AS TO THE ADMISSIBILITY OF
Application no. 66485/01
by Dragan NAPIJALO
The European Court of Human Rights (First Section), sitting on 13 June 2002 as a Chamber composed of
Mr C.L. Rozakis, President,
Mr G. Bonello,
Mr P. Lorenzen,
Mrs N. Vajić,
Mrs S. Botoucharova,
Mr V. Zagrebelsky,
Mr E. Levits, judges,
and Mr E. Fribergh, Section Registrar,
Having regard to the above application lodged on 11 January 2001,
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 Dragan Napijalo, is a Croatian citizen, who was born in 1947 and lives in Karlovac, Croatia. The respondent Government are represented by their Agent Ms Lidija Lukina-Karajković.
A. The circumstances of the case
1. Alleged seizure of the applicant’s passport
On 6 February 1999 the applicant was driving from Bosnia and Herzegovina and crossed the border to Croatia at the checkpoint at Maljevac. He was stopped by a customs officer for a routine check.
The applicant gives the following account of what happened at the border checkpoint. Before arriving in Croatia, the applicant and another person, K.B., had purchased four cartons of cigarettes and two litres of cooking oil.
At the border checkpoint they were approached by a customs officer who asked the applicant if he had anything to declare. The applicant pointed at the purchased goods, lying in the backseat of the car, inviting the customs officer to take a look. The officer then asked the applicant to show him his passport. While holding the applicant’s passport the officer told the applicant that he had failed to declare the goods and therefore that he had committed a customs offence. He asked the applicant to pay an “on the spot” fine in the amount of two hundred Croatian Kunas (hereinafter HRK).
The applicant told the officer that he could not pay the fine right away because he did not have enough money on him. The officer did not return the applicant’s passport and told him that he would receive his passport when he had paid the fine. The applicant then continued to Croatia.
On 10 February 1999 the applicant wrote to the Ministry of Finance, Customs Administration Headquarters asking that his passport be returned.
On 22 February 1999 the Customs Administration replied that his passport had been seized in accordance with the law because he had refused to pay the fine for a customs offence that he had committed by failing to declare goods at a border checkpoint. The letter contained no indication of how and when the applicant’s passport would be returned.
The Government give the following account of the facts. While entering Croatia the applicant failed to declare goods that he had purchased in Bosnia and Herzegovina. However, a customs officer found the goods in the applicant’s car. He routinely fined the applicant with HRK 200 for a minor customs offence. The applicant was immediately given a certificate of the fine which he signed. During this procedure the applicant’s passport was kept by the customs officer, who had intended to return it to the applicant. However, the applicant refused to pay the fine and demonstratively drove away, leaving his passport behind.
On 12 February 1999 the passport was handed over to the Slunj Customs Police Department. The Police found out that the applicant was registered as living in Zagreb and on 4 March 1999 the passport was sent to the Zagreb Police Department.
On 5 March 1999 the Zagreb Police Department wrote to the applicant inviting him to collect his passport. The letter was returned. On 6 April 1999 the Zagreb Police Department attempted once more to write to the applicant, the letter was again returned. The receipt showed that the applicant was unknown at that address.
The Police discovered that the applicant, although registered as living in Zagreb, actually lived in Karlovac. On 23 March 2001 the passport was sent to the Karlovac Police Department where the applicant collected it on 9 April 2001.
2. Proceedings instituted by the applicant
a. Proceedings for re-possession of the passport
On 2 March 1999 the applicant filed a civil suit in the Zagreb Municipal Court against the Ministry of Finance, seeking the return of his passport and damages flowing from his inability to leave Croatia. He also requested the court to adopt an interim measure and order that his passport be returned to him immediately.
At a hearing on 12 April 1999 the court severed the proceedings concerning the applicant’s claim for damages.
In the proceedings concerning the claim for return of the applicant’s passport the next hearing was held on 11 February 2000. At that hearing the court heard the applicant and then decided to hear K.B., who was with the applicant in the car at the material time.
