FOURTH SECTION
FINAL DECISION
AS TO THE ADMISSIBILITY OF
Application no. 45435/99
by RADOŠ and Others
against Croatia
The European Court of Human Rights (Fourth Section), sitting on 23 October 2001 as a Chamber composed of
MrG. Ress, President,
MrI. Cabral Barreto,
MrV. Butkevych,
MrsN. Vajić,
MrJ. Hedigan,
MrM. Pellonpää,
MrsS. Botoucharova, judges,
and Mr V. Berger, Section Registrar,
Having regard to the above application introduced with the European Commission of Human Rights on 23 December 1996 and registered on 15 January 1999,
Having regard to the partial decision of 31 August 2000,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having deliberated, decides as follows:
THE FACTS
The applicants are Croatian citizens, living in Zagreb. They are all represented by the second applicant Mr Goran Lajnert, a lawyer practising in Zagreb. The respondent Government are represented by their Agent Ms Lidija Lukina-Karajković.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
During 1992 the applicants lent various sums of money to a number of agencies that were supposed to pay the loans back within periods ranging from 2 to 12 months and at interest rates ranging from 10 to 30 % per month (so called “financial engineering”). As these agencies failed to re-pay the loans, the applicants instituted civil proceedings against the agencies and their alleged owners.
1. Proceedings instituted by the first applicant Zvonimir Radoš
a. Proceedings against B. J.
The proceedings against B. J. commenced on 18 October 1993 when the applicant filed an action with the Zagreb Municipal Court (Općinski sud u Zagrebu) for re-payment of his loan in the amount of 10,000 German Marks (DEM).
The preliminary hearing scheduled for 24 January 1994 was adjourned.
As on 15 February 1994 the presiding judge resigned from her office, the case was transferred to another judge in October 1996.
The next hearing scheduled for 6 December 2000 was adjourned since B. J. failed to appear and the presiding judge was absent.
The hearing scheduled for 20 April 2001 was adjourned since B. J. failed to appear. As the documents indicated that she had been released from detention on remand, the court invited the applicant to submit her new address. Since the applicant informed the court that he did not know B. J.’s new address, the court requested the Ministry of Interior (Ministarstvo unutarnjih poslova Republike Hrvatske) to submit B. J.’s new address. The Ministry of Interior informed the court that B. J. had changed her name into B. Č.
The next hearing was scheduled for 21 September 2001.
b. Proceedings against B. B.
The proceedings against B. B. commenced on 18 October 1993 when the applicant filed an action with the Zagreb Municipal Court for re-payment of his loan in the amount of DEM 20,000.
The preliminary hearing scheduled for 24 January 1994 was adjourned since B. B. failed to appear. It turned out that B. B. had not received a notice of the hearing date as the address indicated was incorrect. The court asked the applicant to submit the defendant’s correct address within 30 days.
At the hearing scheduled for 14 November 1994 the court adopted a decision to stay the proceedings, since neither party appeared, although both had received a notice of the hearing date.
On 30 November 1994 the applicant requested the court to resume the proceedings.
On 4 January 1995 the court requested the Ministry of Interior to submit B. B.’s correct address. On 11 January 1995 the address was submitted.
As on 15 February 1994 the presiding judge resigned from her office, the case was transferred to another judge at the beginning of 1997.
The hearing scheduled for 18 June 1997 was adjourned since the defendant failed to appear. The court invited the applicant to submit the file number of the case-file concerning criminal proceedings against B. B. before the same court. As the applicant failed to do so, the court itself found the file number, but was unable to review that file since it was sent to the Zagreb County Court (Županijski sud u Zagrebu) on 13 June 1997. The court repeated its request to examine the file on 15 November 1998, 15 September 1999 and 5 September 2000.
Since neither party appeared at the hearing scheduled for 11 April 2001 the court found that the applicant had withdrawn his claim.
