FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 54727/00 
by Čedomil CERIN 
against Croatia

The European Court of Human Rights (Fourth Section), sitting on 8 March 2001 as a Chamber composed of

Mr G. Ress, President
 Mr A. Pastor Ridruejo
 Mr L. Caflisch
 Mr J. Makarczyk
 Mr I. Cabral Barreto
 Mrs N. Vajić
 Mr M. Pellonpää, judges,Note

and Mr V. Berger, Section Registrar,

Having regard to the above application introduced on 27 November 1999 and registered on 8 February 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 FACTS

The applicant is a Croatian citizen, born in 1932 and living in Zagreb. The respondent Government are represented by their agent Ms Lidija Lukina-Karajković.

A.  The Circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

On 10 February 1984 the applicant instituted civil proceedings in the Zagreb Municipal Court (Općinski sud u Zagrebu) against a private person O. S., the Zagreb City Internal Affairs Office (Gradski sekretarijat za unutrašnje poslove Zagreb) and the Zagreb Union of Municipal Councils (Gradska zajednica općina), for payment of damages regarding his apartment in Zagreb. Subsequently, the applicant altered his suit and named as defendants M. A., the Municipality of Zagreb (Grad Zagreb) and the Republic of Croatia (Republika Hrvatska).

Until the date of entry into force of the Convention in respect of Croatia, i.e. 5 November 1997, the Zagreb Municipal Court as the court of first instance held numerous hearings and the relevant authorities examined the applicant’s numerous motions for, inter alia, the removal of judges.

The most recent such motion was filed by the applicant on 7 May 1996 requesting the removal of the presiding judge and the transfer of the case from the Zagreb Municipal Court. On 26 September 1996 the Supreme Court (Vrhovni sud Republike Hrvatske) rejected the applicant’s request for a transfer to another court, whereas the applicant’s request for the removal of the presiding judge was adjourned.

Subsequently, the next hearing in the Zagreb Municipal Court was scheduled for 9 March 1998, but was adjourned at the applicant’s request due to his absence from Zagreb.

The next hearing fixed for 7 September 1998 was adjourned due to the applicant’s illness.

During the next hearing on 2 March 1999 it was noted that the applicant had instituted another set of civil proceedings with the Zagreb Municipal Court against the judge presiding in the case in question and the Republic of Croatia. Therefore, the presiding judge requested his exemption. His request was accepted.

The case was then transmitted to another judge who scheduled a hearing for 4 December 2000.

The case is still pending before the court of first instance.

The applicant has not lodged a complaint with the Constitutional Court pursuant to Section 59 § 4 of the 1999 Constitutional Act on the Constitutional Court (Ustavni zakon o Ustavnom sudu Republike Hrvatske - hereinafter “the Constitutional Court Act”).

B.  Relevant domestic law

Section 59 § 4 of the Constitutional Court Act (entered into force on 24 September 1999) reads as follows:

“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 act a party will risk serious and irreparable consequences.”

THE LAW

The applicant’s complaint relates to the length of the proceedings, which began on 10 February 1984 in the Zagreb Municipal Court and are still pending before that same court. They have therefore already lasted for about 17 years, out of which three years and four months are subsequent to the entry into force of the Convention in respect of Croatia on 5 November 1997.

This complaint is to be examined 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...”

1.  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 Section 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 a party’s constitutional rights and freedoms are grossly violated and that there is a risk that serious and irreparable consequences may arise from the failure of the relevant authorities to reach a decision.

The Government submit further that the Constitutional Court has by now received several complaints concerning the issue under Section 59 § 4 and has established, as a matter of principle, that it shall proceed without further delays with cases involving Section 59 § 4. In its decision it shall fix a time limit within which a case has to be decided.

The Government refer to the Constitutional Court’s decision no. U­III­698/2000 of 11 July 2000. That case concerned the excessive length of civil proceedings for payment. In that decision the Constitutional Court found a violation within the meaning of Section 59 § 4 and ordered the court of first instance dealing with the case in question to adopt a decision within the shortest period possible, not exceeding one year.

The Government argue that this decision supports their claim that the applicant in the present case failed to exhaust domestic remedies, and that by introducing the above said provision the Republic of Croatia has complied with its obligation under the Convention to organise its legal system in such a way that its courts can guarantee the right to everyone to obtain a final decision on disputes relating to civil rights and obligations within a reasonable time.

