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FIRST
SECTION
CASE OF KAIĆ AND OTHERS v. CROATIA
(Application
no. 22014/04)
JUDGMENT
STRASBOURG
17 July
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 Kaić and Others 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 26 June 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 22014/04) 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 twenty-six Croatian nationals listed in the Appendix (“the
applicants”), on 18 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
4 October 2005 the Court decided to give notice of the application to
the Government. It 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
- During
1992 the applicants lent various sums of money to a certain S.D., who
was supposed to pay the money back within periods ranging from two to
twelve months and at interest rates ranging from 10% to 18% per month
(so-called “financial engineering”).
A. Civil proceedings
- Since
S.D. failed to perform her contractual obligations, on 21 March 1994
the applicants brought a civil action against her in the Zagreb
Municipal Court (Općinski sud u Zagrebu).
- In
the period before the entry into force of the Convention in respect
of Croatia (5 November 1997) the court held several hearings.
- On
17 November 1997 the court invited the applicants to advance the
costs of a financial expert. On 1 December 1997 the applicants
refused to do so, arguing that an expert opinion was unnecessary
since they had already submitted a similar opinion to which the
respondent had not objected. They invited the court to give a
judgment on the basis of the existing evidence.
- The
court held further hearings on 5 April and 26 October 2001 and 4 July
2003. On the last-mentioned date it delivered a judgment finding for
the applicants. The judgment was served on the applicants' advocate
on 30 December 2003.
- On
12 February 2004 S.D. appealed to the Zagreb County Court (Zupanijski
sud u Zagrebu).
- On
8 November 2005 the County Court dismissed the respondent's appeal
and upheld the first-instance judgment.
B. The proceedings before the Constitutional Court
- Meanwhile,
on 2 December 2002 the applicants lodged a constitutional complaint
with the Constitutional Court (Ustavni sud Republike Hrvatske)
complaining about the length of the above proceedings. On 9 November
2004 the Constitutional Court found a violation of the applicants'
constitutional right to a hearing within a reasonable time, awarded
4,000 Croatian kunas (HRK) in compensation to each of them and
ordered the County Court to decide the appeal in the shortest time
possible but no later than six months from the publication of the
decision in the Official Gazette. The Constitutional Court's decision
was published on 26 November 2004.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant 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 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 21 March 1994, when
the applicants brought their civil action against S.D. Consequently,
they were pending for some three years and seven months before the
ratification.
- The
case was still pending on 9 November 2004 when the Constitutional
Court gave its decision. On that date the proceedings had lasted
about seven years.
- The
proceedings ended on 8 November 2005, when the Zagreb County Court
adopted its judgment, that is, one year after the decision of the
Constitutional Court. Thus, in total, the proceedings lasted some
eight years after the ratification, for two levels of jurisdiction.
A. Admissibility
1. The parties' arguments
- The
Government submitted that 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 appropriate compensation. The violation complained of
had, therefore, been remedied before the domestic authorities and the
applicants had lost their victim status.
- The
applicants replied that they could still be considered victims of the
violation complained of.
2. The Court's assessment
- 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, notably,
Cocchiarella v. Italy [GC], no. 64886/01,
§§ 69-98, to be published in ECHR 2006; and
Arvanitaki-Roboti and Others v. Greece [GC], no. 27278/03,
§ 29, 15 February 2008).
- The
Court notes that the Constitutional Court awarded each applicant the
equivalent of approximately 530 euros (EUR). This amount is
manifestly unreasonable having regard to the Court's case-law. This
factor alone leads to the conclusion that the redress obtained by the
applicants at the domestic level was insufficient (see Cocchiarella,
cited above, §§ 106-107, and Jakupović v.
Croatia, no. 12419/04, § 17, 31 July 2007).
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 reiterates that, if the way in which the
Constitutional Court interpreted and applied the relevant provisions
of the domestic law produced 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. 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 Jakupović, cited above, § 18).
- In
this connection the Court observes, as noted above (see
paragraph 16), that the proceedings lasted for another year
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 Jakupović, cited
above, § 19).
- 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, 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 had 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
similar issues as the present one (see, for example, Poje v.
Croatia, no. 29159/03, 9 March 2006, and Škare
v. Croatia, no. 17267/03, 15 June 2006). 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. It necessarily
retained that character throughout the subsequent period of one year
after the delivery of the Constitutional Court's decision.
- 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
- The
applicants also complained under Article 13 of the Convention, taken
in conjunction with Article 6 § 1 thereof, that the Zagreb
County Court had not complied with the Constitutional Court's order
to deliver a decision within the prescribed time-limit. 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 contested that argument.
A. Admissibility
- The
Government invited the Court to reject this complaint on the ground
that the applicants had failed to exhaust domestic remedies. They
argued that the applicants should have lodged another constitutional
complaint, which would have enabled the Constitutional Court to
assess the significance of the County Court's failure to comply with
its decision.
- The
applicants did not comment on this issue.
- In
this respect the Court refers to its judgment in the case of Vaney
v. France (no. 53946/00, § 53, 30 November
2004) where, in the context of Article 6 § 1 of the Convention,
it rejected a similar non-exhaustion objection raised by the
Government, as accepting it would have led to the applicant being
caught in a vicious circle where the failure of one remedy would have
constantly given rise to an obligation to make use of another one. It
considers that this reasoning applies with equal force in the context
of Article 13 in the circumstances such are those prevailing in
the present case. Thus, the Government's objection must be dismissed.
- 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
1. The parties' arguments
- The
Government admitted that the Zagreb County Court had exceeded the
time-limit set forth in the Constitutional Court's decision by six
months. However, they considered that this factor alone could not
lead to a conclusion that the constitutional complaint had not been
an effective remedy in the applicants' case.
