FOURTH SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 48771/99 by Petar DELIĆ against Croatia

The European Court of Human Rights (Fourth Section), sitting on 23 October 2001 as a Chamber composed of

Mr G. Ress , President , Mr I. Cabral Barreto , Mr V. Butkevych , Mrs N. Vajić , Mr J. Hedigan , Mr M. Pellonpää , Mrs S. Botoucharova , judges , and Mr V. Berger , Section Registrar ,

Having regard to the above application introduced on 1 June 1999 and registered on 14 June 1999,

Having regard to the partial decision of 1 June 1999,

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, Petar Delić, is a Croatian citizen, born in 1938 and living 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.

1. Proceedings against “A.K.M.” and its owner A. K.

The proceedings commenced on 29 June 1993 when the applicant filed and action with the Zagreb Municipal Court for re-payment of his loan in the amount of 70,000 Austrian Shillings (ATS).

At the preliminary hearing on 22 November 1993 the applicant’s counsel withdrew the claim in respect of “A.K.M.”. He also requested a permission to file additional submissions within 8 days.

On 1 December 1993 the applicant’s counsel filed additional submissions specifying the claim.

According to the Government, following the resignation of the judge in charge of the case a certain period of time elapsed before the case was assigned to another judge.

The next hearing scheduled for 15 September 2000 was adjourned due to maintenance work on the court building electrical circuitry.

At the next hearing on 14 December 2000 the court granted the applicant exemption from payment of the court fees. The documents showed that A. K. had been unknown at the address indicated.

The hearing scheduled for 23 March 2001 was adjourned since A. K. did not appear. The court invited the applicant to adjust his claim to the monetary system in Croatia and to specify his interest claim.

The case is presently pending before the court of first instance.

2. Proceedings against “T.I.A.” and its owner I. A.

The proceedings commenced on 12 October 1993 when the applicant, together with four other plaintiffs filed an action with the Zagreb Municipal Court for re-payment of their loans. The applicant claimed a sum of ATS 70,000.

On 14 December 1993 the court refused to accept the plaintiffs’ representative as he had, in other proceedings, been charged with providing unlicensed legal services. The plaintiffs appealed against that decision. On 24 May 1994 the Zagreb County Court ( Županijski sud u Zagrebu ) rejected the plaintiffs’ appeal.

According to the Government, meanwhile, the judge in this case resigned from her duties. The judge to whom the case was transferred was on maternity leave. The case was, therefore, again transferred to another judge.

At the next hearing on 28 June 2000 the defendants’ counsel replied to the applicant’s claim stating that the same claim had already been decided by the Zabok Municipal Court ( Općinski sud u Zaboku ).

It appears that the proceedings are still pending before the Zagreb Municipal Court.

3. Proceedings against “T.T.B.” and its owner T. B.

The proceedings commenced on 15 October 1993 when the applicant, together with two other plaintiffs, filed an action with the Zagreb Municipal Court for re-payment of their loans. The applicant claimed a sum of 6,000 German Marks (DEM).

The preliminary hearing scheduled for 13 January 1994 was adjourned since T. B. did not appear. The documents showed that the address indicated on the notice of the hearing date did not exist.

On 17 January 1994 the plaintiffs submitted T. B.’s correct address.

The hearing scheduled for 8 April 1994 was adjourned since T. B. again failed to appear. The documents showed that she had failed to collect the notice of the hearing date.

The hearing scheduled for 10 June 1994 was also adjourned since T. B. did not appear. The documents showed that she had changed her address.

On 15 June 1994 the plaintiffs submitted T. B.’s new address.

Since the plaintiffs did not appear at the hearing scheduled for 10 October 1994, the court decided to stay the proceeding.

On 19 January 1995 the plaintiffs requested the court to resume the proceedings.

The hearings scheduled for 18 September 1995 and 18 January 1996 were adjourned since T. B. did not appear. The court requested the Ministry of Interior to submit T. B.’s address.

The hearing scheduled for 20 May 1996 was adjourned since T. B.’s counsel did not submit a letter of authorisation.

At the hearing on 7 September 2000 the plaintiffs stated that they wished to produce additional evidence.

