FIRST SECTION
PARTIAL DECISION
AS TO THE ADMISSIBILITY OF
Application no. 39299/02
by Vesna MUŽEVIĆ
against Croatia
The European Court of Human Rights (First Section), sitting on 25 November 2004 as a Chamber composed of:
MrC.L. Rozakis, President,
MrP. Lorenzen,
MrsN. Vajić,
MrsS. Botoucharova,
MrsE. Steiner,
MrK. Hajiyev,
MrD. Spielmann, judges,
and Mr S. Nielsen, Section Registrar,
Having regard to the above application lodged on 18 October 2002,
Having deliberated, decides as follows:
THE FACTS
The applicant, Ms Vesna Mužević, is a Croatian national, who was born in 1952 and lives in Crikvenica, Croatia.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 28 May 1986 the applicant and her former husband A.P. (“the debtor”) concluded an in-court settlement by which he was obliged to pay to her a certain amount of money.
On 9 January 1989, 9 April 1991 and 2 June 1992, respectively, the applicant obtained three court judgments against the debtor obliging him to pay to her some further amounts.
In the period between 1988 and 1992 the applicant instituted six enforcement proceedings against the debtor before the Crikvenica Municipal Court (Općinski sud u Crikvenici) in order to execute the above settlement and the judgments.
In addition, in 1989 and 1995 the applicant instituted two civil proceedings against a certain M.R.P., wife of the debtor, before the same court.
1.Enforcement proceedings
1.1.Three enforcement proceedings instituted in 1988 and 1989
(a) On 2 September 1988 the applicant filed a motion for enforcement (prijedlog za izvršenje) seeking execution of part of the settlement.
On 15 September 1988 the court issued a writ of execution (rješenje o izvršenju) ordering the debtor to hand over certain movables to the applicant.
On 15 May 1991 the court decided to join these proceedings to the ones under (b) and (c).
On 6 June 1991 the bailiff (sudski izvršitelj) seized the debtor's movables and delivered them to the applicant. However, M.R.P. intervened in the proceedings as a third party claiming that she was the owner of the seized movables. On 19 October 1994 she obtained a final judgment in her favour declaring inadmissible the enforcement of the applicant's claim in respect of these movables.
Although on 26 November 1999 and 19 August 2002 the applicant urged the court to speed up the proceedings, the writ has never been carried out. The proceedings are still pending before the first-instance court.
(b) Also on 2 September 1988 the applicant filed another motion for enforcement seeking execution of another part of the settlement.
In the period between September 1988 and April 1991 the applicant resubmitted her enforcement motion twice; the court issued three writs of execution and a decision ordering the debtor to pay certain amounts; and the case was brought before the second-instance court which eventually remitted it.
After the joinder of 15 May 1991, on 22 May 1991 the Municipal Court issued, at the applicant's request, a writ of execution by seizure of movable property.
Despite the fact that M.R.P.'s intervention resulted in the inadmissibility of the seizure of movables (see above), on 11 July 2000 the Municipal Court decided to discontinue the enforcement proceedings on the ground that the applicant's claim had been satisfied since on 6 June 1991 the bailiff had seized the debtor's movables and delivered them to the applicant.
On 4 December 2000 the applicant appealed against this decision. She argued that, since the enforcement in respect of these movables had been found inadmissible, her claim had not actually been satisfied and the court should have continued with the enforcement.
The case is currently pending before the Rijeka County Court (Županijski sud u Rijeci).
(c) On 11 August 1989 the applicant filed a motion for enforcement seeking execution of the 1989 judgment.
On 12 February 1990 the court issued a writ of execution by seizure of movable property.
Subsequent to the May 1991 joinder and irrespective of M.R.P.'s intervention, on 19 April 2001 the court decided to discontinue the proceedings. Again, as in the proceedings under (b), it found that the applicant's claim had been satisfied since on 6 June 1991 the bailiff had carried out the writ.
On 30 April 2001 the applicant appealed.
The case is currently pending before the Rijeka County Court.
1.2. Enforcement proceedings instituted in 1991
On 15 May 1991 the applicant filed a motion for enforcement seeking execution of part of the 1991 judgment.
On 16 May 1991 the court issued a writ of execution by seizure of movable property.
Since the bailiff's attempts on 5 November 1991 and 18 April 2001 to seize the debtor's movables had been unsuccessful because no seizable movable property had been found, on 20 June 2001 the court discontinued the proceedings.