At a hearing on 1 December 2000 the court heard the customs officer who kept the applicant’s passport. It also invited the applicant to submit within thirty days a copy of the letter that he had sent to the Customs Administration and their reply.
On 23 January 2001 the applicant submitted the Customs Administration’s reply of 22 February 1999.
At a hearing on 21 February 2001 the court heard another customs officer and once again the applicant. It then rejected the applicant’s request for an interim measure.
On 23 February 2001 the applicant filed an application asking that the judge be removed from the case. On 7 March 2001 the President of the Zagreb Municipal Court rejected the applicant’s motion.
The next hearing was held on 13 April 2001.
On 24 April 2001 the applicant informed the court that on 4 April 2001 the Karlovac Police Department had returned his passport. Therefore, he sought a declaratory decision that on 6 February 1999 his passport was taken from him by the Croatian authorities and returned on 4 April 2001. He also sought costs.
On 16 May 2001 the applicant’s counsel appeared before the judge and agreed to alter the applicant’s claim since the passport had already been given back to the applicant.
The next hearing was held on 28 May 2001. It was established that the passport was returned to the applicant. The applicant’s counsel sought from the court permission to specify the claim. The court allowed her to do so within thirty days.
On 7 June 2001 the applicant himself filed submissions to the court reiterating the same claim as of 24 April 2001.
On 13 August 2001 the applicant again filed an application asking that the judge be removed from the case. The President of the court accepted the request and the case was transferred to another judge.
At a hearing on 14 November 2001 the court dismissed the applicants claim. It found that the applicant had no further interest to seek a declaratory decision that his passport had been taken form him by the Croatian authorities on 6 February 1999, then returned on 4 April 2001.
b. Proceedings for damages
At a hearing on 11 February 2000 the parties agreed that the proceedings be stayed pending the final decision in the proceedings concerning the applicant’s claim for the return of his passport.
c. Proceedings before the Zagreb County Court
In the meantime, on 13 April 1999 the applicant filed an application in the Zagreb County Court (Županijski sud u Zagrebu) claiming that the seizure of his passport by a customs officer was an unlawful act and that therefore, his right to freedom of movement had been violated. He requested the court to order the Ministry of Finance to return his passport forthwith.
On 21 September 1999 the Zagreb County Court dismissed the applicant’s claim. It found that a claim for protection from an unlawful act was permitted only if there was no other remedy available. In the opinion of the court the applicant had at his disposal another remedy - a civil action for the return of his property. Accordingly, it instructed the applicant to institute civil proceedings in a municipal court against the Ministry of Finance for the return of his passport.
The applicant appealed against the decision.
The applicant’s appeal was rejected on 20 April 2000 by the Supreme Court (Vrhovni sud Republike Hrvatske).
B. Relevant domestic law
The relevant parts of the Administrative Disputes Act (Zakon o upravnim sporovima - Official Gazette nos. 53/1991, 9/1992 and 77/1992) provide as follows.
Section 67 provides that the proceedings for the protection of constitutional rights and freedoms, if they have been violated by an unlawful act of a State official and if there is no other remedy, are to be instituted by filing a complaint against the unlawful act.
Section 70 provides that the claim seeking protection from an illegal act is to be dealt with by a county court under jurisdiction of which the act has been committed.
Relevant provisions of the Act on Travel Documents of Croatian Citizens (Zakon o putnim ispravama hrvatskih građana - Official Gazette no. 53/1991, hereinafter the “Act on Travel Documents”):
Sections 34 and 35 provide, inter alia, that a passport will be seized when there is a reasonable suspicion that:
- a person is avoiding to honour a statutory property obligation established by an enforcement order - at the request of the competent court;
- a person is acting against the laws regulating customs or foreign trade.
1. The applicant complains under Article 6 § 1 of the Convention about the length of proceedings before the Zagreb Municipal Court whereby he sought the return of his passport.
2. He further complains under Article 2 § 2 of Protocol No. 4 that his right to freedom of movement was violated in the period of more than two years, when his passport was kept by the Croatian authorities without any legal ground, which prevented him from leaving Croatia.