On 10 January 2001 T. B. filed her reply to the plaintiffs’ claim.

At the hearing on 19 January 2001 the court exempted the applicant and one other plaintiff from paying the court fees while the remaining plaintiff did not appear. The court served T. B.’s reply on the plaintiffs and invited them to submit their comments within 30 days.

The next hearing scheduled for 12 June 2001 was adjourned due to the illness of the presiding judge. The next hearing is scheduled for 22 January 2002.

4. Proceedings against “M.B.B.” and its alleged owner B. B.

The proceedings commenced on 15 October 1993 when the applicant, together with 15 other plaintiffs, filed an action with the Zagreb Municipal Court for re-payment of their loans. The applicant claimed a sum of 5,000 DEM.

According to the Government the applicant failed to submit any evidence concerning the relationship between the company “M.B.B.” and its alleged owner B. B.

At the hearing on 8 September 2000 a number of plaintiffs as well as B. B. did not appear. The court separated the proceedings in respect of the plaintiffs who did appear at the hearing, including the applicant, and invited them to specify their claims.

It appears that the proceedings are presently pending before the court of first instance.

5. Proceedings against “A. Š. M.” and its owner A. Š.

The proceedings commenced on 15 October 1993 when the applicant, together with other three plaintiffs, filed an action with the Zagreb Municipal Court, for re-payment of their loans. The applicant claimed a sum of DEM 12,000.

The preliminary hearing scheduled for 16 June 1994 was adjourned since A. Å . did not appear. The documents showed that she had changed her address. The court invited the plaintiffs to submit her new address within 30 days.

The hearing scheduled for 5 April 1995 was adjourned since A. Å . again failed to appear. The documents showed that the address indicated on the notice of the hearing date did not exist.

At the hearing on 9 May 1995 the court pronounced judgment by default.

On 20 September 1996 a lawyer M. P. informed the court that he was the legal representative of A. Å . and requested the court to re-open the proceedings. Following the hearings on whether A. Å . had received the judgment, the court annulled its judgment by default on 24 March 1998 and resumed the proceedings.

At the hearing on 15 September 1998 the court requested the plaintiffs to submit evidence concerning their claim.

At the hearing on 11 December 1998 the court heard three plaintiffs.

At the hearing on 12 February 1999 the court heard the remaining plaintiff.

The hearing scheduled for 15 April 1999 was adjourned since A. Š. failed to appear. Her counsel informed the court that she had given birth to a child. The court requested the Zagreb Commercial Court to submit a certificate from its registry regarding the legal status of “A. Š. M.”. On 23 April 1999 the court repeated that request.

On 17 May 1999 the requested certificate was submitted.

The hearing scheduled for 24 June 1999 was adjourned since A. Å . failed to appear. Her counsel informed the court that she was ill.

The hearing on 2 November 1999 was adjourned since A. Å . failed to appear. She telegraphed the court that her child was ill.

At the hearing on 1 February 2000 the court heard A. Å . The plaintiffs asked the court to hear several witnesses but failed to provide their names.

On 8 February 2000 the plaintiffs submitted the names of the witnesses.

At the next hearing on 11 October 2000 the proceedings were concluded and the court adopted a judgment awarding the applicant’s claim in part and rejecting it in part. On 11 June 2001 A. Š. appealed against the judgment. On 14 June 2001 the court attempted to serve the appeal on the applicant in order for him to submit his reply but he did not collect it.

It appears that the case is pending.

6. Proceedings against “T.M.T.” and its owner M. T.

The proceedings commenced on 3 June 1993 when the applicant filed an action with the Zagreb Municipal Court for re-payment of his loan in the amount of DEM 10,000.

The preliminary hearing was held on 21 October 1993.

On 4 July 1994 the court denied the applicant’s counsel the right to represent the applicant.

The judge in that case subsequently resigned from her office and the case was transferred to another judge.

The hearing scheduled for 12 November 1997 was adjourned since M. T. did not to appear.

Since the applicant did not appear at the hearing scheduled for 18 February 1998, the court decided to stay the proceedings.

On 22 May 1998 the applicant requested the court to resume the proceedings.

The hearing scheduled for 10 March 1999 was adjourned.

