FIRST SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 69027/01 by Dobrivoje MIKIĆ against Croatia

The European Court of Human Rights ( First Section) , sitting on 19 December 2002 as a Chamber composed of

Mr C.L . Rozakis , President , Mrs F. Tulkens , Mr P. Lorenzen , Mrs N. Vajić , Mr E. Levits , Mr A. Kovler , Mr V. Zagrebelsky , judges , and Mr S. Nielsen , Deputy Section Registrar ,

Having regard to the above application introduced on 22 February 2000,

Having regard to the partial decision of 30 May 2002,

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 Dobrivoje Mikić , is a Croatian citizen, who was born in 1931 and lives 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 applicant lent the following sums of money to two different companies:

- on 28 November and 8 December 1992 to F.I.M., a company in Zagreb , DEM 5,600 and DEM 3,000, respectively, for a period of 3 months at an interest rate of 30%.

- on 1, 9 and 14 October, 14 November and 10 December 1992 to Y., a company in Zagreb , 180,000 Croatian kunas (HRK), HRK 130,000, HRK 179,000, HRK 181,000, HRK 492,000, respectively, for a period of 3 months at an interest rate of 35%.

As the said companies failed to repay the loans, the applicant instituted the following proceedings before the Zagreb Municipal Court:

1. Proceedings against company F.I.M. and its owner, Đ.M.

On 28 January 1994 the applicant filed an action seeking re-payment of DEM 16,330.

Before 5 November 1997, when the Convention entered into force in respect of Croatia, the first instance court held several hearings.

The hearing scheduled for 11 September 1998 was adjourned.

At the hearing on 4 February 1999 the court invited the applicant to submit a certificate from he Registry of the Commercial Court in order to verify Đ.M.’s position in respect of F.I.M.

On 9 March the applicant submitted the requested certificate and on 14 May 1999 he asked the court to hear two witnesses.

At the hearing on 24 May 1999 the court heard the applicant and Đ.M.

On 24 May 1999 the court gave judgment rejecting the applicant’s claim.

On 1 July 1999 the applicant appealed against the judgment .

It appears that the applicant also challenged the presiding judge for bias. This motion was dismissed by the President of the Zagreb Municipal Court on 15 October 1999.

On 10 May 2000 the case-file was forwarded to the Zagreb County Court ( Županijski sud u Zagrebu ) as the appellate court.

The proceedings are presently pending upon the applicant’s appeal.

2. Proceedings against L.L. an. Đ.L.

On 4 March 1996 the applicant filed an action for re-payment of DEM 5,180 against L.L. and Đ.L. who took over the loans from company Y.

On 26 April 1996 the applicant’s claim was dismissed. The decision was served on the applicant on 3 may 1996 and became final on 16 May 1996.

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.

COMPLAINTS

The applicant complains under Article 6 of the Convention about the length of the proceedings.

The applicant further complains under Article 13 of the Convention that he has no effective remedy in respect of the length of the proceedings.

THE LAW

1. 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...”

He also complains that he has no effective remedy in respect of the length of the proceedings and relies on 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.”

1. Proceedings against company F.I.M. and its owner, Đ.M.

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 applicant submitted the facts of the case in a confused manner which made the case more complex.

As to the applicant’s behaviour the Government maintain that the applicant contributed to the length of the proceedings because he insisted that the court hear the defendant and he also challenged the presiding judge for bias.

As to the behaviour of the domestic authorities the Government submit that the domestic courts regularly held hearings and showed due diligence in their conduct of the proceedings.

The applicant disagrees with the Government.

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 3 5 §§ 1 et 4 of the Convention for non-exhaustion of domestic remedies.

As to the complaint under Article 13 of the Convention, the Government argue that Section 63 of the Constitutional Act on the Constitutional Court represents a remedy in respect of the length of proceedings.

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.

2. Proceedings against L.L. an. Đ.L.

The Government argue that this part of the application is incompatible ratione temporis with the Court’s competence because the proceedings ended on 26 April 1996 while the Convention entered into force in respect of Croatia on 5 November 1997.

The Court notes that the final decision in these proceedings was given by the Zagreb Municipal Court on 26 April 1996 and served on the applicant on 3 May 1996, while the Convention entered into force in respect of Croatia on 5 November 1997.

It follows that this part of the application is incompatible ratione temporis with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.

For these reasons, the Court unanimously

Declares the remainder of the application inadmissible.

Søren N IELSEN Christos Rozakis              Deputy Registrar President