see paragraph 42 above).
- The
first and the third proceedings are still pending while the second
proceedings ended on 4 March 2003. Thus, after the respective
decisions of the Constitutional Court, the first proceedings have so
far been pending for another two years and eleven months whereas the
third proceedings have so far lasted some two years and seven months.
It follows that, in total, the first proceedings have to date lasted
more than eleven years, and the third proceedings more than ten and a
half years, after the entry into force of the Convention in respect
of Croatia. The second proceedings lasted six years and two months,
after the ratification.
2. Reasonableness of the length of the proceedings
- 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).
A. Admissibility
- The
Government 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.
1. The first and the third set of proceedings
- The
Government argued that the applicant should have again complained to
the Constitutional Court about the length of the first and the third
set of proceedings. They observed that he had already lodged
constitutional complaints to that end on 4 December 2002 and 3 May
2004, and that the Constitutional Court dismissed them on 23 December
2004 and 7 April 2005. However, having regard to the fact that
afterwards the proceedings had continued, to lodge further
constitutional complaints would have had reasonable prospects of
success since it would have enabled the Constitutional Court to
examine the overall length of both proceedings, taking into
consideration their duration after its previous decisions.
The
applicant did not comment on this issue.
- The
Court finds that the question of exhaustion of domestic remedies in
respect of the first and the third proceedings is inextricably linked
to the merits of this complaint. Therefore, to avoid prejudging the
latter, both questions should be examined together. Accordingly, the
Court holds that the question of exhaustion of domestic remedies in
respect of this complaint should be joined to the merits (see Kozlica
v. Croatia, no. 29182/03, § 21, 2 November
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.
2. The second set of proceedings
- The
Government initially argued that the applicant had never lodged a
constitutional complaint under section 63 of the Constitutional Court
Act about the length of the second proceedings. The applicant replied
that in his first constitutional complaint of 4 December 2002 he
had complained both about the length of the first and the second set
of proceedings. However, the Constitutional Court had examined his
complaint only in respect of the first proceedings.
- In
their letter of 16 November 2007, the Government submitted that the
Constitutional Court was currently examining the applicant's
constitutional complaint in respect of the second proceedings. They
however maintained their objection that the applicant had failed to
exhaust domestic remedies.
- The
Court does not find it necessary to examine the objection raised by
the Government, as this complaint is in any event inadmissible in
respect of the second proceedings for the following reasons.
- The
Court observes that the second proceedings lasted six years and two
months before two levels of jurisdiction. After 1998, in which no
hearings were held due to jurisdictional changes, there were no
substantial periods of inactivity as the first-instance court
accelerated the proceedings and was scheduling hearings at regular
intervals. Altogether, nine hearings were held while four were
adjourned for various reasons (one at the applicant's request).
Furthermore, it is to be noted that the enforcement was completed in
less than three months. That being so, the Court considers, in the
light of the criteria established in its case-law on the question of
“reasonable time” (see paragraph 50 above), and having
regard to all the information in its possession, that this complaint
is inadmissible under Article 35 § 3 of the Convention
as manifestly ill-founded and must be rejected pursuant to
Article 35 § 4 thereof.
B. Merits
- The
Court observes at the outset that the applicant availed himself of an
effective domestic remedy in respect of the length of the proceedings
– a constitutional complaint (see Slaviček v. Croatia
(dec.), no. 20862/02, ECHR 2002-VII) – and that the
Constitutional Court dismissed his complaints. In these
circumstances, the Court is required to verify whether the way in
which the Constitutional Court interpreted and applied the relevant
provisions of the domestic law, produces consequences that are
consistent with the principles of the Convention, as interpreted in
the light of the Court's case-law. In doing so, the Court has to
examine the period between the date of the entry into force of the
Convention in respect of Croatia and the date of the Constitutional
Court's decisions. If the Constitutional Court's decisions are
consistent with Convention principles, the Court will, when examining
the question of exhaustion of domestic remedies, refrain from dealing
with the length of the proceedings subsequent to those decisions.
Otherwise, a genuine examination of the total length after the
ratification is warranted (see Kozlica v. Croatia, cited
above, § 23).