The applicant appealed against that decision stating that he was ill on the date of the hearing. On 23 May 2001 the court invited the applicant to submit evidence as to the fact that he had been ill. The applicant appeared before the court on 13 June 2001 and stated that he had no medical documentation as he had not seen a doctor.
On 5 July the court sent the case-file to the Zagreb County Court as the appellate court.
It appears that the proceedings are pending before the Zagreb County Court.
2. Proceedings instituted by the second applicant Goran Lajnert against “F.I.M.” and its owner Ð. M.
The proceedings against “F.I.M.” and Ð. M. commenced on 6 May 1993 when the applicant, together with 244 other plaintiffs, filed an action for re-payment of their loans with the Zagreb Municipal Court. The applicant claimed a sum of DEM 28,000.
At the preliminary hearing on 2 May 1994 the court decided to stay the proceedings since the plaintiffs’ counsel failed to appear.
On 17 May 1994 the plaintiffs lodged an application to return the proceedings to the status quo ante (prijedlog za povrat u prijašnje stanje).
At the next hearing on 4 October 1994 the court invited the plaintiffs’ counsel to specify the claim in respect of each plaintiff.
On 11 May 1995 the court invited the plaintiffs’ counsel to submit letters of authority from each plaintiff.
On 25 September 1995 the court repeated the above request.
On 17 July 1997 the court dismissed the claims of 43 plaintiffs, but not in respect of the second applicant.
As on 24 September 1997 the plaintiffs whose claims were dismissed appealed against that decision, the case file was sent to the Zagreb County Court (Županijski sud u Zagrebu) on 29 September 1997, for consideration on appeal.
On 14 July 1998 the Zagreb County Court upheld the first instance decision except in respect of one of the plaintiffs.
On 10 February 1999 the Zagreb Municipal Court invited the plaintiffs’ counsel to submit a certificate from the registry of the Zagreb Commercial Court (Trgovački sud u Zagrebu) regarding the legal status of “F.I.M.”.
On 10 March 1999 the plaintiffs’ counsel withdrew the claim in respect of “F.I.M.”.
The next hearing took place on 18 June 1999.
At the hearing on 14 October 1999 the defendant Đ. M. gave testimony. The court adopted judgment rejecting all claims. The judgment was served on the plaintiffs’ counsel on 26 September 2000. On 4 October 2000 the plaintiffs’ counsel appealed against the judgment.
It appears that the proceedings are pending on appeal before the Zagreb County Court.
3. Proceedings instituted by the third applicant Dmitar Malešević
a. Proceedings against “V.M. Market” and its owner B. J.
The proceedings against “V.M. Market” and B. J. commenced on 1 June 1993 when the applicant, together with other 603 plaintiffs, filed an action with the Zagreb Municipal Court for re-payment of their loans. The applicant claimed DEM 16,500.
The preliminary hearing took place on 22 November 1993.
At the next hearing on 20 May 1994 the documentation concerning the plaintiffs’ claim was given to the defendants and they were invited to submit their reply in writing. According to the Government, the documentation submitted by the plaintiffs amounts to some one thousand pages.
The hearing scheduled for 8 July 1997 was adjourned since the plaintiffs’ counsel failed to appear. He informed the court that his car had broken.
At the next hearing on 2 February 1998 the court invited the plaintiffs to submit additional documentation which they had failed to submit with their claims. Although they again failed to submit that documentation, the next hearing was held on 10 April 2000. The plaintiffs asked the court to hear the testimonies of several witnesses but were unable to submit their addresses.
On 10 November 2000 the court invited the plaintiffs to submit further evidence necessary to proceed with the case. The plaintiffs claimed that they were members of the “Association of the Financial Engineering Investors V. M. Market”, but did not submit either its registration certificate or its articles of association. Furthermore, three plaintiffs failed to submit evidence as to their investments into the “financial engineering” and seven plaintiffs failed to submit their addresses.
At the hearing on 15 December 2000 the plaintiffs’ counsel submitted the registration certificate and the articles of association as well as the addresses of the witnesses to be heard.