At the hearing on 4 June 1999 the applicant gave testimony.

Since the applicant did not appear at the hearing scheduled for 15 October 1999, the court found that he had withdrawn his claim. According to the Government, since then the court attempted to deliver that decision to the applicant 15 times but he did not collect it. Finally on 6 September 2000 the decision was served on the applicant by a court’s courier.

On 20 September 2000 the applicant filed an application to return the proceedings to the status quo ante and also appealed against the above decision.

The hearing scheduled for 12 March 2001 was adjourned since neither party appeared although they received the notice of the hearing date.

It appears that the proceedings are still pending before the court of first instance.

7. Proceedings against “D.” and its owner D. T.

The proceedings commenced on 8 June 1993 when the applicant filed an action with the Zagreb Municipal Court for re-payment of his loan in the amount of DEM 10,000.

Since the applicant did not appear at the hearing scheduled for 21 October 1993, the court decided to stay the proceedings.

On 7 February 1994 the applicant requested the court to resume the proceedings.

The judge in that case subsequently resigned from her duties and the case was transferred to another judge.

On 18 May 1999 the court invited the applicant to adjust his claim and to submit further evidence. The letter was sent by the registered mail which the applicant did not collect.

On 24 September 1999 the court invited the applicant to submit the defendants’ addresses.

On 5 November 1999 the court requested the Zagreb Commercial Court to submit a certificate from its registry regarding the legal status of “D.”.

The hearing scheduled for 3 February 2000 was adjourned since neither party appeared. The documents showed that the applicant had not collected the notice of the hearing date.

The next hearing scheduled for 13 June 2000 was adjourned since D. T. did not appear. The documents showed that “D.” ceased to exist while D. T. had received the notice of the hearing date. However, the applicant’s counsel asked the court to allow him to submit the defendants’ addresses within 60 days.

On 11 July 2000 the applicant’s counsel informed the court that he had not been able to verify the required addresses.

On 22 November 2000 the court stayed the proceedings in respect of “D.”.

The proceedings concerning D. T. are still pending.

8. Proceedings against “E.” and its owner F. Š.

The proceedings against “E.” and F. Š. commenced on 12 October 1993 when the applicant filed an action with the Zagreb Municipal Court for re-payment of his loan in the amount of ATS 70,000.

The preliminary hearing scheduled for 2 April 1996 was adjourned since the defendants did not appear.

The hearing scheduled for 5 July 1996 was adjourned since the applicant informed the court that he was ill.

The next hearing scheduled for 24 September 1996 was adjourned since the judge was appointed to another court.

On 15 April 1999 the court invited the applicant to inform it whether he wanted to proceed with his claim. The letter was sent three times by registered mail which the applicant did not collect. The court then attempted to serve the letter on the applicant through its courier, but the applicant was absent. The courier left a notice to the applicant that the letter will be served on him on 6 July 1999. However, the applicant was again absent so the letter was left at his door.

The next hearing scheduled for 9 February 2000 was adjourned since neither party appeared. The documents showed that the applicant had not collected the notice of the hearing date.

The next hearing was scheduled for 17 September 2001. The proceedings are still pending.

9. Proceedings against “L.K.M.” and its owner K. L.

The proceedings against “L.K.M.” and K. L. commenced on 22 April 1993 when the applicant filed an action with the Zagreb Municipal Court for re-payment of his loan in the amount of DEM 10,000.

Since the defendants did not appear at the hearing on 18 October 1993 the court pronounced judgment by default.

However, the defendants filed an application to return the proceedings to the status quo ante .

At the hearing on 1 February 1994 the court annulled its judgment by default. It also decided to stay the proceedings since the applicant did not appear.

As the applicant did not file a request to the court to resume the proceedings within 4 months, on 14 June 1994 the court found that the applicant had withdrawn his claim.

The applicant appealed against the above decision and also filed an application to return the proceedings to the status quo ante .

On 15 July 1994 the Zagreb Municipal Court sent the case-file to the Zagreb County Court. That court, however, remitted the case to the Zagreb Municipal Court in order to decide upon the applicant’s application to return the proceedings to the status quo ante .

