FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 20862/02 by Antun SLAVIÄŒEK against Croatia

The European Court of Human Rights (First Section) , sitting on 4 July 2002 as a Chamber composed of

Mr C.L. Rozakis , President , Mrs F. Tulkens , Mr G. Bonello , Mr P. Lorenzen , Mrs N. Vajić , Mrs S. Botoucharova , Mrs E. Steiner , judges , and Mr E. Fribergh , Section Registrar ,

Having regard to the above application lodged on 10 May 2002,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Antun Slaviček, is a Croatian citizen, who was born in 1935 and lives in Čakovec.

A. The circumstances of the case

The facts of the case, as submitted by the applicant , may be summarised as follows.

On 17 October 1992 the applicant lent to S.H. 6,820,000 Croatian Dinars (HRD) for a period of three months at a rate of interest of 3%. He also lent to N.Å .F., a company in Zagreb HRD 3,100,000 for periods of three to twelve months at a rate of interest of 40%.

On 17 November 1992 he lent to T.T.B., a company in Zagreb , 5,370 German Marks (DEM) for periods of three to twelve months at a rate of interest of 30%.

As the said companies failed to repay the loans, the applicant instituted three sets of proceedings in the Zagreb Municipal Court ( Općinski sud u Zagrebu ).

On 15 October 1993 the applicant filed two separate civil actions for re-payment of his loans, one against T.B. , the owner of the company T.T.B. and the other against N.Å ., the owner of the company N.Å .F.

On 18 April 1994 the applicant filed yet another action for re-payment of his loan, against S.H.

All three sets of proceedings are pending before the court of first instance.

B. Relevant domestic law

Section 59 (4) of the Constitutional Act on the Constitutional Court (entered into force on 24 September 1999 - hereinafter “the 1999 Constitutional Court Act” - Ustavni zakon o Ustavnom sudu ) reads 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.”

Section 26 of the Constitutional Act on the Changes of the Constitutional Act on the Constitutional Court (entered into force on 15 March 2002, published in the Official Gazette no. 29 of 22 March 2002 - hereinafter “The Act of 15 March 2002” - Ustavni zakon o izmjenama i dopunama Ustavnog zakona o Ustavnom sudu Republike Hrvatske ) introduced a new Section 59 (a), which subsequently became Section 63 of the 2002 Constitutional Act on the Constitutional Court. The relevant parts of that Section 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.

COMPLAINTS

2. He complains further under Article 13 of the Convention that he has no effective remedy at his disposal in respect of the length of the proceedings.

THE LAW

1. The applicant complains that three sets of civil proceedings concerning his actions for re-payment of loans have not been concluded within reasonable time as required under Article 6 § 1 of the Convention, the relevant part of 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...”

The Court has firstly examined whether the applicant has complied with the rule of exhaustion of domestic remedies as required under Article 35 § 1 of the Convention.

The Court observes that the rule of exhaustion of domestic remedies contained in Article 35 § 1 of the Convention requires that normal recourse should be had by an applicant to remedies which are available and sufficient to afford redress in respect of the breaches alleged (see, among other authorities, the Akdivar and Others v. Turkey judgment of 16 September 1996, Reports of Judgments and Decisions 1996-IV, p. 1210, § 65). The existence of the remedies in question must be sufficiently certain not only in theory but in practice, failing which they will lack the requisite accessibility and effectiveness (ibid.).

In addition, the application of the rule must make due allowance for the fact that it is being applied in the context of a machinery for the protection of human rights that the Contracting Parties have agreed to set up (ibid., § 69). Accordingly, the Court has recognised that Article 35 § 1 (formerly Article 26) must be applied with some degree of flexibility and without excessive formalism (see, for example, the Cardot v. France judgment of 19 March 1991, Series A no. 200, p. 18, § 34). It has further recognised that the rule of exhaustion is neither absolute nor capable of being applied automatically; in reviewing whether it has been observed it is essential to have regard to the particular circumstances of each individual case (see, for example, the Van Oosterwijk v. Belgium judgment of 6 November 1980, Series A no. 40, p. 18, § 35). This means amongst other things that it must take realistic account not only of the existence of formal remedies in the legal system of the Contracting Party concerned but also of the general legal and political context in which they operate as well as the personal circumstances of the applicants (see the Akdivar judgment cited above, p. 1211, § 69).

The Court recalls that in the Horvat case (see Horvat v. Croatia no. 51585/99, 26 July 2001, §§ 41-43, 45, ECHR - 2002...), it found that the proceedings pursuant to Section 59(4) of the 1999 Constitutional Court’s Act were considered as being instituted only if the Constitutional Court, after a preliminary examination of the complaint, decided to admit it. Thus, although the person concerned could lodge a complaint directly with the Constitutional Court, the formal institution of proceedings depended on the latter’s discretion.

Furthermore, for a party to be able to lodge a constitutional complaint pursuant to that provision two cumulative conditions must have been satisfied. Firstly, the applicant’s constitutional rights had to be grossly violated by the fact that no decision had been issued within a reasonable time and, secondly, there should have been a risk of serious and irreparable consequences for the applicant.

The Court found that terms such as “grossly violated” and “serious and irreparable consequences” were susceptible to various and wide interpretation and that, therefore, a complaint pursuant to Section 59 (4) of the Constitutional Court Act could not be regarded with a sufficient degree of certainty as an effective remedy in respect of the length of proceedings. (see Horvat v. Croatia , no. 51585/99, 26 July 2001, §§ 41-43, 45, ECHR - 2002...)

The Court notes that, following the Horvat judgment, on 15 March 2002 the Croatian Parliament enacted the Act on Changes of the Constitutional Court’s Act, which was published in the Official Gazette no. 29 of 22 March 2002. It introduced a new Section 59(a) which later became Section 63 of the 2002 Constitutional Act on the Constitutional Court. That Section provides, inter alia , that the Constitutional Court must 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.

The Court notes that this new provision has removed the obstacles that were decisive when the Court found that the former Section 59(4) did not comply with all the requirements to represent an effective remedy in respect of the length of proceedings.

Although the Constitutional Court has not yet adopted any decision following the introduction of the new remedy, the wording of Section 63 of the 2002 Constitutional Act on the Constitutional Court is clear and indicates that it is specifically designed to address the issue of the excessive length of proceedings before the domestic authorities. According to the new law everyone who deems that the proceedings concerning the determination of his civil rights and obligations or a criminal charge against him have not been concluded within a reasonable time may file a constitutional complaint. The Constitutional Court must examine such a complaint and if it finds it well-founded it must set a time-limit for deciding the case on the merits and it shall also award compensation for the excessive length of proceedings. The Court considers that this is a remedy which must be exhausted by the applicant in order to comply with Article 35 § 1 of the Convention.

The Court further notes that the above Act was adopted by Parliament on 15 March 2002, and it was published in the Official Gazette on 22 March 2002. The present application was introduced with the Court on 10 May 2002, that is after the new remedy under Section 59(a) before the Constitutional Court had been introduced.

It follows that this complaint must be rejected under Article 3 5 §§ 1 et 4 of the Convention for non-exhaustion of domestic remedies.

2. The applicant complains further that he had no effective remedy at his disposal for his complaint under Article 6 § 1 of the Convention, as required 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.”

As explained above, the Court finds that the newly introduced Section 63 of the 2002 Constitutional Act on the Constitutional Court does provide the applicant with an effective remedy in respect of the length of the proceedings.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Erik Fribergh Christos R OZAKIS Section Registrar President