FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 16525/02 by Milenko TOTH against Croatia

The European Court of Human Rights (First Section), sitting on 2 September 2004 as a Chamber composed of:

Mr C.L. Rozakis , President , Mr P. Lorenzen , Mr G. Bonello , Mrs F. Tulkens , Mrs N. Vajić , Mrs S. Botoucharova , Mr A. Kovler , judges , and Mr S. Nielsen , Section Registrar ,

Having regard to the above application lodged on 27 March 2002,

Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together,

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 Milenko Toth , is a Croatian citizen who was born in 1962 and is presently serving a sentence in Lepoglava State Prison.

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

On 15 September 1992 the competent investigating judge opened an investigation against the applicant on a charge of murder. The applicant was indicted by the Sisak County State Attorney’s Office ( Okružno državno odvjetništvo Sisak ) on 12 February 1993.

On 27 January 1994 the investigating judge opened another investigation against the applicant, charging him with the attempted murder of a judge. He was indicted on 15 November 1994.

The two criminal proceedings were subsequently joined.

On 20 September 1995 the Sisak County Court ( Županijski sud u Sisku ) convicted the applicant of both offences.

On 22 May 1996 the Supreme Court ( Vrhovni sud Republike Hrvatske ) upheld the first-instance conviction with regard to the murder charge. This part of the judgment became final. At the same time, the Supreme Court quashed part of the judgment relating to the attempted murder and remitted the case.

In the resumed proceedings, on 9 May 1997 the Sisak County Court convicted the applicant of attempted murder and sentenced him to fifteen years’ imprisonment.

On appeal, the Supreme Court upheld the first instance judgment on 24 June 1998.

The applicant states that he filed a constitutional complaint with the Constitutional Court on 29 November 1999, alleging that both his convictions had been based on evidence obtained illegally and thus his right to a fair trial had been violated. His constitutional complaint concerned both convictions. He maintains that his complaint was never adjudged by the Constitutional Court.

The Government admit that the applicant’s letter to the Constitutional Court dated 29 November 1999 was titled “a constitutional complaint”. However, they submit that the applicant had already lodged a constitutional complaint on 25 February 1999 and that his letter of 29 November 1999 was merely an extension of his previous complaint, seeking to include the proceedings concerning the murder, which had ended in 1996. It was thus regarded by the Constitutional Court as a new submission in an already existing case.

Moreover, the Government submit two decisions of the Constitutional Court, by which it adjudged the entirety of the complaints raised by the applicant in his submission dated 29 November 1999 with regard to both proceedings.

In its decision dated 4 October 2000, the Constitutional Court dismissed the applicant’s complaint, finding no violation of his right to a fair trial in the proceedings concerning the attempted murder.

In its decision dated 8 March 2002 the Constitutional Court dismissed the applicant’s complaint relating to the fairness of the proceedings concerning the murder, as it had been lodged outside the statutory time-limit.

COMPLAINT

The applicant complains under Article 6 § 1 of the Convention about the length of the criminal proceedings against him, in particular in their part before the Constitutional Court.

THE LAW

The applicant complains that the proceedings concerning both the murder and the attempted murder lasted an unreasonably long time. He invokes Article 6 § 1 of the Convention which, in its relevant part, provides:

“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing within a reasonable time by [a] ... tribunal...”

a) As to the proceedings concerning the murder charge, the Government argue that their length did not exceed a reasonable time. They submit that in the period between 1999 and 2002 the applicant filed five constitutional complaints against various decisions of the domestic courts, and three more complaints after 2002. They thus contend that the applicant, by randomly submitting his constitutional complaints outside the statutory time-limit and not observing any other procedural requirements, attempted to manipulate the proceedings. The applicant made the Constitutional Court’s work significantly more difficult and thus contributed to the length of the proceedings.

The applicant maintains that the Constitutional Court never rendered a decision on his constitutional complaint dated 29 November 1999.

