FIRST SECTION

DECISION

Application no. 35262/15 Vigor KOMAR against Croatia

The European Court of Human Rights (First Section), sitting on 23 March 2021 as a Committee composed of:

Péter Paczolay , President, Gilberto Felici, Raffaele Sabato, judges, and Attila Teplán , Acting Deputy Section Registrar ,

Having regard to the above application lodged on 14 July 2015,

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

1 . The applicant, Mr Vigor Komar , is a Croatian national, who was born in 1949 and lives in Rijeka. He was represented before the Court by Mr V. Margan , a lawyer practising in Rijeka.

2 . The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik .

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

4 . On 23 April 2009 the Rijeka Municipal State Attorney ’ s Office instituted criminal proceedings against a certain Mr D.P. before the Rijeka Municipal Court ( Općinski sud u Rijeci ) charging him with fraud. Specifically, he was accused of concluding on 11 July 2004 a loan agreement with the applicant without the intention of ever returning him the borrowed 40,000 euros (EUR). The applicant, as the victim of the alleged criminal offence, participated in those proceedings as an injured party ( oštećenik ).

5 . On 14 October 2009 the applicant, as a private prosecutor, instituted criminal proceedings before the same court against Ms S.D. and Mr D.B. as co-perpetrators of the offence allegedly committed by D.P.

6 . On 11 January 2010 the Municipal Court joined the two sets of proceedings.

7 . On 15 February 2010 the applicant lodged a civil claim against D.P. in those criminal proceedings. He stated that he had already brought a civil action against D.P. seeking repayment of EUR 40,000 (see paragraph 14 below) and suggested that the criminal court instruct him to pursue that part of his civil claim in those civil proceedings. The applicant also sought 150,000 Croatian kunas (HRK) in compensation for non-pecuniary damage and suggested that he be instructed to pursue that part of his civil claim in the said civil proceedings as well.

8 . By a judgment of 28 May 2015 the Municipal Court acquitted the accused.

9 . On 16 February 2016 the Rijeka County Court ( Županijski sud u Rijeci ) gave judgment whereby it dismissed the appeals by the applicant and the State Attorney ’ s Office and upheld the first-instance judgment.

10 . On 30 June 2016 the Constitutional Court ( Ustavni sud Republike Hrvatske ) declared inadmissible a constitutional complaint lodged by the applicant against the County Court ’ s judgment finding that the proceedings complained of had not concerned the determination of a criminal charge against him.

11 . Meanwhile, on 12 December 2014, the applicant lodged a request for protection of the right to a hearing within a reasonable time with the President of the Rijeka Municipal Court – an acceleratory remedy under the 2013 Courts Act – complaining of the excessive length of the above criminal proceedings (see paragraphs 4-10). Even though the remedy was purely acceleratory the applicant also sought to be awarded compensation for the excessive length of those proceedings.

12 . By a decision of 29 December 2014 the President of the Municipal Court ordered that a decision in the criminal proceedings in question be given within nine months, and dismissed the applicant ’ s claim for compensation.

13 . On 6 February 2015 the Rijeka County Court dismissed an appeal by the applicant against that decision.

14 . On 2 March 2009 the applicant brought a civil action against D.P. in the Rijeka Municipal Court. The applicant initially sought EUR 57,000 for the breach of the loan agreement of 11 July 2004 (see paragraph 4 above) and HRK 1 as compensation for non-pecuniary damage sustained. However, on 15 September 2010 he amended his claim and eventually sought that D.P. pay him back EUR 40,000 together with the accrued statutory default interest, and to pay him HRK 150,000 in compensation for non-pecuniary damage.

15 . By a judgment of 5 November 2010 the Rijeka Municipal Court allowed the applicant ’ s claim in part and ordered D.P. to pay him EUR 40,000 together with the accrued statutory default interest. At the same time, the court dismissed the applicant ’ s claim for non-pecuniary damages.

16 . On 14 November 2012 the Rijeka County Court dismissed an appeal by the applicant and upheld the first-instance judgment, which thus became final on the same day and enforceable on 2 January 2013.

Relevant legal framework

17 . Relevant domestic law and practice concerning length ‑ of ‑ proceedings remedies in Croatia is set out in Mirjana Marić v. Croatia , no. 9849/15, §§ 29-41, 30 July 2020.

18 . Under the Croatian the injured parties can pursue their civil claim either in the criminal proceedings or by instituting separate civil proceedings. If the civil claim is decided in the criminal proceedings the examination of that claim is considered as civil proceedings within criminal proceedings. Under Croatian criminal procedure law the courts in criminal proceedings cannot dismiss the claim by the injured party or declare it inadmissible. They can either (a) allow the claim in full or in part, but only if they find the accused guilty, or (b) instruct the injured party to pursue it by instituting separate civil proceedings. Criminal Procedure Act ( Zakon o kaznenom postupku , Official Gazette no. 152/08 with further amendments) in section 158(3) provides that when a criminal court renders a judgment acquitting the accused or dismissing the charge or a decision discontinuing the criminal proceedings, it has to instruct the injured party to pursue his or her civil claim in civil proceedings.

19 . Croatian law of civil procedure prohibits concurrent litigation (parallel proceedings, lis alibi pendens ) in the same case or reconsideration in new proceedings of a case already decided ( ne bis in idem as an aspect of the res judicata principle). Section 288(2) of the Civil Procedure Act ( Zakon o parničnom postupku , Official Gazette no. 53/91 with further amendments) provides that a civil court must declare a civil action inadmissible if the same case is already being examined in other proceedings or if a final judgment had already been adopted in the same case. If a civil court erred in this respect such error constitutes a serious breach of procedure which an appellate court must examine of its own motion. What constitutes the same case ( idem res ) is in practice determined either only by the type of the relief sought (claim), or both by the type of the relief sought and the underlying facts.

