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FIRST
SECTION
CASE OF VUJČIĆ v. CROATIA
(Application
no. 33867/06)
JUDGMENT
STRASBOURG
25
June 2009
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 Vujčić 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 Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 4 June 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 33867/06) 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 Josip
Vujčić (“the applicant”), on 14 August 2006.
- The
Croatian Government (“the Government”) were represented
by their Agent, Mrs Š. StaZnik.
- On
18 September 2008 the
Court declared the application partly inadmissible and decided to
communicate the complaints concerning the length of the proceedings
and the lack of remedies in that respect to the Government. It also
decided to rule on the admissibility and merits of the application at
the same time (Article 29 § 3).
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1962 and lives in Zagreb.
- On
6 July 2000 the applicant brought a civil action against
his former employer, a Hungarian company called GE L.T. Rt., in the
Zagreb Municipal Court (Općinski sud u Zagrebu),
challenging his dismissal and seeking payment of his salary arrears
and a bonus for outstanding work performance. On an unspecified date
the defendant in the proceedings lodged a counter-claim, requesting
that the applicant reimburse the bonus which the company had
allegedly overpaid him.
- The
Zagreb Municipal Court held hearings on 13 October 2000 and
21 February 2001. On 21 February 2001 the Zagreb
Municipal Court declared the applicant's claim inadmissible as being
lodged out of time. On 5 February 2002 the Zagreb County
Court quashed that decision and remitted the case to the
first-instance court.
- On
15 April 2003 the Zagreb Municipal Court dismissed the
applicant's claim in the part challenging his dismissal, as being
lodged out of time. The applicant did not appeal against that
decision, which thus became final. The proceedings continued in
respect of the remainder of the applicant's claims and the
defendant's counter-claim.
- On
20 July 2005 the applicant lodged a constitutional
complaint about the length of the proceedings. On 12 July 2006
the Constitutional Court found a violation of the applicant's right
to a hearing within a reasonable time. It awarded the applicant 9,000
Croatian kunas (HRK) and ordered the Zagreb Municipal Court to decide
the case in the shortest time possible and not later than eight
months after the publication of the decision of the Constitutional
Court in the Official Gazette.
- The
Constitutional Court's decision was published in the Official Gazette
on 28 August 2006 and the eight-month period expired on
29 April 2007.
- The
proceedings are currently pending before the Zagreb Municipal Court.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that the length of the proceedings had been
incompatible with the “reasonable time” requirement, laid
down in Article 6 § 1 of the Convention, which 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...”
- The
Government contested that argument.
A. Admissibility
Exhaustion of domestic remedies
- The
Government argued that the applicant had failed to exhaust domestic
remedies because he had not lodged a fresh constitutional complaint.
They relied on the newly established practice of the Constitutional
Court in its decision no. U-IIIA-3763/2005 of 17 October 2007
whereby, in the event that a lower court failed to comply with the
time-limit imposed by a prior decision of the Constitutional Court,
the latter again found a violation of the applicant's right to a
hearing within reasonable time for the period between the first and
the second decision of the Constitutional Court and awarded
appropriate just satisfaction.
- The
applicant claimed that he had exhausted all available remedies.
- The
Court reiterates that under Article 35 § 1 of the
Convention it may only deal with a matter after all domestic remedies
have been exhausted. The purpose of the exhaustion rule is to afford
the Contracting States the opportunity of preventing or putting right
the violations alleged against them before those allegations are
submitted to it (see, among many other authorities,
Selmouni v. France [GC], no. 25803/94, § 74,
ECHR 1999-IV). The obligation to exhaust domestic remedies requires
that an applicant make normal use of remedies which are effective,
sufficient and accessible in respect of his Convention grievances.
Remedies available to a litigant at domestic level are considered
effective if they prevent the alleged violation or its continuation,
or provide adequate redress for any violation that has already
occurred (see Mifsud v. France (dec.) [GC], no. 57220/00,
§ 17, ECHR 2002 VIII).
- The
Court reiterates further that the issue whether domestic remedies
have been exhausted is normally determined by reference to the date
when the application was lodged with the Court (see Baumann
v. France, no. 33592/96, § 47, ECHR 2001 V
(extracts)). This rule is subject to exceptions which may be
justified by the specific circumstances of each case (see Nogolica
v. Croatia (dec.), no. 77784/01, ECHR 2002 VIII).
- In
the instant case, the applicant did not file a fresh constitutional
complaint, but instead, he lodged his application with the Court. It
was not until a year and three months later that the Constitutional
Court held for the first time that there had been a violation of the
right to a hearing within a reasonable time in circumstances where a
lower court had failed to comply with a time-limit imposed by a
previous decision of the Constitutional Court. Accordingly, the
applicant could not have been expected to file such a complaint,
which at that time did not offer him any reasonable prospect of
success.