At the hearing on 31 January 2001 the court heard a testimony of one witness. It invited again the plaintiffs’ counsel to submit evidence in respect of three plaintiffs as to their investments into the “financial engineering” as well as the addresses of seven plaintiffs.
On 22 February 2001 the plaintiffs submitted the requested addresses and asked the court to allow them an additional period of 30 days to submit evidence in respect of three plaintiffs as to their investments into “financial engineering”.
On 2 May 2001 the plaintiffs submitted evidence in respect of two plaintiffs as to their investments but were unable to produce such evidence for the third plaintiff. They also changed their claims. According to the Government only after that the case was ready to be heard by the court.
The next hearing was scheduled for September 2001.
b. Proceedings against “F.I.S.” and its owner J. S.
The proceedings against “F.I.S.” and J. S. commenced on 21 December 1994 when the applicant filed an action with the Zagreb Municipal Court for re-payment of his loan in the amount of Swiss Francs (CHF) 15,000.
The preliminary hearing scheduled for 19 April 1995 was adjourned since the defendants failed to appear. It appears that “F.I.S.” had ceased to exist and that J. S.’s address was incorrect. The applicant withdrew his claim in respect of “F.I.S.”.
The next hearing scheduled for 28 June 1995 was adjourned since the defendant failed to appear. It turned out that she had changed her address. The court invited the applicant to submit her correct address within 30 days.
On 14 May 1998 the court repeated its request.
On 25 May 1998 the applicant submitted J. S.’s new address.
On 21 July 1998 the court ordered the applicant to request the Social Welfare Centre (Centar za socijalnu skrb) to appoint a legal representative for J. S.
On 11 December 1998 the Zagreb Social Welfare Centre informed the court that by a decision of 8 December 1998 it had appointed a legal representative for J. S.
At the next hearing on 7 April 1999 the representative gave her reply to the applicant’s claim. The applicant informed the court that he had obtained J. S.’s new address and asked the court to invite J. S. to the next hearing.
At the next hearing on 21 May 1999 the applicant gave his testimony. J. S. failed to appear. Her representative asked the court to enclose a case-file concerning the criminal proceedings against J. S. at the same court.
However, the court was unable to enclose the criminal case file as the criminal proceedings against J. S. were still pending.
According to the Government, on 28 December 2000 the court requested the Zagreb Commercial Court’s registry to submit a certificate regarding the legal status of “F.I.S.”. It turned out that on 18 July 2001 the Zagreb Commercial Court had instituted ex officio proceedings for liquidation of “F.I.S.”.
4. Proceedings instituted by the fourth applicant Branko Jugović
a. Proceedings against “T.I.A.” and its owner I. A.
The proceedings commenced on 5 October 1995 when the applicant, together with five other plaintiffs, filed an action with the Zagreb Municipal Court for re-payment of their loans. The applicant claimed a sum of DEM 5,000.
The preliminary hearing scheduled for 18 April 1996 was adjourned since the defendants failed to appear. It turned out that “T.I.A.” had ceased to exist and that I. A. was no longer at his previous address. The court, upon the plaintiffs’ request, decided to look into the criminal case-file number KO-395/94 in the same court where the criminal proceedings had been instituted against I. A., in order to obtain his proper address. Through that the court found his address.
On 8 September 1997 the court requested the Zagreb Commercial Court’s registry a certificate regarding the legal status of “T.I.A.”. On 29 October 1997 the Zagreb Commercial Court submitted the requested certificate.
The next hearing scheduled for 14 May 1998 was adjourned since the defendants failed to appear. “T.I.A.” had, as indicated, ceased to exist and I. A. had failed to collect the notice of the hearing date.
At the hearing on 22 October 1998 the defendants’ counsel gave his reply to the plaintiffs’ claim. The court invited I. A. to give his additional detailed reply to the plaintiffs’ claim within 8 days.
