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FIRST
SECTION
CASE OF JEANS v. CROATIA
(Application
no. 45190/07)
JUDGMENT
STRASBOURG
13
January 2011
This
judgment is final but it may be subject to editorial revision.
In the case of Jeans v. Croatia,
The
European Court of Human Rights (First Section), sitting as a
committee composed of:
Dean
Spielmann,
President,
Nina
Vajić,
Giorgio
Malinverni,
judges,
and André Wampach,
Deputy Registrar,
Having
deliberated in private on 9 December 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 45190/07) 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 British national, Mr Terrence Jeans (“the
applicant”), on 19 September 2007.
- The
applicant was represented by Mr T. Vukičević, a lawyer
practising in Split. The Croatian Government (“the Government”)
were represented by their Agent, Mrs Š. StaZnik.
- On
3 September 2009 the President of the First Section decided to
communicate to the Croatian Government the complaint concerning the
length of the criminal proceedings and the lack of an effective
remedy in that respect. In accordance with Protocol No. 14, the
application was allocated to a Committee.
- Since
the applicant is a British national, the Government of the United
Kingdom had been given leave by the President to submit their written
comments on the case. The Government did not exercise their right to
intervene in the case (Article 36 § 1of the Convention and Rule
44).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1944 and lives in Rowner Gosport Hants, United
Kingdom.
1. Criminal proceedings
- On
3 June 1997 the Split State Attorney's Office (Općinsko
drZavno odvjetništvo) indicted A.B., D.D., G.A. and E.R.
before the Split County Court (Zupanijski sud u
Splitu) for participation in an affray (sudjelovanje u
tučnjavi) and D.Š. for the murder of the applicant's
son on 8 September 1996. The applicant participated in the
proceedings as the injured party (oštećenik).
- On
19 July 2000 the Split County Court delivered a judgment finding the
first four accused guilty while acquitting D.Š. It also
instructed the applicant to pursue his claim for non-pecuniary damage
against the four accused in separate civil proceedings.
- Following
an appeal by the State Attorney, on 5 December 2002 the Supreme Court
(Vrhovni sud Republike Hrvatske) reversed the lower-instance
judgment in the part concerning the first four accused by acquitting
them, as their prosecution had become time-barred. It also quashed
the judgment in the part concerning D.Š. and remitted the
case.
- In
the resumed proceedings, at the hearing held on 27 November
2003, the applicant stated that he had already instituted civil
proceedings for damages concerning the death of his son (see
paragraph 15 below).
- However,
on 10 February 2006 the applicant made a civil claim (imovinskopravni
zahtjev) in the criminal proceedings, seeking compensation of
non-pecuniary damage in the amount of 300,000 Croatian kunas (HRK).
- In
the resumed proceedings the court held five of fourteen scheduled
hearings, whereas the others were adjourned due to the inability of
domestic authorities to locate a witness and the non-attendance of
the defendant's lawyer and experts.
- On
10 July 2007 the Split County Court delivered a judgment acquitting
D.Š. and instructing the applicant to pursue his compensation
claim against the accused in separate civil proceedings that he had
already instituted.
- Following
an appeal by the State Attorney, on 22 January 2008 the Supreme Court
again quashed the lower-instance judgment and remitted the case.
- The
proceedings are still pending before the Split County Court.
2. Civil proceedings for damages before the Kaštel
Lukšić Municipal Court
- On
21 July 2003 the applicant brought a civil action in the Kaštel
Lukšić Municipal Court (Općinski sud u Kaštel
Lukšiću) against D.Š., seeking non-pecuniary
damages in connection with the death of his son.
- On
7 June 2004 the Municipal Court, at the request of the parties,
stayed the proceedings pending the outcome of the above-mentioned
criminal proceedings.
3. Civil proceedings for damages before the Split
Municipal Court
- On
22 March 2004 the applicant brought a civil action in the Split
Municipal Court (Općinski sud u Splitu) against the
State, also seeking non-pecuniary damages in connection with the
death of his son. On 26 April 2004 the Municipal Court ruled in
favour of the applicant since the defendant had failed to respond to
his civil action (presuda zbog ogluhe).
