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 PRAUNSPERGER v. CROATIA
(Application
no. 16553/08)
JUDGMENT
STRASBOURG
22 April 2010
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 Praunsperger v.
Croatia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos
Rozakis,
President,
Nina
Vajić,
Khanlar
Hajiyev,
Dean
Spielmann,
Sverre
Erik Jebens,
Giorgio
Malinverni,
George
Nicolaou,
judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 25 March 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 16553/08) 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 Alan Praunsperger (“the
applicant”), on 28 December 2007.
- The
Croatian Government (“the Government”) were represented
by their Agent, Mrs Š. StaZnik.
- On
16 March 2009 the President of the First Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1948 and lives in Rijeka, Croatia.
- On
3 August 1994 he obtained a final and enforceable judgment from the
Rijeka Municipal Court (Općinski sud u Rijeci) ordering a
private individual, M.Č. to pay the applicant a sum of
money.
- On
11 November 1994, as no payment had been made, the applicant
instituted enforcement proceedings in the Makarska Municipal Court
(Općinski sud u Makarskoj), seeking the enforcement of
the above judgment through the seizure of movable property owned by
M.Č in Makarska.
- In
February 1998, the Makarska Municipal Court initiated the seizure of
the said movable property in order to satisfy the applicant's claim.
However, this attempt failed because of the lack of movable property
suitable for seizure.
- On
26 November 2001 the applicant requested that the value of a flat
owned by M.Č. be assessed by the Makarska Municipal Court for
the purposes of the enforcement proceedings.
- On
21 July 2003 the applicant sought enforcement through the seizure of
the above-mentioned flat.
- On
3 July 2006 the applicant lodged a request for the protection of the
right to a hearing within a reasonable time with the Split County
Court, complaining about the length of the above-mentioned
enforcement proceedings.
- On
1 March 2007 the Split County Court found a violation of the
applicant's right to a hearing within a reasonable time. It awarded
him compensation in the amount of 7,000 Croatian kuna (HRK) and
ordered the Makarska Municipal Court to decide the case as quickly as
possible but in any case within six months. The County Court's
decision was served on the applicant on 23 March 2007.
- On
2 October 2007 the applicant lodged another request for the
protection of the right to a hearing within a reasonable time with
the Split County Court, complaining that the enforcement proceedings
were still pending at first instance. On 10 March 2008 the Split
County Court dismissed the applicant's complaint.
- On
2 April 2008 the applicant appealed to the Supreme Court (Vrhovni
sud Republike Hrvatske) against the decision of the Split County
Court, contesting it as being ineffective in his case and claiming
compensation in the amount of HRK 500,000.
- On
9 June 2008 the Supreme Court upheld the applicant's appeal in part
and ordered the Makarska Municipal Court to complete the enforcement
proceedings as quickly as possible but in any case within six months.
The Supreme Court did not award the applicant any further
compensation. The Supreme Court's decision was served on the
applicant on 3 July 2008.
- On
5 September 2008 the Makarska Municipal Court decided that the
enforcement was not permissible under the relevant domestic law. The
applicant appealed. On 15 January 2009 the Split County Court quashed
the first-instance decision and remitted the case to the Makarska
Municipal Court.
- On
23 January 2009 the applicant lodged a constitutional complaint about
the length of the above-mentioned enforcement proceedings and also
complained about the fact that both time-limits, the first one
ordered by the Split County Court and the second by the Supreme
Court, had not been complied with.
- On
19 February 2009 the Constitutional Court (Ustavni sud Republike
Hrvatske) dismissed the applicant's constitutional complaint,
treating it as an appeal against the Supreme Court's decision of 9
June 2008, on the ground that the findings of the lower courts had
been correct.
- On
6 April 2009 the Makarska Municipal Court decided again that the
enforcement on the flat in question was not permissible. The
applicant appealed and the case is still pending before the Split
County Court.
