FIRST SECTION
Application no 13904/07
Stjepan KUDRA and others against Croatia
lodged on 6 March 2007
STATEMENT OF FACTS
THE FACTS
The applicants, Mr Stjepan Kudra, Ms Ruža Kudra, Mr Josip Kudra and Ms Ivana Kudra, are Croatian nationals who were born in 1956, 1965, 1986 and 1988 respectively and live in Nuštar. They are represented before the Court by Ms V. Šnur, a lawyer practising in Vinkovci.
The facts of the case, as submitted by the applicants, may be summarised as follows.
On 17 October 1993, Ivan Kundra, the then eight-year old son of the first and second applicants and the brother of the third and fourth applicants, sustained a serious head injury while playing near a construction site in Vinkovci, Croatia. After the incident he was taken to the Vinkovci Medical Centre (Medicinski centar Vinkovci) where cranial surgery was performed without the consent of the parents. He was then transferred to the Osijek Clinical Hospital Centre (Klinički bolnički centar Osijek), where he died on 21 October 1993.
On 21 May 1994 the applicants lodged a civil action before the Vinkovci Municipal Court (Općinski sud u Vinkovcima) against the construction company A., the Housing and Communal Activities Fund (Fond za financiranje stambeno-komunalnih djelatnosti) and the Vinkovci Medical Centre, claiming damages for death of their relative.
During the proceedings, the Housing and Communal Activities Fund ceased to exist and its position, as a party in the proceedings, was transferred to the Vinkovci Municipality (Grad Vinkovci). The Vinkovci Medical Centre was also transformed into the Vinkovci Health Centre (Dom zdravlja Vinkovci) and the Vinkovci General Hospital (Opća bolnica Vinkovci).
On 20 August 2001 the Vinkovci Municipal Court discovered that insolvency proceedings had been opened in respect of company A., and referred the case to the Osijek Commercial Court (Trovački sud u Osijeku).
On 8 May 2003 the Osijek Commercial Court discovered that company A. had ceased to exist and that it had been deleted from the register of companies, and therefore terminated the proceedings against company A. and referred the case again to the Vinkovci Municipal Court.
On 16 February 2005 the Vinkovci Municipal Court dismissed the applicants’ civil action. In respect of the action against the Vinkovci Municipality, this court found that the construction contract between company A. and the Housing and Communal Activities Fund of 28 September 1992 transferred all construction rights and obligations to company A., which therefore became the investor and the constructor and that if the construction site had not been properly secured and this had caused the injury to the applicants’ relative, this was solely company A.’s responsibility. In respect of the action against the Vinkovci Health Centre and the Vinkovci General Hospital, that court found that a supervisory medical expert report revealed that all the actions taken by the doctors were appropriate and that no responsibility for the death could be imputed to them, and therefore not to the hospital either.
On 24 February 2005 the applicants lodged an appeal before the Vukovar County Court (Županijski sud u Vukovaru) against the first-instance judgment. On 23 February 2006 the Vukovar County Court dismissed the appeal and upheld the first-instance judgment in respect of the Vinkovci Health Centre and the Vinkovci General Hospital, and quashed the first-instance judgment and ordered a retrial in respect of the Vinkovci Municipality. That Court found that the first-instance court had to establish whether company A. was the owner of the construction site at the time of the accident or if it was the Housing and Communal Activities Fund.
On 10 April 2006 the applicants lodged an appeal on points of law before the Supreme Court (Vrhovni sud Republike Hrvatske). On 20 June 2006 the Supreme Court dismissed the first and second applicants’ appeal on points of law as ill-founded and declared the third and fourth applicants’ appeal on points of law inadmissible ratione valoris. On 11 January 2007 the applicants lodged a constitutional complaint before the Constitutional Court (Ustavni sud). On 27 January 2010 the Constitutional Court dismissed the first and second applicants’ complaint as ill-founded and declared the third and fourth applicants’ complaint inadmissible as lodged out of time, since they had no right to lodge an appeal on points of law and thus the time-limit to lodge a constitutional complaint had started to run from the date of the Vukovar County Court decision.
On 11 June 2008 the Vinkovci Municipal Court issued a separate decision in respect of the costs of the proceedings, ordering the applicants to pay HRK 14,134.96 to the Vinkovci Health Centre. The applicants lodged an appeal with the Vukovar County Court against this decision and on 28 October 2010 this court dismissed their complaint and upheld the first‑instance decision, holding that all relevant facts regarding the costs of the proceedings had been established. The applicants lodged a constitutional complaint, and on 20 April 2011 the Constitutional Court declared it inadmissible.
In 2006 the first and second applicants also lodged a complaint about the length of the proceedings before the Vukovar County Court, since the proceedings against the Vinkovci Municipality were still pending. On 13 May 2008 the Vukovar County Court found the length of the civil proceedings excessive and awarded the applicants jointly HRK 12,600 in damages.
On 8 March 2007, in the retrial against the Vinkovci Municipality, the Vinkovci Municipal Court dismissed the applicants’ civil action because it found that on the basis of the construction contract between company A. and the Housing and Communal Activities Fund of 28 September 1992, company A. had become the owner of the construction site and that the transfer of the ownership had formally occurred on 19 January 1993, before the accident.
On 29 March 2007 the applicants appealed before the Vukovar County Court and on 23 July 2007 the Vukovar County Court dismissed their appeal and upheld the first-instance judgment. The applicants lodged an appeal against this judgment on points of law before the Supreme Court and on 2 April 2008 the Supreme Court dismissed the first and second applicants’ appeal on points of law as ill-founded and declared the third and fourth applicants’ appeal on points of law inadmissible. On 26 June 2008 the applicants lodged a constitutional complaint before the Constitutional Court, and on 12 January 2010 the Constitutional Court dismissed the first and second applicants’ complaint as ill-founded and declared the third and fourth applicants’ complaint inadmissible as lodged out of time. This decision was served on the applicants’ representative on 24 January 2011.
COMPLAINTS
The applicants complain under Article 2 of the Convention that the national authorities failed to prevent the accident, and that no criminal investigation was instituted.
The applicants complain under Article 6 of the Convention about the length of the civil proceedings.
They also complain under Article 8 that the dilatoriness of the proceedings and failure of the national courts to establish all the relevant facts in the case against the hospital violated their right to respect for private and family life.
The applicants lastly complain under Article 13 of the Convention that in respect of all the circumstances of the case they had no effective legal remedy.
QUESTIONS TO THE PARTIES
1. Have the State authorities complied with their procedural obligations under Articles 2 and 8 of the Convention?
2. Did the applicants have at their disposal an effective domestic remedy for their complaints under Article 2, as required by Article 13 of the Convention?
3. Was the length of the civil proceedings in the present case in breach of the “reasonable time” requirement of Article 6 § 1 of the Convention?
The Government are invited to submit two copies of all case files concerning the applicants’ case.
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