FOURTH SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 52634/99 by Aleksandar FÃœTTERER against Croatia

The European Court of Human Rights ( Fourth Section) , sitting on 7 December 2000 as a Chamber composed of

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

Having regard to the above application introduced on 16 June 1999 and registered on 16 November 1999,

Having regard to the Section’s partial decision of 23 March 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 is a Croatian citizen, born in 1928 and living in Zagreb . The Government is represented by their Agent, Ms Lidija Lukina - Karajković .

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

On 5 July 1990 the applicant’s mother lodged a claim with the Zagreb Municipal Cour against the defendant Municipality of Črnomerec, Zagreb, concerning her property rights on a part of an apartment building situated within the area of the above-said municipality.

At the hearing on 17 January 1991 the defendant disputed the plaintiff’s allegations.

On 15 February 1991 the defendant submitted their response.

The next hearing took place on 2 February 1993.

On 9 November 1994 the Zagreb Municipal Court decided that it had no jurisdiction in that case.

On 6 December 1994 the applicant’s mother appealed that decision. The case file, however, was transmitted to the appellate court on 25 September 1996.

On 15 September 1997 the applicant’s mother died and the applicant was proclaimed her only heir. He continued the proceedings instituted by his mother.

On 12 May 1998 the Zagreb County Court annulled the Municipal Court’s decision and remitted the case for retrial.

The next hearing before the Zagreb Municipal Court took place on 21 September 1999.

On 2 May 2000 the court asked the applicant to adjust his claim in accordance with the changes in the law.

At the next hearing on 19 May 2000 the applicant submitted his adjusted claim and the court decided to seek a list of all flats in the concerned building and relevant data concerning the ownership of those flats. The next hearing was scheduled for 27 June 2000.

THE LAW

The applicant complains that the proceedings in his case were not 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 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. 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, the Podbielski v. Poland , no. 27916/95, § 31, ECHR 1998-VIII).

(b) The Government 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 failed to lodge a constitutional complaint pursuant to Article 59 § 4 of the 1999 Constitutional Act on the Constitutional Court ( Ustavni Zakon o Ustavnom sudu Republike Hrvatske ). 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 argues that Article 59 § 4 has been introduced only as from 29 September 1999, while his case had been pending before that date for about nine years. Furthermore, he argues that “serious and irreparable consequences” is a term susceptible to various interpretations and is not sufficiently clear.

The question, therefore, arises as to whether Article 59 § 4 of the new Constitutional Court Act applies to the present case. In this respect the Court notes that the new legislation was enacted on 29 September 1999 and is thus posterior to the introduction of the application before the Court, i.e. on 16 June 1999 and that it has not been established that the Constitutional Court could examine delays having occurred prior to the entry into force of the new Constitutional Court Act (see, mutatis mutandis , Chapus v. France (dec.), no 46693/99, ECHR 2000 and Rajak v. Croatia (dec.), no. 49706/99, ECHR 2000).

Accordingly, the exception of non-exhaustion of domestic remedies raised by the Government cannot be accepted.

(c) The applicant’s complaint relates to the length of the proceedings, which began on 5 July 1990 and are still pending. They have therefore already lasted for about ten years and five months, out of which three years and one month fall within the Court’s competence ratione temporis .

According to the applicant, the length of the proceedings is in breach of the “reasonable time” requirement laid down in Article 6 § 1 of the Convention. The Government reject that allegation.

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.

For these reasons, the Court unanimously

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

Vincent Berger Georg Ress Registrar President