II. RELEVANT DOMESTIC LAW
- Article
29 § 1 of the Constitution (Ustav Republike
Hrvatske, Official Gazette no. 41/2001 of 7 May 2001) reads as
follows:
“In the determination of his rights and
obligations or of any criminal charge against him, everyone is
entitled to a fair hearing within a reasonable time by an independent
and impartial court established by law.”
- The
relevant part of section 63 of the Constitutional Act on the
Constitutional Court (Ustavni zakon o Ustavnom sudu Republike
Hrvatske, Official Gazette no. 49/2002 of 3 May 2002 – “the
Constitutional Court Act”) reads as follows:
“(1) The Constitutional Court shall examine a
constitutional complaint whether or not all legal remedies have been
exhausted if the 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 sub-section
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 sub-section 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 on which a request for
payment is lodged.”
- The
relevant part of the Courts Act (Zakon o sudovima, Official
Gazette nos. 150/05, 16/07 and 113/08), which entered into force
on 29 December 2005, reads as follows:
III. PROTECTION
OF THE RIGHT TO A HEARING WITHIN A REASONABLE TIME
Section 27
“(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 Court
for Administrative Offences 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 sub-section 1 of this section shall be urgent. The rules of
non-contentious procedure shall apply mutatis mutandis in
those proceedings and, in principle, no hearing shall be held.
Section 28
(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 of the date on which the party's request
for payment is lodged.
(3) An appeal, to be lodged with the Supreme Court
within fifteen days, lies against a decision on the request for the
protection of the right to a hearing within a reasonable time. No
appeal lies against a Supreme Court decision, but a constitutional
complaint may be lodged.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that the length of the enforcement proceedings
was incompatible with the “reasonable time” requirement
laid down in Article 6 § 1 of the Convention. In particular, he
complained that the compensation he had been awarded for the length
of the proceedings was not adequate. Article 6 § 1 of the
Convention 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
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.
- The
period has not yet ended. In assessing the reasonableness of the time
that elapsed after 6 November 1997, account must be taken of the
state of the proceedings at the time of ratification. In this
connection, the Court notes that the proceedings have been pending so
far for more than fifteen years, of which three years before and
about twelve years after the ratification of the Convention by
Croatia, at two levels of jurisdiction.
A. Admissibility
1. Exhaustion of domestic remedies
- The
Government argued that the applicant should have lodged a
constitutional complaint about the amount of compensation awarded to
him, which he failed to do.
- The
applicant argued that he had properly exhausted all domestic
remedies.
- The
Court notes that, following the decisions of the County Court and the
Supreme Court on his complaints about the length of the enforcement
proceedings at issue, the applicant did lodge a constitutional
complaint about the length of the same enforcement proceedings,
which, however, was dismissed.
- In
these circumstances the Government's objection must be rejected.
2. The applicant's victim status
- The
Government submitted that the County Court and the Supreme Court had
accepted the applicant's complaint, found a violation of his right to
a hearing within a reasonable time, and awarded him appropriate
compensation. The violation complained of had therefore been remedied
before the domestic authorities and, as a result, the applicant had
lost his victim status.
- The
applicant replied that he could still be considered a victim of the
violation complained of.
- The Court notes that the last decision at domestic
level concerning the applicant's complaint about the length of the
enforcement proceedings at issue was adopted by the Constitutional
Court on 19 February 2009. At that time the proceedings had been
pending for more than eleven years after the ratification of the
Convention by Croatia. For this whole period, just satisfaction was
awarded only by the Split County Court on 1 March 2007. It does not
correspond to what the Court would have been likely to award under
Article 41 of the Convention in respect of the same period.
Furthermore, although both the County Court and the Supreme Court
ordered the Municipal Court to adopt a decision and complete the
enforcement within six months, the Municipal Court failed to comply
with the first order and the decision it adopted the second time was
quashed, so that the enforcement proceedings are still pending.
- The
compensation awarded cannot therefore be regarded as adequate in the
circumstances of the case (see the principles established in the
Court's case-law in Cocchiarella v. Italy [GC],
no. 64886/01, §§ 65-107, ECHR 2006-V, or Scordino
v. Italy (no. 1) [GC], no. 36813/97, §§ 178-213,
ECHR 2006-V). In these circumstances the applicant has not lost his
status as a victim within the meaning of Article 34 of the
Convention.
