CASE OF LONČAR v. CROATIA

FIRST SECTION

CASE OF LONČAR v. CROATIA

(Application no. 42969/09)

JUDGMENT

STRASBOURG 

18 December 2012

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

In the case of Lončar v. Croatia,

The European Court of Human Rights (First Section), sitting as a Committee composed of:

Julia Laffranque, President,
Nina Vajić,
Erik Møse, judges,
and André Wampach, Deputy Section Registrar,

Having deliberated in private on 27 November 2012,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 42969/09) 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, Ms Semina Lončar (“the applicant”), on 1 August 2009.

2. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik.

3. On 10 September 2010 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

4. The applicant was born in 1952 and lives in Split.

A. Civil proceedings

5. On 23 February 1999 the applicant brought a civil action for defamation against the Croatian Radio Television in the Split Municipal Court (Općinski sud u Splitu), seeking non-pecuniary damages.

6. In the period between 20 May 1999 and 19 May 2000 the first‑instance court held seven hearings.

7. By a judgment of 19 May 2000 the Municipal Court dismissed the applicant’s action.

8. Following an appeal by the applicant, on 21 May 2004 the Split County Court (Županijski sud u Splitu) quashed the first-instance judgment and remitted the case.

9. In the resumed proceedings, the Municipal Court held three hearings, and on 21 September 2009 delivered a judgement whereby it ordered the defendant to pay the applicant 30,000 Croatian kunas (HRK) as compensation for non-pecuniary damage.

10. Following an appeal by the defendant, on 26 November 2010 the Split County Court reduced the amount of damages payable to the applicant to HRK 20,000. The judgment was served on the applicant’s representative on 4 January 2011.

B. The proceedings following the applicant’s request for the protection of the right to a hearing within a reasonable time

11. Meanwhile, on 5 November 2007 the applicant lodged a request for the protection of the right to a hearing within reasonable time (zahtjev za zaštitu prava na suđenje u razumnom roku) with the Split County Court.

12. On 18 August 2008 the Split County Court found a violation of the applicant’s right to a hearing within reasonable time, awarded her HRK 12,500[1] in compensation and ordered the Split Municipal Court to give a decision in her case within six months of the service of its decision. The County Court’s decision was served on the Split Municipal Court on 31 October 2008.

II. RELEVANT DOMESTIC LAW

13. The relevant provisions of the Courts Act (Zakon o sudovima, Official Gazette nos. 150/05, 16/07 and 113/08), governing the request for the protection of the right to a hearing within a reasonable time, as the remedy for the length of judicial proceedings in Croatia, are set out in Praunsperger v. Croatia, no. 16553/08, § 21, 22 April 2010.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

14. 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...”

15. The Government contested that argument.

16. The period to be taken into consideration began on 23 February 1999, when the applicant brought her civil action, and ended on 4 January 2011, when the Split County Court’s judgment of 26 November 2010 was served on the applicant’s representative. It thus lasted some eleven years and ten months for two levels of jurisdiction.

A. Admissibility

1. The applicant’s victim status

17. The Government submitted that the Split County Court had accepted the applicant’s request, found a violation of her right to a hearing within reasonable time and awarded her appropriate compensation. The violation complained of had, therefore, been remedied before the domestic authorities and, as a result, the applicant had lost her victim status.

18. The Court first notes that at the time when the Split County Court gave its decision on the applicant’s request, the proceedings had been pending for more than nine and a half years, at two levels of jurisdiction. It further notes that the County Court awarded the applicant the equivalent of approximately 1,730 euros (EUR). The compensation awarded by that court 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.

19. The Court further notes that in the same decision the Split County Court also ordered the Split Municipal Court to decide the applicant’s case within six months of the service of its decision. Given that the County Court’s decision was served on the Split Municipal Court on 31 October 2008 (see paragraph 12 above), the above time-limit expired on 30 April 2009. However, the Split Municipal Court adopted a judgment in the applicant’s case only on 21 September 2009 (see paragraph 9 above), thus exceeding the time-limit left to it by almost five months.

20. Having regard in particular to the fact that the Split Municipal Court did not comply with the County Court’s order to deliver a decision within six months, the compensation awarded 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-V, or Scordino v. Italy (no. 1) [GC], no. 36813/97, §§ 178-213, ECHR 2006-V). Therefore, in respect of the period covered by the County Court’s finding, the applicant has not lost her victim status within the meaning of Article 34 of the Convention.

2. Exhaustion of domestic remedies

21. As regards the length of proceedings in the period following the Split County Court’s decision, the Government argued that the applicant should have lodged a second request for the protection of the right to a hearing within reasonable time, which she failed to do.

