FOURTH SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 48485/99 by Nikola MLADENIĆ against Croatia

The European Court of Human Rights, sitting on 14 June 2001 as a Chamber composed of

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

and Mr V. Berger , Section Registrar ,

Having regard to the above application introduced on 12 March 1999 and registered on 1 June 1999,

Having regard to the partial decision on admissibility 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

A. The circumstances of the case

The applicant, Nikola Mladenić , is a Croatian citizen, born in 1934, and living in Kukljanovo . 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.

According to the applicant, he lodged a constitutional complaint on 15 June 1995 against the Supreme Court’s ( Vrhovni sud Republike Hrvatske ) judgment of 7 September 1994, upholding the first instance judgment by which the applicant had been convicted of war crimes against the civilian population. At that time he was serving his sentence in the Lepoglava prison. The applicant complained about the fairness of the proceedings alleging that the lower courts erroneously assessed the facts of the case and that the rules of procedure were violated.

According to the Government, the applicant’s constitutional complaint was lodged on 18 July 1995.

The Constitutional Court ( Ustavni sud Republike Hrvatske ) did not acknowledge receipt of the applicant’s complaint.

On 24 September 1995 and 27 January 1997 the applicant asked the Constitutional Court to speed up the proceedings. His letters were sent from the Lepoglava prison and the address of the Lepoglava prison was indicated on the letters.

By decree of the President of Croatia of 28 May 1997, the applicant was amnestied from serving the rest of his sentence and released from prison.

As, meanwhile, due to his conviction for war crimes, the applicant and his family had lost a specially protected tenancy on a flat in Rijeka they previously occupied, they moved to the village of Kukljanovo , Croatia.

According to the applicant, he notified the Lepoglava prison authorities of his new address in Kukljanovo , as well as of his telephone number there.

According to the Government the applicant failed to notify either the Constitutional Court or the Lepoglava prison authorities about his new address in Kukljanovo . In support of this fact the Government submit a copy of the applicant’s prisoner’s card where the only indicated address is the one in Rijeka and no further changes were entered.

It is undisputed between the parties that the applicant did not notify the Constitutional Court of his new address.

The Government submit further that on 3 March 1998 the Constitutional Court requested the applicant to submit a copy of the contested judgment . The letter was sent to the Lepoglava prison. However, the Lepoglava prison authorities returned the letter stating that the applicant had been released from prison and was living at the address in Rijeka .

According to the Government the Constitutional Court’s above request was sent to the applicant at the Rijeka address on 16 March 1998. It was, however, returned to the court stating that the applicant was no longer living there. On 30 March 1998 another unsuccessful attempt was made to deliver the Constitutional Court’s letter to the applicant at the same address.

On 2 April 1998 the court placed the letter to the applicant on its public notice-board, where it stayed posted until 15 April 1998.

On 28 September 1998 the Constitutional Court terminated the proceedings concerning the applicant’s constitutional complaint. It stated that the applicant had failed to submit a copy of the contested judgment and that the letters subsequently sent to the applicant were returned to the Court stating that the applicant did not live at the address indicated. The court deemed that the applicant had withdrawn his complaint.

On 21 October 1998 the applicant asked the Constitutional Court once more to speed up the proceedings concerning his constitutional complaint, indicating his address in Kukljanovo .

On 27 October 1998 the Constitutional Court sent a letter to the applicant informing him that the proceedings had been terminated.

On 6 November 1998 the applicant lodged a request to have his case restored, although in respect of the proceedings before the Constitutional Court such possibility does not exist under Croatian law. On 27 January 1999 he asked the Constitutional Court to reply to his request. He has received no answer.

B. Relevant domestic law

The relevant provisions of the Rules of the Constitutional Court ( Poslovnik Ustavnog Suda Republike Hrvatske - Official Gazette 29/94) provide as follows:

Section 25 provides that when a party’s written submissions to the court do not contain the information the court needs it must instruct the party concerned to submit such information within a certain time. If the party fails to comply with the court’s instructions, the court will deem that party to have withdrawn its submissions.

Section 36 provides that when it is not possible to serve letters or decisions of the court on a party, they shall be placed on the court’s public notice-board.

Section 51 § 2 provides that when lodging a constitutional complaint a party must submit a copy of the contested decision.