The next hearing scheduled for 7 June 1999 was adjourned since four plaintiffs, including the applicant, who were supposed to give their testimonies, failed to appear. It turned out that the applicant had failed to collect the notice of the hearing date as well as another plaintiff, while two other plaintiffs had changed their addresses.
On 21 July 1999 the plaintiffs’ counsel submitted the plaintiffs’ addresses.
The next hearing scheduled for 2 April 2001 was adjourned since I. A. failed to appear.
The next hearing was scheduled for 15 October 2001.
b. Proceedings against “M.J.B.” and its owner B. J.
The proceedings against “M.J.B.” and B. J. commenced on 5 October 1995 when the applicant, together with other ten other plaintiffs, filed an action for re-payment of their loans with the Zagreb Municipal Court. The applicant claimed a sum of DEM 5,000.
The preliminary hearing scheduled for 21 March 1996 was adjourned since the defendants failed to appear. The plaintiffs requested the court to order the joinder of the case with another case against the same defendants. The court ordered the joinder of those two cases.
On 12 January 1998 the court requested the Ministry of Interior to submit B. J.’s correct address.
On 3 February the Ministry of Interior informed the court that B. J.’s address was unknown.
The next hearing scheduled for 2 April 2001 was adjourned since B. J. failed to appear. The documents showed that she was unknown at the address indicated. According to the registry of the Ministry of Interior, however, she remained registered at the same address.
On 21 May 2001 the plaintiffs’ counsel asked the court to request the Social Welfare Centre to appoint a legal representative for B. J.
On 24 May 2001 the court invited again the Ministry of Interior to submit B. J.’s address.
c. Proceedings against “M.B.B.” and its owner B. B.
The proceedings against “M.B.B.” and B. B. commenced on 5 October 1995 when the applicant, together with ten other plaintiffs, filed an action for re-payment of their loans with the Zagreb Municipal Court. The applicant claimed a sum of DEM 6,000.
On 30 January 1996 B. B. submitted his written reply to the plaintiffs’ claim.
The preliminary hearing scheduled for 14 March 1996 was adjourned as the defendants failed to appear. It turned out that “M.B.B.” had ceased to exist whereas B. B. had received a notice of the hearing date.
The next hearing scheduled for 13 October 1997 was adjourned as the defendants failed to appear although the documents indicated that they had received a notice of the hearing date.
The court scheduled the next hearing for 6 November 1997 and invited B. B. to submit the evidence he relied on in his written reply to the plaintiffs’ claims. However, he failed to do so and also did not appear at the hearing. The plaintiffs’ counsel submitted that B. B. was found guilty for fraud in criminal proceedings instituted with the same court in connection with the plaintiffs’ loans. On 10 November 1997 the plaintiffs’ counsel submitted the number of the criminal case-file against B. B.
On 14 November 1997 the court requested the criminal case-file against B. B. from the criminal division of the Zagreb Municipal Court, but the case-file was at the Zagreb County Court upon the appellate proceedings.
The court repeated its request to enclose the criminal case-file on 22 October 1998, 11 March and 22 November 1999 and 24 October 2000, but the case-file was at the Public Prosecutor’s Office (Ured državnog odvjetništva).
At the next hearing on 2 April 2001 the court invited the applicant to submit a copy of the judgment finding B. B. guilty for fraud.
On 17 April 2001 the applicant informed the court that the first instance judgment in the criminal proceedings against B. B. had been quashed and the case remitted to the court of first instance for re-trial.
d. Proceedings against “T.K.M.” and its owner T. K.
The proceedings against “T.K.M.” and T. K. commenced on 5 October 1995 when the applicant filed an action with the Zagreb Municipal Court for re-payment of his loan in the amount of DEM 7,000.
The preliminary hearing took place on 7 May 1996, although the documents showed that “T.K.M.” had ceased to exist. T. K. gave her reply denying the applicant’s claim.
