AS TO THE ADMISSIBILITY OF
Application no. 51585/99
by Ankica HORVAT
The European Court of Human Rights (Fourth Section), sitting on 16 November 2000 as a Chamber composed of
Mr G. Ress, President,
Mr A. Pastor Ridruejo,
Mr I. Cabral Barreto,
Mr V. Butkevych,
Mrs N. Vajić,
Mr J. Hedigan,
Mr M. Pellonpää, judges,
and Mr V. Berger, Section Registrar,
Having regard to the above application introduced on 20 April 1999 and registered on 5 October 1999,
Having regard to the Section's partial decision of 16 March 2000,
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 is a Croatian citizen, born in 1933 and living in Zagreb, Croatia. The Government are represented by their Agent, Mrs Lidija Lukina-Karajković.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
During 1992 the applicant lent various sums of money to a number of companies (so called financial engineering), including the following:
- on 19 October 1992 to “M.J.B.”, a company in Zagreb, German Marks (DEM) 10,000 for a period of 3 months at a rate of interest of 27 %;
- on 23 November 1992 to “Z.I.P.”, a company in Zagreb, DEM 20,390 for a period of 1 month at a rate of interest of 20 %.
As the said companies failed to repay the loans, the applicant instituted proceedings against “ZIP” and “M.J.B.“ on 29 March 1995 and 30 March 1995, respectively, with the Zagreb Municipal Court.
Proceedings against the company “Z.I.P.” and one Ž. M.
On 29 March 1995 the applicant and 39 other plaintiffs filed with the Zagreb Municipal Court (Općinski sud u Zagrebu) a civil action against the defendants “Z. I. P.”, a company from Zagreb and one Ž. M. The applicant is seeking payment of DEM 20,390. The Court registered their action under the file number P-2532/95.
The file number P-2532/95 was joined with the file number P-2570/93, as it involved the same defendants and the same matter.
On 17 May 1995 the court asked the applicant's counsel provide the address of the second defendant, as the plaintiffs had failed to do so in the action.
On 23 May 1995 the applicant's counsel submitted the second defendant's address.
The hearing on 4 October 1995 was adjourned due to the absence of the defendants. The receipt slip showed that the defendants had not received a notice of the date of the hearing as the address indicated was wrong. The court asked the applicant's counsel to submit the defendants' correct addresses within 30 days.
The next hearing was held on 24 January 1996. As the receipt slips indicated that the first defendant ceased to exist and that the second defendant's address remained unknown, the court ordered the applicant's counsel to request from the Social Welfare Centre (Centar za socijalni rad) the appointment of a legal representative to the second defendant.
On 20 June 1996 the applicant's counsel informed the court that the Zagreb Social Welfare Centre by its decision of 11 March 1996 appointed Ms Nevenka Mrčela, an attorney practising in Zagreb, as legal representative to the second defendant.
On 13 September 1996 the court asked the applicant's counsel to submit within 30 days a notice from the registry of the Zagreb Commercial Court relating to the legal status of the first defendant.
The next hearing, which took place on 2 December 1999, was adjourned due to the absence of the defendants. The receipt slips again showed that the defendants had not received notice of the hearing date as the address indicated was wrong. The court invited the applicant's counsel to inform it within 30 days whether the first defendant ceased to exist or not.
On 26 January 2000 the applicant's counsel withdrew the claim regarding the first defendant as it had ceased to exist.
According to the Government, during the next hearing on 7 June 2000, the court decided upon the parties' procedural request (prijedlog za povrat u prijašnje stanje). Due to the absence of the first defendant the hearing was adjourned for 17 October 2000.
Proceedings against the company “M J.B.” and one B. J.
On 30 March 1995 the applicant, together with thirty other palintiffs, filed a civil action with the Zagreb Municipal Court against a company “M.J.B.” and one B. J. The applicant soght payment of DEM 10,000. The court registered the case under file number P-2534/95.
The court asked the applicant's counsel to provide the address of the second defendant, as the plaintiffs had failed to do so in the action.
On 25 August 1995 the applicant's counsel informed the court of the second defendant's address.