- Therefore,
as to the Government's proposal to depart from the general rule of
non-exhaustion, the Court reaches the conclusion that – unlike
the position in the Nogolica case and having regard to the
subsidiary character of the Convention machinery – there are no
special circumstances which would justify making an exception to that
rule with regard to applications lodged with it before 24 March 2004.
- It
follows that the present application cannot be rejected for
non-exhaustion of domestic remedies. Accordingly, the Government's
objection must be dismissed.
The applicant's victim status
- The
Government submitted that the Constitutional Court had accepted the
applicant's constitutional complaint, found a violation of his
constitutional right to a hearing within a reasonable time, and
awarded him appropriate compensation. The violation complained of
had, therefore, been remedied before the domestic authorities and as
a result the applicant had ceased to be a victim.
- The
applicant replied that he could still be considered a victim of the
violation complained of.
- The
Court notes that at the time when the Constitutional Court's decision
was given the civil proceedings had been pending for six years. The
just satisfaction awarded by the Constitutional Court on account of
the excessive length does not correspond to what the Court would have
been likely to award under Article 41 of the Convention in respect of
the same period, due account being taken of the fact that the
proceedings concerned an employment-related dispute. It therefore
cannot be regarded as adequate in the circumstances of the case (see
the principles established under the Court's case-law in Cocchiarella
v. Italy [GC], no. 64886/01, §§ 65-107,
ECHR 2006-..., or Scordino v. Italy (no. 1) [GC],
no. 36813/97, §§ 178-213, ECHR 2006 - ...). In these
circumstances, in respect of the period covered by the Constitutional
Court's finding, the applicant has not lost his victim status for the
purposes of Article 34 of the Convention.
- The
Court notes further that the proceedings are still pending and that
therefore it is called upon to examine the overall length of
proceedings.
- Having regard to the above facts the Court considers
that this complaint is not manifestly ill-founded within the meaning
of Article 35 § 3 of the Convention. It also notes that it is
not inadmissible on any other grounds. It must therefore be declared
admissible.
B. Merits
- The
applicant claimed that the length of the civil proceedings in
question had exceeded the reasonable time requirement by a wide
margin.
- The
Government argued that the proceedings were complex and that the
Municipal Court conducting them had undertaken a number of relevant
procedural steps.
- The
Court notes that the proceedings to be considered commenced on 6 July
2000 when the applicant brought his civil action before the domestic
courts. At present the case is still pending before the
first-instance court. So far the proceedings have thus lasted almost
nine years for two levels of jurisdiction. The reasonableness of this
period 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, 27 February 1992, § 17, Series A no. 230 D).
- The
Court has frequently found violations of Article 6 § 1 of the
Convention in cases raising issues similar to the one in the present
case (see Frydlender, cited above).
- Having
examined all the material submitted to it, the Court considers that
the Government have not put forward any fact or argument capable of
persuading it to reach a different conclusion in the present case.
Having regard to its case-law on the subject, the Court considers
that in the instant case the length of the proceedings was excessive
and failed to meet the “reasonable time” requirement.
There
has accordingly been a breach of Article 6 § 1.
II. ALLEGED
VIOLATION OF ARTICLE 13 OF THE CONVENTION
- The
applicant further complained under Article 13 of the Convention,
taken in conjunction with Article 6 § 1, that the Zagreb
Municipal Court had not complied with the Constitutional Court's
order to conclude the enforcement proceedings within a prescribed
time-limit. 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.”
- The
Government contested that argument.
A. Admissibility
- The
Court finds that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It also notes
that it is not inadmissible on any other grounds. It must therefore
be declared admissible.
B. Merits
1. The parties' arguments
- The
Government admitted that the Zagreb Municipal Court had exceeded the
time-limit set forth in the Constitutional Court's decision. However,
they considered that this factor alone could not lead to a conclusion
that the constitutional complaint had not been an effective remedy in
the applicant's case.
- They
submitted that, pursuant to the Constitutional Court Act, all state
authorities, including courts, are bound by the Constitutional
Court's decisions and have a duty to implement them. As regards the
circumstances of the present case, the Government submitted that
after the decision of the Constitutional Court there had been no
delays in the proceedings and that the Municipal Court undertook a
number of procedural steps. However, the proceedings were not
concluded owing to the complexity of the case.
- The
applicant considered that the mere fact that the Municipal Court had
“ignored” the Constitutional Court's decision was
sufficient indication that no effective remedy existed in Croatia in
relation to the length of proceedings in such circumstances.