The next hearing scheduled for 13 October 1997 was adjourned as the applicant as well as T. K. failed to appear. It turned out that the notice of the hearing date had been sent to the applicant three times but he had failed to collect it, while T. K. had been unknown at the address indicated.
On 29 October 1999 the court invited the applicant’s counsel to submit T. K.’s address within 30 days.
On 25 November 1999 the applicant’s counsel submitted T. K.’s new address.
On 28 June 2000 the court invited the applicant’s counsel to submit within 30 days a notice from the registry of the Zagreb Commercial Court concerning the legal status of “T.K.M.”. However, she failed to do so.
5. Proceedings instituted by the fifth applicant Stjepan Živković.
a. Proceedings against “E.” and its owner S. D.
The proceedings against “E.” and S. D. commenced on 24 January 1994 when the applicant filed an action for re-payment of his loan, in the amount of DEM 13,540, with the Zagreb Municipal Court.
The preliminary hearings scheduled for 17 May and 17 June 1994 were adjourned since the defendants did not appear. The documents showed that S. D. had failed to collect the notice of the hearing date.
The applicant then informed the court that S. D. had changed her address.
At the hearing on 8 July 1994 S. D.’s counsel replied to the applicant’s claim. The court adopted a judgment awarding the applicant’s claim in part and rejecting it in part.
The applicant appealed against the part of the judgment rejecting his claim.
On 15 April 1997 the Zagreb County Court partly quashed the first instance judgment where it had rejected the applicant’s claim and remitted the case for re-trial.
The hearings scheduled for 19 March, 7 April and 20 April 1998 before the Zagreb Municipal Court were adjourned since S. D. failed to appear.
At the next hearing on 7 May 1998 the court adopted a judgment awarding the rest of the applicant’s claim. The judgment became final on 16 June 1998.
According to the Government, the applicant has not sought to enforce the judgment.
b. Proceedings against B. B.
The proceedings against B. B. commenced on 27 January 1994 when the applicant filed an action with the Zagreb Municipal Court for re-payment of his loan in the amount of DEM 11,052.
The preliminary hearing scheduled for 18 March 1994 was adjourned since B. B. failed to appear. The documents showed that he had changed his address.
At the next hearing on 13 April 1994 B. B. gave his reply to the applicant’s claim stating that he had been the owner of the agency “M.B.V.” to which the applicant had lent the money, but that all contractual obligations of the agency had been transferred to another agency, “M.J.B.”, owned by another person.
At the hearing on 7 June 1994 the court decided to stay the proceedings since both parties failed to appear.
On 28 September 1994 the applicant requested the court to resume the proceedings.
The hearings scheduled for 8 December 1994, 22 February and 18 May 1995 were adjourned as witnesses invited to give their testimonies failed to appear.
At the hearing on 13 September 1995 two witnesses gave their testimonies.
At the next hearing on 9 November 1995 the court decided to stay the proceedings since both parties failed to appear.
On 14 February 1996 the applicant requested the court to resume the proceedings.
The next hearing scheduled for 13 June 1996 was adjourned since B. B. and a witness invited to give testimony failed to appear. The documents showed that B. B. had changed his address. The applicant submitted B. B.’s new address.
The hearings scheduled for 24 September and 4 December 1996 and for 6 February 1997 were adjourned as the witness failed to appear.
At the hearing on 14 May 1997 B. B. gave testimony. The court adopted judgment rejecting the applicant’s claim.
On 18 September 1997 the applicant appealed against the judgment.
On 21 November 2000 the proceedings ended by the Zagreb County Court’s decision upholding the first instance judgment.
c. Proceedings against “M.J.B.” and its owner B. J.
The proceedings against “M.J.B.” and B. J. commenced on 5 July 1994 when the applicant filed an action with the Zagreb Municipal Court for re-payment of his loan in the amount of DEM 10,000; 980,000 HRK; and CHF 18,350.