3. Conclusion
- Having
regard to the above facts, the Court considers 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
applicant complained that the length of the enforcement proceedings
had been excessive because of the inactivity and inefficiency of the
domestic courts.
- The
Government accepted the County Court's findings that the length of
the proceedings at issue had exceeded a “reasonable time”
requirement but they contested that the delays occurred after the
decision of the County Court had been attributable to the national
courts. They further argued that the applicant had contributed to the
complexity and length of the proceedings because the ownership of the
flat on which he had sought enforcement had been disputed.
- 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, Frydlender v. France [GC], no. 30979/96, §
43, ECHR 2000-VII). The Court reiterates that enforcement proceedings
by their very nature need to be dealt with expeditiously (see
Comingersoll S.A. v. Portugal [GC], no. 35382/97, § 23,
ECHR 2000 IV).
- The Court considers that the length of the enforcement
proceedings at issue, lasting twelve years after the ratification of
the Convention, is a priori unreasonable and calls for a
global assessment. The overall length could be justified only under
exceptional circumstances. In this connection, the Court notes that,
contrary to the Government's submissions, the County Court attributed
all delays to the inefficiency of the Municipal Court. Therefore the
Court cannot accept the explanations given by the Government for the
length of proceedings. The Court reiterates that a State has an
obligation to organise a system of enforcement of judgments that is
effective both in law and in practice and that ensures their
enforcement without any undue delay (see Fuklev v. Ukraine,
no. 71186/01, § 84, 7 June 2005, and MuZević v.
Croatia, no. 39299/02, § 83, 16 November 2006).
- The
Court has frequently found violations of Article 6 § 1 of the
Convention in cases raising similar issues to the present one (see,
for example, Plazonić v. Croatia, no. 26455/04, 6 March
2008, and Medić v. Croatia,
no. 49916/07, 26 March 2009). It holds that in the period
which was subject to the scrutiny of the national courts the length
of the proceedings was already excessive and failed to meet the
“reasonable time” requirement.
- In
the light of the foregoing, the Court considers that there has been a
breach of Article 6 § 1 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
- The applicant also complained under Article 13 of the
Convention, taken in conjunction with Article 6 § 1 thereof,
that the Makarska Municipal Court had not complied with the orders of
the Split County Court and the Supreme Court to complete the
enforcement proceedings within the specified time-limit. Therefore
the remedies he had at his disposal were not effective. He relied on
Article 13 of the Convention, which 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 contested that argument.
A. Admissibility
-
The Court finds 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
1. The parties' arguments
- The
applicant called into question the effectiveness of the domestic
remedies in connection with the length of the enforcement
proceedings. This since the Makarska Municipal Court had failed to
complete the enforcement proceedings within the time-limits ordered
by the Split County Court and the Supreme Court and because this was
not remedied by the Constitutional court either.
- The
Government argued that a complaint about the length of proceedings
under the Courts Act was an effective domestic remedy which provided
both the speeding up of the proceedings at issue and the award of
just satisfaction and it has been efficiently applied by the Split
County Court and Supreme Court. They further submitted that the
Makarska Municipal Court had complied with the time-limit ordered by
the Supreme Court by declaring the enforcement on the flat in
question impermissible.
2. The Court's assessment
- The Court reiterates that Article 13 guarantees an
effective remedy before a national authority for an alleged breach of
the requirement under Article 6 § 1 to hear a case within a
reasonable time (see Kudła v. Poland [GC], no.
