FIRST SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 3806/03
by Tomislav JURAVIĆ
against Croatia
The European Court of Human Rights (First Section), sitting on 24 October 2006 as a Chamber composed of:
MrC.L. Rozakis, President,
MrsN. Vajić,
MrA. Kovler,
MrsE. Steiner,
MrK. Hajiyev,
MrD. Spielmann,
MrS.E. Jebens, judges,
and Mr S. Quesada, Deputy Section Registrar,
Having regard to the above application lodged on 14 January 2003,
Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together.
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Tomislav Juravić, is a Croatian national who was born in 1951 and lives in Zagreb. The Croatian Government (“the Government”) were represented by their Agent, Mrs Š. Stažnik.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant had been employed by the company E. (“the employer”) from 19 July 1994 until 4 February 1995 when he was dismissed. In order to challenge his dismissal, he instituted two sets of proceedings.
1.Administrative proceedings
On 17 February 1995 the applicant instituted administrative proceedings for temporary suspension of the decision on dismissal before the competent local authorities. The proceedings ended on 4 July 1995 when the Ministry of Labour and Social Affairs (Ministarstvo rada i socijalne skrbi) acting as a second-instance administrative authority dismissed his appeal against the first-instance decision denying his request.
2.Civil proceedings
Meanwhile, on 28 March 1995 the applicant brought a separate civil action against the employer in the Zagreb Municipal Court (Općinski sud u Zagrebu) challenging his dismissal and seeking reinstatement and salary arrears.
On 19 January 1998 the Municipal Court gave judgment accepting the applicant’s claim. The respondent appealed to the Zagreb County Court (Županijski sud u Zagrebu).
On 18 January 1999 the County Court returned the case-file to the Municipal Court because the power of attorney by which the applicant had authorised his advocate to represent him in the proceedings was not duly signed. Since the applicant had, in the meantime, revoked that power of attorney, on 25 January 1999 the Municipal Court invited him to approve his advocate’s actions undertaken in the proceedings. On 5 February 1999 the applicant had done so and on 18 February 1999 the case-file was sent back to the County Court.
On 18 February 2000 the County Court dismissed the appeal and upheld the first-instance judgment, which thereby became final and enforceable.
The employer then lodged an appeal on points of law (revizija) to the Supreme Court (Vrhovni sud Republike Hrvatske), whereas the applicant applied for enforcement of the judgment debt. On 27 October 2000 the Zagreb Municipal Court issued a writ of execution (rješenje o ovrsi).
On 16 May 2001 the Supreme Court (Vrhovni sud Republike Hrvatske) quashed the first- and the second-instance judgments and remitted the case to the first-instance court.
It would appear that until that date the applicant obtained some 109,000 Croatian kunas (HRK) of salary arrears by enforcing the quashed first-instance judgment, but that he was never reinstated. Whether the employer subsequently managed to recover that money by counter-enforcement (protuovrha) is unknown.
On 8 October 2001 the applicant lodged a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske). He challenged the Supreme Court’s decision and complained about the length of the proceedings.
On 24 September 2002 the Constitutional Court declared inadmissible as premature his constitutional complaint in respect of the Supreme Court’s decision, and dismissed it in respect of the length of the proceedings.
Examining the length of the proceedings, the Constitutional Court admitted that the proceedings lasted longer than usual for an employment dispute. It however found that the case had been examined by three instances and that there had constantly existed an adequate activity of the courts and the parties. The Constitutional Court rejected as speculative the applicant’s contention that the already lengthy court proceedings would be even more protracted following the Supreme Court’s remittal decision. Accordingly, it found no violation of the applicant’s constitutional right to a hearing within a reasonable time.
In the resumed proceedings following the Supreme Court’s decision of 16 May 2001, the Municipal Court had scheduled a hearing for 3 December 2001 but subsequently postponed it because the respondent had requested the judge assigned to hear the case to withdraw. On 27 December 2001 the President of the Municipal Court dismissed the respondent’s request for withdrawal.
The Municipal Court held hearings on 3 June and 9 July 2002, and, on the last-mentioned date, gave judgment dismissing the applicant’s claim. The applicant appealed.
On 22 February 2005 the Zagreb County Court dismissed the appeal and upheld the first-instance judgment. On 2 May 2005 the applicant lodged an appeal on points of law to the Supreme Court against that decision.
The case is currently pending before that court.
B. Relevant domestic law
The relevant part of section 63 of the Constitutional Act on the Constitutional Court (Ustavni zakon o Ustavnom sudu Republike Hrvatske, Official Gazette no. 49/2002 of 3 May 2002 – “the Constitutional Court Act”) reads as follows:
“(1) The Constitutional Court shall examine a constitutional complaint whether or not all legal remedies have been exhausted if the competent court fails to decide a claim concerning the applicant’s rights and obligations or a criminal charge against him or her within a reasonable time ...
(2) If a constitutional complaint ... under paragraph 1 of this section is upheld, the Constitutional Court shall set a time-limit within which the competent court must decide the case on the merits...
(3) In a decision issued under paragraph 2 of this section, the Constitutional Court shall assess appropriate compensation for the applicant for the violation of his or her constitutional rights ... The compensation shall be paid out of the State budget within three months from the date a request for payment is lodged.”
COMPLAINTS
1. The applicant complained under Article 6 § 1 about the length of the civil proceedings.
2. The applicant also complained under Article 6 § 1 of the Convention about the fairness of the administrative and the civil proceedings.
THE LAW
A.Alleged violation of Article 6 § 1 of the Convention on account of the length of the proceedings
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 fair ... hearing within a reasonable time by [a] ... tribunal...”