The preliminary hearings scheduled for 8 November 1994, 26 September 1995, 7 February, 24 April, 10 September and 2 December 1996 and 12 February 1998 were adjourned as B. J. failed to appear.
At the hearing on 22 April 1998 B. J. replied to the applicant’s claim.
On 26 June 1998 the applicant specified his claim.
At the hearing on 1 July 1998 the applicant and a witness gave their testimonies.
From 10 September 1998 to 12 October 1998 the court unsuccessfully attempted on many occasions to enclose the case-file concerning criminal proceedings against B. J. before the same court.
At the hearing on 12 October 2000 the court adopted a judgment finding in favour of the applicant. The judgment became final on 16 January 2001.
d. Proceedings against “F.I.M.” and its owner Ð. M.
The proceedings against “F.I.M.” and Ð. M. commenced on 5 July 1994 when the applicant filed an action for re-payment of his loan in the amount of DEM 23,800 with the Zagreb Municipal Court.
The preliminary hearings scheduled for 16 November 1994 and 3 October 1995 were adjourned since the presiding judge was absent.
At the hearing on 16 May 1996 the defendants’ counsel replied to the applicant’s claim.
The hearing scheduled for 24 October 1996 was adjourned since the witnesses failed to appear.
At the hearing on 17 March 1997 one witness and the applicant gave their testimonies.
The hearing scheduled for 22 April 1997 was adjourned since the witnesses failed to appear.
The hearing scheduled for 17 June 1997 was adjourned since the presiding judge was ill.
The hearing scheduled for 5 December 1997 was adjourned since the witnesses failed to appear.
At the hearing on 18 April 1998 one witness gave testimony. The court requested the Varaždin Police Department (Policijska uprava varaždinska) to submit the address of another witness.
On 9 July 1998 the Varaždin Police Department submitted the requested address.
At the hearing on 5 March 1999 Ð. M. gave her testimony. The court invited the Zagreb Commercial Court to submit a certificate from its registry regarding the legal status of “F.I.M.” and decided to look into the criminal case-file number KO-490/97 in the same court where the criminal proceedings had been instituted against Ð. M. However, the criminal case-file was not enclosed as the criminal proceedings were pending.
The hearings scheduled for 15 December 2000 and 22 February 2001 were adjourned since Ð. M. failed to appear.
At the next hearing the court heard the testimonies of the applicant and Ð. M. Since the witness again failed to appear the court adjourned the hearing for 2 October 2001.
6. Proceedings instituted by the sixth applicant Gojko Mikecin
a. Proceedings against “E.” and its owner S. D.
The proceedings against “E.” and S. D. commenced on 6 May 1993 when the applicant filed an action with the Zagreb Municipal Court for re-payment of his loan in the amount of DEM 14,400.
The preliminary hearing was held on 10 June 1993.
At the hearing on 13 September 1993 the applicant’s counsel asked the court to request from the Financial Police (Financijska policija) documentation concerning the subject matter of the case. The applicant admitted that S. D. had paid certain sums of money to him, but did not specify on what dates nor the exact amounts. The court invited S. D.’s counsel to submit all relevant documentation and also the relevant file number of the Financial Police.
On 15 November 1994 the applicant withdrew his claim in respect of “E.” and specified his claim in respect of S. D. so as to seek DEM 8,000.
The hearings scheduled for 12 December 1995 and 15 October 1996 were adjourned since S. D. failed to appear.
The hearing scheduled for 28 November 2000 was adjourned due to the absence of the presiding judge.
The next hearing scheduled for 20 February 2000 was adjourned since S. D. failed to appear. The documents showed that a notice of the hearing date had been sent to two different addresses but she had been unknown at both addresses.
The hearing scheduled for 5 June 2001 was adjourned since S. D. informed the court that she had been unable to appear.
The next hearing is scheduled for 7 November 2001.
b. Proceedings against “T.T.B.” and its owner T. B.
The proceedings against “T.T.B.” and T. B. commenced on 16 June 1993 when the applicant filed an action with the Zagreb Municipal Court for re-payment of his loan.
