SECOND SECTION
DECISION
Application no. 18329/14
Vlatka MIKOVIĆ
against Croatia
The European Court of Human Rights (Second Section), sitting on 26 April 2016 as a Committee composed of:
Paul Lemmens, President,
Ksenija Turković,
Jon Fridrik Kjølbro, judges,
and Milan Blaško, Acting Deputy Section Registrar,
Having regard to the above application lodged on 19 February 2014,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Ms Vlatka Miković, is a Croatian national, who was born in 1956 and lives in Zagreb. She was represented by Ms D. Pešo, a lawyer practising in Osijek.
2. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
1. Civil proceedings
4. On 22 January 1998 the applicant brought a civil action in the Osijek Municipal Court (Općinski sud u Osijeku) against her neighbour whose house was blocking her view.
5. By a judgment of 30 January 2006 the Municipal Court ruled for the applicant in part.
6. On 13 December 2007 the Osijek County Court (Županijski sud u Osijeku) upheld the first-instance judgement which thereby became final.
7. On 29 February 2008 the applicant, represented by a lawyer, lodged concurrently an appeal on points of law (revizija) and a constitutional complaint.
8. By a letter of 27 May 2008 the Constitutional Court (Ustavni sud Republike Hrvatske) informed the applicant’s representative that it had stayed the proceedings following the applicant’s constitutional complaint until the Supreme Court (Vrhovni sud Republike Hrvatske) decided on her appeal on points of law. It instructed her that the proceedings would be resumed upon her proposal, once she informed it of the Supreme Court’s decision and furnished a copy thereof.
9. By a decision of 18 December 2008 the Supreme Court declared inadmissible the applicant’s appeal on points of law. It served that decision on her representative on 14 January 2009.
10. It would appear that the applicant’s representative did not inform the applicant of that decision. Therefore, the applicant had requested the Supreme Court to serve the decision on her personally, which it did on 5 July 2014.
11. On 8 July 2014 the applicant proposed that the proceedings before the Constitutional Court be resumed and submitted a copy of the Supreme Court’s decision. She also informed the Constitutional Court that she had on the same day revoked the power of attorney of her representative.
12. The Constitutional Court accordingly resumed the proceedings and, by a decision of 18 December 2014, dismissed the applicant’s constitutional complaint.
2. Proceedings following the applicant’s request for the protection of the right to a hearing with a reasonable time
13. Meanwhile, on 29 June 2007 the applicant lodged a request for protection of the right to a hearing with a reasonable time (see paragraph 15 below) with the Supreme Court, complaining about the length of the above civil proceedings.
14. By a decision of 28 August 2008 the Supreme Court found a violation of the applicant’s right to a hearing within a reasonable time and awarded her 14,000 Croatian kunas (HRK) in compensation.
B. Relevant domestic law
15. Sections 27 and 28 of the Courts Act (Zakon o sudovima, Official Gazette no. 150/05 with subsequent amendments), which was in force between 29 December 2005 and 13 March 2013, provided for a request for protection of the right to a hearing within a reasonable time (zahtjev za zaštitu prava na suđenje u razumnom roku) as a remedy for the excessive length of judicial proceedings. The original text of those two provisions, which was in force between 29 December 2005 and 28 December 2009, read as follows:
III. PROTECTION OF THE RIGHT TO A HEARING WITHIN
A REASONABLE TIME
Section 27
“(1) A party to judicial proceedings who considers that the relevant court has failed to decide within a reasonable time on his or her rights or obligations or as regards a suspicion or accusation of a criminal offence may lodge a request for protection of the right to a hearing within a reasonable time with the immediately higher court.
(2) If the request concerns proceedings pending before the High Commercial Court of the Republic of Croatia, the High Court for Administrative Offences of the Republic of Croatia or the Administrative Court of the Republic of Croatia, the request shall be decided by the Supreme Court of the Republic of Croatia.
(3) The proceedings for deciding the request referred to in paragraph 1 of this section shall be urgent.”
Section 28
“(1) If the court referred to in section 27 of this Act finds the request well-founded, it shall set a time-limit within which the court before which the proceedings are pending must decide on a right or obligation of, or on a suspicion or accusation of a criminal offence against, the person who lodged the request, and shall award him or her appropriate compensation for the violation of his or her right to a hearing within a reasonable time.
(2) The compensation shall be paid from the State budget within three months of the date on which the party’s request for payment is lodged...
(3) An appeal, to be lodged with the Supreme Court within fifteen days, lies against a decision on a request for the protection of the right to a hearing within a reasonable time. No appeal lies against the Supreme Court’s decision, but a constitutional complaint may be lodged.”
COMPLAINTS
16. The applicant complained under Article 6 § 1 of the Convention about the overall length of the above civil proceedings, and in particular in their part before the Constitutional Court.
