CASE OF PERUŠKO v. CROATIA

FIRST SECTION

CASE OF PERUŠKO v. CROATIA

(Application no. 36998/09)

JUDGMENT

STRASBOURG

15 January 2013

FINAL

15/04/2013

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Peruško v. Croatia,

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

Isabelle Berro-Lefèvre, President,
Nina Vajić,
Anatoly Kovler,
Khanlar Hajiyev,
Mirjana Lazarova Trajkovska,
Julia Laffranque,
Linos-Alexandre Sicilianos, judges,
and Søren Nielsen, Section Registrar,

Having deliberated in private on 11 December 2012,

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

PROCEDURE

1. The case originated in an application (no. 36998/09) 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, Mr Franko Peruško (“the applicant”), on 25 May 2009.

2. The applicant was represented by Mr M. Pavičević, a lawyer practising in Pula. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik.

3. On 24 March 2011 the applicant’s complaint concerning his right to access to court was communicated to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

4. The applicant was born in 1951 and lives in Pula.

5. The applicant worked as a janitor for the Ministry of the Interior (Ministarstvo unutarnjih poslova Republike Hrvatske; hereinafter - “the Ministry”) until 3 August 2001, when the Ministry dismissed him as his job had become redundant.

6. On 21 August 2001 the applicant appealed against that decision to the Minister of the Interior.

7. The applicant also brought a civil action against the Ministry in the Pula Municipal Court (Općinski sud u Puli) on 20 September 2001, challenging his dismissal and asking to be reinstated.

8. Simultaneously (since the Minister had not decided on his appeal of 21 August 2001 within the statutory time-limit of thirty days), on 25 September 2001 the applicant brought an action against the Ministry in the Administrative Court (Upravni sud Republike Hrvatske) as though his appeal had already been dismissed. In particular, he contested the decision of 3 August 2001 to dismiss him.

9. On 5 December 2001 the Pula Municipal Court, concerning the applicant’s civil action of 20 September 2001, declined its jurisdiction in the matter on the basis that the Administrative Court was the appropriate court to hear the applicant’s case.

10. On 13 December 2001 the Minister of the Interior dismissed the applicant’s appeal of 21 August 2001 lodged against the Ministry’s decision to make him redundant. However, he reversed the first-instance decision of 3 August 2001 by extending the applicant’s notice period and changing the date of the termination of employment.

11. Consequently, on 29 December 2001 the applicant withdrew the administrative action he had brought before the Administrative Court on 25 September 2001 (see paragraph 8 above).

12. On 30 December 2001 the applicant lodged an appeal with the Pula County Court (Županijski sud u Puli) against the decision of the Pula Municipal Court of 5 December 2001 declining the jurisdiction in his case.

13. On 31 December 2001 the applicant then brought a fresh administrative action against the Ministry in the Administrative Court – this time contesting the Minister’s decision of 13 December 2001.

14. On the basis of the applicant’s withdrawal of his administrative action of 25 September 2001, the Administrative Court on 28 February 2002 discontinued the proceedings instituted by that action (see paragraphs 8 and 11 above).

15. On 4 November 2002 the Pula County Court dismissed the applicant’s appeal of 30 December 2001 and upheld the first-instance decision of the Pula Municipal Court declining jurisdiction to deal with the applicant’s civil action of 20 September 2001, on the ground that the matter was within the competence of the Administrative Court (see paragraphs 9 and 12 above). The case was transferred to the Administrative Court on 22 November 2002.

16. On 2 December 2002 the applicant withdrew his civil action of 20 September 2001.

17. On 13 January 2003 the Pula Municipal Court informed the Administrative Court that the applicant had withdrawn his civil action.

18. On that basis, on 16 January 2003 the Administrative Court discontinued the proceedings instituted by that action. The decision of the Administrative Court reads:

“The plaintiff, through a representative, lodged his action against the decision of the Ministry of the Interior ... of 13 December 2001, by which the decision of the same Ministry of 3 August 2001 was reversed in that the plaintiff’s employment in the Istarska Police Department was to be terminated five months after the expiry of the notice period which started running on 6 August 2001 ...