- Following the defendant's request, on 9 July 2004 the
Municipal Court restored the proceedings to the status quo ante
(povrat u prijašnje stanje).
- On
21 September 2004 at the applicant's request, the Municipal Court
stayed the proceedings pending the outcome of the above-mentioned
criminal proceedings.
4. The proceedings following the applicant's request
for the protection of the right to a hearing within a reasonable time
- On
13 February 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 Supreme Court complaining about the length of the
above-mentioned criminal proceedings. He argued that due to the
length of the criminal proceedings, it was very likely that
proceedings against D.Š. could become time-barred, as it was
the case against the other four accused.
- On
29 June 2006 the Supreme Court dismissed his request, finding that
the proceedings complained of did not concern “the
determination of the applicant's civil rights and obligations”
or “any criminal charge against him”.
- On
5 September 2006 the applicant lodged a constitutional complaint
against that decision, arguing that on 10 February 2006 he had
submitted a civil claim for damages in the above-mentioned criminal
proceedings and that therefore it could not be said that those
proceedings had not concerned “the determination of his civil
rights and obligations” as the Supreme Court reasoned.
- On
17 December 2008 the Constitutional Court dismissed the applicant's
constitutional complaint and served its decision on his
representative on 23 January 2009. It noted that by initially
deciding to pursue his civil claim for damages in the separate civil
proceedings, the applicant had lost his right to do so in the
above-mentioned criminal proceedings. Therefore, the criminal
proceedings indeed did not concern “the determination of his
civil rights and obligations” as the Supreme Court had
correctly held.
II. RELEVANT DOMESTIC LAW AND PRACTICE
1. The Constitutional Court Act
- 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:
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.”
2. The Courts Act
- 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 paragraph 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 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.”
3. The Code on Criminal Procedure
- The
relevant provisions of the Code on Criminal Procedure (Zakon o
kaznenom postupku - Official Gazette nos.110/1997, 27/1998, 58/1999.
112/1999, 58/2002, 62/2003, 178/2004 and 115/06) provide as follows:
Article 127
“(1) A claim for redress caused by a
criminal offence shall be examined in the criminal proceedings upon a
request by authorised persons, provided that this does not cause
significant delays of the proceedings.
...”
Article 128
“ A claim for redress in criminal
proceedings may lodge a person entitled to do so in civil
proceedings.”
4. The Civil Procedure Act
- The
relevant provisions of the Civil Procedure Act (Zakon o parničom
postupku, The Official Gazette, nos. 53/91, 91/92, 112/99, 88/01 and
117/03) provide as follows:
Section 12
“(3) A civil court is bound by a final
judgment given in criminal proceedings finding the accused guilty in
so far as it concerns the existence of the criminal offence and
criminal liability of the accused.”
Section 213
“...court shall stay the proceedings:
1. When it decides not to rule on a preliminary issue
itself.
...
The court may stay the proceedings if the
decision on the merits depends on ... whether a criminal offence has
been committed ..., who committed it and whether that person may be
held [criminally] liable...”
Section 215
“(2) Where a court has stayed the
proceedings on the grounds in paragraph 1, or paragraph 2 of section
213, the proceedings shall resume when the [concurrent] proceedings
before a court or other competent authority end with a final
decision, or when the court finds that the reasons for awaiting their
outcome no longer exist.
(3) In all other cases the proceedings shall
be resumed at the request of a party as soon as the reasons for their
stay cease to exist.”
- According
to the Supreme Court's case law, a victim of a criminal offence
(injured party) may complain about the length of criminal proceedings
as of the date of filing of her or his claim for redress in those
proceedings. The relevant part of the Supreme Court's judgment no.
Kzp-21/08-6 of 20 May 2008 (Vrhovni Sud Republike Hrvatske), reads as
follows:
“The injured party in criminal proceedings becomes
entitled to file a request for the protection of the right to a
hearing within a reasonable time as of the date of filing a claim for
redress in the criminal proceedings, because it is only from that
time, that his or her civil rights are being determined ....”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that the length of the criminal proceedings was
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.