The Court observes that the applicant’s complaints with regard to the proceedings concerning the murder were adjudged in their entirety by the Constitutional Court on 8 March 2002, which is therefore to be considered as the date of the final decision in respect of those proceedings.

The principal proceedings started on 15 September 1992 and were terminated by the Supreme Court’s judgment on 22 May 1996. The applicant then filed a constitutional complaint on 29 November 1999, which was dismissed by the Constitutional Court on 8 March 2002 as being lodged outside the statutory time-limit.

However, Croatia ratified the Convention on 5 November 1997. It follows that only the Constitutional Court proceedings, which lasted 2 years, 3 months and 9 days, fall within the Court’s competence ratione temporis .

The Court recalls that the reasonableness of the length of proceedings is to be assessed in the light of the particular circumstances of the case, regard being had to the criteria laid down in its case-law, in particular the complexity of the case, the applicant’s conduct and the conduct of the competent authorities (see, among many other authorities, Pélissier and Sassi v. France [GC], no. 25444/94, § 67, ECHR 1999-II).

Neither the Government nor the applicant submitted comments on the complexity of the case. The Court considers that the proceedings were not complex, as the Constitutional Court dismissed the applicant’s constitutional complaint on procedural grounds, without reviewing the merits of the case.

As to the conduct of the parties, the Court recalls that only delays attributable to the State may justify a finding of failure to comply with the “reasonable time” requirement (e.g. Humen v. Poland, no . 26614/95, § 66, 15 October 1999).

Whilst it is true that no reproach can be levelled against an accused for making full use of the remedies available under domestic law, such conduct constitutes an objective fact and cannot be attributed to the respondent State. Furthermore, this circumstance is to be taken into account when determining whether or not the proceedings exceeded a “reasonable time” (see Ledonne v. Italy (no. 1) , no. 35742/97, § 25, 12 May 1999; Eckle v. Germany , judgment of 15 July 1982, Series A no. 51, p. 36, § 82).

In the present case, the Court notes that the applicant had several parallel proceedings pending before the Constitutional Court. He filed various unsolicited submissions and he extended his complaints on several occasions. For the Court, this conduct inevitably slowed down the Constitutional Court proceedings and it therefore considers that the applicant contributed to their length.

As to the conduct of the domestic authorities, the Court observes that the Constitutional Court took its decision in the case after some delay. However, the Court considers that the overall length of the proceedings complained of cannot be regarded as unreasonable (see, mutatis mutandis , Ciborek v. Poland , no. 52037/99, §§ 47-48, 4 November 2003).

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

b) As to the proceedings concerning the attempted murder charge, the Government argue that the applicant failed to introduce his application within the six-month period as required by Article 35 § 1 of the Convention. In this connection, they submit that the applicant’s constitutional complaint regarding these proceedings had been dismissed by the Constitutional Court’s judgment on 4 October 2000, whereas the application to the Court was introduced on 27 March 2002.

The applicant disagrees with the Government. He maintains that his constitutional complaint dated 29 November 1999 has never been adjudged.

According to Article 35 § 1 of the Convention, the Court may only deal with the matter within a period of six months from the date on which the final decision was taken.

The Court observes that the applicant’s complaints with regard to the proceedings concerning the attempted murder were adjudged in their entirety by the Constitutional Court on 4 October 2000, which is therefore to be considered as the date of the final decision in respect of those proceedings.

The decision was served on the applicant on 13 October 2000. Accordingly, the six-month time-limit must be taken to run from that date. However, the applicant lodged his application only on 27 March 2002, i.e. more than six months later.

It follows that this part of the application has been lodged outside the time-limit prescribed by Article 35 § 1 of the Convention and must be rejected pursuant to Article 35 § 4 of the Convention.

For these reasons, the Court unanimously

Decides to discontinue the application of Article 29 § 3 of the Convention;

Declares the application inadmissible.

Søren Nielsen Christos Rozakis Registrar President