Section 28 of the Administrative Disputes Act (Official Gazette, nos. 53/1991, 9/1992, 77/1992) provides that the plaintiff can withdraw his action until the court orders that the decision be served on the parties, in which case the court shall issue a decision discontinuing the proceedings.

Since the plaintiff, by a letter received in this court on 13 January 2003, which had been filed in the case file, had withdrawn his action, this court, acting under Section 28 of the Administrative Disputes Act, decided as noted in the operative part of this decision.”

19. On 2 October 2004, since he had received no reply concerning the administrative action he had brought before the Administrative Court on 31 December 2001 (see paragraph 13 above) the applicant urged it to decide on his action. He pointed out that, in order to avoid any possible confusion, it was necessary to distinguish the civil action which he had brought before the Pula Municipal Court, which had been transferred to the Administrative Court and which he had withdrawn, from the administrative action which he wanted to pursue. However, the applicant received no reply from the Administrative Court.

20. Therefore, on 12 August 2005 the applicant lodged a constitutional complaint under section 63 of the Constitutional Court Act with the Constitutional Court (Ustavni sud Republike Hrvatske), complaining about the length of the proceedings before the Administrative Court instituted by his action of 31 December 2001.

21. The applicant pointed out that the civil action he had brought before the Pula Municipal Court had been transferred to the Administrative Court and that he had then withdrawn that action. Consequently, on 16 January 2003, the Administrative Court had discontinued those proceedings. However, he had never received any information or court decision concerning his administrative action of 31 December 2001 although those proceedings had been pending for almost four years.

22. On 17 October 2007 the Constitutional Court informed the applicant that, according to the information provided by the Administrative Court, the proceedings complained of had been discontinued by the Administrative Court on 16 January 2003, because the applicant had withdrawn that action. The Constitutional Court therefore asked the applicant whether he wished to maintain his constitutional complaint.

23. On 30 October 2007 the applicant informed the Constitutional Court that he did wish to maintain his constitutional complaint, and explained that the Administrative Court decision of 16 January 2003 referred to the proceedings instituted by his civil action of 20 September 2001, whereas he was, in fact, complaining about the proceedings instituted by his administrative action of 31 December 2001. The applicant also pointed out that he had never received any notice or decision from the Administrative Court concerning that action.

24. On 19 November 2008 the Constitutional Court declared the applicant’s constitutional complaint inadmissible. It found that the proceedings complained of had ended on 16 January 2003, when the Administrative Court discontinued those proceedings, whereas the applicant had lodged his constitutional complaint after that date, on 12 August 2005. It then reiterated its settled case-law, to the effect that section 63 of the Constitutional Court Act could not be interpreted as allowing constitutional complaints to be lodged about the length of proceedings that had already ended.

25. However, Judge Davor Krapac expressed a dissenting opinion, in which he first explained that when, on 22 November 2002, the civil court had forwarded the case originating from the applicant’s civil action of 20 September 2001 to the Administrative Court, that court had filed the documents belonging to that case together with those relating to the applicant’s administrative action of 31 December 2001. Therefore, when the applicant had withdrawn his civil action of 20 September 2001, the Administrative Court had also discontinued the proceedings instituted by his administrative action of 31 December 2001. The Judge also noted that the applicant had urged the Administrative Court on 2 October 2004 to decide on his administrative action, showing that he had wanted his proceedings in the Administrative Court to be continued. Furthermore, since he had had no right to appeal against an erroneous decision of the Administrative Court, he had also been unable to submit a request for the reopening of proceedings under the relevant law.

26. This situation, in Judge Krapac’s view, had amounted to a grave violation of the right of access to court. In his dissenting opinion he noted:

“ ... when a judicial body (having in mind all parts of that body, including the court’s administration) creates a situation, whether by its actions or omissions, where a certain action is not only not decided, within a reasonable time but, owing to complete ignorance of its existence, not decided at all, then this amounts to a grave violation of the right of access to a court and an extreme form of violation of the right to a fair hearing within a reasonable time.”

27. The Constitutional Court served its decision on the applicant’s representative on 28 November 2008.

II. RELEVANT DOMESTIC LAW

28. The relevant provision of the Constitution of the Republic of Croatia (Ustav Republike Hrvatske, Official Gazette no. 56/1990, 135/1997, 113/2000, 28/2001) reads as follows:

Article 29

“In the determination of his rights and obligations or of any criminal charge against him, everyone is entitled to a fair hearing within a reasonable time by an independent and impartial court established by law.”