22. The Court reiterates that it has already rejected similar objections raised by the Government in a number of length-of-proceedings cases against Croatia (see, for example, Lonza v. Croatia, no. 14062/07, §§ 25-26, 1 April 2010; Kvartuč v. Croatia (no. 2), no. 34830/07, §§ 34-36, 22 April 2010, and Čiklić v. Croatia, no. 40033/07, §§ 26-28, 22 April 2010) and sees no reason to hold otherwise in the present case.

23. It follows that the Government’s objection as to the exhaustion of domestic remedies in the present case must also be rejected.

3. Conclusion

24. The Court considers that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It also notes, having regard to the foregoing, that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

25. 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).

26. The Court notes that in its decision of 18 August 2008 the Split County Court found that the proceedings had lasted unreasonably long (see paragraph 12 above). The Court sees no reason to hold otherwise as it has itself frequently found violations of Article 6 § 1 of the Convention in cases raising similar issues as the present one (see, for example, Kvartuč v. Croatia (no. 2), cited above). Therefore, already in the period which was subject to the County Court’s scrutiny the length of the proceedings was excessive and failed to meet the “reasonable time” requirement. It retained that character throughout the subsequent period of some two years and four months after the delivery of the County Court’s decision (see paragraph 16 above).

27. 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

28. The applicant also complained under Article 13 of the Convention, taken in conjunction with Article 6 § 1 thereof, that the Split Municipal Court had not complied with the Split County Court’s order to deliver a decision within the specified 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.”

A. Admissibility

29. 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

30. The Court reiterates (see paragraph 19 above) that the Split Municipal Court exceeded the time-limit left to it by the Split County Court to deliver a decision in the applicant’s case by almost five months. In these circumstances it cannot be argued, as the Government did, that the time‑limit was only slightly exceeded.

31. The Court has already found violations of Article 13 of the Convention in similar cases (see, for example, Kaić and Others v. Croatia, no. 22014/04, 17 July 2008; Medić v. Croatia, no. 49916/07, 26 March 2009, and Lonza, 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.

There has accordingly been a breach of Article 13 in the present case.

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

32. 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

33. The applicant claimed 4,300 euros (EUR) in respect of non‑pecuniary damage.

34. The Government contested the claim.

35. The Court reiterates that where an applicant had resorted to an available domestic remedy and thereby obtained a finding of a violation and was awarded compensation, but can nevertheless still claim to be a “victim”, the amount to be awarded under Article 41 may be less than the amounts the Court was awarding in similar cases. In that case an applicant must be awarded the difference between the amount obtained from the domestic courts and an amount that would not have been regarded as manifestly unreasonable compared with the amounts awarded by the Court. An applicant should also be awarded an amount in respect of stages of the proceedings that may not have been taken into account by the domestic courts (see, mutatis mutandis, Cocchiarella v. Italy [GC], cited above, §§ 139-141; Jakupović v. Croatia, no. 12419/04, § 33, 31 July 2007; Skokandić v. Croatia, no. 43714/02, § 59, 31 July 2007; Husić v. Croatia, no. 14878/04, § 31, 25 October 2007; and Letica v. Croatia, no. 27846/05, § 34, 18 October 2007).

36. The Court reiterates that the applicant was awarded EUR 1,730 by the Split County Court (see paragraph 18 above). Having regard to the circumstances of the present case, the characteristics of the request for the protection of the right to a hearing within a reasonable time, as well as the fact that, notwithstanding this domestic remedy, the Court has found a violation, it considers, ruling on an equitable basis, that the applicant should be awarded EUR 100 in respect of the period subject to the County Court’s scrutiny.

37. The Court also awards the applicant the sum of EUR 1,000 for the further delay of some two years and four months in the period following the delivery of the County Court’s decision of 18 August 2008 (see paragraph 26 above).

38. Accordingly, the applicant shall be awarded the total sum of EUR 1,100 in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount.

B. Costs and expenses

39. The applicant also claimed EUR 500 for the costs and expenses incurred before the Court.

40. The Government contested the claim.

41. The Court considers it reasonable to award the applicant, who was not represented by a lawyer, the sum of EUR 150 under this head, plus any tax that may be chargeable to the applicant on that amount.

C. Default interest

42. The Court considers it appropriate that the default interest rate 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 application admissible;

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

3. Holds that there has been a violation of Article 13 of the Convention;

4. Holds

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

(i) EUR 1,100 (one thousand one hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 150 (one hundred and fifty 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 amounts 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 18 December 2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

              André WampachJulia Laffranque
Deputy RegistrarPresident

[1] Approximately 1,730 euros (EUR).

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