The relevant parts of the 1991 Constitutional Act on the Constitutional Court ( Ustavni zakon o Ustavnom sudu ) provides as follows:

Section 30

“By the decision granting a claim, the impugned decision that violated a constitutional right is quashed and the case is remitted to the competent body for retrial.”

COMPLAINT

The applicant complains that he was deprived of an effective remedy due to the fact that the Constitutional Court terminated the proceedings concerning his constitutional complaint.

THE LAW

The applicant complains that the Constitutional Court terminated the proceedings concerning his constitutional complaint, as it wrongly deemed that he had withdrawn it. He alleges further that due to the termination of the constitutional proceedings he was deprived of the possibility of having examined the allegations of the violation of his constitutional rights.

The Court has examined this complaint under Article 6 § 1 of the Convention, the relevant part of which reads as follows:

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”

a) The Government argue 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.

As regards the facts of the present case the Court recalls that the applicant lodged his constitutional complaint in 1995. However, the Constitutional Court did not decide to terminate the proceedings in the applicant’s case before September 1998, i.e. well after the Convention had entered into force in respect of Croatia. In these circumstances the Court does not find that it is prevented ratione temporis from examining the complaint made and accordingly dismisses the Government’s objection in this respect.

b) The Government submit further that the present application is incompatible ratione personae with the provisions of the Convention in so far as the Constitutional Court proceedings were terminated due to the failure of the applicant himself to inform the court about his new address. Consequently, the applicant is not a victim of any violation of the rights guaranteed by the Convention since the termination of the proceedings of which he complains was his own fault.

The Court recalls that, according to its constant case-law, the application is incompatible ratione personae with the provisions of the Convention when it is directed against a State which is not a party to the Convention or against a private person or when the applicant fails to show that he might be a victim of a violation of the Convention rights.

The Court notes, however, that the present application is directed against a State that has ratified the Convention and against a decision by the Constitutional Court to terminate proceedings concerning the applicant’s constitutional complaint. Furthermore, the applicant may claim to be a victim of the violation of the rights guaranteed by the Convention because he alleges that the fact that the constitutional proceedings were terminated without the adoption of any decision on the merits of his complaint violated his right of access to a court which the Court will examine under Article 6 § 1 of the Convention.

Therefore, the objection of incompatibility ratione personae of the application must be dismissed.

c) The Government also invite the Court to declare the application inadmissible on the ground that the applicant failed to exhaust domestic remedies. In this respect they allege that the applicant’s constitutional complaint was declared inadmissible as he failed to submit, together with his constitutional complaint, a copy of the contested judgment .

The Court notes that the applicant complains that his right of access to a court was violated in so far as the Constitutional Court terminated the proceedings concerning his constitutional complaint. There was no domestic remedy to be exhausted in this respect.

Thus, the Government’s objection relating to non-exhaustion of domestic remedies must be dismissed.

d) As regards the substance of the complaint the Government invite the Court to declare the application inadmissible as being manifestly ill-founded. In this respect they contend that the applicant failed to submit, together with his constitutional complaint, a copy of the contested judgment . Furthermore, after his release from the Leoglava prison, he informed neither the Constitutional Court, nor the Lepoglava prison authorities about his new address. Thus, he prevented the Constitutional Court from serving on him a letter instructing him to submit a copy of the contested judgment . Consequently, the Constitutional Court only followed its rules of procedure, and placed the letter to the applicant on its public notice-board. As the applicant never complied with the requirement to submit a copy of the contested judgment , the Constitutional Court finally deemed that he had withdrawn his complaint and, accordingly, terminated the proceedings.

The applicant disagrees with the Government and claims that he notified the Lepoglava prison authorities about his new address and that the Constitutional Court could have asked the Lepoglava prison authorities about his whereabouts. Furthermore, although he had been in the Lepoglava prison on the address known to the Constitutional Court, the court had never during that period communicated with him. It took the Constitutional Court more than three years to invite him to submit a copy of the contested judgment .

The Court recalls that Article 6 § 1 contains guarantees of a fair trial, of which access to a court is one aspect. The degree of access afforded by the national legislation must be sufficient to secure the individual’s right to a court, having regard to the principle of the rule of law in a democratic society. For the right of access to be effective, an individual must have a clear, practical opportunity to challenge an act that is an interference with his rights (see the Bellet v. France judgment of 4 December 1995, Series A no. 333-B, p. 41, § 36).