29. The relevant provisions of the Constitutional Act on the Constitutional Court of the Republic of Croatia (Ustavni zakon o Ustavnom sudu Republike Hrvatske, Official Gazette nos. 99/1999 and 29/2002) read 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 determine a claim concerning an 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 subsection 2 of this section, the Constitutional Court shall assess the appropriate compensation for an applicant for a violation of his or her constitutional rights ... The compensation shall be paid out of the State budget within three months of the date on which a request for payment is submitted.”

30. The relevant provisions of the Administrative Disputes Act (Zakon o upravnim sporovima, Official Gazette nos. 53/1991, 9/1992 and 77/1992), as in force at the material time, provided:

Section 28

“The plaintiff can withdraw his action until the court orders that the decision be served on the parties, in which case the court shall issue a decision discontinuing the proceedings.”

Section 67 of the Administrative Disputes Act also provided for special proceedings for the protection of constitutional rights and freedoms from the unlawful acts of public officials - specifically that an action could be brought if the following conditions were met: (a) an unlawful action had already taken place; (b) such action was the work of a government official/body/agency or another legal entity; (c) the action resulted in a violation of one or more of the plaintiff’s constitutional rights; and (d) the Croatian legal system did not provide for any other form of redress.

THE LAW

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

31. The applicant complained that he had not had access to a court as provided for 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 fair ... hearing ... by [a] ... tribunal ...”

A. Admissibility

1. Compliance with the six-month time-limit

32. The Government argued that the date on the application form was 25 May 2009 but that it was not clear when the form had been submitted to the Court. They pointed out that it bore the Registry’s stamp dated 4 June 2009 and that the final domestic court decision, namely the Constitutional Court’s decision of 19 November 2008, had been served on the applicant on 28 November 2008. They suggested, therefore, that the applicant had lodged his application with the Court outside the six-month time-limit.

33. The applicant submitted that he had sent his application to the Court through the post office on 26 May 2009, as was clear from the postal service log-book that he had also submitted to the Court. Therefore, he had lodged his application with the Court within the six-month time-limit.

34. The Court reiterates that it may only deal with an application if it is lodged with the Court within the six-month time-limit. The purpose of the six-month rule is to promote legal certainty and to ensure that cases raising issues under the Convention are dealt with within a reasonable time as well as to protect the authorities and other persons concerned from being under any uncertainty for an extended period of time. Finally, it should ensure the possibility of ascertaining the facts of the case before the chance to do so fades away, making the fair examination of the question at issue next to impossible (see Kelly v. the United Kingdom, no. 10626/83, Commission decision of 7 May 1985, Decisions and Reports (DR) 42, p. 205, and Baybora and Others v. Cyprus (dec.), no. 77116/01, 22 October 2002).

35. As to the date when the application is lodged with the Court, the Court has already held that the date of the postmark recording on which day the application was sent is treated as the date of the application, and not the date of receipt stamped on the application (see, for example, Kipritçi v. Turkey, no. 14294/04, § 18, 3 June 2008).

36. The Court notes that the date on which the application form was written is 25 May 2009 and that the date on the postmark recording when the application was sent is 26 May 2009.

37. Since the final domestic court’s decision, namely the decision of the Constitutional Court of 19 November 2008, was served on the applicant’s representative on 28 November 2008, it follows that the application was lodged with the Court within the six-month time-limit. Thus the Government’s objection must be dismissed.

2. Exhaustion of domestic remedies

38. The Government submitted that the applicant had failed to exhaust the domestic remedies. Firstly, they pointed out that the applicant had lodged a constitutional complaint concerning the length of the proceedings before the Administrative Court and not concerning the access to a court. In their view, the applicant should have understood from the wording of the Administrative Court’s decision of 16 January 2003 that the proceedings concerning his administrative action had been discontinued and then he would have been able to complain of a violation of his right to access to a court. Instead, in his constitutional complaint he had complained only about the length of the proceedings. Furthermore, the applicant could have brought an administrative action under section 67 of the Administrative Disputes Act seeking protection from the unlawful act of the Administrative Court, and also a civil action for damages against the State, which he had failed to do.