17. The applicant also complained that she had not had at her disposal a remedy whereby she could complain of the length of the proceedings before the Constitutional Court.
THE LAW
A. Alleged violation of Article 6 § 1 of the Convention
18. The applicant complained that the length of the civil proceedings in question 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 ...”
19. The Government disputed the admissibility of this complaint on two grounds. They argued that, in so far as the applicant complained of the length of the proceedings before the municipal and the county court (hereafter “the lower courts”), she had failed to exhaust domestic remedies. To the extent that her complaint concerned the proceedings before the Constitutional Court, the Government argued that the applicant’s complaint was manifestly ill-founded.
20. The period to be taken into consideration began on 22 January 1998, when the applicant brought her civil action (see paragraph 4 above) and ended on 18 December 2014 when the Constitutional Court dismissed her constitutional complaint (see paragraph 12 above). It thus lasted sixteen years and some eleven months for four levels of jurisdiction, of which the proceedings before the Constitutional Court lasted six years and some ten months.
1. The arguments of the parties
21. The Government argued that the applicant had not exhausted domestic remedies in that she had failed to raise the issue of the length of the proceedings before the lower courts in a constitutional complaint.
22. As regards the proceedings before the Constitutional Court, the Government submitted that the applicant had waited for some six years before asking that the proceedings be resumed, and in that way contributed to their length.
23. The applicant did not submit observations in reply to those of the Government but only her claim for just satisfaction. Thus, she did not comment on the Government’s inadmissibility objections.
2. The Court’s assessment
24. The Court first 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], no. 64886/01, § 68, ECHR 2006‑V).
(a) As regards the length of the proceedings before the lower courts
25. The Court notes that in respect of this part of her complaint the applicant did not fully avail herself of the available domestic remedies. It is true that she lodged a request for the protection of the right to a hearing within a reasonable time under section 27 of the Courts Act and that the Supreme Court found a violation of that right and awarded her compensation (see paragraphs 13-15 above). If the applicant was dissatisfied with the amount of that compensation, she could have lodged a constitutional complaint under section 28(3) of the same Act (see paragraph 15 above). However, she did not do so.
26. It follows that this part of the applicant’s complaint is inadmissible under Article 35 § 1 of the Convention for non-exhaustion of domestic remedies and must be rejected pursuant to Article 35 § 4 thereof.
(b) As regards the length of the proceedings before the Constitutional Court
27. It is to be noted that the applicant informed the Constitutional Court of the Supreme Court’s decision of 18 December 2008 and asked it to resume the proceedings as late as on 8 July 2014 even though that decision had been served on her representative already on 14 January 2009, that is, almost six years earlier (see paragraphs 9 -11 above). In so far as this delay resulted from certain shortcomings in the applicant’s representation (such as the lack of communication between her and her advocate), the Court, having regard to its case-law (see, mutatis mutandis, Muscat v. Malta, no. 24197/10, § 56, 17 July 2012), reiterates that a State normally cannot be considered responsible for such shortcomings. It was incumbent on the applicant to maintain regular contact with her representative (see, a fortiori, Muscat, cited above, § 59).
28. The Court also notes that, once the applicant had requested the Constitutional Court to resume the proceedings, they lasted some five months (see paragraph 12 above), which period cannot be considered excessive. Therefore, the Court considers, in the light of the criteria established in its case-law (see paragraph 24 above), that the length of the proceedings before the Constitutional Court was almost entirely attributable to the applicant.
29. It follows that this part of the applicant’s complaint is inadmissible under Article 35 § 3 (a) of the Convention as manifestly ill-founded and must be rejected pursuant to Article 35 § 4 thereof.
B. Alleged violation of Article 13 of the Convention
30. The applicant also complained, without relying on any Article of the Convention, that she had not had any remedy to complain about the length of the proceedings before the Constitutional Court.
31. The Court considers that this complaint falls to be examined under Article 13 of the Convention, which 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.”
32. The Court reiterates that Article 13 requires a remedy in domestic law only where an individual has an “arguable claim” that one of his or her rights or freedoms set forth in the Convention has been violated (see, for example, Boyle and Rice v. the United Kingdom, 27 April 1988, § 52, Series A no. 131). However, given its above findings according to which the applicant’s length complaint under Article 6 § 1 of the Convention is inadmissible as manifestly ill-founded in so far as it concerns the length of the proceedings before the Constitutional Court (see paragraphs 27-29 above), the Court considers that her related complaint under Article 13 of the Convention cannot be considered “arguable” within the meaning of the Court’s case-law.
33. It follows that this complaint is inadmissible under Article 35 § 3 (a) of the Convention as manifestly ill-founded and must be rejected pursuant to Article 35 § 4 thereof.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 19 May 2016.
Milan BlaškoPaul Lemmens
Acting Deputy RegistrarPresident
Full & Egal Universal Law Academy