FOURTH SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 50941/99 by Julijana UGLEŠIĆ against Croatia

The European Court of Human Rights (Fourth Section), sitting on 11 October 2001 as a Chamber composed of

Mr A. Pastor Ridruejo , President , Mr L. Caflisch , Mr J. Makarczyk , Mr I. Cabral Barreto , Mrs N. Vajić , Mr M. Pellonpää ,

Mrs S. Botoucharova , judges , and Mr V. Berger , Section Registrar ,

Having regard to the above application introduced on 21 March 1999 and registered on 16 September 1999,

Having regard to the partial decision of 7 September 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, Ms Julijana Uglešić , is a Croatian citizen, born in 1943 and living in Zagreb . She is represented before the Court by Ms Gordana Lukač Koritnik , a lawyer practising in Zagreb . The respondent Government are represented by their Agent Ms Lidija Lukina-Karajković .

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

On 22 March 1995 the applicant filed with the Zagreb Municipal Court ( Općinski sud u Zagrebu ) a civil action against M. Ž. for payment of damages related to her flat in Zagreb .

Until 5 November 1997, when the Convention entered into force in respect of Croatia, that court held numerous hearings and examined an expert opinion.

After the date of the entry into force of the Convention in respect of Croatia, i.e., 5 November 1997, the first hearing scheduled for 13 March 1998 was adjourned since neither party appeared.

The next hearing was held on 8 July 1998. The applicant’s counsel asked the court to carry out an on the spot investigation. On 20 July 1998 the court scheduled a visit to the premises for 25 September 1998 and invited an expert to attend. The applicant asked the court to postpone that visit. The next visit was scheduled for 1 October 1998, but the applicant again asked the court to postpone it.

The next hearing scheduled for 4 December 1998 was adjourned since the applicant failed to appear. The documents showed that she had failed to collect the notice of the hearing date.

The next hearing scheduled for 24 March 1999 was adjourned since on 3 March 1999 the applicant informed the court that she refused any further participation in the proceedings.

On 13 April 1999 the court asked the applicant to clarify whether her refusal to participate in the proceedings was a motion for challenging the Zagreb Municipal Court for bias. On 20 April 1999 the applicant replied in the negative.

The next hearing scheduled for 8 December 1999 was adjourned since the applicant failed to appear. The documents showed that she had failed to collect the notice of the hearing date.

At the next hearing on 4 May 2000 the court decided to stay the proceedings since the applicant failed to appear although she had received the notice of the hearing date. The court sent that decision to the applicant on 10 May 2000, but the applicant failed to collect it. The court sent it again on 4 June 2000 and the applicant received it on 29 June 2000.

As neither party submitted a request to continue the proceedings within three months after the decision to stay the proceedings, the court decided on 30 October 2000 that the action had been withdrawn. The decision was sent to the parties on 31 October 2000. The documents showed that M. Ž.’s counsel had received it on 4 December 2000, while the applicant had failed to collect it although the court had attempted to sent it to her 13 times. The last attempt was made on 12 July 2001.

COMPLAINTS

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

She also complains under Article 13 of the Convention that she has no effective remedy as regards to the length of those proceedings.

THE LAW

The applicant complains that the proceedings concerning her civil action for damages has 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 failed to lodge a constitutional complaint pursuant to Section 59 (4) of the newly revised Constitutional Court Act. That Act 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 and submits that a possibility to file a complaint pursuant to Section 59 (4) of the 1999 Constitutional Court Act did not exist at the time when she lodged her application with the Court, but only as of 29 September 1999. In addition, such a complaint is not effective as the Constitutional Court’s decision would only have instructive character and would not bind the lower courts.

The Court recalls that on 26 July 2001 in the case of Horvat v. Croatia it found that the complaint pursuant to Section 59 (4) of the 1999 Constitutional Court Act was not an effective remedy in respect of the length of the proceedings in Croatia (see Horvat v. Croatia , no. 51585/99, §§ 34-48, 26 July 2001, unpublished). The Court has not found it established that the circumstances of the present case give reason to depart from its view expressed in that case.

It follows that the Government’s objection as to the exhaustion of domestic remedies has to be rejected.

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. 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 so-called “dismissal cases”.

As to the behaviour of the applicant the Government contend that the entire length of the proceeding is attributable to her as ever since 20 July 1998 she has been refusing to participate in the proceedings. Firstly, she asked the court to postpone several on the spot investigation, she failed to appear on several hearings and she has been continuously refusing to collect the court’s letters sent to her. The applicant has had seven different legal representatives in the proceedings but for various reasons denied each of them the power of attorney and is now without any legal representation.

As to the behaviour of domestic authorities the Government point out that in the civil proceedings the courts are limited in their activity as they may not take procedural steps on their own initiative but mostly according to the requests of the parties. They contend further that the Zagreb Municipal Court showed due diligence in conducting the applicant’s case although each judge of the civil department of that court is assigned some one thousand case-files.

The applicant disagrees with the Government and submits that before she filed her application with the Court the proceedings had lasted for about four years and are still pending, which altogether amounts to more than six years. She submits that delays in the proceedings are in any respect attributable to her, but only to the behaviour of domestic authorities. The subject matter of the case is very simple and does not involve either factual or legal complexity. It would be sufficient to obtain a single expert opinion as to the extent of damages on the applicant’s flat caused by the defendant. However, the Zagreb Municipal Court showed its incompetence in dealing with the case.

The Court observes that, although the case does not appear to involve either legal of factual complexity, in the period to be taken into account, the proceedings have been hindered primarily due to the applicant’s behaviour. It appears that the Zagreb Municipal Court scheduled hearings at regular intervals. However, six hearings were adjourned due to the applicant’s absence. Furthermore, although the applicant asked the court to carry out an on the spot investigation, she twice asked the court to cancel scheduled visits to the premises. In addition, on 20 April 1999 the applicant herself expressly informed the court that she refused further participation in the proceedings. She has also been refusing to collect any notices or decisions sent to her by the court.

In conclusion, the Court finds that the delays that occurred after the entry into force of the Convention in respect of Croatia are attributable to the applicant.

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. The applicant complains further that she has no remedy in respect of the length of the civil proceedings for damages. She 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.”

The Government contend that the applicant has an effective remedy - a constitutional complaint pursuant to Section 59 (4) of the 1999 Constitutional Court’s Act.

The applicant disagrees with the Government.

The Court does not find it necessary to answer the point raised by the Government since the application is in any event inadmissible for the following reasons.

The Court recalls that Article 13 of the Convention guarantees the availability at the national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they might happen to be secured in the domestic legal order. The effect of Article 13 is thus to require the provision of a domestic remedy to deal with the substance of an “arguable complaint” under the Convention and to grant appropriate relief although Contracting States are afforded some discretion as to the manner in which they conform to their Convention obligations under this provision (see e.g. Boyle and Rice v. the United Kingdom judgment of 27 April 1988, Series A no. 131, pp. 23-24, §54-55). In this respect the Court notes that in present case the applicant complains under Article 6 § 1 of the Convention about the length of the civil proceedings. However, the Court notes also that, in the period which falls into the Court’s competence ratione temporis , the applicant has refused to participate in the proceedings. The Court considers, therefore, that the applicant does not have, as regards the length of the proceedings, an arguable claim under Article 6 § 1 of the Convention.

It follows that the applicant’s complaint under Article 13 of the Convention 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 inadmissible the remainder of the application.

Vincent Berger Antonio Pastor Ridruejo Registrar President