FIRST SECTION

DECISION

Application no . 66934/09 Mladen KUNÅ TEK against Croatia

The European Court of Human Rights ( First Section ), sitting on 1 April 2014 as a Committee composed of:

Mirjana Lazarova Trajkovska , President, Linos -Alexandre Sicilianos , Ksenija Turković , judges, and André Wampach , Deputy Section Registrar ,

Having regard to the above application lodged on 30 November 2009 ,

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 Mladen Kunštek , is a Croatian national, who was born in 1970 and lives in Cestica . He was represented before the Court by Mr H. Petrić , a lawyer practising in Zagreb. The Croatian Government (“the Government”) were represented by their Agent, Mrs Š. Stažnik .

A. The circumstances of the case

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

1. Criminal proceedings against K.D.

3 . On an unspecified date in 1996 an individual, K.D ., was indicted by the Varaždin State Attorney ’ s Office ( Općinsko državno odvjetništvo u Varaždinu ) at the Varaždin Municipal Court ( Općinski sud u Varaždinu ) on charges of causing severe bodily injuries to the applicant on 5 November 1995. Although the applicant was not a party to these proceedings, he was entitled to lodge a civil claim ( imovinskopravni zahtjev ) within the criminal proceedings.

4 . At a hearing on 5 October 1998 the applicant, who was not represented by a lawyer , made a claim “for compensation for damages according to the law”, but did not provide further details . The trial judge noted the claim in the written record of the hearing.

5 . In his written submissions to the Varaždin Municipal Court of 9 July 2001 the applicant made a specific civil claim, seeking compensation for non-pecuniary damage on account of the suffering and fear caused to him by K.D. ’ s attack.

6 . At a hearing held on 23 October 2001 the applicant was informed of his right to lodge a civil claim within the criminal proceedings. He then decided to withdraw his civil claim. The relevant part of the minutes from that hearing reads as follows:

“ The victim, present at the hearing and informed of his right to lodge a civil claim within the criminal proceedings, informed the court that he would withdraw his civil claim and seek damages from the accused in a separate set of civil proceedings. ”

7 . On 24 October 2001 the Varaždin Municipal Court found K.D. guilty as charged and handed down a suspended sentence of four months ’ imprisonment with a one-year probation period.

8 . K.D. appealed and on 4 December 2001 the Varaždin County Court ( Županijski sud u Varaždinu ) dismissed the c harges on the grounds that on 1 January 1998 a new Criminal Code had been adopted, under which the criminal offence of causing severe bodily injuries to another person was punishable by a prison term of between three months and three years, and that therefore the prosecution had become statute-barred on 6 November 2001.

2. Civil proceedings

9 . Meanwhile, on 26 October 2001 the applicant brought a civil action against K.D. in the Varaždin Municipal Court . He sought 3,000 Croatian kunas (HRK) for pecuniary damage on account of the medical assistance and care his injuries had required, and HRK 22,000 for non-pecuniary damage on account of harm caused to his reputation and honour and the fear he had suffered as a result of K.D. ’ s attack.

10 . On 18 December 2001 the Varaždin Municipal Court issued a default judgment ( presuda zbog izostanka ), accepting the applicant ’ s claim.

11 . On 17 January 2002 K.D. requested that the proceedings be restored to the status quo ante ( prijedlog za povrat u prijašnje stanje ). He argued that the summons to attend the hearing had been served on his wife instead of on him. He also disputed the applicant ’ s claim and lodged an appeal against the default judgment.

12 . On 8 May 2002 the Varaždin Municipal Court held a hearing at which the defendant ’ s wife gave evidence. She stated that she had had a row with the defendant at the time and had gone to the Czech Republic without informing him about the upcoming hearing. On the same day the Varaždin Municipal Court accepted the defendant ’ s request and restored the proceedings to the status quo ante .

13 . In his written submission of 24 July 2002, the defendant relied on section 376 of the Obligations Act and argued that the applicant ’ s claim was statute-barred.

14 . On 26 September 2005 the Varaždin Municipal Court adopted a judgment dismissing the claim. The relevant part of that judgment reads as follows:

“ ... t he claim of the plaintiff, Mladen Kunštek , is hereby dismissed ...

According to the expert opinion ... the plaintiff suffered from high - intensity mental pain caused by the damage to his reputation and honour during the six months following the incident , from a strong fear for one hour following the incident and from mild fear for one month thereafter .