The Government rejected that allegation.
The Court considers that the period to be taken into consideration began on 6 November 1997, the day after the entry into force of the Convention in respect of Croatia. However, in assessing the reasonableness of the time that elapsed after that date, account must be taken of the state of proceedings at the time. In this connection the Court notes that the proceedings commenced on 28 March 1995, when the applicant brought his civil action against the employer. Consequently, they were pending for some two and a half years before the ratification.
The case was still pending on 24 September 2002 when the Constitutional Court gave its decision. On that date the proceedings had lasted about four years and ten months for three levels of jurisdiction.
The proceedings have not yet ended. They have lasted another four years after the decision of the Constitutional Court. Thus, in total, the case has so far been pending for almost nine years after the ratification. During that period five decisions were rendered and the case was examined before three levels of jurisdiction.
1.The parties’ submissions
The Government disputed the admissibility of the complaint on two grounds. They invited the Court to reject the application because the applicant had failed to exhaust domestic remedies as required under Article 35 § 1 of the Convention. In any event, in their view, the complaint was manifestly ill-founded.
(a) Exhaustion of domestic remedies
The Government submitted that the applicant had not lodged a second constitutional complaint to the Constitutional Court. They observed that he had previously lodged such a complaint on 8 October 2001, and that the Constitutional Court dismissed it on 24 September 2002. However, having regard to the fact that afterwards the proceedings had continued and that they were still pending, to lodge a second constitutional complaint would have had reasonable prospects of success since it would have enabled the Constitutional Court to examine the overall length of the proceedings, taking into consideration their duration after its previous decision.
The applicant did not comment on this issue.
(b) Whether the complaint is manifestly ill-founded
The Government also stressed the factual complexity of the case and argued that the parties to the proceedings had contributed to their length: the applicant by submitting a deficient power of attorney, and the respondent by requesting withdrawal of the judge. Moreover, even though the case concerned the applicant’s employment the proceedings were of no vital importance for him as he had managed to obtain some 109,000 Croatian kunas (HRK) through enforcing the judgment in his favour before it was later on quashed by the Supreme Court on 16 May 2001. In the Government’s view, the domestic courts had acted diligently giving five decisions without any substantial periods of inactivity in the proceedings.
The applicant disagreed.
2.The Court’s assessment
The Court observes at the outset that the applicant availed himself of an effective domestic remedy in respect of the length of the proceedings – a constitutional complaint (see Slaviček v. Croatia (dec.), no. 20862/02, ECHR 2002-VII) – and that the Constitutional Court dismissed his complaint. In these circumstances, the Court is required to verify whether the way in which the Constitutional Court interpreted and applied the relevant provisions of the domestic law, produces consequences that are consistent with the principles of the Convention, as interpreted in the light of the Court’s case-law (see, mutatis mutandis, Cocchiarella v. Italy [GC], no. 64886/01, § 82, to be published in ECHR 2006). In doing so, the Court has to examine the period between the date of the entry into force of the Convention in respect of Croatia and the date of the Constitutional Court’s decision (see, by analogy, Cocchiarella v. Italy [GC], cited above, § 103). If the Constitutional Court’s decision is consistent with Convention principles, the Court will, when examining the question of exhaustion of domestic remedies, refrain from dealing with the length of the proceedings subsequent to that decision. Otherwise, a genuine examination of the total length after the ratification is warranted.
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, Cocchiarella v. Italy [GC], cited above, § 68; and Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII).
The Court notes that in the present case the period examined by the Constitutional Court amounts to four years and ten months. It observes that during that period the case was examined by three instances and that there existed no substantial periods of inactivity on the side of the domestic courts. In these circumstances the Court considers that the way in which the Constitutional Court interpreted and applied the relevant provisions of the domestic law did not produce consequences that are inconsistent with the principles of the Convention. It therefore agrees with the Constitutional Court’s conclusion and considers that at the moment that court gave its decision the length of the proceedings did not exceed reasonable time.
It follows that the applicant’s complaint, in so far as it concerns the length of the proceedings already examined by the Constitutional Court, is manifestly ill-founded within the meaning of Article 35 § 3 and must be rejected pursuant to Article 35 § 4 of the Convention.
To the extent that the applicant’s complaint relates to the length of the proceedings subsequent to the decision of the Constitutional Court, the Court observes that he could have lodged another constitutional complaint, which would have enabled the Constitutional Court to examine the overall length of the proceedings taking into consideration their duration after its previous decision. However, the applicant failed to do so.
It follows that this part of the applicant’s complaint must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
B.Alleged violation of Article 6 § 1 of the Convention on account of the fairness of the proceedings
The applicant also complained that the manner in which the administrative and civil proceedings had been conducted had amounted to a violation of his right to a fair hearing as provided by Article 6 § 1 of the Convention.
As to the fairness of the administrative proceedings, the Court notes that they ended in 1995 while the Convention entered into force in respect of Croatia on 5 November 1997.
As regards the fairness of the civil proceedings, the Court observes that the proceedings are still pending and that this complaint is therefore premature.
It follows that these complaints are: (a) incompatible ratione temporis with the provisions of the Convention within the meaning of Article 35 § 3 and (b) inadmissible under Article 35 § 1 for non-exhaustion of domestic remedies, respectively. Thus, they must be rejected pursuant to Article 35 § 4 of the Convention.
Accordingly, Article 29 § 3 of the Convention should no longer apply to the case.
For these reasons, the Court unanimously
Declares the application inadmissible.
Santiago QuesadaChristos Rozakis
Deputy RegistrarPresident
Full & Egal Universal Law Academy