The hearing on 2 October 1995 was adjourned due to absence of the defendants. The receipt slips indicated that the first defendant had left that address and that the second defendant was in detention on remand. The applicant's counsel informed the court that the second defendant had been released from detention and requested that the notices for the next hearing be sent to the defendants to the same address as before.
The hearing on 27 November 1995 was again adjourned due to the defendants' absence. As the receipt slips indicated that the first defendant ceased to exist and that the second defendant had changed address, the Court invited the applicant's counsel to inform it within 30 days whether the first defendant ceased to exist or not and about the correct address of the second defendant.
On 7 December 1995 the applicant's counsel informed the court of the defendants' addresses.
The next hearing on 14 February 1996 was again adjourned due to the defendants' absence. The receipt slips indicated that the first defendant ceased to exist and that the second defendant had changed address. The court decided to look into the criminal case-file number KO-1574/93 with the same court where the criminal proceedings were instituted against the second defendant, in order to find out her proper address.
Through the criminal case-file against the second defendant the court found her address and by an order of 11 September 1996 requested the applicant's counsel to furnish the court with a certificate from the Registry of the Zagreb Commercial Court regarding the legal status of the first defendant.
On 20 September 1996 the applicant's counsel submitted the requested document to the court.
The next hearing of 7 November 1997 was adjourned due to the defendants' absence. The receipt slips indicated that they had not received the notice of the hearing date.
The next hearing of 26 January 1998 was adjourned for the same reason. The court invited the applicant's counsel to submit the second defendant's correct address within 60 days.
On 6 February 1998 the applicant's counsel informed the court that in the police registry the second applicant's address was the same as the one from which the receipt slips had been showing that she had changed her address. Accordingly, the counsel proposed that a legal representative be appointed to the second applicant.
On 13 February 1998 the court ordered the applicant's counsel to request from the Social Welfare Centre to appoint a legal representative to the second defendant.
On 2 April 1998 the applicant's counsel informed the court that the Zagreb Social Welfare Centre by its decision of 26 March 1998 appointed Ms Nevenka Mrčela, an attorney practising in Zagreb, as the legal representative to the second defendant.
According to the Government, during the next hearing on 2 July 1998 the court issued a default judgment (presuda zbog izostanka) against the second defendant. The receipt slip showed that the first defendant had ceased to exist.
On 22 July 1998 the court sent a letter to the Zagreb Commercial Court (Trgovački sud u Zagrebu) asking for that Court's Registry certificate regarding the legal status of the first defendant. On 24 September 1998 the court received a letter from the Zagreb Commercial Court with a certificate that wrongly stated information about some other firm, instead of the first defendant.
On 13 April 2000 the court again sent a letter to the Zagreb Commercial Court asking it whether the first applicant still existed or not. On the same day the court also requested the applicant's counsel to submit the same information.
B. Relevant domestic law
The 1999 Constitutional Act on the Constitutional Court (the Constitutional Court Act - Ustavni zakon o Ustavnom sudu Republike Hrvatske)
Article 59 § 4
“The Constitutional Court may, exceptionally, examine a constitutional complaint prior to exhaustion of other available remedies, if it is satisfied that a contested act, or failure to act within a reasonable time, grossly violates a party's constitutional rights and freedoms and that if it does not institute proceedings a party will be at risk of serious and irreparable consequences.”
“By the decision that accepts a constitutional complaint, the Court annuls the impugned decision that violates constitutional right and remits the case to the relevant body for retrial.”
The applicant complains under Article 6 § 1 of the Convention about the length of civil proceedings, which are still pending.
She also complains under Article 13 of the Convention that she had no effective remedy with respect to the length of those proceedings.
The applicant complains that the proceedings that began on 29 March 1995 and 30 March 1995 were not concluded within a reasonable time, contrary to Article 6 § 1 of the Convention. She also complains that she had no effective remedy, contrary to Article 13 of the Convention, for speeding up of those proceedings.
Article 6 § 1, insofar as relevant, 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...”
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.”