39. The applicant argued that he could not have known that the decision of the Administrative Court of 16 January 2003 concerned his administrative action of 31 December 2001. That was because he had withdrawn the civil action he had lodged with the Pula Municipal Court, which had later been transferred to the Administrative Court, and not his administrative action. He had never received any decision or notification from the Administrative Court that these two actions had been merged - if indeed they had been – or that the Administrative Court would decide to examine them together. Therefore, he had complained to the Constitutional Court that he had not received the decision of the Administrative Court concerning his administrative action within a reasonable time. The applicant also argued that he could not have brought an action under section 67 of the Administrative Disputes Act or a civil action for damages against the State since he had not known that there had been an unlawful act until he had been so informed by the decision of the Constitutional Court.

40. The Court considers that the question of exhaustion of domestic remedies should be joined to the merits, since it is closely linked to the substance of the applicant’s complaint about his right to access to court.

3. Conclusion

41. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. The parties’ arguments

42. The applicant contended that he had brought his actions against his dismissal from work in both the ordinary civil courts, namely the Pula Municipal Court, and the Administrative Court, since he had expected the civil courts, to be able to deal with his case much more quickly than the Administrative Court. However, he had withdrawn the civil action he had brought before the Pula Municipal Court on 20 September 2001 and the administrative action brought before the Administrative Court on 25 September 2001 in order to avoid more proceedings on the same matter. He had then brought an action before the Administrative Court on 31 December 2001, expecting to have his case examined in the proceedings concerning that action, but the Administrative Court had erroneously discontinued those proceedings and the Constitutional Court, with its excessively formal approach, had refused to remedy the situation.

43. The Government argued that the applicant had simultaneously brought an action before the Pula Municipal Court and the Administrative Court concerning the same matter. Therefore it cannot be said that he had not had access to a court. However, the applicant had withdrawn his first administrative action and then had brought another administrative action on 31 December 2001 before the Administrative Court, which had been substantively identical to the civil action he had brought before the Pula Municipal Court. This lack of diligence on the part of the applicant meant that two substantively identical sets of proceedings were pending before the courts at the same time which was not permissible under the relevant domestic law. Therefore, the Administrative Court could only have declared the applicant’s action of 31 December 2001 inadmissible. It followed that the applicant had withdrawn the civil action he had brought before the Pula Municipal Court and that the Administrative Court, on account of the prohibition of concurrent sets of proceedings concerning the same issue, could not have examined the action he had brought on 31 December 2001. Therefore, it could not be said that the applicant had not had access to a court.

2. The Court’s assessment

(a) General principles

44. The Court has held on many occasions that Article 6 § 1 embodies the “right to a court”, of which the right of access, that is, the right to institute proceedings before a court, constitutes one aspect only; however, it is that aspect which enables an individual to benefit from the further guarantees laid down in paragraph 1 of Article 6. The fair, public and expeditious characteristics of judicial proceedings are indeed of no value at all if such proceedings are not first initiated. And in civil matters one can scarcely conceive of the rule of law without there being a possibility of having access to the courts (see, among many other authorities, Golder v. the United Kingdom, 21 February 1975, §§ 34 in fine and 35-36, Series A no. 18; Z. and Others v. the United Kingdom [GC], no. 29392/95, §§ 91‑93, ECHR 2001-V; and Kreuz v. Poland, no. 28249/95, , § 52, ECHR 2001-VI).

45. The right of access to court is not, however, absolute. It may be subject to legitimate restrictions such as statutory limitation periods, security – for - costs orders, and regulations concerning minors and persons of unsound mind (see Stubbings and Others v. the United Kingdom, 22 October 1996, §§ 51‑52, Reports of Judgments and Decisions 1996‑IV; Tolstoy Miloslavsky v. the United Kingdom, 13 July 1995, §§ 62‑67, Series A no. 316-B; and Golder, cited above, § 39). Where the individual’s access is limited either by operation of law or in fact, the Court will examine whether the limitation imposed impaired the essence of the right and, in particular, whether it pursued a legitimate aim and whether there was a reasonable relationship of proportionality between the means employed and the aim sought to be achieved (see Ashingdane v. the United Kingdom, 28 May 1985, § 57, Series A no. 93; Związek Nauczycielstwa Polskiego v. Poland, no. 42049/98, § 29, ECHR 2004‑IX; and Szwagrun-Baurycza v. Poland, no. 41187/02, § 49, 24 October 2006). If the restriction is compatible with these principles, no violation of Article 6 will arise (see Z and Others v. the United Kingdom, cited above, §§ 92‑93).