COMPLAINT

20 . The applicant complained under Article 6 § 1 of the Convention that the length of the criminal proceedings (see paragraphs 4-10 above) in the present case had been in violation of his right to a hearing within a reasonable time, and that the violation in question had not been not remedied at the domestic level as he had not received any compensation for it.

THE LAW

21 . The applicant complained that the length of the criminal proceedings in the present case had been incompatible with the “reasonable time” requirement, laid down in Article 6 § 1 of the Convention, and that he had not received any compensation for their excessive length. The relevant part of Article 6 § 1 of the Convention reads as follows:

“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”

22 . The Government argued that the applicant had not exhausted domestic remedies, and that this complaint was, in any event, manifestly ill ‑ founded.

23 . The Court does not find it necessary to examine either of the inadmissibility objections raised by the Government or to reproduce the parties ’ arguments in detail because this complaint is in any event inadmissible for the following reasons (see paragraphs 24-32 below).

24 . The Court notes that the Government did not contest the applicability of Article 6 § 1 to the criminal proceedings in question. However, the issue whether a particular Article of the Convention or a Protocol thereto is applicable or not is a matter that goes to the Court ’ s jurisdiction ratione materiae . The scope of the Court ’ s jurisdiction is determined by the Convention itself, in particular by its Article 32, and not by the parties ’ submissions in a particular case. Accordingly, the Court, has to satisfy itself that it has jurisdiction in any case brought before it, and is therefore obliged to examine the question of its jurisdiction of its own motion (see Blečić v. Croatia [GC], no. 59532/00, § 67, ECHR 2006‑III, and Nylund v. Finland ( dec. ), no. 27110/95, 29 June 1999).

25 . In this connection the Court reiterates that for Article 6 § 1 to be applicable the proceedings complained of must concern either the determination of the applicant ’ s civil rights and obligations or a criminal charge against him or her (see paragraph 21 above).

26 . The Court notes at the outset that the applicant was not the accused in the criminal proceedings complained of (see paragraphs 4-10 above). Thus, the criminal limb of Article 6 § 1 does not apply. However, Article 6 § 1 under its “civil head” may apply to criminal proceedings involving a determination of pecuniary claims asserted by the injured parties (so-called “civil-party complaints”) and, even in the absence of such claims, to those criminal proceedings the outcome of which is decisive for the “civil right” in question (see Perez v. France [GC], no. 47287/99, §§ 65-67 and 71, ECHR 2004-I).

27 . In the present case the applicant participated in the criminal proceedings as an injured party and as a private prosecutor and lodged his civil claim in those proceedings (see paragraphs 4-5 and 7 above).

28 . However, he also pursued the same civil claim in separate civil proceedings which he had instituted before lodging his civil claim in the criminal proceedings (see paragraphs 7 and 11 above). Croatian law prohibits such concurrent litigation in respect of the same claim and gives precedence to those proceedings which were instituted first, by obliging the civil courts to declare a civil action inadmissible if the same claim is already being examined in another proceedings (see paragraph 18 above). The criminal courts are bound by the same rules as regards civil claims, the only difference being that they cannot formally declare such claims inadmissible (see paragraph 19 above).

29 . The Court further notes that the said civil proceedings, which the applicant instituted before lodging his civil claim in the criminal proceedings, were not stayed pending the outcome of the criminal proceedings. Rather, the civil courts examined the case and adopted a judgment which became final on 14 November 2012 (see paragraphs 15-16 above).

30 . In these circumstances and having regard to the relevant domestic law (see paragraphs 18-19 and 28 above), the Court finds that the fact that the applicant lodged his civil claim in the criminal proceedings was of no effect for its determination because that claim was already being determined in the then ongoing civil proceedings.

31 . It follows that the criminal proceedings complained of were not decisive for, and thus did not concern, the determination of the applicant ’ s civil rights and obligations. Article 6 § 1 of the Convention was thus not applicable to those proceedings.

32 . It follows that this complaint is inadmissible as being incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected pursuant to Article 35 § 4.

33 . Being master of the characterisation to be given in law to the facts of the case (see Guerra and Others v. Italy , 19 February 1998, § 44, Reports of Judgments and Decisions 1998 ‑ I, and Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, § 124, 20 March 2018), the Court when giving notice of the application to the Government also invited the parties to submit observations under Article 13 of the Convention. It did so because it considered that, by complaining that the breach of his right to a hearing within a reasonable time had not been remedied at the domestic level given that he had not received any compensation (see paragraphs 20-21 above), the applicant in substance complained also of the lack of an effective remedy. Article 13 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.”

34 . The Government argued that the applicant had not complained of the lack of an effective remedy and that this complaint was, in any event, manifestly ill-founded.

35 . The Court reiterates that Article 13 does not contain a general guarantee of legal protection of all substantive rights. It relates exclusively to those cases in which the applicant alleges, on arguable grounds, that one of his rights or freedoms set forth in the Convention has been violated (see, for example, Gavella v. Croatia ( dec. ), no. 33244/02, ECHR 2006 ‑ XII (extracts)).

36 . In this connection the Court refers to its findings above (see paragraph 33) according to which the applicant ’ s complaint under Article 6 § 1 of the Convention is outside its competence ratione materiae .

37 . It follows that this complaint is also inadmissible as being incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected pursuant to Article 35 § 4.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 22 April 2021 .

Attila Teplán Péter Paczolay Acting Deputy Registrar President