1. The applicant firstly complains that the proceedings whereby he seeks the return of his passport have lasted unreasonably long. He relies on Article 6 § 1 of the Convention which, in so far 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...”
a. The Government accept that Article 6 § 1 is applicable to the proceedings where the applicant sought the return of his passport. In this respect they agree that the applicant’s claim concerned determination of his civil rights since it was directed at re-possession of the applicant’s possessions. However, they contest the applicability of Article 6 of the Convention to the part of the proceedings which occurred after the applicant changed his claim and sought only a declaration that his passport had been taken from him by the Croatian authorities on 6 February 1999 and returned on 4 April 2001. They rely on the Court’s case law claiming that Article 6 is not applicable to the proceedings dealing only with a procedural issue (see Senine Vadbolski, Demonet v. France, application no. 22404/93, Commission Decision of 12 October 1994).
The applicant did not comment on this part of the Government’s observations.
The Court finds that the question of whether Article 6 is applicable to the part of proceedings that took place after the applicant’s passport had been returned to him raises issues which require further consideration. Accordingly, the Court considers that the final determination of the applicability of Article 6 should be joined to the merits and reserved for later consideration.
b. As regards the merits of this part of the application the Government submit that the proceedings commenced on 2 March 1999 when the applicant filed his action and ended on 4 April 2001 when the passport was returned to the applicant, lasting altogether for slightly more than two years.
As to the complexity of the proceedings the Government point out that the case concerned an unusual issue. The applicant contributed to the complexity because he changed his claim after he had received his passport back.
They submit further 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 did call for special urgency were those that relate to family-law matters or to payment of damages to the victims of road accidents, those that involved the interests of a great number of persons and cases concerning dismissal from work.
As to the applicant’s behaviour the Government argue that he contributed to the length of proceedings because he insisted that the proceedings be continued even after he had received his passport back. Furthermore, he repeated his claim for damages, although he knew that such a claim was a subject to separate proceedings. Then he withdrew that claim. He also submitted several applications asking that the judge be removed form the case.
As to the behaviour of the domestic authorities the Government contend that the Zagreb Municipal Court immediately after receiving the applicant’s claim proceeded with the case. Furthermore, it held hearings at regular intervals.
The applicant disagrees with the Government and argues that the period of more than two years in the proceedings whereby he sought the return of his passport exceeded the “reasonable time” requirement under Article 6 § 1 of the Convention.
The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.
2. The applicant further complains that his freedom of movement was restricted, contrary to Article 2 § 2 of Protocol No. 4, which reads as follows:
“1. Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence.
2. Everyone shall be free to leave any country, including his own.
3. No restrictions shall be placed on the exercise of these rights other than such as are in accordance with law and are necessary in a democratic society in the interests of national security or public safety, for the maintenance of ordre public, for the prevention of crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
4. The rights set forth in paragraph 1 may also be subject, in particular areas, to restrictions imposed in accordance with law and justified by the public interest in a democratic society.”
a. The Government firstly submit that the applicant has failed to exhaust domestic remedies. They argue that the applicant instituted two different sets of proceedings before domestic authorities. Firstly, he filed a civil action against the Ministry of Finance in the Zagreb Municipal Court, seeking the return of his passport and damages flowing form his inability to leave Croatia. Secondly, he filed a claim in the Zagreb County Court for the protection from an unlawful act.
In neither of these proceedings the applicant has exhausted domestic remedies. As to the proceedings before the Zagreb Municipal Court, his claim for damages is still pending.
As to the proceedings instituted in the Zagreb County Court, the applicant failed to lodge a constitutional complaint against the Supreme Court’s decision of 20 April 2000 which would have allowed the Constitutional Court to examine his claim that his right to freedom of movement had been violated. The Government submit that the Constitution guarantees, just the same as the Convention, the right to freedom of movement and that the Constitutional Court has so far examined ten complaints concerning this subject.
