FIRST SECTION

CASE OF JEANS v. CROATIA

(Application no. 45190/07)

JUDGMENT

STRASBOURG

13 January 2011

This judgment is final but it may be subject to editorial revision.

In the case of Jeans v. Croatia,
The European Court of Human Rights (First Section), sitting as a committee composed of:
	Dean Spielmann, President,
	Nina Vajić,
	Giorgio Malinverni, judges,
and André Wampach, Deputy Registrar,
Having deliberated in private on 9 December 2010,
Delivers the following judgment, which was adopted on that date:
PROCEDURE

1.  The case originated in an application (no. 45190/07) 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 British national, Mr Terrence Jeans (“the applicant”), on 19 September 2007.
2.  The applicant was represented by Mr T. Vukičević, a lawyer practising in Split. The Croatian Government (“the Government”) were represented by their Agent, Mrs Š. Stažnik.
3.  On 3 September 2009 the President of the First Section decided to communicate to the Croatian Government the complaint concerning the length of the criminal proceedings and the lack of an effective remedy in that respect. In accordance with Protocol No. 14, the application was allocated to a Committee.
4.  Since the applicant is a British national, the Government of the United Kingdom had been given leave by the President to submit their written comments on the case. The Government did not exercise their right to intervene in the case (Article 36 § 1of the Convention and Rule 44).
THE FACTS
I.  THE CIRCUMSTANCES OF THE CASE
5.  The applicant was born in 1944 and lives in Rowner Gosport Hants, United Kingdom.
1.  Criminal proceedings
6.  On 3 June 1997 the Split State Attorney's Office (Općinsko državno odvjetništvo) indicted A.B., D.D., G.A. and E.R. before the Split County Court (Županijski sud u Splitu) for participation in an affray (sudjelovanje u tučnjavi) and D.Š. for the murder of the applicant's son on 8 September 1996. The applicant participated in the proceedings as the injured party (oštećenik).
7.  On 19 July 2000 the Split County Court delivered a judgment finding the first four accused guilty while acquitting D.Š. It also instructed the applicant to pursue his claim for non-pecuniary damage against the four accused in separate civil proceedings.
8.  Following an appeal by the State Attorney, on 5 December 2002 the Supreme Court (Vrhovni sud Republike Hrvatske) reversed the lower-instance judgment in the part concerning the first four accused by acquitting them, as their prosecution had become time-barred. It also quashed the judgment in the part concerning D.Š. and remitted the case.
9.  In the resumed proceedings, at the hearing held on 27 November 2003, the applicant stated that he had already instituted civil proceedings for damages concerning the death of his son (see paragraph 15 below).
10.  However, on 10 February 2006 the applicant made a civil claim (imovinskopravni zahtjev) in the criminal proceedings, seeking compensation of non-pecuniary damage in the amount of 300,000 Croatian kunas (HRK).
11.  In the resumed proceedings the court held five of fourteen scheduled hearings, whereas the others were adjourned due to the inability of domestic authorities to locate a witness and the non-attendance of the defendant's lawyer and experts.
12.  On 10 July 2007 the Split County Court delivered a judgment acquitting D.Š. and instructing the applicant to pursue his compensation claim against the accused in separate civil proceedings that he had already instituted.
13.  Following an appeal by the State Attorney, on 22 January 2008 the Supreme Court again quashed the lower-instance judgment and remitted the case.
14.  The proceedings are still pending before the Split County Court.
2.  Civil proceedings for damages before the Kaštel Lukšić Municipal Court
15.  On 21 July 2003 the applicant brought a civil action in the Kaštel Lukšić Municipal Court (Općinski sud u Kaštel Lukšiću) against D.Š., seeking non-pecuniary damages in connection with the death of his son.
16.  On 7 June 2004 the Municipal Court, at the request of the parties, stayed the proceedings pending the outcome of the above-mentioned criminal proceedings.
3.  Civil proceedings for damages before the Split Municipal Court
17.  On 22 March 2004 the applicant brought a civil action in the Split Municipal Court (Općinski sud u Splitu) against the State, also seeking non-pecuniary damages in connection with the death of his son. On 26 April 2004 the Municipal Court ruled in favour of the applicant since the defendant had failed to respond to his civil action (presuda zbog ogluhe).
18.  Following the defendant's request, on 9 July 2004 the Municipal Court restored the proceedings to the status quo ante (povrat u prijašnje stanje).
19.  On 21 September 2004 at the applicant's request, the Municipal Court stayed the proceedings pending the outcome of the above-mentioned criminal proceedings.
4.  The proceedings following the applicant's request for the protection of the right to a hearing within a reasonable time
20.  On 13 February 2006 the applicant lodged a request for the protection of the right to a hearing within a reasonable time (zahtjev za zaštitu prava na suđenje u razumnom roku) with the Supreme Court complaining about the length of the above-mentioned criminal proceedings. He argued that due to the length of the criminal proceedings, it was very likely that proceedings against D.Š. could become time-barred, as it was the case against the other four accused.
21.  On 29 June 2006 the Supreme Court dismissed his request, finding that the proceedings complained of did not concern “the determination of the applicant's civil rights and obligations” or “any criminal charge against him”.