The applicant did not submit any reply to this part of the Government’s observations.

As to the Government’s preliminary objection, the Court recalls that the rule of exhaustion of domestic remedies referred to in Article 35 of the Convention obliges those seeking to bring their case against the State before an international judicial organ to use first the remedies provided by the national legal system. Consequently, States are dispensed from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal system. The 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 whether or not the provisions of the Convention are incorporated in national law. In this way, it is an important aspect of the principle that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights (see e.g. the Handyside v. the United Kingdom judgment of 7 December 1976, Series A no. 24, p. 22, § 48).

Under Article 35 of the Convention, normal recourse should be had by an applicant to remedies that are available and sufficient to afford redress in respect of the breaches alleged. The existence of the remedies in question must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness (see, inter alia, the Vernillo v. France judgment of 20 February 1991, Series A no. 198, pp. 11-12, § 27, and Dalia v. France, no. 26102/95, § 38, ECHR 1998-I).

Furthermore, in the area of exhaustion of domestic remedies, there is a distribution of the burden of proof. It is incumbent on the Government claiming non-exhaustion to convince the Court that the remedy was an effective one available in theory and in practice at the relevant time, that is to say, that it was accessible, was capable of providing redress in respect of the applicant's complaints and offered reasonable prospects of success. However, once this burden of proof has been satisfied it falls to the applicant to establish that the remedy advanced by the Government was in fact exhausted or was for some reason inadequate and ineffective in the particular circumstances of the case or that there existed special circumstances absolving him or her from the requirement.

The Court would emphasise that the application of the rule must make due allowance for the fact that it is being applied in the context of the machinery for the protection of human rights that the Contracting Parties have agreed to set up. Accordingly, it has recognised that the rule of domestic remedies must be applied with some degree of flexibility and without excessive formalism (see the Cardot v. France judgment of 19 March 1991, Series A no. 200, p. 18, § 34). It has further recognised that the rule of exhaustion is neither absolute nor capable of being applied automatically; in reviewing whether it has been observed it is essential to have regard to the particular circumstances of each individual case (see the Van Oosterwijck v. Belgium judgment of 6 November 1980, Series A no. 40, p. 18, § 35). This means amongst other things that it must take realistic account not only of the existence of formal remedies in the legal system of the Contracting Party concerned but also of the general legal and political context in which they operate as well as the personal circumstances of the applicants (see the Akdivar and Others v. Turkey judgment of 16 September 1996, Reports of Judgments and Decisions 1996-IV, p. 1210­1211, §§ 65-68).

In the instant case, the Court notes that the proceedings pursuant to Section 59 § 4 of the Constitutional Court Act are considered as being instituted only if the Constitutional Court, after a preliminary examination of the complaint, decides to admit it. Thus, although the person concerned can lodge a complaint directly with the Constitutional Court, the formal institution of proceedings depends on the latter’s discretion (see, mutatis mutandis, Feldek v. Slovakia (dec.), no. 29032/95, ECHR 2000).

Furthermore, for a party to be able to lodge a constitutional complaint pursuant to that provision two cumulative conditions must be satisfied. Firstly, the applicant’s constitutional rights have to be grossly violated by the fact that no decision has been issued within a reasonable time and, secondly, there should be a risk of serious and irreparable consequences for the applicant.

The Court notes that terms such as “grossly violated” and “serious and irreparable consequences” are susceptible to various and wide interpretation. In the present case it remains open to what extent the applicant risks irreparable consequences insofar as the case involves his civil claim for payments. In addition, the Court points out that under Section 59 § 4 the Constitutional Court “may” act and that it may do so in “exceptional cases” only. The use of these terms, too, opens a wide spectrum of interpretation.

