FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 75139/01 by Zdenka PIBERNIK against Croatia

The European Court of Human Rights (First Section), sitting on 4 September 2003 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 V. Zagrebelsky , judges , and Mr S . N IELSEN , Deputy Section Registrar ,

Having regard to the above application lodged on 5 October 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, Ms Zdenka Pibernik , is a Croatian citizen, who was born in 1965 and lives in Zagreb, Croatia. She is represented before the Court by Mr Ranko Radović , 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.

The applicant lived with her parents in a flat in Zagreb. Her father had a protected tenancy of the flat. The flat was owned by the Ministry of Defence. In 1991 the parents left Croatia and the applicant stayed in the flat with her husband and children.

On 25 September 1995 S.Ž. broke into and occupied the flat.

On 4 October 1995 the applicant filed an action in the Zagreb Municipal Court ( Općinski sud u Zagrebu ) against S.Ž. for disturbance of her possession of the flat.

On 11 October 1997 the Zagreb Municipal Court allowed the applicant’s claim and ordered S.Ž. to vacate the flat.

Upon S.Ž.’s appeal the Zagreb County Court ( Županijski sud u Zagrebu ) upheld the first instance decision on 26 January 1999.

On 6 April 1999 the applicant requested the Zagreb Municipal Court to issue an eviction order.

On 18 May 1999 the court requested the applicant to submit the decision on which she based her request together with a stamped endorsement certifying final adjudication (hereinafter “the endorsement”).

On 21 June 1999 the applicant’s counsel informed the court that the presiding judge in the civil proceedings refused to endorse the decision and that he had asked the Zagreb Municipal Court’s Enforcement Department to request the civil case-file from the Civil Department of the same court.

On 2 November 1999 the applicant’s counsel asked the court to speed up the proceedings.

On 3 February 2000 the court issued the eviction order.

On 16 February 2000 the defendant filed an appeal against the enforcement order with a request that the order should not be executed.

On 17 February 2000 the Ministry of Defence ( Ministrastvo obrane Republike Hrvatske ), as the third party in the proceedings, also appealed against the eviction order.

On 2 March 2000 the court invited the applicant’s counsel to reply to the above appeals.

On 13 March 2000 the Ministry of War Veterans ( Ministarstvo hrvatskih branitelja iz domovinskog rata ) asked the court to postpone the eviction of the defendant until he had found alternative accommodation.

On 20 March 2000 the applicant’s counsel filed his reply to the defendant’s appeal.

On 19 May 2000 the court invited the applicant’s counsel to reply to the third party’s appeal. The court renewed its request on 28 June 2000.

On 29 June 2000 the applicant’s counsel submitted a reply.

On 3 July 2000 the court rejected the request to postpone the eviction.

On 4 July 2000 the court instructed the third party to institute separate proceedings to have the eviction order cancelled.

On 18 July 2000 the applicant was granted a protected tenancy by the Zagreb City Administration, Trnje Office ( Gradska uprava Zagreb, Područni ured Trnje ).

On 27 September 2000 the Republic of Croatia again asked the court to postpone the eviction because it had instituted proceedings for the cancellation of the eviction order.

On 28 September 2000 the Ministry of War Veterans asked the court to postpone the eviction.

On 3 October 2000 S.Ž. asked the court to postpone the eviction alleging that both he and his wife were in bad health.

On 6 October 2000, when the execution officer of the court attempted to carry out the eviction order, S.Ž. asked that the eviction be postponed because of both his and his wife’s bad health and as he was to be shortly provided with another flat. The applicant’s counsel agreed to the postponement of the eviction until the end of 2000.

On 15 January 2001 the applicant’s counsel asked the court to continue the enforcement proceedings.

On 18 January 2001 the court invited the applicant to pay an advance on the costs of the eviction. On 13 February 2001 the applicant’s counsel informed the court that she had paid the costs.

On 25 May 2001 the applicant’s counsel asked the court to speed up the proceedings.

On 13 November 2001 the Ministry of War Veterans asked the court to postpone the eviction.

According to the Government, when the execution officer of the court attempted to carry out the eviction order on 14 November 2001, S.Ž. asked that the eviction be postponed until 1 February 2002 since he was supposed to be given another flat on that date. The applicant’s counsel, who was also present, agreed to that request.

According to the applicant the eviction order was not carried out because S.Ž. and a number of war veterans who were in the flat at the time obstructed the eviction.

On 1 February 2002 when the execution officer of the court attempted to carry out the eviction order. S.Ž. again asked that the eviction be postponed until 15 April 2002 since he would be moving into another flat sometime before that date. The applicant’s counsel, who was also present, agreed to that request.

On 18 March 2002 S.Ž. submitted to the court a written request for the postponement of the eviction. On 25 March 2002 the court asked the applicant to reply to that request. On 5 April 2002 the applicant’s counsel opposed the request.

On 25 April 2002 the execution officer of the court attempted to carry out the eviction order. The Government submit that it was not carried out because neither the applicant nor her counsel were present. The applicant submits that the eviction order was not executed because the assistance of the police had not been ensured and because of the presence in the flat of a number of war veterans who had obstructed the eviction.

On 23 July 2002 the court scheduled the eviction for 17 October 2002.

On 10 September 2002 the applicant asked the court to ensure the availability of at least two execution officers and to block the passage to the flat in order to prevent persons from obstructing the eviction.

The Government submit that the eviction scheduled for 17 October 2002 was not carried out because the applicant and her representative were not present.

The applicant submits that she and her representative were not present because the court did not comply with her request of 10 September 2002.

The eviction scheduled for 25 February 2003 was not carried out.

The eviction was carried out on 21 March 2003.

B. Relevant domestic law

The relevant parts of section 63 of the Constitutional Act on the Constitutional Court (which 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 where 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 ...

