AS TO THE ADMISSIBILITY OF
Application no. 15382/04
by Davor KALAJŽIĆ
The European Court of Human Rights (First Section), sitting on 28 September 2006 as a Chamber composed of:
Mr C.L. Rozakis, President,
Mr L. Loucaides,
Mrs F. Tulkens,
Mrs N. Vajić,
Mr A. Kovler,
Mr D. Spielmann,
Mr S.E. Jebens, judges,
and Mr S. Nielsen, Section Registrar,
Having regard to the above application lodged on 17 March 2004,
Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together.
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
The applicant, Mr Davor Kalajžić, is a Croatian national who was born in 1950 and lives in Split. He was represented before the Court by Mr T. Vukičević, a lawyer practising in Split. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik.
The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
In March 1991 the applicant was dismissed from work. In May 1991 the applicant instituted civil proceedings challenging the decision on his dismissal. He sought reinstatement, compensation of salary and lost earnings.
Following two remittals, on 26 November 1997 the Split Municipal Court (Općinski sud u Splitu) gave a partial judgment ordering the applicant’s reinstatement and awarding him compensation of salary. The judgment also stated that the compensation for lost earnings and the litigation costs were to be decided on later.
On appeal by the employer, on 14 November 1998 the Split County Court (Županijski sud u Splitu) upheld the first instance judgment in part concerning the applicant’s reinstatement. It quashed and remitted in part the decision on compensation for salary.
On 11 January 1999 the employer filed a request for revision on points of law (revizija) against that decision. On 11 September 2002 the Supreme Court (Vrhovni sud Republike Hrvatske) dismissed that request.
The first instance court not having decided a part of his claim, on 18 November 2002 the applicant filed a constitutional complaint concerning the length of the proceedings.
On 26 April 2004 the Split Municipal Court held a hearing.
During the next hearing held on 1 April 2005 it adopted a judgment by default.
On 27 April 2005 the defendant paid the applicant the sum ordered by the judgment.
On 4 May 2005 the Constitutional Court (Ustavni sud Republike Hrvatske) found that the applicant’s right to a determination of his civil claim within a reasonable time had been violated and awarded him 8,200 Croatian Kunas (HRK) as just satisfaction.
B. Relevant domestic 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 even before all legal remedies have been exhausted in cases when a competent court has not decided within a reasonable time a claim concerning the applicant’s rights and obligations or a criminal charge against him ...
(2) If the constitutional complaint ... under paragraph 1 of this Section is accepted, the Constitutional Court shall determine a time-limit within which a competent court shall decide the case on the merits...
(3) In a decision under paragraph 2 of this Article, the Constitutional Court shall fix appropriate compensation for the applicant in respect of the violation found concerning his constitutional rights ... The compensation shall be paid from the State budget within a term of three months from the date when the party lodged a request
The applicant complained under Article 6 § 1 of the Convention about the length of civil proceedings.
The applicant complained that the civil proceedings concerning his dismissal from work were not concluded within reasonable time as required under Article 6 § 1 of the Convention, the relevant parts of which read 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 argued that the applicant could no longer claim to be a victim because the Constitutional Court awarded just satisfaction to the applicant in respect of the length of the proceedings.
The applicant objected to the amount of the just satisfaction awarded, arguing that the period after he had filed his constitutional complaint was not taken into consideration by the Constitutional Court.
The Court recalls that, by virtue of Article 1 of the Convention, the primary responsibility for implementing and enforcing the guaranteed rights and freedoms is laid on the national authorities. The machinery of complaint to the Court is thus subsidiary to national systems safeguarding human rights (see Kudla v. Poland [GC], no. 30210/96, § 152, ECHR 2000-XI). More recently, in Recommendation (2004)6 of 12 May 2004, the Committee of Ministers of the Council of Europe also underlined the subsidiary character of the supervision mechanism set up by the Convention and recommended, inter alia, that the Contracting Parties pay particular attention to the existence of effective remedies in cases of an arguable complaint concerning the excessive length of judicial proceedings.