46. In this connection the Court reiterates that, in accordance with Article 19 of the Convention, its duty is to ensure the observance of the obligations 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 (see Běleš and Others v. the Czech Republic, no. 47273/99, § 48, ECHR 2002‑IX).

(b) Application of these principles to the present case

47. The Court notes that the applicant brought two actions in the Administrative Court and one action in the ordinary civil courts challenging the decision on his dismissal from work. However, his administrative action of 31 December 2001, in respect of which he had complained of before the Court (see paragraph 42 above), was never examined on the merits and the proceedings were discontinued solely on procedural grounds.

48. In this respect the Court reiterates that the fact that the applicant was able to bring an action in the domestic courts does not necessarily satisfy the requirements of Article 6 § 1 of the Convention since the degree of access afforded by the national legislation must also be sufficient to secure the individual’s “right to a court”, having regard to the principle of the rule of law in a democratic society (see Yagtzilar and Others v. Greece, no. 41727/98, § 26, ECHR 2001‑XII). Article 6 § 1 of the Convention secures to everyone the right to have any claim relating to his civil rights and obligations brought before a court or tribunal. In this way it embodies the “right to a court”, which, according to the Court’s case-law, includes not only the right to institute proceedings but also the right to obtain the “determination” of the dispute by a court (see Kutić v. Croatia, no. 48778/99, § 25, ECHR 2002‑II, and Menshakova v. Ukraine, no. 377/02, § 52, 8 April 2010).

49. The Court observes that the present case concerns a complex factual set of circumstances which can be summarised as follows. After he was dismissed from his post in the Ministry of the Interior, the applicant brought three different actions before the domestic courts. Two of these actions, on 25 September 2001 (see paragraph 8 above) and 31 December 2001 (see paragraph 13 above), were brought before the Administrative Court and one, on 20 September 2001 (see paragraph 7 above), was brought before the ordinary civil courts, namely the Pula Municipal Court. All the actions concerned the same factual and legal background although, in fact, the action of 25 September 2001, before the Administrative Court, and the one of 20 September 2001, before the Pula Municipal Court, concerned the first-instance decision of the Ministry (see paragraph 5 above), while the action of 31 December 2001, before the Administrative Court, concerned the second-instance decision of the Minister of the Interior (see paragraph 10 above).

50. During these proceedings, the applicant withdrew the action he had brought before the Administrative Court on 25 September 2001 and the Administrative Court discontinued the proceedings on 28 February 2002 (see paragraphs 11 and 14 above). He also withdrew the civil action he had brought before the Pula Municipal Court on 20 September 2001 (see paragraph 16 above). Since this civil action had been transferred, in the meantime, to the jurisdiction of the Administrative Court, that court, on the basis of the applicant’s withdrawal of the action, discontinued the proceedings on 16 January 2003 (see paragraph 18 above).

51. The Court observes that the decision of the Administrative Court of 16 January 2003 appears rather unclear since it refers to the applicant’s withdrawal of the civil action he had brought before the Pula Municipal Court, whereas it actually concerns the second-instance decision of the Minister of the Interior of 13 December 2001 against which no civil action was brought. Therefore, the Court accepts the applicant’s assertion that he considered that the administrative action he had brought before the Administrative Court of 31 December 2001, was still pending as he had not withdrawn it and had never received any confirmation or decision from the Administrative Court, stating that his civil action would be examined together with his administrative action. In fact it appears that no such confirmation or decision was issued. Therefore the applicant reasonably expected that his proceedings regarding the administrative action of 31 December 2001 were still pending.