1. The first set of proceedings
- The
Court notes that the period examined by the Constitutional Court
amounts to seven years and one month (see paragraph 48 above) during
which the case was examined before two levels of jurisdiction. In
that period there existed two substantial periods of inactivity (from
7 May 2001 when the Pula Municipal Court gave its first judgment in
the case until 1 February 2002 when the case-file was sent to the
Pula County Court following the appeal, as well as between 2 March
and 22 November 2004) amounting altogether to almost a year and
a half in which no hearings were held. They are solely attributable
to the authorities. Therefore, and given that the case was not
particularly complex, the Court cannot accept the view that the
applicant significantly contributed to the length of the proceedings.
2. The third set of proceedings
-
In these proceedings, the Constitutional Court examined the period of
seven years and five months (see paragraph 48 above) during which the
case was pending before two levels of jurisdiction. In that period
there were two substantial periods of inactivity (from 6 November
1997 until 18 June 1998 and between 26 October 1999 and 19 April
2001) amounting altogether to more than two years in which no
hearings were scheduled. These periods of inactivity being
attributable to the authorities, and given that the case was of no
particular complexity, the Court is unable to find the applicant's
conduct as decisive factor for the inordinate length of the
proceedings.
3. Conclusion
- Having
examined all the material submitted to it, and having regard to its
case-law on the subject, the foregoing considerations are sufficient
to enable the Court to conclude that already in the periods which
were susceptible to the Constitutional Court's scrutiny the length of
the first and the third proceedings was excessive and failed to meet
the “reasonable time” requirement. It has necessarily
kept such character throughout the subsequent periods of two years
and eleven months (the first proceedings) and two years and seven
months (the third proceedings). In these circumstances, to ask the
applicant to lodge further constitutional complaints, would
overstretch his duties under Article 35 § 1 of the
Convention (see Kozlica v. Croatia, cited above, § 28).
- In
conclusion, the Court rejects the Government's objection as to the
exhaustion of domestic remedies and finds that there has been a
breach of Article 6 § 1 of the Convention on account of the
excessive length of the first and the third set of proceedings.
II. ALLEGED
VIOLATIONS OF ARTICLE 6 § 1 OF THE CONVENTION ON ACCOUNT OF THE
UNFAIRNESS OF THE PROCEEDINGS
- The
applicant also complained under Article 6 § 1 of the
Convention about the unfairness of the second set of proceedings and,
in particular, about the failure of the domestic court to hear
certain witnesses. He also complained under the same Article about
the outcome of the fourth set of proceedings.
- As
regards the second set of proceedings, the Court notes that the
applicant did not appeal against the Pazin Municipal Court's judgment
of 24 January 2003. As regards the fourth set of proceedings,
the Court recalls that tax assessment disputes fall outside the scope
of Article 6 § 1 of the Convention as they do not
involve determination of “civil rights and obligations”
within the meaning of that Article, which is thus not applicable to
such cases (see Ferrazzini v. Italy [GC], no. 44759/98, §
29, ECHR 2001 VII).
- It follows that this part of the application is
inadmissible under Article 35 § 1 of the Convention
for non-exhaustion of domestic remedies, and incompatible ratione
materiae with its provisions within the meaning of Article
35 § 3. It follows that these complaints must be
rejected pursuant to Article 35 § 4.
III. OTHER
ALLEGED VIOLATIONS OF THE CONVENTION
- Lastly,
the applicant complained about the violation of his right guaranteed
in Article 10 of the Convention in the fourth set of proceedings.
- In
the light of all the material in its possession, the Court considers
that the present case does not disclose any appearance of a violation
of Article 10 of the Convention. 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 did not submit a claim for just satisfaction in respect of
pecuniary or non-pecuniary damage. Accordingly, the Court considers
that there is no call to award him any sum on that account.
B. Costs and expenses
- The
applicant claimed 8,597 euros (EUR) for the costs and expenses
incurred before the domestic courts.
- The
Government contested the 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 observes that there
is no evidence in the file to
suggest that the applicant incurred any costs and expenses in
seeking to remedy the violation of his right to a hearing within a
reasonable time before the domestic authorities. The Court therefore
rejects the claim for costs and expenses.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Joined to the merits the Government's objection
as to the exhaustion of domestic remedies in respect of the first and
the third set of proceedings and rejected it;
2. Declared the complaints concerning the excessive length of
the first and the third set of proceedings admissible and the
remainder of the application inadmissible;
- Held that there had been a violation of Article
6 § 1 of the Convention on account of the excessive length of
the first and the third set of proceedings;
- Dismissed the applicant's claim for just
satisfaction.
Done in English, and notified in writing on 6 March 2008,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