As the incident happened on 5 November 1995, the court considers, relying on the expert opinion and section 376(1) of the Obligations Act , that the three-year statutory deadline for claiming damages concerning the plaintiff ’ s honour and reputation started running on 6 November 1995 at the latest and expired on 6 November 1998 . A s regards the fear suffered , it started running on 6 December 1995 at the latest and expired on 6 December 1998 at the latest . This means that both parts of that claim became time-barred before the plaintiff had brought his action in this court, on 26 October 2001.

...

Given that the defendant was not convicted in the criminal proceedings, but the charges against him were dismissed, section 377 of the Obligations Act is not applicable to this case ... it applies only when the existence of a crime and the liability of the perpetrator have been determined by a final judgment of the criminal court, which means that there are no grounds to apply the so-called privileged statutory limitation period to this case.

The plaintiff ’ s argument that the running of the statutory limitation period was interrupted when he instituted civil proceedings within three months from the date of the second-instance decision dismissing the charges against the defendant is legally unfounded.

... c riminal proceedings per se do not interrupt the running of the statutory limitation period as regards claims for damages. Victims have to lodge a civil claim within the criminal proceedings ... ”

The applicant appealed against th at judgment, arguing that the Municipal Court had miscalculated the statutory limitation period and that the defendant ’ s request for restoring the proceedings to the status quo ante should have been dismissed.

15 . On 13 June 2007 the Varaždin County Court dismissed the applicant ’ s appeal, endorsing the reasoning of the Varaždin Municipal Court as regards the statutory limitation period and finding the appeal against the decision to restore the proceedings to the status quo ante inadmissible. The relevant part of that judgment reads as follows:

“ The plaintiff ’ s appeal is hereby dismissed as unfounded ...

[The court accepts] the plaintiff ’ s argument that the conditions for restoring the proceedings to the status quo ante ... had not been met ...

... as the fact that the defendant ’ s wife had failed to serve the plaintiff ’ s claim and the summons to the defendant was not a valid reason for restoring the proceedings.

Nevertheless, an appeal against the decision on restoring the proceedings to the status quo ante is ... inadmissible ... unless the request for restoring the proceedings was lodged ... out of time ...

In addition, the default judgment was not rendered lawfully ... since the validity of the claim did not stem from its statement of facts ... and that judgment would in any event be quashed following an appeal by the defendant ...

In the particular circumstances of the case, the damage which is the subject matter of the plaintiff ’ s claim was not caused as a consequence of a criminal offence, given that the criminal proceedings against the defendant ... were discontinued after dismissin g the charges ... and section 376 of the Obligations Act is applicable ...

Criminal proceedings per se do not stop the running of statute s of limitation as regards damages, but the victim has to lodge a civil claim within the criminal proceedings and , after being instructed to lodge a claim in civil proceedings, bring a civil claim for damages within three months ... only then will the making of a claim within criminal proceedings interrupt the running of the statutory limitation period ...

... it is therefore evident that all parts of the plaintiff ’ s claim became time-barred in accordance with section 376 of the Obligations Act. ”

The applicant lodged a constitutional complaint against that judgment.

16 . On 7 October 2009 the Constitutional Court ( Ustavni sud Republike Hrvatsk e ) dismissed the applicant ’ s constitutional complaint as without merit.

B. Relevant domestic law and practice

1. Relevant domestic law

17 . The relevant provisions of the Civil Obligations Act ( Zakon o obveznim odnosima , Official Gazette nos. 53/1991, 73/1991, 3/1994, 7/1996, 112/1999) , as in force at the relevant time, provided as follows:

Section 360

“(1) The right to claim fulfilment of an obligation shall cease when the statutory limitation period has expired.

(2) The statute of limitations [bars a right to claim] when the statutory prescribed period in which a creditor could have claimed fulfilment of an obligation has expired.

...”

Section 376

“(1) A claim for damages shall become statute-barred three years after the injured party learned about the damage and the identity of the person who caused it.

(2) In any event that claim shall become statute-barred five years after the damage occurred.

...”

Section 377

“(1) Where the damage was the result of a criminal offence and the statutory limitation period for criminal prosecution is longer, the claim for damages against the person responsible becomes statute-barred at the same time as the criminal prosecution.

(2) The interruption of the statutory limitation period in respect of criminal prosecution entails the interruption of the statutory limitation period in respect of a claim for damages.

...”

Section 388

“The statutory limitation period is interrupted by the lodging of a civil action or any other action by a creditor against a debtor, before a court or other competent body, which is brought in order to secure or enforce the creditor ’ s claim.”

