Resolution ResDH(2006)69 [1]

Execution of the judgment of the European Court of Human Rights Mikulić against Croatia

(Application No. 53176/99, judgment of 7 February 2002, final on 4 September 2002)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter referred to as “the Convention” and “the Court”);

Having regard to the final judgment in this case, transmitted by the Court to the Committee on 4 September 2002;

Recalling that the violations of the Convention found by the Court in this case concern: the infringement of the applicant ' s right to respect of her private life due to the inefficiency of the action she had brought to establish paternity, the excessive length of these proceedings and the lack of an effective remedy in this respect (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the mea s ures taken to comply with Croatia ' s obligation under Article 46, paragraph 1, of the Conve n tion to abide by the judgment;

Having examined the information provided by the government in accordance with the Committee ' s Rules for the application of Article 46, paragraph 2, of the Convention;

Having satisfied itself that, within the time-limit set, the respondent state paid the a p plicant the just satisfaction provided in the judgment (see details in Appendix),

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded in the judgment, the adoption by the respondent state, where appropriate, of

- individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum ; and

- general measures preventing new, similar violations;

Having examined the measures taken by the respondent state to that effect, the details of which appear in the Appendix;

DECLARES that it has exe r cised its functions under Article 46, paragraph 2, of the Convention in this case and DECIDES to close its examination.

Appendix to Resolution ResDH(2006)69

Information about the measures to comply with the judgment in the case of

Mikulić against Croatia

Introductory case summary

The case concerns the inefficiency of the proceedings in an action to establish paternity brought in 1997 by the applicant, born in 1996, and her mother. The European Court found that a system like that in Croatia, which has no means of compelling an alleged father to comply with a court order to submit to DNA testing, is only compatible with the obligations deriving from Article 8 of the Convention if it provides alternative means of ensuring that an independent authority may determine the paternity claim promptly (violation of Article 8).

When the European Court delivered its judgment the proceedings were pending before the Appellate Court of Zagreb and had lasted about 5 years, of which about 4 years and 2 months fall under the jurisdiction of the Court (violation of Article 6§1). The applicant had no effective remedy at her disposal in respect of the length of the proceedings (violation of Article 13).

a) Details of just satisfaction

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

-

€ 7 000

-

€ 7 000

Paid on 11 October 2002

b) Individual measures

The domestic proceedings the excessive length and inefficiency of which were called into question in the European Court ' s judgment were ended by a decision delivered on 19 November 2001 and final on 26 February 2002. The defendant ' s paternity has been established and the applicant was granted maintenance. T he damage the applicant sustained in relation to the violations found was compensated by the European Court through just satisfaction.

Legislative measures in response to the European Court ' s finding of a violation of Article 8

On 14 July 2003 the Croatian Parliament adopted the new Family Act. Article 292 provides that courts may request medical tests to establish maternity or paternity, which are to be carried out within three months from the court ' s order. Where the person concerned refuses to undergo such tests or fails to appear at the appointment, the court shall take this into account in reaching its decision (Article 292§6).

Several examples of domestic case-law dating from before the adoption of the new Family Act were submitted to show a constant practice of the courts – even before this legislative clarification – to consider failure to attend a medical examination to establish paternity to be evidence in favour of the opposing side (decisions of the Supreme Court Nos. Rev-1422/1994-2 of 26/05/94, Rev-1275/1996-2 of 10/07/96, Rev-1422/2002-2 of 22/01/03 and Rev-303/2003-2 of 16/12/03).

The major contribution of the new law is that it directly governs the consequences of such non-compliance and fixes the time-limit for producing this kind of evidence. Thus the authorities consider that the new procedure constitutes a sufficient and adequate means to establish paternity rapidly in cases where the putative father refuses to co-operate in the proceedings.

Effective remedy against excessive length of judicial proceedings

Following the European Court ' s judgment in the Horvat case (judgment of 26 July 2001, final resolution ResDH(2005)60), the Constitutional Act on the Constitutional Court of 1999 was amended. New Section 63 in force as from 15 March 2002, provides as follows:

“(1) The Constitutional Court shall examine a constitutional complaint even before all legal remedies have been exhausted in cases when a competent court has not decided within a reasonable time a claim concerning the applicant ' s rights and obligations or a criminal charge against him (...)

(2) If the constitutional complaint ... under paragraph 1 of this Section is accepted, the Constitutional Court shall determine a time-limit within which a competent court shall decide the case on the merits (...)

(3) In a decision under paragraph 2 of this Article, the Constitutional Court shall fix appropriate compensation for the applicant in respect of the violation found concerning his constitutional rights (...). The compensation shall be paid from the State budget within a term of three months from the date when the party lodged a request for its payment.”

The European Court has found on numerous occasions that this new provision provided an effective remedy in respect of complaints concerning the excessive length of judicial proceedings (see the judgment Radoš and others against Croatia (07/11/2002) and admissibility decisions in the cases of Slaviček (decision of 04/07/2002), Nogolica (decision of 05/09/2002), Plaftak and others (decision of 03/10/2002), Jeftić (decision of 03/10/2002) and Sahini (decision of 11/10/2002)). The effectiveness of this new remedy was subsequently confirmed by the Constitutional Court ' s practice, and in particular through ensuring direct effect to the European Court ' s judgments in interpretation of the relevant provisions of Croatian Law (see below).

Finally, it should be noted that following the amendments to the Courts Act, which entered into force on 29 December 2005, the Constitutional Court is no longer competent to examine complaints against the excessive length of judicial proceedings at first instance. Instead, the court superior to that dealing with the merits of a case will have such competence. Their decisions concerning such complaints may be appealed before the Supreme Court, and the decisions of the latter before the Constitutional Court .

Direct effect of the Convention and the European Court ' s judgments in Croatian law

According to Article 140 of the Croatian Constitution, the European Convention on Human Rights, ratified by Croatia on 17 October 1997, is part of the domestic legal order and its provisions take priority over provisions of domestic legislation. Several examples of national courts ' decisions were submitted to show the development of the direct effect of the Convention and of the case-law of the European Court at national level, and in particular concerning the right to a fair trial (decisions of the Constitutional Court nos. U ‑ III ‑ 727/1997 of 10/01/00, U-I-745/1999 of 08/11/00 and U-IIIA-829/2002 of 24/03/04).

The government encourages state authorities and courts further to enhance the direct effect of the European Court ' s judgments in order to contribute effectively to the prevention of new violations of the Convention.

For this purpose, the European Court ' s judgment has been translated and published on the Internet site of the Ministry of Justice (www.pravosudje.hr) and in the Collected Papers of the Zagreb Law School (issue No. 2/2003).

[1] Adopted by the Committee of Ministers on 20 December 2006 at the 982nd meeting of the Ministers’ Deputies