FIRST SECTION
PARTIAL DECISION
AS TO THE ADMISSIBILITY OF
Application no. 4899/02
by Zoran KVARTUČ
against Croatia
The European Court of Human Rights (First Section), sitting on 22 May 2003 as a Chamber composed of
MrC.L. Rozakis, President,
MrG. Bonello,
MrsN. Vajić,
MrE. Levits,
MrsS. Botoucharova,
MrV. Zagrebelsky,
MrsE. Steiner, judges,
and Mr S. Nielsen, Deputy Section Registrar,
Having regard to the above application introduced on 19 January 2002,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr. Zoran Kvartuč, is a Croatian citizen, who was born in 1956 and lives in Zadar, Croatia.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.Proceedings for declaring a decision of the Croatian Privatisation Fund (Hrvatskog fonda za privatizaciju) illegal
In 1993 the applicant participated in a public tender for acquisition of shares in the company “Zadar-film” Zadar. On 23 March 1994 the Croatian Privatisation Fund rejected his offer.
On an unspecified date the applicant filed an administrative complaint against the decision of the Croatian Privatisation Fund.
On 9 November 1994 the Administrative Court (Upravni sud Republike Hrvatske) dismissed the complaint for lack of competence ratione materiae.
On an unspecified date the applicant filed a constitutional complaint against the decision of the Administrative Court arguing that the decision violated his right of access to court.
On 3 November 1997 the Constitutional Court (Ustavni sud Republike Hrvatske) rejected the applicant’s complaint finding that the applicant should have filed a civil claim with an ordinary court and not with the Administrative Court.
On 13 March 1995 the applicant filed a complaint with the Zadar Municipal Court (Općinski sud u Zadru), requesting the court to declare that the decision of the Croatian Privatisation Fund was illegal and to order an interim measure prohibiting corporate changes in the company “Zadar-film” Zadar. The respondent objected to the court’s competence ratione materiae arguing that the Administrative Court was the competent forum.
On 23 May 1995 the Zadar Municipal Court rejected the objection.
On 21 December 1995 the Zadar County Court (Županijski sud u Zadru) reversed the decision and sent the file to the Administrative Court.
The Administrative Court subsequently requested the Supreme Court (Vrhovni sud Republike Hrvatske) to resolve the conflict of competence.
On 1 October 1998 the Supreme Court ruled that the Zadar Municipal Court was competent to decide the case.
On 9 November 2000 the proceedings before the Zadar Municipal Court resumed and the court accepted in part the applicant’s request for an interim measure.
Both the applicant and the respondent appealed.
On 11 June 2001 the Zadar County Court accepted the respondent’s appeal, amended the first instance decision and rejected the request for an interim measure.
The applicant requested the Public Attorney’s Office (Državno odvjetništvo Republike Hrvatske) to file a motion for protection of legality against the Zadar County Court’s decision.
On 7 September 2001 the Public Attorney’s Office informed the applicant that his request had been rejected.
On 11 October 2001 the applicant filed a constitutional complaint claiming that his right to a fair trial had been violated because his appeal was not delivered to the Zadar County Court for decision and he was not given the opportunity to answer the respondent’s appeal. The Constitutional Court dismissed the complaint on 10 December 2001 as having been lodged out of time.
It appears that the proceedings concerning the applicant’s request for a declaration that the decision of the Croatian Privatisation Fund was illegal are still pending before the court of first instance.
2. Proceedings for repayment of a loan
The applicant lent 40.000,00 DEM to Z.G. and G.G. on 15 July 1995 on the condition that the loan be repaid within 15 days of his request for repayment.
On 25 August 1995 Z.G. and G.G. were killed in an accident. The applicant then requested their heirs, I.G. and M.G., to repay the loan. They failed to do.
On 4 October 1995 the applicant filed a claim with the Zadar Municipal Court against I.G. and M.G. claiming repayment of the loan.
On 18 May 1999 the Zadar Municipal Court adjourned the proceedings pending the completion of the inheritance proceedings.
On 26 September 2001 the inheritance proceedings ended and the proceedings for repayment of the loan resumed on 10 January 2002.
On 6 February 2002 the Zadar Municipal Court allowed the applicant’s claim and ordered an interim measure.
3. Proceedings before the Administrative Court
The applicant acquired real property in 1988 as a member of a Housing Communion (Stambena zadruga). He did not pay transfer tax on it.
In 1998 the applicant sold the property to M.V.
On 12 March 1998 the Ministry of Finance, Tax Administration, Local Office Zadar (Ministarstvo financija, Porezna uprava, Ispostava Zadar) ordered the applicant to pay the tax on the property which he had acquired in 1988.