COMPLAINTS

1. The applicant firstly complains under Article 6 § 1 of the Convention about the length of the proceedings for the execution of the eviction order against S.Ž.

2. She further complains under Article 8 of the Convention that the failure to enforce the eviction order during a period of more than three years breached her right to respect for her home.

3. She also complains under Article 14 of the Convention, in conjunction with Article 8, that the domestic authorities have discriminated against her by refusing to re-install her in her flat simply because she is not of Croatian origin.

THE LAW

1. The applicant complained about the excessive length of the enforcement proceedings before the Zagreb Municipal Court. She relies on Article 6 § 1 of the Convention, the relevant parts of which read 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 firstly argued that the applicant had failed to exhaust domestic remedies. They maintained that as of 15 March 2002, when the changes to the Constitutional Act on the Constitutional Court were introduced, the applicant had a possibility to file a constitutional complaint in respect of the length of the proceedings.

The applicant argued that her application had been lodged with the Court before the enactment of the Constitutional Court Act 2002. She was thus unable to use the remedy referred to by the Government.

The Court recalls that under Article 35 of the Convention, normal recourse should be had by an applicant to remedies that are available and sufficient to afford redress in respect of the breaches alleged. The existence of the remedies in question must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness (see, inter alia , the Vernillo v. France , judgment of 20 February 1991, Series A no. 198, pp. 11-12, § 27, and Dalia v. France , no. 26102/95, § 38, ECHR 1998-I). In this respect the Court notes that the wording of section 63 is not sufficiently clear so as to remove any doubt that it applies to the enforcement proceedings.

Section 63 (1) of the above Act refers to the situations where the courts have not decided within a reasonable time a claim concerning an applicant’s civil rights and obligations or a criminal charge against him. The Court notes that in enforcement proceedings the courts do not determine the civil rights or obligations of a party or criminal charges against him, but carry out the execution of final judgments.

Furthermore, in the area of exhaustion of domestic remedies, there is a distribution of the burden of proof. It is incumbent on the Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one available in theory and in practice at the relevant time, that is to say, that it was accessible, was capable of providing redress in respect of the applicant’s complaints and offered reasonable prospects of success. However, once this burden of proof has been discharged, it falls to the applicant to establish that the remedy advanced by the Government was in fact exhausted or was for some reason inadequate and ineffective in the particular circumstances of the case or that there existed special circumstances absolving him or her from the requirement.

In the present case, the Government have not supplied any decision indicating that the Constitutional Court is prepared to examine complaints based on the excessive length of enforcement proceedings.

In the Court’s view, the absence of any case-law supporting the Government’s arguments as well as the lack of precision in the wording of section 63 as to its applicability to enforcement proceedings, indicate that it cannot be established that section 63 represents a remedy for the length of such proceedings.

In these circumstances, the Court considers that the applicant’s complaints cannot be rejected for failure to exhaust domestic remedies.

b. In the alternative the Government invited the Court to reject this part of the application as manifestly ill-founded. They argued that eviction proceedings were by their nature complex because court officers were faced with many obstacles when attempting to carry out eviction orders. They observed also that in the present case, both S.Ž. and the Ministry of War Veterans had asked on several occasions for the postponement of the eviction order and had filed appeals against it.

Although the Government accepted that the proceedings in question were of importance for the applicant, they considered that they were not urgent.

As to the applicant’s behaviour, the Government alleged that she had contributed to the length of the proceedings because she had failed to submit a copy of the judgment to be enforced. Furthermore, each time her opponent had requested a postponement the applicant acceded to the request. Moreover, the applicant and her counsel had failed to appear at the appointment scheduled for 25 April 2002.

As to the conduct of the domestic authorities the Government stressed that the Zagreb Municipal Court had about 200,000 cases per year. Given this work load, they considered that the court had dealt with the applicant’s case with due diligence.

The applicant disagreed with the Government and stressed that the length of the proceedings had been excessive.

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 requires 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.

2. The applicant further complained that her right to respect for her home had been violated because for a prolonged period of time she had been unable to re-possess the flat where she had lived. She relied on Article 8 of the Convention, which reads as follows:

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

The Government agreed that the flat in question was the applicant’s home. However, they argued that there had been no interference with the applicant’s right to respect for her home. On the contrary, the domestic courts had protected her by establishing her right to re-possess the flat in the civil proceedings and assisting her in regaining possession in the context of the enforcement proceedings.

The applicant disagreed with the Government.

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 requires 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.

3. The applicant finally complained that she had been discriminated against in connection with her right to respect for her home since, in her opinion, the domestic authorities had prevented her over a lengthy period of time from re-possessing her flat solely because she was not of Croatian origin. She referred to Article 14 of the Convention, which reads as follows:

“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

The Government considered the applicant’s contentions under Article 14 unfounded. They argued that the applicant had failed to show that she had been discriminated against in any respect whatsoever. Furthermore, in court proceedings in Croatia the parties never inform the courts about their nationality or origin and in the applicant’s case the officials of the Zagreb Municipal Court had no information about her origins.

The applicant claimed that the domestic authorities failed in their duty to proceed with her case with due diligence simply because of her non-Croatian origin and because her father was a Yugoslav People’s Army officer who had left Croatia.

The Court considers that there is nothing in the case-file to substantiate the applicant’s complaint that she was the victim of discrimination.

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 admissible, without prejudging the merits of the case, the applicant’s complaints concerning [Note1] the length of the proceedings and the alleged interference with her right to respect for her home;

Declares inadmissible the remainder of the application.

Søren N IELSEN Christos Rozakis              Deputy Registrar President

[Note1] Summarise the complaints succinctly without necessarily citing the invoked Convention Articles.