A. Admissibility
31. The
Government submitted that the applicant could not claim to be a
victim of the alleged violation because the criminal proceedings in
question did not involve a criminal charge against him or
determination of his civil rights and obligations. On the same ground
the domestic courts had rejected the applicant's request for the
protection of the right to hearing within reasonable time. Moreover,
the Government disputed the applicant's contention that he had ever
made a claim for redress in the criminal proceedings in question.
32. The
applicant contested this view submitting that he had made his claim
for redress within the criminal proceedings on 10 February 2006. As a
proof he submitted a copy of his claim for redress stamped by the
Split County Court.
- The
Court notes at the outset that the applicant was not the accused but
the injured party in the criminal proceedings complained of. Thus,
the criminal limb of Article 6 § 1 does not apply. However,
Article 6 § 1 under its “civil head” applies to
criminal proceedings involving a determination of pecuniary claims
asserted by the injured parties (so-called “civil-party
complaints”) and, even in the absence of such claims, to those
criminal proceedings the outcome of which is decisive for the “civil
right” in question (see Perez v. France [GC], no.
47287/99, §§ 65-67 and 71, ECHR 2004-I).
- In
the present case, the applicant participated in the criminal
proceedings from the outset as the injured party. The issue disputed
by the parties - whether or not the applicant filed a pecuniary claim
for damages in the criminal proceedings - is irrelevant for the
following reasons. As instructed by the criminal court, the applicant
brought separate civil proceeding for damages on 21 July 2003.
Moreover, on 22 March 2004 he brought a civil action for damages
against the State, while only on 10 February 2006 he made his
claim for redress in the criminal proceedings, which was of no effect
since he already instituted civil proceedings in this respect. Both
civil proceedings were stayed shortly after they had been instituted,
pending the outcome of the aforementioned criminal proceedings. Thus,
it was only when those civil proceedings were instituted that the
outcome of the criminal proceedings became relevant for the
determination of the applicant's “civil right” to
compensation, thereby attracting the applicability of Article 6 §
1 under its civil head to the criminal proceedings at issue (see
Jakešević v. Croatia (dec.), no. 18584/05, 10
January 2008). The Government's objection in this respect must
therefore be rejected.
- In
view of the above, the period to be taken into consideration began on
21 July 2003, when the applicant brought a separate civil claim for
damages, and has not yet ended. It has thus lasted almost seven years
before two levels of jurisdiction.
- The
Court notes that the length 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
Government submitted that the case was very complex, involving
examination of twenty-four witnesses, several of which resided
abroad. It was further necessary to obtain several opinions of
medical experts. The Government further claimed that the domestic
courts had acted expeditiously and without undue delays. In the
period under the Court's scrutiny, they had held thirteen hearings,
heard numerous witnesses and experts and adopted two decisions in the
case.
- 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 accepts that the proceedings at issue may have been somewhat
complex. However, the complexity of the case cannot justify the fact
that the proceedings have already been pending for seven years on two
levels of jurisdiction and are now pending before the first-instance
court. The Court notes that in the period falling within the Court's
scrutiny, the first-instance court held only five hearings, whereas
other scheduled hearings were adjourned due to the inability of the
authorities to locate a witness and the non-attendance of the
defendant's counsel and experts. Moreover, after a first-instance
judgment had been adopted, the case was remitted for re-examination
before a new panel of judges, which caused further delays in the
proceedings. Although the Court is not in a position to analyse the
juridical quality of the domestic courts' decisions, it considers
that, since the remittal of cases for re-examination is frequently
ordered as a result of errors committed by lower courts, the
repetition of such orders within one set of proceedings may disclose
a serious deficiency in the judicial system (see, for example, Mamič
v. Slovenia (no. 2), no. 75778/01, § 35, ECHR
2006 X (extracts); and Wierciszewska v. Poland,
no.41431/98, § 46, 25 November 2003).
- In
conclusion, the Court considers that the length of the criminal
proceedings in the present case, which had been directly decisive for
the applicant's civil claims, was excessive and failed to meet the
“reasonable time” requirement.