Section 389

“ (1) An interruption of a limitation period resulting from the bringing of a civil action in a court or from the taking of any other legal action before an other competent authority by the creditor against the debtor with a view to determining, securing or enforcing his or her right, is considered never to have occurred if the creditor abandons the civil action or any other action undertaken .

... ”

Section 392

“...

(3) Where the statutory limitation period has been interrupted by the lodging of a civil action or other request ... it shall start to run again after the termination of the proceedings.

...”

18 . The relevant provisions of the Criminal Code ( Kazneni zakon , Official Gazette nos. 110/1997, 27/1998, 50/2000, 129/2000, 51/2001, 111/2003, 190/2003, 105/2004, 84/2005, 71/2006, 110/2007, 152/2008, 57/2011, 143/2012 ) , as in force at the relevant time, provided as follows:

Article 18

“(1) On account of the statute of limitations, the criminal legislation of the Republic of Croatia may not be applied after the period determined by this Code has elapsed. The period is calculated from the time the offence was committed, sentence was pronounced or another criminal sanction was ordered.

...”

Article 19

“(1) Criminal prosecutions for the purposes of applying the criminal legislation of the Republic of Croatia ... may not be instituted after the expiry of the following periods, calculated from the time the offence was committed:

...

- three years if the case concerns a criminal offence punishable by more than one year ’ s imprisonment,

...”

Article 20

(1) The limitation period shall start to run from the date on which the offence was committed.

...

(3) The statutory limitation period shall be interrupted each time a procedural step is taken concerning the prosecution of the offence.

...

(5) The statutory limitation period shall start to run again after each interruption.

(6) Criminal prosecutions shall in all cases become time-barred after the expiry of the double statutory limitation period .”

19 . The relevant provisions of the Code of Criminal Procedure ( Zakon o kaznenom postupku , Official Gazette nos. 110/1997, 27/1998, 58/1999, 112/1999, 58/2002, 143/2002, 62/2003, 178/2004, 115/2006 ) , as in force at the relevant time, provided as follows:

Article 127

“(1) A claim for compensation for damage caused by a criminal offence shall be examined in the criminal proceedings where so requested by authorised persons, provided that this does not cause significant delays in the proceedings.

...”

Article 128

“A claim for compensation in criminal proceedings may be lodged by persons entitled to lodge such a claim in civil proceedings.”

Article 130

“Persons entitled to lodge a claim for compensation (Article 128) may, until the end of the trial, withdraw their claim in the criminal proceedings and pursue it in civil proceedings. ... ”

Article 352

“(1) The court can, by means of a judgment, dismiss the charges, acquit the accused or find him or her guilty.”

Article 353

“The court shall issue a judgment dismissing the charges:

...

(6) if the accused has been exempted from prosecution by an amnesty or pardon, or if the statutory limitation period has expired, or if other circumstances barring prosecution exist. ”

2. The practice of the domestic courts

20 . The Supreme Court, in its decision no. Rev-2563/1992-2 of 6 April 1993, examined the possibility for a court in civil proceedings to assess the statutory limitation period under section 377 of the Civil Obligations Act if criminal liability had not been established by a final criminal court judgment. The relevant part of the decision reads as follows:

“The conclusion of the lower courts that section 377 of the Civil Obligations Act is applicable only if the criminal offence has been established by a final judgment of the criminal court is incorrect. This is because, according to well-established case-law, if damage has been caused by a criminal offence but no criminal proceedings have been instituted or concluded against the perpetrator because of his death or mental illness, or the offence at issue has been exempted from prosecution by a pardon or amnesty, or if there exist some other circumstances preventing criminal responsibility from being established or barring the criminal prosecution, the fact that the damage was caused by a criminal offence may, if the defendant has invoked the statute of limitations, be established (as a preliminary issue) in the civil proceedings.

It is also to be noted that the longer statutory limitation period under section 377 of the Civil Obligations Act is applicable not only in respect of the perpetrator of the criminal offence but also in respect of the person responsible for the damage.”

21 . The domestic courts of appeal, on the subject of the possibility for a civil court to apply a longer statutory limitation period under section 377 of the Civil Obligations Act, held that this could be applied only if it had been established by a final judgment of the criminal court that the damage had been caused as the result of a criminal offence.

The relevant part of the appeal decision of the Bjelovar County Court ( Županijski sud u Bjelovaru ) of 22 April 1999 (no. Gž-626/99) 1999 reads as follows:

“... The statutory limitation period under section 377 of the Civil Obligations Act, as a longer limitation period, can be applied only if it has been established by a judgment of a criminal court that the damage was caused by a criminal offence. This limitation period cannot be applied if the criminal proceedings were terminated by a decision without a finding of guilt in respect of the person responsible. However, there is some doubt as to whether the civil court is allowed to establish whether the damage was caused by a criminal offence.