2. The Court's assessment
- The
Court reiterates that Article 13 guarantees an effective remedy
before a national authority for an alleged breach of the requirement
under Article 6 § 1 to hear a case within a reasonable time (see
Kudła v. Poland [GC], no. 30210/96, § 156,
ECHR 2000-XI). The “effectiveness” of a “remedy”
within the meaning of Article 13, however, does not depend on the
certainty of a favourable outcome for the applicant. (see Kudła,
cited above, § 157).
- The
Court has already accepted that a complaint to the Constitutional
Court under section 63 of the Constitutional Court Act represented an
effective remedy for length-of-proceedings cases still pending in
Croatia (see Slaviček v. Croatia (dec.), no. 20862/02,
ECHR 2002-VII). In the present case, the Constitutional Court
accepted the applicant's constitutional complaint, found a violation
of his constitutional right to a hearing within a reasonable time and
awarded him compensation. The mere fact that the compensation awarded
to the applicant at the domestic level does not correspond to the
amount awarded by the Court in comparable cases does not render the
remedy ineffective (see for example, Jakupović, cited
above, § 28, and Rišková v. Slovakia,
no. 58174/00, § 100, 22 August 2006).
- However,
the Court considers that the obligation of the States under Article
13 also encompasses the duty to ensure that the competent authorities
enforce remedies when granted and notes that it has already found
violations on account of a State's failure to observe that
requirement (see Iatridis v. Greece [GC], no. 31107/96,
§ 66, ECHR 1999 II). For the Court, it would be
inconceivable that Article 13 provided the right to have a
remedy, and for it to be effective, without protecting the
implementation of the remedies afforded. To hold the contrary would
lead to situations incompatible with the principle of the rule of law
which the Contracting States undertook to respect when they ratified
the Convention (see, by analogy, Hornsby v. Greece, 19 March
1997, § 40, Reports of Judgments and Decisions 1997 II).
- The
Court considers that the Government's submissions in respect of the
delays in complying with the Constitutional Court's decision cannot
be accepted, in view of the fact that the Constitutional Court's
decision was adopted in July 2006 and that the purpose of ordering
the time-limits for the conclusion of the civil proceedings in
question was to speed up these proceedings and bring about their
conclusion. However, the Court notes that the proceedings are still
pending. Therefore, the Government's explanation cannot be considered
decisive in the present case. In particular, as already found above,
the compensation awarded to the applicant was insufficient. While it
is true that this factor alone does not normally render the remedy
ineffective, the Court notes that in the present case it was
reinforced by the failure of the competent court to execute the
Constitutional Court's decision in a timely fashion; it being
understood that the cessation of an ongoing violation is for the
Court an important element of the right to an effective remedy (see,
implicitly, Cocchiarella, cited above, § 74).
- The
Court is therefore of the view that in the instant case, where the
applicant did not receive sufficient compensation for the inordinate
length of the civil proceedings and where the competent court has
failed to comply with the time-limit set in relation to it and
thereby has failed to implement the Constitutional Court's decision
thus far, it cannot be argued that the constitutional complaint the
applicant resorted to was an effective remedy for the length of those
proceedings. The combination of these two factors in the particular
circumstances of the present case rendered an otherwise effective
remedy ineffective.
- This
conclusion, however, does not call into question the effectiveness of
the remedy as such or the obligation to lodge a constitutional
complaint under section 63 of the Constitutional Court Act in order
to exhaust domestic remedies concerning complaints about the length
of proceedings.
There
has accordingly been a breach of Article 13 in the present case.
III. 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. Damage
- The
applicant claimed 994,456.44 euros (EUR) in respect of pecuniary
damage and EUR 1,500,000 in respect of non-pecuniary damage.
- The
Government deemed the claims excessive and also argued that there had
been no causal link between the violations claimed and the claim for
pecuniary damage.
- 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 EUR 2,440 in respect of
non-pecuniary damage plus any tax that may be chargeable to him.
B. Costs and expenses
- The
applicant also claimed EUR 10,000 for the costs and expenses incurred
before the Court.
- The
Government deemed the claim excessive.
- 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 were
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 applicant, who was not
represented by a lawyer, the sum of EUR 500 under this head plus any
tax that may be chargeable to him.
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 remainder of the application
admissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds that there has been a violation of Article
13 of the Convention;
- 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
2,440 (two thousand four hundred and forty euros) in respect of
non-pecuniary damage, plus any tax that may be chargeable;
(ii) EUR
500 (five hundred euros) in respect of costs and expenses, plus any
tax that may be chargeable to the applicant;
(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 25 June 2009, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