The applicant submits that the domestic authorities have never issued any decision regarding the seizure of his passport. Thus, he was prevented from participating in the administrative proceedings whereby he could have challenged such a decision and, ultimately, could have applied to the Constitutional Court seeking protection of his right to freedom of movement.
The Court observes that the rule of exhaustion of domestic remedies contained in Article 35 § 1 of the Convention requires that normal recourse should be had by an applicant to remedies which are available and sufficient to afford redress in respect of the breaches alleged (see, among other authorities, the Akdivar and Others v. Turkey judgment of 16 September 1996, Reports of Judgments and Decisions 1996-IV, p. 1210, § 65). The existence of the remedies in question must be sufficiently certain not only in theory but in practice, failing which they will lack the requisite accessibility and effectiveness (ibid.).
It recalls that in the area of the exhaustion of domestic remedies there is a distribution of the burden of proof. It is incumbent on the Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one available in theory and practice at the relevant time, that is to say, that it was accessible, was one which was capable of providing redress in respect of the applicant’s complaints and offered reasonable prospects of success. However, once this burden 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 (ibid., p. 1211, § 68).
In addition, the application of the rule must make due allowance for the fact that it is being applied in the context of a machinery for the protection of human rights that the Contracting Parties have agreed to set up (ibid., § 69). Accordingly, the Court has recognised that Article 35 § 1 (formerly Article 26) must be applied with some degree of flexibility and without excessive formalism (see, for example, 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, for example, the Van Oosterwijk 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 judgment cited above, p. 1211, § 69).
The Court notes that the applicant’s passport was allegedly seized because he had committed a minor customs offence. The court notes further that no proceedings concerning his alleged commitment of the customs offence have been instituted against the applicant and no decision has been taken regarding the seizure of his passport.
Thus, the applicant was prevented from challenging the seizure of his passport in the course of legal proceedings whereby the authorities would have established relevant facts and could have given the reasons for the seizure of the applicant’s passport. Only proceedings of that character would have given the applicant a real opportunity to challenge the seizure of his passport and to establish a possible violation of his right to freedom of movement.
The Court observes that the proceedings before the Zagreb Municipal Court were directed solely at the return of the applicant’s passport. In these proceedings the applicant’s passport was treated as his possession and not in any respect as a document issued by public authorities which served for the purpose of travelling outside Croatia.
The proceedings instituted in the Zagreb County Court followed by the proceedings in the Supreme Court only dealt with the procedural question of whether the applicant was able to lodge a claim for the protection from an unlawful act.
Neither of these proceedings were of such a nature that they would have allowed the applicant to challenge any decision relating to the seizure of his passport.
In these circumstances, the Court considers that the applicant’s complaint cannot be rejected for failure to exhaust domestic remedies.
b. As regards the merits of this part of the application the Government submit that the applicant’s passport has never been seized, but that he had left it at the border checkpoint when he refused to pay an “on the spot” fine and demonstratively drove away. Furthermore, his passport had been kept with the authorities for more than two years because the applicant did not live at the address where he was registered which prevented the authorities to contact him.
Even assuming that the applicant’s passport was seized by a customs officer, such an act was, in the Government’s view, in accordance with law (Section 34 and 35 of the Act on Travel Documents) because the applicant refused to pay an “on the spot” fine. The interference with the applicant’s right to freedom of movement was in these circumstances necessary in a democratic society for the protection of public order and the rights of others.
The applicant submits that his passport was seized by a customs officer without reason. He argues that no decision has been issued justifying the seizure of his passport.
He contests the Government’s contention that his address was unknown and claims that already in his letter of 10 February 1999 sent to the Customs Administration he informed the authorities of his address. To support this claim the applicant states that he received the Customs Administration’s reply at his actual address.
The Court considers, in the light of the parties’ submissions, that this complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.
For these reasons, the Court unanimously
Declares the application admissible, without prejudging the merits of the case.
Erik Fribergh Christos
NAPIJALO v. CROATIA DECISION
NAPIJALO v. CROATIA DECISION