52. The Court also notes that the applicant, after he had received the decision of 16 January 2003 on discontinuing the proceedings, urged the Administrative Court to decide upon his administrative action of 31 December 2001. In view of the facts referred to above, this excludes any possibility of passivity or lack of diligence on the applicant’s part (see, mutatis mutandis, Díaz Ochoa v. Spain, no. 423/03, § 47, 22 June 2006). However, having never received any reply from the Administrative Court he therefore lodged a constitutional complaint with the Constitutional Court about the length of the proceedings, only to discover from the Constitutional Court that the decision of 16 January 2003 to discontinue the proceedings concerned his administrative action of 31 December 2001.

53. Since the applicant did not withdraw his administrative action of 31 December 2001, it is clear that the Administrative Court erroneously discontinued those proceedings. In this connection the Court refers to the findings of the Constitutional Court’s dissenting Judge, who found flaws in the handling of the applicant’s case file by the Administrative Court (see paragraph 25 above), in that the civil action transferred from the civil courts to the Administrative Court was put into the same file together with the administrative action of 31 December 2001. Therefore, when the applicant withdrew his civil action, the Administrative Court erroneously discontinued the proceedings concerning his administrative action.

54. As to the Government’s arguments that the Administrative Court discontinued the proceedings in order to avoid the problem of having two parallel sets of proceedings concerning the same matter pending at the same time, the Court notes that the Administrative Court never referred, either expressly or in substance, to any domestic rules concerning the unlawfulness of two sets of proceedings on the same matter running concurrently when it discontinued the applicant’s proceedings. Instead, it expressly relied on the applicant’s withdrawal of his civil action (see paragraph 18 above), erroneously discontinuing the applicant’s proceedings concerning his administrative action on that ground.

55. Against the above background, the Court considers that by lodging a constitutional complaint with the Constitutional Court concerning the inefficient way in which his administrative action had been dealt with and by explaining, in addition, the course of his proceedings (see paragraph 23 above) to the Constitutional Court, the applicant did bring his complaints concerning the lower court’s lack of diligence in dealing with his case to the attention of the Constitutional Court.

56. However, although aware of all the circumstances of the applicant’s case and the obvious error made by the Administrative Court, the Constitutional Court failed to intervene and ensure that the applicant’s right to access to a court was respected. Consequently, the Court considers that it was not necessary for the applicant to lodge an additional constitutional complaint as the Government suggested. Equally, the applicant was not required to seek protection of his rights under the Administrative Disputes Act, which provided a remedy only when there was no other avenue of redress available, or to bring a civil action for damages against the State, a remedy pursuing a different aim from that of allowing the applicant to have his case examined on the merits in the relevant domestic courts. Thus the Government’s objection concerning the exhaustion of domestic remedies, which it has previously joined to the merits (see paragraph 40 above), must be dismissed.

57. In the circumstances of the present case, the Court considers that the Administrative Court erroneously discontinued the applicant’s proceedings, thus depriving him of his right of access to a court (see, mutatis mutandis, Pelevin v. Ukraine, no. 24402/02, §§ 28-32, 20 May 2010).

58. There has accordingly been a violation of Article 6 § 1 of the Convention.

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

59. 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

60. The applicant claimed 11,250 euros (EUR) in respect of non-pecuniary damage.

61. The Government considered the applicant’s claim excessive, unfounded and unsubstantiated.

62. Having regard to all the circumstances of the present case, the Court accepts that the applicant suffered non-pecuniary damage which cannot be compensated for solely by the finding of a violation. Making its assessment on an equitable basis, the Court awards the applicant EUR 6,000 in respect of non-pecuniary damage, plus any tax that may be chargeable to him.

B. Costs and expenses

63. The applicant also claimed EUR 2,078 for costs and expenses incurred before the Court.

64. The Government considered the applicant’s claims excessive.

65. 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 documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 2,078 for the proceedings before the Court.

C. Default interest

66. 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. Decides to join to the merits the Government’s objection as to the exhaustion of domestic remedies and rejects it;

2. Declares the application admissible;

3. Holds that there has been a violation of Article 6 § 1 of the Convention in that the applicant did not have access to a court;

4. 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, to be converted into Croatian kunas at the rate applicable at the date of settlement:

(i) EUR 6,000 (six thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 2,078 (two thousand and seventy-eight 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 15 January 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Søren NielsenIsabelle Berro-Lefèvre
RegistrarPresident

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