22.  On 5 September 2006 the applicant lodged a constitutional complaint against that decision, arguing that on 10 February 2006 he had submitted a civil claim for damages in the above-mentioned criminal proceedings and that therefore it could not be said that those proceedings had not concerned “the determination of his civil rights and obligations” as the Supreme Court reasoned.
23.  On 17 December 2008 the Constitutional Court dismissed the applicant's constitutional complaint and served its decision on his representative on 23 January 2009. It noted that by initially deciding to pursue his civil claim for damages in the separate civil proceedings, the applicant had lost his right to do so in the above-mentioned criminal proceedings. Therefore, the criminal proceedings indeed did not concern “the determination of his civil rights and obligations” as the Supreme Court had correctly held.
II.  RELEVANT DOMESTIC LAW AND PRACTICE
 1.  The Constitutional Court Act
24.  The relevant part of the 1999 Constitutional Act on the Constitutional Court of the Republic of Croatia (Ustavni zakon o Ustavnom sudu Republike Hrvatske, Official Gazette no. 99/1999 of 29 September 1999 – “the Constitutional Court Act”), as amended by the 2002 Amendments (Ustavni zakon o izmjenama i dopunama Ustavnog zakona o Ustavnom sudu Republike Hrvatske, Official Gazette no. 29/2002 of 22 March 2002), which entered into force on 15 March 2002, 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 individual'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 from the date a request for payment is lodged.”
2.  The Courts Act
25.  The relevant part of the Courts Act (Zakon o sudovima, Official Gazette nos. 150/05, 16/07 and 113/08), which entered into force on 29 December 2005, reads as follows:
III. PROTECTION OF THE RIGHT TO A HEARING WITHIN A REASONABLE TIME
Section 27
“(1)  A party to court proceedings who considers that the competent court failed to decide within a reasonable time on his or her rights or obligations or a criminal charge against him or her, may lodge a request for the protection of the right to a hearing within a reasonable time with the immediately higher court.
(2)  If the request concerns proceedings pending before the High Commercial Court of the Republic of Croatia, the High Court for Administrative Offences of the Republic of Croatia or the Administrative Court of the Republic of Croatia, the request shall be decided by the Supreme Court of the Republic of Croatia.
(3)  The proceedings for deciding the request referred to in paragraph 1 of this section shall be urgent. The rules of non-contentious procedure shall apply mutatis mutandis in those proceedings and, in principle, no hearing shall be held.”
Section 28
“(1)  If the court referred to in section 27 of this Act finds the request well founded, it shall set a time-limit within which the court before which the proceedings are pending must decide on a right or obligation of, or a criminal charge against, the person who lodged the request, and shall award him or her appropriate compensation for the violation of his or her right to a hearing within a reasonable time.
(2)  The compensation shall be paid out of the State budget within three months from the date the party's request for payment is lodged.
(3)  An appeal, to be lodged within fifteen days with the Supreme Court, lies against a decision on the request for the protection of the right to a hearing within a reasonable time. No appeal lies against the Supreme Court's decision but one may lodge a constitutional complaint.”
3.  The Code on Criminal Procedure
26.  The relevant provisions of the Code on Criminal Procedure (Zakon o kaznenom postupku - Official Gazette nos.110/1997, 27/1998, 58/1999. 112/1999, 58/2002, 62/2003, 178/2004 and 115/06) provide as follows:
Article 127
“(1)  A claim for redress caused by a criminal offence shall be examined in the criminal proceedings upon a request by authorised persons, provided that this does not cause significant delays of the proceedings.
...”
Article 128
“  A claim for redress in criminal proceedings may lodge a person entitled to do so in civil proceedings.”
4.  The Civil Procedure Act
27.  The relevant provisions of the Civil Procedure Act (Zakon o parničom postupku, The Official Gazette, nos. 53/91, 91/92, 112/99, 88/01 and 117/03) provide as follows:
Section 12
“(3)  A civil court is bound by a final judgment given in criminal proceedings finding the accused guilty in so far as it concerns the existence of the criminal offence and criminal liability of the accused.”
Section 213
“...court shall stay the proceedings:
1. When it decides not to rule on a preliminary issue itself.
...
  The court may stay the proceedings if the decision on the merits depends on ... whether a criminal offence has been committed ..., who committed it and whether that person may be held [criminally] liable...”
Section 215
“(2)  Where a court has stayed the proceedings on the grounds in paragraph 1, or paragraph 2 of section 213, the proceedings shall resume when the [concurrent] proceedings before a court or other competent authority end with a final decision, or when the court finds that the reasons for awaiting their outcome no longer exist.
(3)  In all other cases the proceedings shall be resumed at the request of a party as soon as the reasons for their stay cease to exist.”
28.  According to the Supreme Court's case law, a victim of a criminal offence (injured party) may complain about the length of criminal proceedings as of the date of filing of her or his claim for redress in those proceedings. The relevant part of the Supreme Court's judgment no. Kzp-21/08-6 of 20 May 2008 (Vrhovni Sud Republike Hrvatske), reads as follows:
“The injured party in criminal proceedings becomes entitled to file a request for the protection of the right to a hearing within a reasonable time as of the date of filing a claim for redress in the criminal proceedings, because it is only from that time, that his or her civil rights are being determined ....”
THE LAW
I.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
29.  The applicant complained that the length of the criminal proceedings was 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 ...”
30.  The Government contested that argument.
A.  Admissibility
31.  The Government submitted that the applicant could not claim to be a victim of the alleged violation because the criminal proceedings in question did not involve a criminal charge against him or determination of his civil rights and obligations. On the same ground the domestic courts had rejected the applicant's request for the protection of the right to hearing within reasonable time. Moreover, the Government disputed the applicant's contention that he had ever made a claim for redress in the criminal proceedings in question.
32.  The applicant contested this view submitting that he had made his claim for redress within the criminal proceedings on 10 February 2006. As a proof he submitted a copy of his claim for redress stamped by the Split County Court.
33.  The Court notes at the outset that the applicant was not the accused but the injured party in the criminal proceedings complained of. Thus, the criminal limb of Article 6 § 1 does not apply. However, Article 6 § 1 under its “civil head” applies to criminal proceedings involving a determination of pecuniary claims asserted by the injured parties (so-called “civil-party complaints”) and, even in the absence of such claims, to those criminal proceedings the outcome of which is decisive for the “civil right” in question (see Perez v. France [GC], no. 47287/99, §§ 65-67 and 71, ECHR 2004-I).
34.  In the present case, the applicant participated in the criminal proceedings from the outset as the injured party. The issue disputed by the parties - whether or not the applicant filed a pecuniary claim for damages in the criminal proceedings - is irrelevant for the following reasons. As instructed by the criminal court, the applicant brought separate civil proceeding for damages on 21 July 2003. Moreover, on 22 March 2004 he brought a civil action for damages against the State, while only on 10 February 2006 he made his claim for redress in the criminal proceedings, which was of no effect since he already instituted civil proceedings in this respect. Both civil proceedings were stayed shortly after they had been instituted, pending the outcome of the aforementioned criminal proceedings. Thus, it was only when those civil proceedings were instituted that the outcome of the criminal proceedings became relevant for the determination of the applicant's “civil right” to compensation, thereby attracting the applicability of Article 6 § 1 under its civil head to the criminal proceedings at issue (see Jakešević v. Croatia (dec.), no. 18584/05, 10 January 2008). The Government's objection in this respect must therefore be rejected.
35.  In view of the above, the period to be taken into consideration began on 21 July 2003, when the applicant brought a separate civil claim for damages, and has not yet ended. It has thus lasted almost seven years before two levels of jurisdiction.
36.  The Court notes that the length 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.
B.  Merits
37.  The Government submitted that the case was very complex, involving examination of twenty-four witnesses, several of which resided abroad. It was further necessary to obtain several opinions of medical experts. The Government further claimed that the domestic courts had acted expeditiously and without undue delays. In the period under the Court's scrutiny, they had held thirteen hearings, heard numerous witnesses and experts and adopted two decisions in the case.
38.  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).
39.  The Court accepts that the proceedings at issue may have been somewhat complex. However, the complexity of the case cannot justify the fact that the proceedings have already been pending for seven years on two levels of jurisdiction and are now pending before the first-instance court. The Court notes that in the period falling within the Court's scrutiny, the first-instance court held only five hearings, whereas other scheduled hearings were adjourned due to the inability of the authorities to locate a witness and the non-attendance of the defendant's counsel and experts. Moreover, after a first-instance judgment had been adopted, the case was remitted for re-examination before a new panel of judges, which caused further delays in the proceedings. Although the Court is not in a position to analyse the juridical quality of the domestic courts' decisions, it considers that, since the remittal of cases for re-examination is frequently ordered as a result of errors committed by lower courts, the repetition of such orders within one set of proceedings may disclose a serious deficiency in the judicial system (see, for example, Mamič v. Slovenia (no. 2), no. 75778/01, § 35, ECHR 2006‑X (extracts); and Wierciszewska v. Poland, no.41431/98, § 46, 25 November 2003).
40.  In conclusion, the Court considers that the length of the criminal proceedings in the present case, which had been directly decisive for the applicant's civil claims, was excessive and failed to meet the “reasonable time” requirement.
