Cedomil CERIN v Croatia - 45043/05 [2008] ECHR 612 (26 June 2008)

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The European Court of Human Rights (First Section), sitting on 26 June 2008 as a Chamber composed of:

Christos Rozakis, President,
Nina Vajić,
Anatoly Kovler,
Elisabeth Steiner,
Khanlar Hajiyev,
Dean Spielmann,
Sverre Erik Jebens, judges,
and Søren Nielsen, Section Registrar,

The applicant, Mr Čedomil Cerin, is a Croatian national who was born in 1932 and lives in Zagreb.

The facts of the case, as submitted by the applicant, may be summarised as follows.

On 10 February 1984 the applicant instituted civil proceedings before the Zagreb Municipal Court (Općinski sud u Zagrebu) against a certain M.A., the City of Zagreb and the State for payment of damages for a breach of contract.

On 27 November 1999 the applicant introduced his first application with the Court, complaining about the length of the proceedings.

In its judgment of 15 November 2001 the Court found that the length of the proceedings had failed to satisfy the “reasonable time” requirement. It accordingly found a violation of Article 6 § 1 of the Convention (see Cerin v. Croatia, no. 54727/00, 15 November 2001).

On 16 January 2002 the Municipal Court gave judgment, dismissing the applicant's claim. Following the applicant's appeal, on 26 November 2002 the Zagreb County Court (Zupanijski sud u Zagrebu) quashed the first-instance judgment and remitted the case.

In the resumed proceedings, on 14 February 2003 the Zagreb Municipal Court gave judgment, again dismissing the applicant's claim. The applicant appealed.

On 7 October 2003 the Zagreb County Court upheld the first-instance judgment in respect of the first respondent, M.A., adhering to the finding of the first-instance court that the prescription period of ten years had expired given that the alleged breach of contract had occurred in 1971 whereas the applicant had brought his action only in 1984. It however quashed the impugned judgment in the respect of the remaining respondents and remitted the case.

The applicant then lodged an appeal on points of law (revizija). On 28 September 2005 the Supreme Court dismissed his appeal on points of law.

On 20 December 2005 the applicant lodged a regular constitutional complaint under section 62 of the Constitutional Court Act. On 4 May 2006 the Constitutional Court dismissed his complaint.

In the resumed proceedings before the Municipal Court, following the quashing of a part of its judgment of 14 February 2003, on 28 November 2003 that court gave a new judgment, dismissing the remainder of the applicant's claim. The applicant appealed.

On 8 March 2004 the Municipal Court declared that appeal inadmissible as lodged outside the statutory time-limit of 15 days. The applicant appealed against that decision but on 18 May 2004 the Zagreb County Court dismissed his appeal. His subsequent appeal on points of law was declared inadmissible ratione valoris on 28 September 2005 by the Supreme Court. On 27 January 2006 the Constitutional Court declared the applicant's constitutional complaint against the Supreme Court's decision inadmissible.

On 14 July 1998 the applicant brought a civil action against several respondents in the Zagreb Municipal Court seeking to be declared the owner of a certain building in Zagreb.

The court held hearings on 17 May and 15 November 1999, 21 September 2004 and 6 March 2006.

On 7 December 2006 the Municipal Court gave judgment, dismissing the applicant's claim.

It appears that the case is currently pending before the Zagreb County Court following the applicant's appeal against the first-instance judgment.

(b) The proceedings following the applicant's request for the protection of the right to a hearing within a reasonable time

Meanwhile, on 30 March 2006 the applicant lodged a request for the protection of the right to a hearing within a reasonable time (zahtjev za zaštitu prava na suđenje u razumnom roku) with the Zagreb County Court.

On 28 November 2007 the County Court decided that it no longer had jurisdiction in the matter because the Municipal Court had in the meantime given its decision in the principal proceedings. Accordingly, the case was transferred to the Supreme Court.

It would appear that the applicant's request is still pending before the Supreme Court.

