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FIRST
SECTION
CASE OF
NIKOLAC v. CROATIA
(Application
no. 17117/06)
JUDGMENT
STRASBOURG
10 July 2008
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Nikolac v. Croatia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos Rozakis, President,
Nina
Vajić,
Khanlar Hajiyev,
Dean
Spielmann,
Sverre Erik Jebens,
Giorgio
Malinverni,
George Nicolaou, judges,
and André
Wampach, Deputy
Section Registrar,
Having
deliberated in private on 19 June 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 17117/06) against the Republic
of Croatia lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Croatian national, Mr Slavomir Nikolac (“the
applicant”), on 8 April 2006.
- The
applicant was represented by Mr Š. Filipović, a lawyer
practising in Vinkovci. The Croatian Government (“the
Government”) were represented by their Agent, Mrs Š.
StaZnik.
- On
18 September 2007 the
Court decided to communicate the complaint about the length of the
proceedings to the Government. Applying Article 29 § 3 of the
Convention, it decided to rule on the admissibility and merits of the
application at the same time.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The applicant was born in 1932 and lives in Vinkovci.
- On
an unspecified date in 1992 the applicant brought a civil action
against his former employer in the Vinkovci Municipal Court (Općinski
sud u Vinkovcima), challenging his dismissal from work and
seeking the payment of his salary arrears. In its judgment of 2 June
1993 the Municipal Court partly allowed the applicant’s claim.
However, the judgment was
quashed by an appellate court and the case remitted to the Municipal
Court, which on its part found that it had no jurisdiction in the
matter in its decision of 6 February 1996. The latter decision was
upheld by the Osijek County Court (Zupanijski sud u Osijeku)
on 11 July 1996.
- On
an appeal by the applicant on points of law lodged on 27 September
1996, the Supreme Court (Vrhovni sud Republike Hrvatske)
transferred the case to the Administrative Court (Upravni sud
Republike Hrvatske) on 13 October 1999. On 31 January 2002 the
Administrative Court dismissed the applicant’s claim.
- A
subsequent constitutional complaint by the applicant of 21 June 2002
was dismissed by the Constitutional Court (Ustavni sud Republike
Hrvatske) on 12 October 2005.
II. RELEVANT DOMESTIC LAW
- The
relevant part 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:
Section 63
“(1) The Constitutional Court shall examine a
constitutional complaint whether or not all legal remedies have been
exhausted if the competent court fails to decide a claim concerning
the applicant’s rights and obligations or a criminal charge
against him or her within a reasonable time ...
(2) If a constitutional complaint ... under paragraph 1
of this section is upheld, the Constitutional Court shall set a
time-limit within which the competent court must decide the case on
the merits...
(3) In a decision issued under paragraph 2 of this
section, the Constitutional Court shall assess appropriate
compensation for the applicant for the violation of his or her
constitutional rights ... The compensation shall be paid out of the
State budget within three months of the date a request for payment is
lodged.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF
THE CONVENTION
- The
applicant made two separate complaints under Article 6 § 1 of
the Convention. He firstly complained that the length of the
proceedings had been incompatible with the “reasonable time”
requirement. Secondly, he complained that the proceedings had been
unfair, alleging that the domestic courts had wrongly established the
relevant facts and erred in their application of legal provisions.
The relevant parts of Article 6 read as follows:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a fair... hearing within a
reasonable time by [a] ... tribunal...”
A. Length of proceedings
- The period to be taken into consideration began only
on 6 November 1997, when the Convention entered into force in respect
of Croatia. However, in assessing the reasonableness of the time that
elapsed after that date, account must be taken of the state of
proceedings at the time. The Court notes that prior to the entry into
force of the Convention in respect of Croatia the proceedings had
already lasted about five years.
- The
period in question ended on 12 October 2005. It follows that a period
of six years, eleven months and six days falls within the Court’s
competence ratione temporis. In that period the case
was first pending for one year, eleven months and seven days before
the Supreme Court on an appeal on points of law lodged by the
applicant. After that it was examined by the Administrative Court
until 31 January 2002 and then by the Constitutional Court until 12
October 2005.
1. Admissibility
- The
Government invited the Court to reject the application for
non-exhaustion of domestic remedies. They submitted that as of 22
March 2002 the applicant could have lodged a constitutional complaint
under section 63 of the Constitutional Court Act.
- The
applicant did not address this issue.