The civil court is allowed to do so only if there existed some circumstances barring the criminal prosecution, with the result that no criminal proceedings could be conducted against the perpetrator. Only then, in order to assess the statutory limitation period in respect of damage caused by a criminal offence, may the civil court itself establish whether the damage was caused by acts constituting a criminal offence.”

The same approach was followed in the appeal judgment of the Varaždin County Court ( Županijski sud u Varaždinu ) of 3 February 2003 (no. Gž ‑ 151/03-2) , concerning a case where the alleged perpetrator of the offence had died during the criminal proceedings.

COMPLAINT

22 . The applicant complained under Article 6 § 1 of the Convention that, owing to the erroneous application of the statutory limitation period, he had been deprived of his right of access to court .

THE LAW

23 . The applicant complained that he had not had access to court as provided for under Article 6 § 1 of the Convention, which reads as follows:

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

1. The parties ’ arguments

24 . The applicant submitted that the criminal courts had failed to decide on his civil claim and that the civil courts had failed to acknowledge that his claim of 5 October 1998 (see paragr aph 4 above) had interrupted the running of the statutory limitation period .

25 . The Government argued that the applicant had failed to exhaust domestic remedies as he had not complained about the alleged violation of his right of access to court before the Constitutional Court.

26 . The Government further underlined the fact that the applicant had withdrawn his civil claim within the criminal proceedings at the hearing of 23 October 2001. In the Government ’ s view, t he criminal court therefo re could neither decide upon the applicant ’ s claim nor direct him to pursue his claim in the civil proceedings.

27 . In his reply to the Government ’ s observations, the applicant argued that , as a layman without legal representation in the criminal proceedings , he should have been instructed by the court how to proceed with his civil claim.

28. T he Government replied that the applicant had been properly informed of the possibility to lodge a civil claim at the hearing of 23 October 2001, but could not have been informed about the consequences of withdrawing the civil claim , as that would have violate d the principle of equality of arms. In the Government ’ s view, the applicant ’ s actions alone had made his civil claim time-barred.

2. The Court ’ s assessment

29 . The Court does not consider it necessary to examine all the arguments raised by the parties, since the application is in any event inadmissible for the following reasons .

30 . The Court notes at the outset that the applicant was not legally represented at the hearing of 23 October 2001 (see paragraph 6 above) . However, the Varaždin Municipal Court instructed him on that hearing about his rights as regards his civil claim. T he applicant then unequivocally withdrew his civil claim within the criminal p roceedings . Therefore, it is sufficient to observe that any effect the lodging of the civil claim within the criminal proceedings might have had on the running of the statutory limitation period w as thus annulled.

31 . Furthermore , it is in the first place for the national authorities, and notably the courts, to interpret and apply the domestic law . This applies in particular to the interpretation by the courts of rules of a procedural nature (see Tejedor García v. Spain , 16 December 1997, § 31, Reports of Judgments and Decisions 1997 ‑ VIII ).

32 . The Court therefore accepts the reasoning of the domestic courts that the statutory limitation period had started to run on 6 December 1995 and was not interrupted until 26 October 2001.

33. It remains to be seen whether the claim lodged by the applicant in the meantime became time-barred. In this regard the Court notes that the general statutory limitation period under section 376 of the Obligations Act (see paragraph 17 above) expired about three years before the applicant instituted civil proceedings. As regards the so-called privileged statutory limitation period (see paragraphs 14 and 17 above), the Court refers to its findings in the Baničević case and concludes that section 377 of the Obligations Act is inapplicable in the present case (see Baničević v. Croatia ( dec. ), no. 44252/10, § 33, 2 October 2012) .

34. The Court notes that there was nothing prevent ing the applicant from lodging his civil action for damages within the general statutory limitation period under section 376 of the Civil Obligations Act or forcing him to withdraw his civil claim within the criminal proceedings . By his actions and omissions the applicant deprived the civil courts of the opportunity to examine his claim on the merits and placed himself in a situation in which he risked having his civil action declared time-barred (see Baničević , cited above, §§ 35 and 36).

35 . Therefore, it cannot be said that the statutory limitation period, or the manner in which it was applied in this case, impaired the very essence of the applicant ’ s right of access to a court.

36 . It follows that the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

André Wampach Mirjana Lazarova Trajkovska              Deputy Registrar President