On 13 April 2005 the applicant instituted civil proceedings against a certain company Z., before the Land Registry Division of the Zagreb Municipal Court (Općinski sud u Zagrebu – ZemljišnoknjiZni odjel) seeking correction of a certain entry in the land register.

On 28 April 2006 the Land Registry Division of the Zagreb Municipal Court declared that it did not have jurisdiction in the matter and transferred the case to the Civil Division of the same court. It held that the applicant had in fact brought a regular civil action, which could not be examined in non-contentious proceedings as prescribed in land registry matters. The applicant appealed.

On 25 September 2006 the Zagreb County Court dismissed his appeal and upheld the first-instance decision.

It appears that the proceedings are currently pending before the Civil Division of the Zagreb Municipal Court.

(b) The proceedings following the applicant's request for the protection of the right to a hearing within a reasonable time

Meanwhile, on 31 March 2006 the applicant lodged a request for the protection of the right to a hearing within a reasonable time with the Zagreb County Court.

On 19 September 2006 the County Court transferred the case to the Supreme Court, considering that it no longer had jurisdiction in the matter because in the meantime the Municipal Court had given its decision in the principal proceedings.

On 3 April 2007 the Supreme Court dismissed the applicant's request finding that the proceedings complained of did not exceed the reasonable time.

The relevant part of the 1999 Constitutional Act on the Constitutional Court of the Republic of Croatia (Ustavni zakon o Ustavnom sudu Republike Hrvatske, Official Gazette no. 99/1999 of 29 September 1999 – “the Constitutional Court Act”), as amended by the 2002 Amendments (Ustavni zakon o izmjenama i dopunama Ustavnog zakona o Ustavnom sudu Republike Hrvatske, Official Gazette no. 29/2002 of 22 March 2002), which entered into force on 15 March 2002, reads as follows:

“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 of his or her having committed 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 rights)...

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.”

“(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 relevant part of the Courts Act (Zakon o sudovima, Official Gazette nos. 150/05 and 16/07), which entered into force on 29 December 2005, reads as follows:

“(1) A party to court proceedings who considers that the competent court failed to decide within a reasonable time on his or her rights or obligations or a criminal charge against him or her, may lodge a request for the protection of the right to a hearing within a reasonable time with the immediately higher court.

(2) If the request concerns proceedings pending before the High Commercial Court of the Republic of Croatia, the High Petty Offences Court of the Republic of Croatia or the Administrative Court of the Republic of Croatia, the request shall be decided by the Supreme Court of the Republic of Croatia.

(3) The proceedings for deciding the request referred to in paragraph 1 of this section shall be urgent.

(1) If the court referred to in section 27 of this Act finds the request well founded, it shall set a time-limit within which the court before which the proceedings are pending must decide on a right or obligation of, or a criminal charge against, the person who lodged the request, and shall award him or her appropriate compensation for the violation of his or her right to a hearing within a reasonable time.

(2) The compensation shall be paid out of the State budget within three months from the date the party's request for payment is lodged.

(3) An appeal, to be lodged within fifteen days with the Supreme Court, lies against a decision on the request for the protection of the right to a hearing within a reasonable time. No appeal lies against the Supreme Court's decision but one may lodge a constitutional complaint.”

“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”

Relying on the same Article as well as Article 1 of Protocol No. 1 to the Convention, the applicant also complained about the outcome of those proceedings. 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.”

(a) As regards the complaint about the length of the proceedings, the Court refers to its decision in the Slaviček case, where it held that since 15 March 2002 (when the 2002 Amendments to the Constitutional Court Act entered into force) a constitutional complaint under section 63 of the Constitutional Court Act has represented an effective domestic remedy in respect of the length of court proceedings in Croatia (see Slaviček v. Croatia (dec.), no. 20862/02, ECHR 2002-VII).

It follows that in the period between 15 March 2002 and 28 September 2005, that is, while the impugned proceedings were pending before the ordinary courts, the applicant could have lodged a constitutional complaint about their length. However, he did not do so.