On 26 November 1998 the Ministry of Finance rejected the applicant’s appeal.
On 24 February 1999 the applicant instituted administrative proceedings against these decisions. The proceedings are still pending before the Administrative Court.
B. Relevant domestic law
The relevant parts of section 63 of the Constitutional Act on the Constitutional Court (which entered into force on 15 March 2002, published in the Official Gazette no. 49 of 3 May 2002 - hereinafter “the 2002 Constitutional Act on the Constitutional Court” - Ustavni zakon o Ustavnom sudu Republike Hrvatske iz 2002) read as follows:
(1) The Constitutional Court shall examine a constitutional complaint even before all legal remedies have been exhausted in cases when a competent court has not decided within a reasonable time a claim concerning the applicant’s rights and obligations or a criminal charge against him ...
(2) If the constitutional complaint ... under paragraph 1 of this section is accepted, the Constitutional Court shall determine a time-limit within which a competent court shall decide the case on the merits ...
(3) In a decision under paragraph 2 of this Article, the Constitutional Court shall fix appropriate compensation for the applicant in respect of the violation found concerning his constitutional rights ... The compensation shall be paid from the State budget within a term of three months from the date on which the party lodged a request for its payment.
COMPLAINTS
The applicant complains under Article 6 § 1 of the Convention about the length of all three sets of proceedings.
The applicant further complains under Article 13 of the Convention that his right to appeal has been violated in the proceedings against the Croatian Privatisation Fund.
The applicant also complains under Article 14 of the Convention that he was not treated on an equal footing as the other parties to the proceedings against the Croatian Privatisation Fund.
THE LAW
1. The applicant complains that the civil proceedings instituted before the Zadar Municipal Court on 13 March 1995 which are still pending, the civil proceedings instituted before the Zadar Municipal Court on 4 October 1995 and concluded by judgment of the Zadar Municipal Court of 6 February 2002, and the tax proceedings instituted by the Ministry of Finance, Local Office Zadar, on 12 March 1998 and still pending before the Administrative Court, lasted an unreasonably long time.
The applicant relies on Article 6 § 1 of the Convention, the relevant parts of which read as follows:
“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”
a. As to the complaints about the length of proceedings before the Zadar Municipal Court instituted on 4 October 1995 and concluded on 6 February 2002, the Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 3 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.
b. As to the proceedings instituted on 13 March 1995 and which are still pending before the Zadar Municipal Court, the Court has first examined whether the applicant has complied with the rule of exhaustion of domestic remedies as required under Article 35 § 1 of the Convention. Recalling its decisions in the Slaviček and Nogolica cases where it found that there exists in Croatia an effective remedy in respect of the length of proceedings which are still pending, the Court sees no reason to depart in the present case from its view expressed in these cases (see Slaviček v. Croatia (dec.), no. 20862/02, ECHR 2002-VII, and Nogolica v. Croatia (dec.), no. 77784/01, ECHR 2002-VIII).
It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
c. As to the complaint about the length of the tax proceedings, the Court reiterates that disputes over liability to pay tax do not fall under Article 6 § 1 of the Convention, as such proceedings are not decisive for the determination of civil rights and obligations, despite the pecuniary effects which they necessarily produce for the taxpayer (see Ferrazzini v. Italy [GC], no. 44759/98, § 29, ECHR 2001-VII).
It follows that this complaint must be rejected under Article 35 §§ 3 et 4 of the Convention as being incompatible ratione materiae.
2. The applicant further complains that his appeal was not delivered to the Zadar County Court for decision and that he was not given the opportunity to answer the respondent’s appeal. He invokes Articles 13 and 14 of the Convention.
The Court considers that these complaints concern, in substance, the alleged unfairness of the proceedings and fall to be examined under Article 6 § 1 of the Convention.
However, it observes in this connection that the applicant’s constitutional complaint in which he invoked the above complaints was not filed within the time limit prescribed by law. The applicant thus failed to exhaust domestic remedies in accordance with the applicable procedural requirements (see, mutatis mutandis, Grof v. Austria, no. 25046/94, Commission decision of 14 April 1998, Decisions and Reports 93, p. 29).
It follows that these complaints must be rejected under Article 35 §§ 1 et 4 of the Convention for non-exhaustion of domestic remedies.
For these reasons, the Court unanimously
Decides to adjourn the examination of the applicant’s complaint concerning the length of the civil proceedings concluded on 6 February 2002;
Declares the remainder of the application inadmissible.
Søren NielsenChristos Rozakis
Deputy RegistrarPresident
Full & Egal Universal Law Academy