In this connection, the Court notes further that the wording of many statutes is not sufficiently precise. The need to avoid excessive rigidity and to keep pace with changing circumstances means that many laws are inevitably couched in terms which, to a greater or lesser extent, are vague (see, for example and mutatis mutandis, the Müller and Others v. Switzerland judgment of 24 May 1988, Series A no. 133, p. 20, § 29 and Kokkinakis v. Greece judgment of 25 May 1993, Series A no. 260-A, p. 19, § 40). The interpretation and application of such provisions depend on practice (see, mutatis mutandis Kokkinakis v. Greece, cited above, p. 19, § 40 and Mangualde Pinto v. France (dec.), no. 43491/98, ECHR 2000). In the present case, the Government produced before the Court only one case in which the Constitutional Court ruled under Section 59 § 4 of the Constitutional Court Act to support their argument concerning the sufficiency and effectiveness of the remedy. It is not for the Court to give a ruling on an issue of Croatian law that is as yet unsettled (see, mutatis mutandis, the De Jong, Baljet and Van den Brink judgment of 22 May 1984, Series A no. 77, p. 19, § 39). The absence of further case-law does, however, indicate the present uncertainty of this remedy in practical terms. In the Court’s view, the single case cited by the Government does not suffice to show the existence of settled national case-law that would prove the effectiveness of the remedy.

Furthermore, Section 59 § 4 entered into force on 24 September 1999 and thus cannot in any event provide a remedy regarding the length of the proceedings up to that date (15 years, seven months and 19 days, out of which one year, 10 months and 24 days fall within the Court’s jurisdiction). Whether the existence of the remedy under Section 59 § 4 of the Constitutional Court Act is of any relevance when assessing the reasonableness of the length of the proceedings as a whole is a matter which necessarily belongs to the examination of the merits of the complaint submitted under Article 6 § 1 of the Convention. This issue will accordingly be considered at a later stage.

In the light of the foregoing, the Court considers that a complaint pursuant to Section 59 § 4 of the Constitutional Court Act cannot, in the circumstances of the present case, be regarded as an effective remedy. Thus, the Government’s objection relating to non-exhaustion of domestic remedies must be dismissed.

2.  In the alternative the Government invite the Court to conclude that the application does not disclose any appearance of a violation of Article 6 of the Convention in respect of the complaint raised. They submit that the Court must limit its examination to the period subsequent to the entry into force of the Convention in respect of Croatia and contend furthermore that the subject matter of the applicant’s case did not call for particular urgency in deciding it. They refer to the Court’s case-law arguing that the cases that do call for special urgency are those that relate to family law matters or to payment of damages to the victims of traffic accidents, those that involve the interests of a great number of persons and so-called “dismissal cases”.

The Government contend also that the behaviour of the applicant contributed to the delays as it took him about ten years to specify his claim and as he filed numerous motions for the removal of the presiding judges and the president of the court that has been dealing with his case. Moreover, he filed two motions for a transfer of the case to another court. In addition, about 40 hearings have been adjourned due to the applicant’s requests.

The applicant argues that due to the changes in the political system, i.e., the fact that the Socialist Republic of Croatia which was one of the republics of the former Yugoslavia became the Republic of Croatia, an independent state, he had to adjust the names of the defendants in his claim. Furthermore, a private person, O. S., whom he sued as defendant had died and he also had to change his claim in this respect. Other changes in his claim were a result of the constantly growing costs that he has been having in respect of the property that is a subject matter of the proceedings and also due to the fact that the defendants did some illegal modifications of the building in question.

With respect to the behaviour of domestic authorities, the Government claim that the domestic courts showed diligence in the conduct of the proceedings. In particular, the Government point out that the Zagreb Municipal Court has held hearings at regular intervals, although the workload at the civil department of that court is huge and each judge is assigned some nine hundred to one thousand cases. The judges had also several times instructed the applicant to arrange for legal representation and the applicant did so as late as 1995.

The applicant disagrees with the Government arguing that no acceptable justification has been put forward to explain the delays in the proceedings concerning his request for payment of damages. He stresses that only five hearings were adjourned due to his absence. Although the presiding judge put requests to the Zagreb Land Registry and the Ministry of the Interior in 1985 and 1990, respectively, to submit relevant documentation, these institutions failed to do so. Furthermore, it took about three years and ten months before his most recent motion for the removal of the presiding judge was examined. He submits also that the case does not involve any complexity, as it is clear from the facts that his claim is justified.

The Court considers, in the light of the criteria established in its case-law on the question of “reasonable time” (the complexity of the case, the applicant’s conduct and that of the competent authorities), and having regard to all the information in its possession, that an examination of the merits of this complaint is required.

For these reasons, the Court unanimously

Declares the application admissible, without prejudging the merits of the case.

Vincent Berger Georg Ress 
 Registrar President

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