The Court recalls further that Article 6 § 1 does not guarantee a right of bringing constitutional proceedings. Nevertheless, a Contracting State which sets up a possibility of challenging the constitutionality of the lower courts’ decisions may be required to ensure that persons within its jurisdiction enjoy before the Constitutional Court the fundamental guarantees in Article 6 (see, mutaits mutandis , in particular, the Delcourt v. Belgium judgment of 17 January 1970, Series A no. 11, pp. 14-15, § 25).

The Court is fully aware of the special role and status of a Constitutional Court, whose task is to ensure that the legislative, executive and judicial authorities comply with the Constitution and which, in those States that have made provision for a right of individual petition, affords additional legal protection to citizens at national level in respect of their fundamental rights guaranteed by the Constitution (see the Süßmann v. Germany judgment of 16 September 1996, Reports 1996-IV, p. 1171, § 37).

The Court recalls also that it has had to examine the question of the applicability of Article 6 § 1 of the Convention to proceedings in a Constitutional Court in a number of cases and has held that Constitutional Court proceedings do not in principle fall outside the scope of Article 6 § 1 (see the Süßmann judgment , cited above, § 39).

Thus, the Court notes that according to its well-established case-law on this issue the relevant test in determining whether proceedings come within the scope of Article 6 § 1 of the Convention, even if they are conducted before a Constitutional Court, is whether their outcome is decisive for the determination of the applicant’s civil rights and obligations or criminal charges against him (see, mutatis mutandis , the Süßmann judgment , cited above, § 41 and the Pammel and Probstmeier v. Germany judgment of 1 July 1997, Reports 1997-IV, p. 1109, § 53, and p. 1135, § 48, respectively).

The present case concerns the applicant’s conviction for war crimes. Following the judgment of the Supreme Court, the only avenue open to the applicant was a constitutional complaint whereby he alleged a breach of his constitutional right to a fair trial. In the event of a successful appeal, the Constitutional Court would not have confined itself to identifying the provision of the Croatian Constitution which had been breached. It would have quashed the impugned decision and remitted the case for retrial (see Article 30 of the 1991 Constitutional Act on the Constitutional Court). In such circumstances, the applicant would have been able to have the criminal charges against him re-determined in view of the Constitutional Court’s decision. The Constitutional Court proceedings were therefore decisive for determination of the criminal charges against the applicant.

However, the manner of application of Article 6 to proceedings before the Constitutional Court depends on the special features of the proceedings involved; account must be taken of the entirety of the proceedings in the domestic legal order and of the role of the Constitutional Court therein (see, mutatis mutandis , the Monnell and Morris v. the United Kingdom judgment of 2 March 1987, Series A no. 115, p. 22, para . 56).

The Court’s task is not to substitute itself for the competent Croatian authorities in determining the most appropriate policy for the operation of the Constitutional Court. It will therefore confine itself to examining the specific issues before it (see, among many other authorities, mutatis mutandis , the Philis v. Greece judgment of 27 August 1991, Series A no. 209, p. 21, § 61).

In this respect the Court recalls that Croatian law afforded the applicant the possibility of bringing a constitutional complaint challenging the lower courts’ decisions before the Constitutional Court. The court, however, terminated the proceedings due to the fact that the applicant had not complied with the formal requirements.

The Court considers that the applicant could reasonably have been expected to provide the Constitutional Court with his new address in order to have ready access to any mail addressed to him, particularly since he had lodged a constitutional complaint and had expected that further communication through correspondence with the Constitutional Court would take place. The authorities cannot be held responsible for barring his access to a court because the applicant failed to take the necessary steps to ensure receipt of his mail and was thereby unable to comply with the Constitutional Court’s request to submit a copy of the contested decision (see, mutatis mutandis , the Hennings v. Germany judgment of 16 December 1992, Series A 251-A, p. 11, § 26).

Thus, it cannot be said that the applicant was denied his right of access to a court.

It follows that this complaint 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 the application inadmissible.

Vincent Berger Georg Ress Registrar President