- The Court reiterates that since 22 March 2002 a
constitutional complaint under section 63 of the Constitutional Court
Act has been considered an effective remedy in respect of length of
proceedings still pending in Croatia (see Slaviček v. Croatia
(dec.), no. 20862/02, ECHR 2002-VII). The Court notes that the
domestic proceedings before the Administrative Court ended on 31
January 2002 and that at that time no remedy capable of addressing
the length of proceedings before the Administrative Court was
available in the nation’s legal system. As to the proceedings
conducted after such a remedy was introduced on 22 March 2002, the
Court notes that from 21 June 2002 the case was pending before the
Constitutional Court. In these circumstances, the Court considers
that the applicant’s complaint cannot be rejected for failure
to exhaust domestic remedies.
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
2. Merits
- The
Court reiterates that the reasonableness of the length of proceedings
must be assessed in the light of the circumstances of the case and
with reference to the following criteria: the complexity of the case,
the conduct of the applicant and the relevant authorities and what
was at stake for the applicant in the dispute (see, among many other
authorities, Frydlender v. France [GC], no. 30979/96, §
43, ECHR 2000-VII). The Court reiterates that special diligence is
necessary in employment disputes (see Ruotolo v. Italy,
judgment of 27 February 1992, Series A no. 230-D, p. 39,
§ 17).
- As regards the conduct of the domestic authorities,
the Court notes that, prior to the entry into force of the Convention
in respect of Croatia, the proceedings had already been pending
before the domestic courts for about five years. Furthermore, in the
period to be taken into consideration, the proceedings lasted almost
another seven years. During that time it took the Administrative
Court more than two years and three months and the Constitutional
Court about three years and four months to decide on the applicant’s
case, whereas the first of these courts only reviewed the case
without establishing the facts and the second reviewed the
constitutionality of the lower court’s decision, while neither
heard any evidence or performed any other procedural activity.
- In
these circumstances, and taking into account the overall duration of
the proceedings, the Court considers that the length of the
proceedings in the instant case was excessive and failed to satisfy
the reasonable time requirement.
There
has accordingly been a breach of Article 6 § 1.
B. Fairness of the proceedings
Admissibility
- In
so far as the applicant’s complaint may be understood to
concern assessment of the evidence and the result of the proceedings
before the domestic courts, the Court reiterates that, according to
Article 19 of the Convention, its duty is to ensure the observance of
the engagements undertaken by the Contracting Parties to the
Convention. In particular, it is not its function to deal with errors
of fact or law allegedly committed by a national court unless and in
so far as they may have infringed rights and freedoms protected by
the Convention. Moreover, while Article 6 of the Convention
guarantees the right to a fair hearing, it does not lay down any
rules on the admissibility of evidence or the way it should be
assessed, which are therefore primarily matters for regulation by
national law and the national courts (see Schenk v. Austria,
judgment of 12 July 1988, Series A no. 140, p. 29, §§
45-46, and Garcia Ruiz v. Spain, no. 30544/96, Reports of
Judgments and Decisions 1999-I, § 28).
- The
Court finds that there is nothing to indicate that the national
courts’ evaluation of the facts and evidence presented in the
applicant’s case was contrary to Article 6 of the Convention.
The applicant was fully able to state his case and challenge the
evidence; all essential evidence was presented and the courts’
decisions were satisfactorily reasoned. In these circumstances the
Court finds that the case discloses no appearance of a violation of
the guarantees of a fair hearing relied on by the applicant. It
follows that this part of the application is manifestly ill-founded
and must be rejected in accordance with Article 35 §§ 3
and 4 of the Convention.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article
41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damages
- The
applicant claimed 1,925,795.91 Croatian kunas (HRK) in respect of
pecuniary damage and HRK 1,000,000 in respect of non-pecuniary
damage.
- The
Government deemed the amount claimed on account of pecuniary damage
unrelated to the facts of the present case and the amount claimed on
account of non-pecuniary damage excessive.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim. On
the other hand, it awards the applicant 2,400 euros (EUR) in respect
of non-pecuniary damage, plus any tax that may be chargeable on that
amount.
B. Costs and expenses
- The
applicant also claimed HRK 5,533 for the costs and expenses incurred
before the domestic courts and the Court.
- The
Government did not comment.
- According
to the Court’s case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and are
reasonable as to quantum. In the present case, regard being had to
the information in its possession and the above criteria, the Court
considers it reasonable to award the sum of EUR 760 plus any tax that
may be chargeable to the applicant.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint concerning the length of
proceedings admissible and the remainder of the application
inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention on account of the length of proceedings;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following
amounts which are to be converted into the national currency of the
respondent State at the rate applicable at the date of settlement:
(i)
EUR 2,400 (two thousand four hundred euros) in respect of
non-pecuniary damage;
(ii) EUR
760 (seven hundred sixty euros) in respect of costs and expenses;
(iii) any
tax that may be chargeable to the applicant on the above amounts;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 10 July 2008, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
André Wampach Christos
Rozakis
Deputy
Registrar President