At the hearing on 27 October 1994 the court invited the applicant to specify his claim as he had failed to indicate the name and the address of the defendant.
On 8 November 1994 the applicant corrected his claim.
The hearing scheduled for 9 February 1994 was adjourned since T. B. failed to appear. The documents showed that she had changed her address.
On 28 February 1994 the applicant informed the court about T. B.’s new address.
The hearing on 29 March 1994 was adjourned since T. B. failed to appear. The documents showed that she had again changed her address.
On 31 March 1994 the applicant informed the court about T. B.’s new address.
The hearing scheduled for 27 June 1994 was adjourned since T. B. failed to appear.
At the hearing of 14 November 1994 the court pronounced judgment by default. Since neither party appealed against it, it became final.
However, on 13 September 1996 T. B. submitted a letter of authority for her legal representative and on 9 October 1996 T. B. filed additional submissions.
At the hearing of 26 May 1997 the court asked T. B. whether her submissions of 9 October 1996 had been an application to return the proceedings to the status quo ante. In her answer T. B. requested the court to annul the stamped endorsement certifying final adjudication (hereinafter “the endorsement” - klauzula pravomoćnosti) and to serve the judgment on her so that she would be able to lodge an appeal against it.
At the hearing on 11 November 1997 the court annulled the endorsement and served the judgment on T. B.’s counsel.
On 17 November 1997 T. B. filed her appeal against the judgment of 14 November 1994.
At the hearing on 2 June 1999 the court annulled its judgment by default and T. B.’s application to return the proceedings to the status quo ante was allowed.
As the applicant’s counsel failed to appear at the hearing scheduled for 3 May 2000, the court decided to stay the proceedings, at the request of T. B.’s counsel
On 29 May 2000 the applicant appealed against the above decision.
On 13 June the case-file was sent to the Zagreb County Court as the appellate court.
On 5 December 2000 the case-file was, however, returned to the Zagreb Municipal Court as the receipt slip confirming that the judgment was served on the applicant was missing.
On 8 February 2001 the Zagreb County Court heard the applicant’s statement about the date when the judgment was served on him.
On 19 February 2001 the case-file was sent again to the Zagreb County Court.
It appears that the proceedings are pending on appeal before the Zagreb County Court.
c. Proceedings against “T.I.A.” and its owner I. A.
The proceedings commenced on 16 June 1993 when the applicant filed an action with the Zagreb Municipal Court for re-payment of his loan in the amount of DEM 4,000.
By decision of 9 February 1994 the Zagreb Municipal Court decided that it had no jurisdiction over the applicant’s claim and consequently transferred the case to the Zabok Municipal Court which received it on 14 February 1994.
The Zabok Municipal Court scheduled a hearing for 7 September 1994 which was adjourned as the applicant failed to appear. The documents showed that he had not received a notice of the hearing date.
The next hearing scheduled for 2 February 1998 was adjourned as both parties failed to appear. The documents showed that they had not received a notice of the hearing date. It also turned out that the applicant had failed to inform the court about his new address.
The next hearing scheduled for 26 February 1998 was adjourned since I. A. failed to appear.
At the hearing on 28 February 2000 the court pronounced judgment in favour of the applicant. The judgment became final on 19 April 2000. According to the Government the applicant has not sought to enforce the judgment.
B. Relevant domestic law
Section 59 (4) of the Constitutional Act on the Constitutional Court (entered into force on 24 September 1999 - hereinafter “the Constitutional Court Act” - Ustavni zakon o Ustavnom sudu) read as follows:
“The Constitutional Court may, exceptionally, examine a constitutional complaint prior to exhaustion of other available remedies, if it is satisfied that a contested act, or failure to act within a reasonable time, grossly violates a party’s constitutional rights and freedoms and that, if it does not act a party will risk serious and irreparable consequences.”