41. 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 applicant
also complained under Article 13 of the Convention, taken in
conjunction with Article 6 § 1 thereof, that he had no effective
remedy for his length complaint. 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.
Merits
45. The
Government reiterated that the domestic courts had correctly declined
to consider the applicant's request for the protection of the right
to a hearing within reasonable time since the criminal proceedings
complained of did not involve a criminal charge against the applicant
or determination of his civil rights and obligations.
In their view, the applicant should have availed himself of this
remedy in respect of the two sets of the civil proceedings initiated
in 2003 and 2004, which he had not done.
- The
Court notes that the applicant availed himself of effective domestic
remedies for the length of the criminal proceedings, by lodging a
request for the protection of the right to a hearing within
reasonable time and a constitutional complaint with a view to
accelerating the proceedings at issue. His complaints were dismissed
because the domestic courts considered that those proceedings did not
involve determination of his civil rights or obligations. However,
given its conclusion above (see § 40.), the Court considers that
complaining about the length of the criminal rather than the civil
proceedings was a reasonable step in the circumstances. Since the
outcome of the criminal proceedings was directly decisive for the
determination of the applicant's civil rights, it was only reasonable
that the applicant complained about the length of the criminal
proceedings. It was the duration of those proceedings that delayed
the determination of the applicant's civil claims for damages.
However, by deciding not to consider the length of those proceedings,
the domestic courts violated the applicant's right to an effective
remedy.
- In
view of that, the Court considers that there has been a breach of
Article 13 in the present case.
III. OTHER ALLEGED VIOLATIONS OF ARTICLE 14 OF THE
CONVENTION AND ARTICLE 1 OF THE PROTOCOL NO.1 TO THE CONVENTION
- The
applicant also complained under Article 1 of Protocol No. 1 to the
Convention that his property rights have been violated because the
determination of his civil claim for damages has been unduly delayed.
He also invoked Article 14 of the Convention without further
substantiating this complaint.
- 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 the Convention. It follows that it 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 20,000 euros (EUR) in respect of non-pecuniary
damage.
- The
Government contested this claim.
- The
Court awards the applicant 3,600 euros (EUR) in respect of
non-pecuniary damage, plus any tax that may be chargeable on that
amount.
B. Costs and expenses
- The
applicant, who is represented by a lawyer, claimed EUR 821 for the
costs and expenses incurred before the domestic courts in respect of
his request for the protection of the right to a hearing within
reasonable time and constitutional complaint. Ho also claimed an
unspecified amount for the costs incurred before the Court, to be
calculated according to the Court's standards.
- The
Government contested these claims.
- According to the Court's case-law, an applicant is
entitled to reimbursement of 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. The applicant's requests before
the Supreme Court and the Constitutional Court were essentially aimed
at remedying the violation of the Convention alleged before the Court
and therefore the costs incurred in respect of these remedies may be
taken into account in assessing the claim for costs (see Scordino
v. Italy (no. 1) [GC], no. 36813/97, § 28, ECHR
2006 V; and Medić v. Croatia,
no. 49916/07, § 50, 26 March 2009). In the present case,
regard being had to the information in its possession and the above
criteria, the Court awards the applicant a sum of EUR 821 for the
costs and expenses incurred in the domestic proceedings and EUR 1,200
in respect of the proceedings before the Court, plus any tax that may
be chargeable to the applicant on those amounts.
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 Article 6 §
1 and Article 13 of the Convention admissible and the remainder of
the application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds that there has been a violation of
Article13 of the Convention;
- Holds
(a)
that the respondent State is to pay the applicant, within three
months, to be converted into Croatian kunas at the rate applicable at
the date of settlement:
(i) EUR
3,600 (three thousand six hundred euros), plus any tax that may be
chargeable, in respect of non-pecuniary damage;
(ii) EUR
2,021 (two thousand twenty one euros), plus any tax that may be
chargeable to the applicant, in respect of costs and expenses;
(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 applicant's claim
for just satisfaction.
Done in English, and notified in writing on 13 January 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
André Wampach Dean
Spielmann
Deputy Registrar President
