FIRST SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 72231/01
by Paul VORWALD
against Croatia
The European Court of Human Rights (First Section), sitting on 13 March 2003 as a Chamber composed of
MrC.L. Rozakis, President,
MrG. Bonello,
MrP. Lorenzen,
MrsN. Vajić,
MrsS. Botoucharova,
MrV. Zagrebelsky,
MrsE. Steiner, judges,
and Mr S. NIELSEN, Deputy Section Registrar,
Having regard to the above application lodged on 3 July 2001,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Paul Vorwald, is a German national, who was born in 1926 and lives in Bad Endorf, Germany. He is represented before the Court by Mr Boris Kozjak, a lawyer practising in Virovitica, Croatia. 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 the night of 6 to 7 February 1993 a group of eight accomplices burglarised the applicant’s houses in the Naudovac village in Croatia.
On 18 April 1994 the applicant filed a civil action against the perpetrators before the Virovitica Municipal Court (Općinski sud u Virovitici), seeking damages for his destroyed and stolen property.
Before the period to be examined by the Court (i.e. before 5 November 1997 when the Convention entered into force in respect of Croatia) the court of first instance held two hearings.
The hearing scheduled for 10 February 1998 was adjourned because the defendants did not appear. However, the court heard the applicant.
The hearing scheduled for 12 May 1998 was adjourned because a witness did not appear.
At the hearing of 25 June 1998 the court heard five defendants.
The hearing scheduled for 22 September 1999 was adjourned because three defendants did not appear.
At the next hearing on 13 October 1999 the court heard one witness.
The case was then transferred to another judge.
On 5 October 2000 the court invited the applicant to pay an advance for the costs of an expertise.
On 15 February 2001 the applicant paid the advance.
On 11 June 2001 the court carried out an on the spot investigation of the damages on the applicant’s house together with an expert.
On 21 August 2001 the appointed expert submitted his expertise to the court.
On 28 August 2001 the court sent the expertise to the parties.
On 31 August and 11 September 2001 the applicant and the defendants, respectively, informed the court that they had no objections to the expertise submitted.
On 4 January 2002 the court invited the applicant to adjust his claim with the results of the expertise.
The next hearing scheduled for 27 February 2002 was adjourned because a witness did not appear.
At the next hearing on 29 March 2002 the applicant specified his claim.
On 5 April 2002 the court of first instance pronounced its judgment.
On 2 and 3 July 2002 the applicant and five defendants, respectively, appealed against the judgment.
It appears that the proceedings are presently pending before the appellate court.
B. Relevant domestic law
The relevant parts of Section 63 of the Constitutional Act on the Constitutional Court (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 when the party lodged a request for its payment.
COMPLAINT
The applicant complains under Article 6 § 1 of the Convention about the length of the civil proceedings.
THE LAW
The applicant complains about the excessive length of the proceedings under 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...”
The Government firstly submit that the applicant failed to exhaust domestic remedies because he has not filed a constitutional complaint pursuant to the newly introduced Section 63 of the Constitutional Act on the Constitutional Court. They argue that such a complaint enables a party to seek the constitutional protection in respect of the length of proceedings and empowers the Constitutional Court to award just satisfaction and to set a time limit for the competent authority to decide the case on the merits.
In the alternative the Government invite the Court to reject the application as manifestly ill-founded.
As to the complexity of the case they argue that the case was very complex since the courts had to establish the applicant’s ownership of all the property that had been stolen or destroyed. Furthermore, the question of eight accomplices’ responsibility presented another issue that firstly had to be resolved in the course of the criminal proceedings against them.
As to the applicant’s behaviour, the Government submit that due to the fact that the applicant lives abroad, the court had to adjust the schedule of the hearings to the applicant’s presence in Croatia. Furthermore, it took the applicant almost seven months to adjust his claim to the results of the expertise.
As to the behaviour of the domestic authorities the Government submit that the courts in civil cases are bound by the requests of the parties. Having this in mind, in the Government’s view, the court dealing with the applicant’s case has shown due diligence in its conduct of the proceedings.
The applicant argues that the newly introduced remedy before the Constitutional Court does not represent an effective remedy in respect of the length of the proceedings.
He submits further that the case does not involve any specific legal or factual complexity. He further claims that his claim had been sufficiently specified from the beginning.
In the applicant’s opinion the excessive length of the proceedings in question resulted exclusively from the conduct of the court dealing with his case.
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 an effective remedy in respect of the length of proceedings in Croatia, the Court sees no reason to depart in the present case from its view expressed in the above-mentioned cases (see Slaviček v. Croatia (dec.), no. 20862/02, 4 July 2002, ECHR - 2002... and Nogolica v. Croatia (dec.), no. 77784/01, 5 September 2002, ECHR - 2002...).
It follows that this complaint must be rejected under Article 35 §§ 1 et 4 of the Convention for non-exhaustion of domestic remedies.
For these reasons, the Court unanimously
Declares the application inadmissible.
Søren NIELSENChristos Rozakis
Deputy RegistrarPresident
Full & Egal Universal Law Academy