- Firstly,
they submitted that, pursuant to the Constitutional Court Act, all
state authorities, including courts, are bound by the Constitutional
Court's decisions and have a duty to implement them. In the vast
majority of cases, the courts in Croatia respected the Constitutional
Court orders and delivered their decisions in due time. It was
however possible that the courts sometimes did not comply fully with
those orders. For that reason, and in order to monitor compliance
with its own decisions, the Constitutional Court had set up a system
of supervision by requesting all courts in Croatia to submit reports
on timely implementation of those decisions. In particular, since
1 January 2005 every Constitutional Court's decision ordering a
lower court to decide a case within a certain time-limit, in its
operative provisions contained an order to the President of that
court to provide information by a certain date on the delivery and
service of the decision the adoption of which had been ordered by the
Constitutional Court.
- Secondly,
as regards the circumstances of the present case, the Government
reiterated that the Constitutional Court had decided in the
applicants' favour, expressly acknowledged a violation of their right
to a hearing within a reasonable time, and awarded them compensation.
Against that background, the County Court's delay of six months in
complying with the Constitutional Court's decision had not had a
significant impact on the applicants' situation nor had it
jeopardised the authority of that decision “to a degree that
would cast doubt on its efficiency.”
- The
applicants considered that the mere fact that the County Court had
“ignored” the Constitutional Court's decision
sufficiently indicated that no effective remedy existed in Croatia
for its “slow judiciary”.
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). 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 to a hearing within a reasonable time and
awarded them compensation. The mere fact that the 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, Jakupović,
cited above, § 28, and Rišková v. Slovakia,
no. 58174/00, § 100, 22 August 2006).
- However,
the Court considers that the obligation of the States under Article
13 encompasses also the duty to ensure that the competent authorities
enforce remedies when granted and notes that it has already found
violations on the 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 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, judgment
of 19 March 1997, Reports of Judgments and Decisions 1997 II,
pp. 510–511, § 40).
- In
so holding the Court does not exclude the possibility that there may
be instances where delayed implementation or even non-implementation
of the Constitutional Court's decisions may be justified and thus may
not lead to a breach of Article 13 of the Convention. However,
in the present case the Government did not attempt to justify the
six-month delay, which, in the Court's view, is of a special
importance given the fact that the violation found concerned the
length of proceedings. In this respect the Court notes that the
Zagreb County Court is an appellate court, which means that the list
of possible reasons for the delay non-attributable to the authorities
(for example, the conduct of the applicants) is relatively short.
- The
Government rather attempted to diminish the importance of the County
Court's delay by emphasising various mitigating factors, such as the
award of compensation and the express acknowledgment of the
violation, which in their view rendered the remedy effective
nevertheless. Admittedly, while these factors may be of some
importance in deciding whether an applicant had an effective remedy,
the Court considers that they cannot be considered decisive in the
present case. In particular, as already found above (see paragraph
20), the compensation awarded to the applicants was too low and thus
insufficient. While it is true that this factor alone normally does
not render the remedy ineffective (see paragraph 39 above), the Court
notes that in the present case it was reinforced by the failure of
the competent court to execute the Constitutional Court's decision in
timely fashion; it being understood that the cessation of an ongoing
violation is for the Court an important element of the right to an
effective remedy (see, implicitly, Cocchiarella, cited above,
§ 74).
- The
Court is therefore of the view that in the instant case, where the
applicants did not receive sufficient compensation for the inordinate
length of their proceedings and where the competent court exceeded
the time-limit set for it by six months and thereby failed to
implement the Constitutional Court's decision in due time, it cannot
be argued that the constitutional complaint the applicants resorted
to was an effective remedy for the length of those proceedings. The
combination of these two factors in the particular circumstances of
the present case rendered an otherwise effective remedy ineffective.
This
conclusion, however, does not call into question the effectiveness of
the remedy as such or the obligation to lodge a constitutional
complaint under section 63 of the Constitutional Court Act in order
to exhaust domestic remedies concerning complaints about the length
of proceedings still pending.
- There
has accordingly been a breach of Article 13 in the present case.
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 14,000 Croatian kunas (HRK) each in respect of
non-pecuniary damage.
- The
Government contested this claim.
- The
Court observes that each applicant was awarded 530 euros (EUR) by the
Constitutional Court. Having regard to the circumstances of the
present case as well as the fact that, notwithstanding this domestic
remedy, the Court has found a violation, it considers that in the
light of the criteria established in its case-law (see, Cocchiarella,
cited above, §§ 139-141, Arvanitaki-Roboti and
Others, cited above, §§ 29-31, and
Kakamoukas and Others v. Greece [GC], no.
38311/02, §§ 41-43, 15 February
2008) each applicant should be awarded EUR 1,350, plus any tax
that may be chargeable on that amount.
B. Costs and expenses
- The
applicants also claimed costs and expenses incurred before the Court
without specifying the amount.
- The
Government contested the claim.
- The
Court notes that pursuant to the Rule 60 § 1 of the Rules of
Court an applicant who wishes to obtain an award of just satisfaction
under Article 41 of the Convention in the event of finding a
violation of his or her Convention rights must make a specific claim
to that effect. Since in the present case the applicants'
representative failed to specify the claim for costs and expenses,
the Court makes no award under this head (Rule 60 § 3).
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 application admissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds that there has been a violation of Article
13 of the Convention;
- Holds
(a) that
the respondent State is to pay each applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 1,350 (one
thousand three hundred fifty euros), plus any tax that may be
chargeable, in respect of non-pecuniary damage, to be converted into
Croatian kunas at the rate applicable at the date of settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount 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 17 July 2008, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