41.  In the light of the foregoing, the Court considers that there has been a breach of Article 6 § 1.
II.  ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
42.   The applicant also complained under Article 13 of the Convention, taken in conjunction with Article 6 § 1 thereof, that he had no effective remedy for his length complaint. He relied on Article 13 of the Convention, which 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.”
43.  The Government contested that argument.
A.  Admissibility
44.  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
45.  The Government reiterated that the domestic courts had correctly declined to consider the applicant's request for the protection of the right to a hearing within reasonable time since the criminal proceedings complained of did not involve a criminal charge against the applicant or determination of his civil rights and obligations. In their view, the applicant should have availed himself of this remedy in respect of the two sets of the civil proceedings initiated in 2003 and 2004, which he had not done.
46.  The Court notes that the applicant availed himself of effective domestic remedies for the length of the criminal proceedings, by lodging a request for the protection of the right to a hearing within reasonable time and a constitutional complaint with a view to accelerating the proceedings at issue. His complaints were dismissed because the domestic courts considered that those proceedings did not involve determination of his civil rights or obligations. However, given its conclusion above (see § 40.), the Court considers that complaining about the length of the criminal rather than the civil proceedings was a reasonable step in the circumstances. Since the outcome of the criminal proceedings was directly decisive for the determination of the applicant's civil rights, it was only reasonable that the applicant complained about the length of the criminal proceedings. It was the duration of those proceedings that delayed the determination of the applicant's civil claims for damages. However, by deciding not to consider the length of those proceedings, the domestic courts violated the applicant's right to an effective remedy.
47.  In view of that, the Court considers that there has been a breach of Article 13 in the present case.
III.  OTHER ALLEGED VIOLATIONS OF ARTICLE 14 OF THE CONVENTION AND ARTICLE 1 OF THE PROTOCOL NO.1 TO THE CONVENTION
48.  The applicant also complained under Article 1 of Protocol No. 1 to the Convention that his property rights have been violated because the determination of his civil claim for damages has been unduly delayed. He also invoked Article 14 of the Convention without further substantiating this complaint.
49.  In the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court considers that this part of the application does not disclose any appearance of a violation of the Convention. It follows that it is inadmissible under Article 35 § 3 as manifestly ill-founded and must be rejected pursuant to Article 35 § 4 of the Convention.
IV.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
50.  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
51.  The applicant claimed 20,000 euros (EUR) in respect of non-pecuniary damage.
52.  The Government contested this claim.
53.  The Court awards the applicant 3,600 euros (EUR) in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount.
B.  Costs and expenses
54.  The applicant, who is represented by a lawyer, claimed EUR 821 for the costs and expenses incurred before the domestic courts in respect of his request for the protection of the right to a hearing within reasonable time and constitutional complaint. Ho also claimed an unspecified amount for the costs incurred before the Court, to be calculated according to the Court's standards.
55.  The Government contested these claims.
56.  According to the Court's case-law, an applicant is entitled to 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. The applicant's requests before the Supreme Court and the Constitutional Court were essentially aimed at remedying the violation of the Convention alleged before the Court and therefore the costs incurred in respect of these remedies may be taken into account in assessing the claim for costs (see Scordino v. Italy (no. 1) [GC], no. 36813/97, § 28, ECHR 2006‑V; and Medić v. Croatia, no. 49916/07, § 50, 26 March 2009). In the present case, regard being had to the information in its possession and the above criteria, the Court awards the applicant a sum of EUR 821 for the costs and expenses incurred in the domestic proceedings and EUR 1,200 in respect of the proceedings before the Court, plus any tax that may be chargeable to the applicant on those amounts.
C.  Default interest
57.  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
1.  Declares the complaints concerning Article 6 § 1 and Article 13 of the Convention admissible and the remainder of the application inadmissible;

2.  Holds that there has been a violation of Article 6 § 1 of the Convention;

3.  Holds that there has been a violation of Article13 of the Convention;

4.  Holds
(a) that the respondent State is to pay the applicant, within three months, to be converted into Croatian kunas at the rate applicable at the date of settlement:

(i)  EUR 3,600 (three thousand six hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii)  EUR 2,021 (two thousand twenty one euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

5.  Dismisses the remainder of the applicant's claim for just satisfaction.
Done in English, and notified in writing on 13 January 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	André Wampach	Dean Spielmann
	Deputy Registrar	President