(a) The Court firstly recalls that the provision of Article 13 of the Convention cannot be invoked separately, but only insofar as the main complaint is within the scope of the Convention. In this respect, the Court observes that in the present case the issue under Article 13 is closely connected to the alleged violation of Article 6 § 1 of the Convention, as the applicant complains that she had no effective remedy concerning the length of the civil proceedings that she is complaining about. As in the present case both the factual and legal issues under both invoked Articles are closely linked, the Court considers it necessary to examine them together at this stage of the proceedings.
(b) The Government submit that the part of the application relating to events that took place prior to 5 November 1997, when the Convention entered into force in respect of Croatia, is outside the Court's competence ratione temporis.
In this connection, the Court recalls that Croatia recognised the competence of the Court to receive applications “from any person, non-governmental organisation or group of individuals claiming to be a victim of a violation by Croatia of the rights recognised in the Convention through any act, decision or event occurring after 5 November 1997”. It follows that the period to be taken into consideration by the Court starts on 5 November 1997.
However, in order to determine the reasonableness of the length of time in question the Court will have regard to the state of the case on that date (see, among other authorities, the Podbielski v. Poland judgment of 30 October 1998, Reports 1998-VIII, § 31).
(c) The Government invite the Court to declare the application inadmissible on the ground that the applicant failed to exhaust domestic remedies. In this respect they allege that the applicant failed to lodge a constitutional complaint pursuant to Article 59 § 4 of the newly revised Constitutional Court Act. That act exceptionally allows the Constitutional Court to examine a constitutional complaint before exhaustion of other available remedies in cases where it is evident that there is a serious risk that the party's constitutional rights and freedoms may be violated and that serious and irreparable consequences may arise from the failure of the relevant authorities to reach a decision.
The applicant argues that Article 59 § 4 has been introduced only as from 29 September 1999, while his application has been introduced with the Court on 27 February 1999 and registered on 20 July 1999. It follows that he has been unable to submit a request pursuant to Article 59 § 4 of the Constitutional Court Act.
The question, therefore, arises as to whether Article 59 § 4 of the new Constitutional Court Act applies to the present case. In this respect the Court notes with regard to the present case that the new legislation was enacted on 29 September 1999 and is thus posterior to the introduction of the application before the Court, i.e. on 20 April 1999, and that it has not been established that the Constitutional Court could examine delays having occurred prior to the entry into force of the new Constitutional Court Act (see, mutatis mutandis, Chapus v. France (dec.), no. 46693/99, ECHR 2000, and Rajak v. Croatia (dec.), no. 49706/99, ECHR 2000).
The Government further argue that the applicant, apart form the constitutional complaint pursuant to Article 59 § 4 of the Constitutional Court Act, could have requested the president of the Zagreb Municipal Court and the Ministry of Justice to speed up the proceedings.
The applicant disagrees with the Government.
As the question of the exhaustion of domestic remedies in the present case is closely related to the examination of the substance of the complaint relating to Article 13 of the Convention, the Court decides to join further consideration of this issue to the examination of the merits of the case.
(d) The Government further invite the Court to declare the application inadmissible on the ground that it is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. In this connection, concerning the applicant's complaint under Article 6 § 1 of the Convention, they contend that the subject matter of the applicant's cases did not call for particular urgency in deciding them. Furthermore, the Government submit that the case involved factual complexity, pointing out that it has been extremely difficult to find out the defendant's addresses.
The Government also contend that the behaviour of the applicant contributed to the delays as she has not furnished the court with the defendant's correct addresses. In addition, the applicant has never sought speeding up the proceedings. With respect to the behaviour of domestic authorities, the Government claim that the domestic courts showed diligence in the conduct of the proceedings.
The applicant disagrees with the Government arguing that no acceptable justification has been put forward to explain the delays in the proceedings concerning her requests for payment of loans.
The Court considers, in the light of the parties' submissions, that the above complaint raises complex issues of law and fact under the Convention, the determination of which should depend on an examination of the merits. The Court concludes, therefore, that the application is not manifestly ill-founded, within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established.
For these reasons, the Court, unanimously,
Declares the application admissible.
Vincent Berger Georg Ress
ANKICA HORVAT v. CROATIA DECISION
ANKICA HORVAT v. CROATIA DECISION