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 JAKUPOVIĆ v. CROATIA
(Application
no. 12419/04)
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 Jakupović 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. 12419/04) 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 three Croatian nationals, Mrs Adila Jakupović, Mr Ešerf
Jakupović and Mrs Senada Jakupović (“the
applicants”), on 4 March 2004.
- The
applicants were represented by Mrs Lj. Nogolica, a lawyer practising
in Zagreb. The Croatian Government (“the
Government”) were represented by their Agent, Mrs Š.
StaZnik.
- On
22 June 2006 the Court
decided to give notice of the application to the Government. Applying
Article 29 § 3 of the Convention, it decided to rule on the
admissibility and merits of the application at the same time.
THE FACTS
- The
applicants were born in 1947, 1943 and 1986 respectively and live in
Novigrad.
- On
2 February 1998 the applicants brought a civil action against the
State and the hospital R. in the Zagreb Municipal Court (Općinski
sud u Zagrebu) seeking non-pecuniary damages for the death of the
first and the second applicant's son and the third applicant's
brother.
- The
court held hearings on 4 June 1998, 18 January, 10 June and
2 September 1999. The applicants withdrew their action in
respect of the State. Meanwhile the insurance company C.O. intervened
in the proceedings.
- The
next hearing was held on 10 July 2003.
- On
29 April 2004 the court gave judgment awarding the damages sought in
part. Following an appeal by the respondents, on 21 March 2006 the
Zagreb County Court quashed the first-instance judgment and remitted
the case.
- Meanwhile,
on 10 December 2002 the applicants lodged a constitutional complaint
concerning the length of proceedings under section 63 of the
Constitutional Court Act. On 17 September 2004 the Constitutional
Court accepted the applicants' complaint, finding a violation of
their right to a hearing within a reasonable time and awarding them
each compensation in the amount of 4,400 Croatian kunas (HRK).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicants complained that the length of the proceedings had been
incompatible with the “reasonable time” requirement, laid
down in Article 6 § 1 of the Convention, which reads
as follows:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal...”
- The
Government acknowledged, in light of the Constitutional Court's
decision, that there had been a violation of the applicants' right to
a hearing within a reasonable time. However, they maintained that
they were afforded appropriate redress at the national level.
- The
period to be taken into consideration began on 2 February 1998 when
the applicants lodged their action. The proceedings had lasted about
five years and seven months before one court instance when on
17 September 2004 the Constitutional Court gave its decision.
Subsequently, the proceedings have lasted another two years and ten
months after that date.
- In
total, the case has so far been pending for more than nine and a half
years 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 the
Constitutional Court had accepted the applicants' constitutional
complaint, found a violation of their constitutional right to a
hearing within a 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 submitted that, in spite of the Constitutional Court's
decision of 17 September 2004, they were still “victims”
within the meaning of Article 34 of the Convention. They argued
that the amount of compensation was insufficient and significantly
lower than amounts usually awarded by the Court in Croatian
length-of-proceedings cases.
- The Court observes that in the present case the
applicants' victim status within the meaning of the Convention
depends on whether the redress afforded to them at the domestic level
was adequate and sufficient having regard to Article 41 of the
Convention. This issue falls to be determined in the light of the
principles established under the Court's case-law (see, most
recently, Scordino v. Italy (no. 1) [GC], no. 36813/97,
§§ 178-213, ECHR 2006-... and Cocchiarella v.
Italy [GC], no. 64886/01, §§ 69-98, ECHR
2006-...).
- The
Court notes that the Constitutional Court awarded the applicants the
equivalent of approximately 600 euros (EUR). This amount is
approximately 20% of what the Court generally awards in similar
Croatian cases. This factor in itself leads to a result that the
amount is manifestly unreasonable having regard to the Court's
case-law. The redress obtained by the applicant at the domestic level
was thus insufficient (see Cocchiarella, cited above, §§
106-107; and, mutatis mutandis, Tomašić v.
Croatia, no. 21753/02, § 35, 19 October
2006). The applicants can accordingly still claim to be “victims”
of a breach of their right to a hearing within a reasonable time.
- The
Court further 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 two years and ten months 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 notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
- The
Court reiterates that the reasonableness of the length of proceedings
must be assessed in the light of the circumstances of the case and
with reference to the following criteria: the complexity of the case,
the conduct of the applicants and the relevant authorities and what
was at stake for the applicants in the dispute (see, among many other
authorities, Frydlender v. France [GC], no. 30979/96, §
43, ECHR 2000-VII).
- The
Court has frequently found violations of Article 6 § 1 of the
Convention in cases raising issues similar to the one in the present
case (see Silva Pontes v. Portugal, judgment of 23 March 1994,
Series A no. 286 A).
- Having
examined all the material submitted to it, the Court concurs with the
Constitutional Court that in the instant case 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
view of the above considerations, the Court concludes that there has
been a breach of Article 6 § 1.
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
- The
applicants further complained that the constitutional complaint was
not an effective remedy for the excessive length of their
proceedings. They 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
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). The “effectiveness” of a “remedy”
within the meaning of Article 13, however, does not depend on the
certainty of a favourable outcome for the applicant. (see Kudła,
cited above, § 157).
- The
Court has already accepted that a complaint to the Constitutional
Court under section 63 of the Constitutional Court Act represented an
effective remedy for length of proceedings still pending in Croatia
(see Slaviček v. Croatia (dec.), no. 20862/02, ECHR
2002 VII). In the present case, the Constitutional Court
accepted the applicants' constitutional complaint, found a violation
of their constitutional right and awarded them compensation. The mere
fact that the just compensation awarded to the applicants at the
domestic level does not correspond to the amounts awarded by the
Court in comparable cases does not render the remedy ineffective (see
for example Rišková, cited above, § 100).
- It
follows that this complaint is manifestly ill-founded and must be
rejected in accordance with Article 35 §§ 3 and 4 of the
Convention.
III. 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 45,000 euros (EUR) in respect of non-pecuniary
damage.
- The
Government contested this claim.
- The
Court recalls 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 600 by the
Constitutional Court. 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 EUR 2,300 in
respect of the period covered by the Constitutional Court's decision.
- The
Court also awards the applicants jointly the sum of EUR 3,600 for the
further delay in the proceedings following the delivery of the
Constitutional Court's decision of 17 September 2004 (see paras.
18-19).
- Accordingly,
the applicants shall be awarded jointly the total sum of EUR 5,900 in
respect of non-pecuniary damage, plus any tax that may be chargeable
on that amount.
B. Costs and expenses
- The
applicants also claimed HRK 25,000 for the costs and expenses
incurred before the domestic courts and before the Court.
-
The Government contested this 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 considers it
reasonable to award the applicants jointly the sum of EUR 1,000 for
costs and expenses, plus any tax that may be chargeable on that
amount.
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 according to Article 44 § 2 of the
Convention, the following amounts which are to be converted
into the national currency of the respondent State at a rate
applicable at the date of settlement:
(i)
EUR 5,900 (five thousand nine hundred euros) in respect of
non-pecuniary damage;
(ii) EUR
1,000 (one thousand euros) in respect of costs and expenses;
(iii) any
tax that may be chargeable on the above amounts;
(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
