FIRST SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 53227/99 by Vinko MAJSTOROVIĆ against Croatia

The European Court of Human Rights (First Section), sitting on 6 December 2001 as a Chamber composed of

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

Having regard to the above application introduced with the European Commission of Human Rights on 19 April 1997 and registered on 7 December 1999,

Having regard to the partial decision on admissibility of 25 May 2000,

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, Vinko Majstorović , is a Croatian national, born in 1940 and living in Zagreb . He is represented before the Court by Mr Zvonko Nogolica , 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.

On 10 December 1992 the applicant lent 20,000 German Marks (DEM) to “V. M. M.”, a company in Zagreb , for a period of three months at a rate of interest of 20 %.

As the company failed to comply with its obligations under the contract, on 15 October 1993 the applicant, together with 10 other plaintiffs, instituted civil proceedings in the Zagreb Municipal Court seeking re-payment of the loan from B. J., the owner of the company.

According to the Government the applicant, as well as the other plaintiffs in the same proceedings, has not paid the court fees nor has he submitted a request for exemption from the payment of the fees. Thus, he prevented the Zagreb Municipal Court from proceeding with his case.

According to the applicant, he was not due to pay the court fees since the Act regulating court fees came into force on 28 September 1995 while his claim was filed almost two years before.

However, the court scheduled a hearing on the merits for 12 July 2001 but it was adjourned because the applicant's counsel did not appear. He also informed the court that he had ceased to represent the applicant.

The next hearing scheduled for 26 July 2001 was adjourned since the applicant did not appear. The notice of the hearing date was sent to him by registered mail and the postal receipt showed that he had failed to collect the notice. The court separated the proceedings in respect of each plaintiff.

The proceedings are pending before the court of first instance.

B. Relevant domestic law

The relevant provisions of the Court Fees Act ( Zakon o sudskim pristojbama - Official Gazette 74/1995 and 57/1996) provide as follows:

Section 4 (1) (1)

“The fee shall be paid:

1. on the submissions to a court (writs, appeals, requests for execution of decisions etc.) - at the moment when they are filed...”

Section 9 (1)

“Courts shall not proceed where the fees have not been paid.”

Section 13 (2)

“Where a party has filed a request for exemption from payment of the court fees, the court shall not proceed with the case until it has decided upon the request.”

Section 15

“A court shall grant exemption from payment of fees to a party who, by paying such fees, would jeopardise his own means of subsistence or those of the persons whom he supports.“

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

COMPLAINTS

1. The applicant complains under Article 6 § 1 of the Convention about the length of civil proceedings, which are still pending.

2. He also complains under Article 13 of the Convention that he had no effective remedy in respect of the length of those proceedings.

THE LAW

1. The applicant complains that the proceedings that began on 10 December 1992 have not been concluded within a reasonable time, contrary to Article 6 § 1 of the Convention which, insofar 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...”

a) The Government submit that the part of the application relating to events that took place prior to 5 November 1997, when the Convention entered into force in respect of Croatia, is outside the Court’s competence ratione temporis .

In this connection, the Court recalls that Croatia recognised the competence of the Court to receive applications “from any person, non-governmental organisation or group of individuals claiming to be a victim of a violation by Croatia of the rights recognised in the Convention through any act, decision or event occurring after 5 November 1997”. It follows that the period to be taken into consideration by the Court starts on 5 November 1997.

However, in order to determine the reasonableness of the length of time in question the Court will have regard to the state of the case on that date (see, among other authorities, Podbielski v. Poland , no. 27916/95, Reports 1998-VIII, § 31).

b) The Government invite the Court to reject the application on the ground that the applicant failed to exhaust domestic remedies. In this respect they allege that the applicant has not lodged a constitutional complaint pursuant to Section 59 (4) of the newly revised Constitutional Court Act which exceptionally allows the Constitutional Court to examine a constitutional complaint before exhaustion of other available remedies in cases where it is evident that there is a serious risk that the party’s constitutional rights and freedoms may be violated and that serious and irreparable consequences may arise from the failure of the relevant authorities to reach a decision.

The applicant disagrees with the Government.

The Court finds that the question of whether the requirement of the exhaustion of domestic remedies has been satisfied in the present case raises issues which are so closely related to the question of the existence of an effective remedy as required under Article 13 of the Convention that both issues should be examined together. Accordingly, the Court considers that the issue concerning the exhaustion of domestic remedies should be joined to the merits and reserved for later consideration.

c) The Government invite the Court, in the alternative, to declare the application inadmissible on the ground that it is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. They contend that the applicant himself caused the delay by his failure either to pay the court fee or to submit a request for exemption from payment of the court fees.

They contend further that the case is not particularly important. They refer to the Court’s case-law arguing that the cases that do call for special urgency are those that relate to family law matters or to payment of damages to the victims of traffic accidents, those that involve the interests of a great number of persons and the so-called “dismissal cases”.

The applicant maintains that he was not due to pay the court fees since he filed his action for re-payment of a loan with the Zagreb Municipal Court almost two years before the Act regulating the court fees was passed.

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 should depend on 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 submits that he has no effective remedy in relation to the excessive length of the proceedings in his case. In his view, there has accordingly been a violation of Article 13 of the Convention, which provides:

“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.”

The Government argue that the applicant could have requested the president of the Zagreb Municipal Court and the Ministry of Justice to speed up the proceedings. He could also have lodged a constitutional complaint pursuant to Section 59 (4) of the Constitutional Court Act.

The applicant disagrees 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 should depend on 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.

For these reasons, the Court unanimously

Declares the remainder of the application admissible.

Erik F RIBERGH Christos Rozakis Registrar President