AS TO THE ADMISSIBILITY OF
Application no. 27897/02
by Nevenka HACKBARTH
The European Court of Human Rights (First Section), sitting on 3 November 2005 as a Chamber composed of:
Mr C.L. Rozakis, President,
Mr L. Loucaides,
Mrs F. Tulkens,
Mr P. Lorenzen,
Mrs N. Vajić,
Mr D. Spielmann,
Mr S.E. Jebens, judges,
and Mr S. Nielsen, Section Registrar,
Having regard to the above application lodged on 18 June 2002,
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, Ms Nevenka Hackbarth, is a Croatian national, who was born in 1936 and lives in Rijeka. The respondent Government were represented by their Agents, Ms L. Lukina-Karajković and subsequently by Ms Š. Stažnik.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
On 24 February 2000 the applicant complained to the Rijeka Office of the Inspection Department of the Ministry for Environmental Protection and Town Planning (Ministarstvo zaštite okoliša i prostornog uređenja – “the Ministry”) that her flat in Rijeka had frequently been flooded from the flat above, where her neighbours M.G. and T.G. were “drilling holes”.
On 6 March and 17 April 2000 the Ministry made in situ inspections in the applicant’s flat and established the existence of damp stains of unknown origin.
On 23 June 2000 the Ministry gave decision (rješenje) finding that, because of the frequent flooding of the applicant’s flat from the neighbouring one, her life and health were in serious danger since the water had also damaged electric installations. The Ministry ordered the neighbours to repair the sewage and water pipes in their flat within five days following the receipt of the decision and indicated that otherwise it would fine them 20,000 Croatian kunas (HRK). Since the parties did not appeal, the decision became final.
On 27 August 2000 the neighbours informed the Ministry that they had made the repairs indicated and thereby complied with the decision.
On 23 October 2000 the Ministry made another in situ inspection and established that the ceiling and the walls were dry and that there were no traces of damp. However, on the same day the applicant informed the Ministry that the wet stains had reappeared.
On 30 October 2000 the Ministry made another in situ inspection during which T.G. promised to call a plumber to repair the pipes.
The applicant submits that on 30 and 31 October 2000 she invited T.G. to inspect her flat and that T.G. did so. She further submits that on 1 November 2000 the plumber shortly visited her flat without making any repairs, and that M.G. also visited her flat with the plumber on four occasions.
On 15 December 2000 the applicant phoned the Ministry and complained that the neighbours had done nothing to stop the leakage. After that date she did not contact the Ministry again.
On 27 December 2000 the Ministry issued an enforcement order (zaključak o dozvoli izvršenja) establishing that its decision of 23 June 2000 had become enforceable and that the neighbours had not complied with it. Consequently, the Ministry fined the neighbours HRK 20,000. The neighbours were again ordered to repair the pipes, or the order would be carried out by another person at their expense.
On 15 January 2001 T.G. informed the Ministry that it was impossible for her to comply with the order. She argued that she had been unable to locate the pipe damage since the applicant had not allowed her or the plumber to enter her flat on two occasions (8 and 9 January 2001). Relying on the same arguments, T.G. appealed against the enforcement order to the second instance authority within the Ministry. On 30 July 2002 her appeal was dismissed.
It appears that, to date, the enforcement order has not been carried out.
B. Relevant domestic law and practice
1. The Constitution
The 1990 Croatian Constitution (Ustav Republike Hrvatske, Official Gazette no. 41/01 (consolidated text)) guarantees as fundamental rights, inter alia, the right to a fair trial within a reasonable time (Article 29), the right to respect for home (Article 34) and right to property (Article 48).
2. The Administrative Disputes Act
Sections 67 -76 of the Administrative Disputes Act (Zakon o upravnim sporovima, Official Gazette nos. 53/1991, 9/1992 and 77/1992) provide for special proceedings for the protection of constitutional rights and freedoms from unlawful (physical) acts (or omissions) of public officials, if no other judicial remedy is available.
Section 67 provides that these proceedings shall be instituted by bringing an ‘action against the unlawful act’ in the competent municipal court. The action shall be brought against the public authority to which the act (or omission) is imputable (the respondent).
Section 71 provides that in the proceedings following an ‘action against the unlawful act’ the court shall proceed urgently.
Section 72 provides that the court shall without delay serve the complaint on the respondent and set a time-limit for reply. However, the court may, depending on the circumstances, give a decision immediately. Under the case-law of the Supreme Court (decision no. Gž-6/1997-2 of 12 November 1997), the court may give a decision even without holding a hearing.
Section 73 provides that the court shall decide on the merits of the case by a judgment. If it finds in favour of the plaintiff, the court shall order the respondent to desist from the unlawful activity and, if necessary, order restitutio in integrum.
Section 74 provides that parties may appeal to the competent county court against the first instance decision within three days following the service. An appeal does not postpone the enforcement, but the court may, if it finds it necessary, decide otherwise. No appeal on points of law (revizija) lies against the second instance decision. In the proceedings following an ‘action against the unlawful act’ the court shall apply mutatis mutandis the provisions of the Civil Procedure Act.
Sections 75 and 76 provide that, if the court finds in favour of the plaintiff, the respondent shall comply with the judgment within three days following the service. If it fails to do so, the enforcement shall be carried out in the judicial enforcement proceedings. In addition, disciplinary proceedings for a grave disciplinary offence shall be instituted against the responsible official who may also be fined.