The length of the proceedings in their part before the Constitutional Court following the applicant's regular constitutional complaint of 20 December 2005, amounting to some four months, cannot in itself be considered unreasonable.

It follows that this complaint is inadmissible under Article 35 §§ 1 and 3 for non-exhaustion of domestic remedies and as manifestly ill-founded, respectively, and that it must be rejected pursuant to Article 35 § 4 of the Convention.

(b) As regards the complaints about the outcome of the proceedings, and to the extent that they relate to the respondent M.A., the Court reiterates that it is not its function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention (see, for example, García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999 I).

The Court further reiterates that in all States Parties to the Convention the legislation governing private-law relations between individuals, including legal persons, includes rules which determine the effects of these legal relations with respect to property and, in some cases, compel a person to surrender a possession to another. This type of rule cannot in principle be considered contrary to Article 1 of Protocol No. 1 unless a person is arbitrarily and unjustly deprived of property in favour of another (see Bramelid and Malmström v. Sweden, no. 8588/79 and 8589/79, Commission decision of 12 October 1982, Decisions and Reports 9, pp. 64 and 82, and Dabić v. the former Yugoslav Republic of Macedonia (dec.), no. 59995/00, 3 October 2001).

In the light of all the material in its possession, the Court considers that in the present case the applicant was able to submit his arguments before courts which addressed those arguments in decisions that were duly reasoned and not arbitrary. The case therefore does not disclose any appearance of a violation of either Article 6 § 1 of the Convention or Article 1 of Protocol No. 1 thereto.

To the extent that these complaints relate to the outcome of the proceedings in respect of the remaining two respondents (the City of Zagreb and the State), the Court observes that the applicant lodged his appeal against the Municipal Court's judgment of 28 November 2003 outside of the statutory time-limit of fifteen days and thereby failed to observe the procedural requirements of the domestic law.

It follows that these complaints are inadmissible under Article 35 §§ 1 and 3 as manifestly ill-founded and for non-exhaustion of domestic remedies, respectively, and that they must be rejected pursuant to Article 35 § 4 of the Convention.

(a) As regards the second set of proceedings, the Court considers that it cannot, on the basis of the case file, determine the admissibility of that complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

(b) As regards the third set of proceedings, the Court notes that they began on 13 April 2005 and are still pending. Thus, they have so far lasted some three years and two months before two levels of jurisdiction. That being so, the Court considers, in the light of the criteria established in its case-law on the question of “reasonable time” (the complexity of the case, the applicant's conduct and that of the competent authorities), and having regard to all the information in its possession, that in the present case, the length of those proceedings has not been unreasonable. It follows 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.

“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.”

(a) As regards the request lodged on 30 March 2006 in which the applicant complained about the length of the second set of proceedings, the Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

(b) As regards the request lodged on 31 March 2006 in which the applicant complained about the length of the third set of proceedings, the Court reiterates that Article 13 requires a remedy in domestic law only where an individual has an “arguable claim” that one of his rights or freedoms set forth in the Convention has been violated (see, for example, Boyle and Rice v. the United Kingdom, judgment of 27 April 1988, Series A no. 131, p. 23, § 52). In this connection the Court refers to its above finding according to which the applicant's length complaint in respect of the third set of proceedings is manifestly ill-founded. It follows that his complaint under Article 13 cannot be considered “arguable” for the purposes of Article 13 of the Convention. It is thus also inadmissible under Article 35 § 3 as manifestly ill-founded and must be rejected pursuant to Article 35 § 4 of the Convention.

Decides to adjourn the examination of the applicant's complaints concerning the length of the second set of proceedings and the effectiveness of remedies in this respect;

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You are here: BAILII >> Databases >> European Court of Human Rights >> Cedomil CERIN v Croatia - 45043/05 [2008] ECHR 612 (26 June 2008) URL: http://www.bailii.org/eu/cases/ECHR/2008/612.html Cite as: [2008] ECHR 612