Information Note on the Court’s case-law 45
August-September 2002
Nogolica v. Croatia (dec.) - 77784/01
Decision 5.9.2002 [Section I]
Article 35
Article 35-1
Exhaustion of domestic remedies
Effective domestic remedy
Creation of new domestic remedy after introduction of application: inadmissible
In October 1995 the applicant started two sets of proceedings before a Municipal Court against two newspapers which he accused of defamation. Both sets are still pending before domestic courts.
Inadmissible under Articles 6 § 1 and 13: In March 2002, the Croatian Parliament enacted the Act on Changes of the Constitutional Court Act. A new section 59 (a) was introduced which later became section 63 of the 2002 Constitutional Act on the Constitutional Court. According to this provision, the Constitutional Court shall examine a constitutional complaint even before all legal remedies have been exhausted in cases where a competent court has not decided within a reasonable time. The provision has thus removed the obstacles that were decisive when the Court found in the Horvat case (Horvat v. Croatia, No 51585/99, judgment of 26 July 2001) that former section 59 (4) did not constitute an effective remedy in respect of length of proceedings. Although the Constitutional Court has not yet adopted any decision following the introduction of this new remedy, the wording of the provision is clear and indicates that it is specifically designed to address the issue of the excessive length of proceedings before domestic authorities. According to the new law, any individual considering that proceedings on the determination of civil rights and obligations or a criminal charge against him have not taken place within a reasonable time may lodge a constitutional complaint. The Constitutional Court must examine such a complaint and, if it finds it well founded, must set a time-limit for a decision on the merits and will award compensation. The applicant did not lodge such a complaint. However, he introduced his application with the Court in September 2001, when the legislation had not been enacted and the question therefore arose whether he could be required to exhaust the remedy before the Court could examine his complaint. The issue whether domestic remedies have been exhausted is normally determined by reference to the date when the application was lodged but this rule is subject to exceptions which might be justified by the specific circumstances of each case. From a general point of view, when States do not provide an effective remedy in respect of length of proceedings, individuals will systematically have to refer their complaints to the Court and in the long term such a situation is likely to affect the operation at both the national and international level of the Convention system. Excessive length of proceedings is widespread in the Croatian legal system and, in rather limited period, the Court has received hundreds of applications against Croatia claiming violations of the reasonable time requirement. As regards the applicant, as his proceedings are still pending, the new remedy is open to him and could provide redress since it not only provides for compensation to be awarded but also obliges the Constitutional Court to set a time-limit for deciding the case on the merits. Thus, the applicant should avail himself of this remedy.
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