30210/96, § 156, ECHR 2000-XI). In the instant case it is to be
noted that enforcement of a judgment given by any court must be
regarded as an integral part of the “hearing” for the
purposes of Article 6 (see Lukavica v. Croatia, no. 39810/04,
§ 22, 5 July 2007, Hornsby v. Greece, judgment of
19 March 1997, Reports of Judgments and Decisions
1997 II, pp. 510–511, § 40).
- In the present case, firstly the County Court and then
the Supreme Court both accepted the applicant's complaints about the
length of proceedings, found a violation of his right to a hearing
within a reasonable time and the County Court awarded him
compensation. The mere fact that the compensation awarded to the
applicant at the domestic level does not correspond to the amount
awarded by the Court in comparable cases does not render the remedy
ineffective (see for example, Jakupović v. Croatia, no.
12419/04, § 28, 31 July 2007 and Rišková v.
Slovakia, no. 58174/00, § 100, 22 August 2006).
- However,
the Court considers that the obligation of the States under Article
13 also encompasses the duty to ensure that the competent authorities
enforce remedies when granted and notes that it has already found
violations on account of a State's failure to observe that
requirement (see Iatridis v. Greece [GC], no. 31107/96,
§ 66, ECHR 1999-II). For the Court, it would be
inconceivable that Article 13 provided the right to have a
remedy, and for it to be effective, without protecting the
implementation of the remedies afforded. To hold the contrary would
lead to situations incompatible with the principle of the rule of law
which the Contracting States undertook to respect when they ratified
the Convention (see, by analogy, Hornsby v. Greece, 19 March
1997, § 40, Reports of Judgments and Decisions 1997-II).
- As
regards the circumstances of the present case, the Court notes that
firstly the Split County Court and then also the Supreme Court
ordered a time-limit for the Makarska Municipal Court to complete the
enforcement proceedings at issue. However, the Municipal Court failed
to comply with the time-limit ordered by the County Court.
Furthermore, although the applicant complained about this to the
Constitutional Court, it dismissed the applicant's complaint without
addressing the issue of non-enforcement of the said orders. In these
circumstances the Court cannot accept that the remedies provided by
the national law in respect of the length of proceedings were
effective in the applicant's case.
- This
conclusion, however, does not call into question the effectiveness of
the remedy as such or the obligation to lodge a complaint about the
length of pending proceedings under section 27 of the Courts Act and
subsequently also a constitutional complaint under section 63 of the
Constitutional Court Act in order to exhaust domestic remedies
concerning complaints about length of proceedings.
There
has accordingly been a breach of Article 13 in the present case.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The applicant also invoked Article 14 of the
Convention and Article 1 of Protocol No. 1 to the Convention,
stating that the facts of the case disclosed a violation of his
property rights “in the widest sense”, without further
substantiation.
- In
the light of all the material in its possession, and in so far as the
matters complained of are within its competence, the Court considers
that this part of the application does not disclose any appearance of
a violation of any of the above Articles of the Convention. It
follows that this part of the application 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 HRK 343,213,01 (EUR 47,393,73) , in respect of
pecuniary damage and EUR 50,000 in respect of non-pecuniary damage.
- The
Government contested these claims.
- As
regards the pecuniary damage alleged, the Court notes that no
sufficient link has been established between the violation found and
the compensation sought.
- As
regards the non-pecuniary damage, the Court, ruling on an equitable
basis, awards the applicant EUR 2,900 under that head, plus any tax
that may be chargeable on that amount.
B. Costs and expenses
- The
applicant also claimed HRK 24,871,46 (EUR 3,430) for the costs and
expenses incurred in the enforcement proceedings at issue.
- Since
the applicant did not submit a claim for the costs and expenses
related to remedy the violation claimed , either before the domestic
courts or before it, the Court considers that there is no call to
award him 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 length of
the enforcement proceedings and the alleged lack of an effective
remedy in that respect admissible and the remainder of the
application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
3. Holds
that there has been a violation of Article 13 of the Convention;
4. Holds
(a) that
the respondent State is to pay the applicant, within three months of
the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following
amount, which is to be converted into the national currency of the
respondent State at the rate applicable on the date of settlement:
(i) EUR
2,900 (two thousand nine hundred euros) in respect of non-pecuniary
damage, plus any tax that may be chargeable to the applicant;
(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 applicant's claim
for just satisfaction.
Done in English, and notified in writing on 22 April 2010,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