COMPLAINTS
The applicants complain under Article 6 § 1 of the Convention about the length of civil proceedings concerning their claims for re-payment of their loans.
They also complain under Article 13 of the Convention that they have no effective remedy with respect to the length of those proceedings.
THE LAW
1. The applicants complain that the proceedings concerning their civil actions for re-payment of the loans have not been concluded within a reasonable time as required by Article 6 § 1 of the Convention which, in so far as relevant 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...”
a) The Government submit firstly that the part of the application relating to the events which took place prior to 5 November 1997, when the Convention entered into force in respect of Croatia, is outside the Court’s competence ratione temporis.
In this connection, the Court recalls that Croatia recognised the competence of the Court to receive applications “from any person, non-governmental organisation or group of individuals claiming to be a victim of a violation by Croatia of the rights recognised in the Convention through any act, decision or event occurring after 5 November 1997.” It follows that the period to be taken into consideration by the Court starts on 5 November 1997.
b) The Government invite the Court to reject the application on the ground that the applicants failed to exhaust domestic remedies. In this respect they allege that the applicants failed to lodge a constitutional complaint pursuant to Section 59 (4) of the newly revised Constitutional Court Act. That Act exceptionally allows the Constitutional court to examine a constitutional complaint before exhaustion of other available remedies in cases where it is satisfied that there is a serious risk that the party’s constitutional rights and freedoms may be violated and that serious and irreparable consequences may arise from the failure of the relevant authorities to reach a decision.
The Court finds that the question of whether the requirement of the exhaustion of domestic remedies has been satisfied in the present case raises issues which are so closely related to the question of the existence of an effective remedy under Article 13 of the Convention that, to avoid prejudging the latter, both issues should be examined together. Accordingly, the Court considers that the final determination of the issue concerning the exhaustion of domestic remedies should be joined to the merits and reserved for later consideration.
c) In the alternative the Government invite the Court to conclude that the application does not disclose any appearance of a violation of Article 6 of the Convention in respect of the complaint raised, in particular having in mind the time elapsed after the entry of the Convention into force in respect of Croatia. They submit that the cases disclose factual complexity as many of them involve a significant number of plaintiffs.
They submit further that the subject matter of the applicants’ cases did not call for particular urgency in deciding them. They refer to the Court’s case-law arguing that the cases that do call for special urgency are those that relate to family law matters or to payment of damages to the victims of traffic accidents, those that involve the interests of a great number of persons and the so-called “dismissal cases”.
The Government contend also that the behaviour of the applicants contributed to the delays as they failed to appear at hearings, to inform the court about their own new addresses as well as of these of the defendants and to submit documentation they relied upon in their claims. They also failed to seek speeding up of the proceedings.
With respect to the behaviour of domestic authorities, the Government claim that the domestic courts showed diligence in the conduct of the proceedings. In particular, the Government point out that in the civil proceedings the courts are limited in their activity as they may not take procedural steps on their own initiative but mostly according to the requests of the parties. The Zagreb Municipal Court has held hearings at regular intervals, although the workload at the civil department of that court is huge and each judge is assigned some nine hundred to one thousand cases. The judges have also been changed in many cases.
The applicants disagree with the Government.
The Court considers, in the light of the criteria established in its case-law on the question of “reasonable time” (the complexity of the case, the applicants’ conduct and that of the competent authorities), and having regard to all the information in its possession, that an examination of the merits of these complaints is required.
2. The applicants submit also that they have no effective remedy to raise the issue of the excessive length of the proceedings in their cases. In their view, there has accordingly been a violation of Article 13 of the Convention, which provides:
“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.”
The Government argue that the applicants could have lodged constitutional complaints pursuant to Section 59 (4) of the Constitutional Court Act.
The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which should depend on an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.
For these reasons, the Court unanimously
Decides to join to the merits the question relating to the exhaustion of domestic remedies;
Declares admissible the remainder of the application, without prejudging the merits of the case.
Vincent BergerGeorg Ress
RegistrarPresident
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