Turning to the facts of the present case the Court recalls that an applicant’s status as a “victim” within the meaning of Article 34 of the Convention depends on the fact whether the domestic authorities acknowledged, either expressly or in substance, the alleged infringement of the Convention and, if necessary, provided appropriate redress in relation thereto. Only when these conditions are satisfied does the subsidiary nature of the protective mechanism of the Convention preclude examination of an application (see Cocchiarella v. Italy [GC], no. 64886/01, § 71, to be published in ECHR 2006 and Cataldo v. Italy (dec.), no. 45656/99, 3 June 2004).
The Court notes that the applicant’s complaint concerning the length of civil proceedings regarding his dismissal from work was examined by the Constitutional Court which adjudicated on it in its decision of 4 May 2005. It found that the applicant’s right to a determination of his claims within a reasonable time had been violated and, making an assessment on an equitable basis, provided for redress of a compensatory nature by awarding the applicant just satisfaction in respect of non-pecuniary damage in the amount of HRK 8,200.
The Court observes that the Constitutional Court, following the practice of the Court, acknowledged that there had been a violation of the applicant’s constitutional right to have his civil claim decided within reasonable time. The Court considers that such acknowledgment satisfies in substance the first condition laid down in the Court’s case law.
The applicant’s status of a victim then depends on whether the redress afforded was adequate and sufficient having regard to just satisfaction as provided for under Article 41 of the Convention (see Dubjaková v. Slovakia (dec.), no. 67299/01, 19 October 2004).
In this connection, the Court recalls that in the length-of-proceedings cases one of the characteristics of sufficient redress which may remove a litigant’s victim status relates to the amount awarded. The amount depends, in particular, on the characteristics and effectiveness of the remedy. Thus, the States which, like Croatia, have opted for a remedy designed both to expedite proceedings and afford compensation is free to award amounts which – while being lower than those awarded by the Court – are not unreasonable (see Cocchiarella v. Italy [GC], cited above, §§ 96, 97). This is so not only because such a remedy is closer and more accessible to an applicant than an application to the Court, but also because it is faster and is processed in the applicant’s own language. It thus offers advantages that need to be taken into consideration.
Turning to the actual sum awarded to the applicant by the Constitutional Court, the Court notes that the compensation granted in the present case is lower compared with the sums awarded for comparable delays in the Court’s case-law. It would emphasise, in this respect, the importance of a reasonable amount of just satisfaction being awarded in the domestic system for the remedy in question to be considered as effective under the Convention. Whether the amount awarded may be regarded as reasonable, however, falls to be assessed in the light of all the circumstances of the case. These include not merely the duration of the proceedings in the specific case but the value of the award judged in the light of the standard of living in the State concerned, and the fact that under the national system compensation will in general be awarded and paid more promptly than would be the case if the matter fell to be decided by the Court under Article 41 of the Convention.
In the light of the material in the file and having regard to the particular circumstances of the case, the Court considers that the sum awarded to the applicant can be considered sufficient and therefore appropriate redress for the violation suffered (see Cataldo v. Italy, cited above, Širancová v. Slovakia (dec.), no. 62216/00, 7 September 2004, Eštok v. Slovakia (dec.), no. 63994/00, 28 September 2004, Dubjaková v. Slovakia (dec.), cited above).
The Court thus considers that the Constitutional Court’s decision was consistent with the Court’s case-law.
The Court therefore concludes that the applicant can no longer claim to be a “victim” within the meaning of Article 34 of the Convention of the alleged violation of his right to a hearing within a reasonable time.
It follows that the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. Therefore, the Court decides to discontinue the application of Article 29 § 3 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Søren Nielsen Christos Rozakis
KALAJŽIĆ v. CROATIA DECISION
KALAJZIC v. CROATIA DECISION