In its decision no. Us-2099/89 of 21 September 1989 the Administrative Court held that failure of the administrative authorities to carry out their own enforcement order constituted ‘unlawful act’ within the meaning of Section 67 of the Administrative Disputes Act. In its decision no. Gž-9/1993 of 6 April 1993 the Supreme Court reached the same conclusion.
1. The applicant complains under Articles 6 § 1 and 8 of the Convention as well as Article 1 of Protocol No. 1 about the length of the enforcement proceedings.
2. The applicant also complains under Article 13 of the Convention that she had no effective remedy at her disposal in order to enforce her rights under the Convention.
A. Alleged violations of Articles 6 § 1 and 8 of the Convention and Article 1 of Protocol No. 1
The applicant complains that the failure of the administrative authorities to enforce the decision ordering her neighbours to repair the water pipes, and thus prevent further flooding of her flat, violated her right to a trial within reasonable time, right to respect for home and the right to property. She relies on Articles 6 § 1 and 8 of the Convention as well as Article 1 of Protocol No. 1, which in their relevant parts read as follows:
Article 6 § 1
“In the determination of his civil rights and obligations ..., everyone is entitled to a... hearing within a reasonable time...”
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
Article 1 of Protocol No. 1
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
1. The parties’ submissions
The Government contest this view. They invite the Court to declare the complaint inadmissible on the ground that the applicant failed to exhaust domestic remedies. They submit, in particular, that the applicant failed to bring an ‘action against the unlawful act’. In arguing so they rely on the above-cited case-law of the Administrative and the Supreme Court.
The applicant considers that she exhausted domestic remedies. She argues that once the enforcement order had been issued it was the duty of the administrative authorities to execute it.
2. The Court’s assessment
The Court reiterates that the purpose of the exhaustion rule, contained in Article 35 § 1 of the Convention, is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them, before those allegations are submitted to the Court. That rule is based on the assumption, reflected in Article 13 of the Convention – with which it has close affinity – that there is an effective remedy available in respect of the alleged breach in the domestic system (see, for example, Kudła v. Poland [GC], no. 30210/96, § 152, ECHR 2000-XI). The only remedies which Article 35 of the Convention requires to be exhausted are those that relate to the breaches alleged and at the same time are available and sufficient (see, among many authorities, Mifsud v. France (dec.) [GC], no. 57220/00, § 15, ECHR 2002-VIII).
Turning to the present case, the Court firstly observes that, according to sections 67-76 of the Administrative Disputes Act, as interpreted by the Administrative and the Supreme Court, a party to the administrative enforcement proceedings is entitled to bring an ‘action against unlawful act’ in court, if the administrative authorities do not carry out their own enforcement order. The Court further observes that the applicant was entitled to bring such action since at the time she had introduced her application with the Court on 18 June 2002 the administrative enforcement proceedings complained of were still pending before the Ministry, that is to say, the enforcement order of 27 December 2000 had not been carried out.
As regards the effectiveness of the remedy, the Court firstly notes that in the proceedings following such action a court is required to proceed urgently. In a judgment finding for the plaintiff, the court orders to the administrative authority to carry out the enforcement order within three days following the service of that judgment. If the administrative authority fails to do so, the initial enforcement order will be carried out by the court, the responsible official will be charged with a grave disciplinary offence and he may be fined. It follows that this remedy is capable to expedite the proceedings and bring them to an end.
The fact that the court cannot award compensation in the same proceedings is not decisive. The Court reiterates that remedies available to a litigant at domestic level for raising a complaint about the length of proceedings are “effective”, within the meaning of Article 13 of the Convention if they “[prevent] the alleged violation or its continuation, or [provide] adequate redress for any violation that [has] already occurred” (Kudła v. Poland [GC], cited above, § 158). Article 13 therefore offers an alternative: a remedy is “effective” if it can be used either to expedite a decision by the courts dealing with the case, or to provide the litigant with adequate redress for delays that have already occurred (see the Kudła, cited above, § 159). In the Court’s view, having regard to the “close affinity” between Articles 13 and 35 § 1 of the Convention (see also the Kudła, cited above, § 152), the same is necessarily true of the concept of “effective” remedy within the meaning of the second provision (see, mutatis mutandis, Mifsud v. France, cited above, § 17).
Accordingly, the Court considers that an ‘action against unlawful act’ was available to the applicant and that she has not demonstrated that it was insufficient or ineffective in the circumstances of her case.
It follows that this part of the application is inadmissible under Article 35 § 1 for non-exhaustion of domestic remedies and must be rejected pursuant to Article 35 § 4 of the Convention.
B. Alleged violation of Article 13 of the Convention
The applicant also complained that she had no effective domestic remedy at her disposal for her complaints under Articles 6 § 1 and 8 of the Convention and Article 1 of Protocol No. 1, as required under 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 contest this view.
The Court has already found that the ‘action against unlawful act’ constitutes an effective remedy in respect of the applicant’s complaints under Articles 6 § 1 and 8 of the Convention and Article 1 of Protocol No. 1.
It follows that this complaint is manifestly ill-founded within the meaning of Article 35 § 3 and must be rejected pursuant to Article 35 § 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Søren Nielsen Christos Rozakis
HACKBARTH v. CROATIA DECISION
HACKBARTH v. CROATIA DECISION