FIRST SECTION

PARTIAL 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 30 May 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 E. Fribergh , Section Registrar ,

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

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

During 1992 the applicant lent the following sums of money to a number of companies:

- on 21 May 1992 to E., a company in Zagreb, 2,000 German Marks (DEM) for a period of 13 months at an interest rate of 18%;

- on 24 October 1992 to M.B.B., a company in Zagreb, DEM 5.000 for a period of 3 months at an interest rate of 29%;

- on 28 November and 8 December 1992 to F.J., 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 E. and its owner, S.D.

On 28 January 1994 the applicant filed an action, seeking re-payment of DEM 2,000.

On 15 September 1994 the court adopted judgment by default granting the applicant’s claim. The judgment became final on 9 October 1994.

On 22 November 1994 the applicant sought the execution order. On 9 January 1995 the Zagreb Municipal Court issued a warrant of execution, but it was not carried out because S.D. had no means to pay the amount sought.

2. Proceedings against company M.B.B., its owner B.B. and the company’s representative, S.H.

On 28 January 1994 the applicant filed an action seeking re-payment of DEM 7,900.

On 25 March 1994 the court adopted a judgment by default granting the applicant’s claim. The applicant has never sought judicial enforcement of the judgment.

3. Proceedings against company F.J. and its owner, Đ.M.

On 28 January 1994 the applicant filed an action seeking re-payment of DEM 16,330. No decision has yet been taken.

4. 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. No decision has yet been taken.

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 applicant also complains under Article 1 of Protocol No. 1 that he has been unable to secure re-payment of his loans by means of judicial proceedings and judicial enforcement.

The applicant invokes Articles 1, 4 and 15 of the Convention without further substantiation.

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.”

In respect of the proceedings instituted against company E. and its owner, S.D. the Court notes that the final judgment was given by the Zagreb Municipal Court on 15 September 1994. The Court reiterates that it has accepted in cases concerning length of proceedings the principle that enforcement of a judgment given by any court must be regarded as an integral part of the "trial" for the purposes of Article 6 (see the Di Pede v. Italy and Zappia v. Italy judgments of 26 September 1996, Reports of Judgments and Decisions 1996-IV, pp. 1383-1384, §§ 20-24, and pp. 1410-1411, §§ 16-20 respectively).

The Court notes that under Croatian law judicial enforcement of final judgments in civil matters may be sought within a period of ten years after the judgment has become final. The applicant sought judicial enforcement of the judgment of 15 September 1994 and on 9 January 1995 the Zagreb Municipal Court issued a warrant of execution which was not carried out because S.D. had no means on any bank account to pay the amount sought. After that the applicant did not attempt to have the judgment enforced by other means. Thus, the proceedings ended sometime after the warrant of execution was issued when the attempt to enforce the judgment by means of withdrawal of the applicant’s means on any of her bank accounts failed.

In respect of the proceedings instituted against company M.B.B., its owner, B.B. and representative, S.H., the Court notes that the final decision was given by the Zagreb Municipal Court on 25 March 1994, 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.

In respect of the proceedings instituted against company F.J. and its owner, Đ.M and the proceedings instituted against L.L. an. Đ.L., the Court considers that it cannot, on the basis of the case file, determine the admissibility of these complaints and that it is therefore necessary, in accordance with Rule 54 § 3 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

2. The applicant complains that his right to property has been violated because he is unable to secure re-payment of his loans by means of judicial proceedings and judicial enforcement. He relies on Article 1 of Protocol No. 1 which reads as follows:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

In respect of the proceedings instituted against company E. and its owner, S.D. the Court notes that the Zagreb Municipal Court adopted judgment by default granting the applicant’s claim After the judgment had become final and upon the applicant’s request, an execution order was issued. However, the enforcement of the judgment was not carried out because S.D. had no means to pay the amount sought.

The Court notes that the applicant lent a certain sum of money to company E. expecting a fairly high rate of interest. This contract was of a private nature and concerned only the applicant and the said company and its owner, S.D. In this connection the Court considers that the State cannot be held responsible for the consequences of private civil law contracts. The Court notes that the domestic authorities, namely the Zagreb Municipal Court, proceeded expeditiously with the applicant’s case and after granting his claim issued an execution order of the judgment. It can not be held that the State is responsible for insolvency of the applicant’s debtor since the whole matter falls within the ambit of private law.

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

In respect of the proceedings instituted against company M.B.B., its owner, B.B. and representative, S.H., the Court notes that the final decision was given by the Zagreb Municipal Court on 25 March 1994, 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.

In respect of the proceedings instituted against company F.J. and its owner, Đ.M and the proceedings instituted against L.L. and Đ.L., the Court notes that the application is premature because both sets of the proceedings are still pending before the court of first instance.

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

3. The applicant also invokes Articles 1, 4 and 15 of the Convention. However, the Court finds that no separate issue arises under these provisions.

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

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant’s complaints under Article 6 and 13 of the Convention concerning the length of two sets of civil proceedings and lack of an effective remedy in this resepct;

Declares inadmissible the remainder of the application.

Erik Fribergh Christos R OZAKIS Registrar President