It appears that the applicant did not appeal against this decision.
1.3.Two enforcement proceedings instituted in 1992
On 25 March 1992 the applicant filed a motion for enforcement seeking execution of another part of the 1991 judgment. On 15 April 1992 the Municipal Court issued a writ of execution by seizure of movable property.
On 29 March 1993 the applicant filed another motion for enforcement seeking execution of the 1992 judgment. On the same date the Municipal Court, issued a writ of execution by seizure of movable property. On 30 June 2000 the bailiff's attempt to seize the debtor's movables was unsuccessful since no seizable movable property was found.
On 27 March 2001 the Municipal Court decided to join these two proceedings.
It appears that the proceedings are still pending before the first-instance court.
2. Two civil proceedings
On 11 October 1989 the applicant filed a civil action against M.P.R. seeking declaration of nullity of certain transactions of the debtor benefiting M.P.R. The proceedings are still pending before the first-instance court.
On 24 July 1995 the applicant also filed a civil action against M.P.R. for unjust enrichment. The main hearing in these proceedings was closed on 15 May 2001 but the judgment has not yet been served on the applicant.
B. Relevant domestic law and practice
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) (“the 2002 Constitutional Court Act”) reads 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 when the party lodged a request for its payment.”
Under the case-law of the Constitutional Court, constitutional complaints lodged under section 63 in the context of enforcement proceedings are to be declared inadmissible. In its decision no. U-IIIA/1165/2003 of 12 September 2003 the Constitutional Court interpreted section 63 as follows:
“The Constitutional Court shall institute proceedings pursuant to a constitutional complaint lodged under section 63 of the Constitutional Act [on the Constitutional Court] for the length of proceedings only in cases where the court has not decided within a reasonable time on the merits of the rights and obligations of the complainant, that is, where it has failed to deliver a decision on the merits within a reasonable time.
In the present case the constitutional complaint has been lodged for non-enforcement of a final decision by which the party's rights and obligations had already been decided.
Taking into consideration the above cited provisions of the Constitutional Act [on the Constitutional Court] ..., the Constitutional Court is of the opinion that in this case the conditions for applicability of section 63 were not met.”
In its decision no. U-IIIA/781/2003 of 14 May 2004 the Constitutional Court provided further interpretation of section 63:
“Taking into consideration the above cited provisions of the Constitutional Act [on the Constitutional Court] and the fact that the constitutional complaint was not lodged for a failure to deliver a decision within a reasonable time but rather because the enforcement was not carried out, the Constitutional Court is of the opinion that in this case the conditions for applicability of section 63 were not met.”
COMPLAINTS
The applicant complains under Article 6 § 1 of the Convention about the length of the above enforcement and civil proceedings.
THE LAW
1. The applicant complains of the length of six enforcement proceedings. She relies on Article 6 § 1 of the Convention which, in the relevant part, 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...”
The Court observes that the enforcement proceedings instituted in May 1991 ended in June 2001 when the first-instance court discontinued the proceedings. However, the applicant introduced her application only on 4 October 2002 i.e. more than six months later. Therefore, this part of the application is inadmissible under Article 35 § 1 and must be rejected pursuant to Article 35 § 4 of the Convention.
As to the remaining five enforcement proceedings, the Court considers that it cannot, on the basis of the case file, determine the admissibility of these complaints and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.
2. The applicant also complains that the length of the two civil proceedings have exceeded a reasonable time, contrary to Article 6 § 1 of the Convention.
The Court held, in its Slaviček and Nogolica decisions, that section 63 of the 2002 Constitutional Act on the Constitutional Court represented an effective domestic remedy in respect of the length of court proceedings which were still pending (see Slaviček v. Croatia (dec.), no. 20862/02, ECHR 2002-VII and Nogolica v. Croatia (dec.), no. 77784/01, ECHR 2002-VIII).
The Court sees no reason to depart from its view expressed in the above decisions in respect of the civil proceedings complained of.
Since the applicant did not avail herself of that remedy, this part of the application is inadmissible under Article 35 § 1 for non-exhaustion of domestic remedies and must be rejected pursuant to Article 35 § 4 of the Convention.
For these reasons, the Court unanimously
Decides to adjourn the examination of the applicant's complaints concerning the length of five enforcement proceedings instituted in 1988, 1989 and 1992;
Declares the remainder of the application inadmissible.
Søren NielsenChristos Rozakis
RegistrarPresident
Full & Egal Universal Law Academy