At the hearing on 12 June 1995 the court annulled its decision of 14 June 1994.

The hearings scheduled for 21 November 1995 and 14 March 1996 were adjourned since K. L. did not appear.

The hearing scheduled for 16 September 1996 was adjourned since the judge in the case had not been re-appointed.

The next hearing scheduled for 10 September 1998 was adjourned since K. L. did not appear.

At the hearing on 19 March 1999 the applicant gave testimony. The court invited the Zagreb Commercial Court to submit a certificate from its registry concerning the legal status of “L.K.M.”.

On 29 September 1999 the Zagreb Commercial Court submitted the requested certificate.

Subsequently, the presiding judge died and the case-file lay dormant for a certain period before it was assigned to another judge.

At the hearing on 28 June 2000 the applicant’s counsel withdrew the claim in respect of “L.K.M.”. As K. L. did not appear the hearing was adjourned.

The hearing scheduled for 26 September 2000 was adjourned since K. L. again failed to appear.

The next hearing was scheduled for 5 April 2001 but the applicant asked the court to re-schedule it because he was unable to attend. The court decided to schedule the next hearing upon the applicant’s request. So far the applicant has not submitted any such request.

10. Proceedings against “.F. C. F.” and its owner K. F.

The proceedings commenced on 28 October 1993 when the applicant filed an action with the Zagreb Municipal Court for re-payment of his loan in the amount of DEM 14,500 and ATS 5,000.

The preliminary hearing scheduled for 8 March 1994 was adjourned since neither party appeared. The documents showed that the applicant had received the notice of the hearing date, while K. F.’s address was incorrect.

On 13 March 1995 the court invited the applicant to submit K. F.’s correct address.

On 28 March 1995 the applicant submitted the requested address.

The hearing scheduled for 15 June 1995 was adjourned since K. F. did not appear. The documents showed again that his address had been incorrect. The court again invited the applicant to submit K. F.’s correct address. The court repeated that request on 9 December 1996.

The next hearing scheduled for 5 June 1997 was adjourned since neither party appeared.

The court again invited the applicant to submit K. F.’s correct address. However, the applicant did not collect the letter sent by registered mail on three occasions.

On 25 June 1999 the applicant submitted K. F.’s address in the United States.

The hearing scheduled for 2 March 2000 was adjourned since neither party appeared.

The hearing scheduled for 14 December 2000 was adjourned since K. F. did not appear.

The next hearing is scheduled for 17 December 2001.

B. Relevant domestic law

The relevant parts 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:

Section 59 (4)

“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

The applicant complains under Article 6 § 1 of the Convention about the length of the civil proceedings.

He also 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 that the proceedings concerning his civil actions for re-payment of loans have not been concluded within a reasonable time as required by 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...”

a) The Government submit firstly that the part of the application relating to events which 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.

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 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 satisfied 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 under Article 13 of the Convention that, to avoid prejudging the latter, both issues should be examined together. Accordingly, the Court considers that the final determination of the issue concerning the exhaustion of domestic remedies should be joined to the merits and reserved for later consideration.

c) In the alternative the Government invite the Court to conclude that the application does not disclose any appearance of a violation of Article 6 of the Convention in respect of the complaint raised, in particular having in mind the time which has elapsed after the entry into force of the Convention in respect of Croatia. They submit that the subject matter of the applicant’s cases did not call for particular urgency in deciding them. 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 Government contend also that the behaviour of the applicant contributed to the delays

With respect to the behaviour of domestic authorities, the Government claim that the domestic courts showed diligence in the conduct of the proceedings. Furthermore, the proceedings partly took place during the war in Croatia when the normal operation of courts was impaired.

The applicant disagrees with the Government.

The Court considers, in the light of the criteria established in its case-law on the question of “reasonable time” (the complexity of the case, the applicant’s conduct and that of the competent authorities), and having regard to all the information in its possession, that an examination of the merits of this complaint is required.

2. The applicant submit also that he has no effective remedy in relation to the excessive length of the proceedings in his cases. 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

Decides to join to the merits the question relating to the exhaustion of domestic remedies;

Declares admissible the remainder of the application, without prejudging the merits of the case.

Vincent Berger Georg Ress Registrar President