Resolution ResDH(2005) 60

concerning the judgments of the European Court of Human Rights in the case of Horvat and 9 other cases against Croatia (see Appendix I) relating to the excessive length of certain civil proceedings and the right to an effective remedy

(Adopted by the Committee of Ministers on 18 July 2005 at the 933rd meeting of the Ministers ' Deputies)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the P rotection of Human Rights and Fundamental Freedoms, as amended by P rotocol No. 11 (hereinafter referred to as “the Convention”),

Having regard to the judgments of the European Court of Human Rights in the case of Horvat and 9 other cases (see details in Appendix I) transmitted to the Committee of Ministers once they had become final under Articles 44 and 46 of the Convention;

Recalling that the cases originated in applications against Croatia (see details in Appendix I) lodged with either the European Commission of Human Rights under former Article 25 or the European Court of Human Rights under Article 34, and that the European Court of Human Rights declared admissible the applicants ' complaints relating to the excessive length of certain civil proceedings and, in the Horvat, Delić , Rado š and others and Šoć cases, also the complaints relating to the lack of an effective remedy to enforce the right to a trial within a reasonable time;

Recalling that the European Court subsequently held in all these cases that there had been violations of Article 6, paragraph 1 of the Convention on account of the excessive length of certain civil proceedings and that, in the cases of Horvat, Delić, Radoš and others and Šoć , there had also been a violation of Article 13 on account of the absence of an effective remedy at the national level, and awarded the applicants sums in just satisfaction (see Appendix I);

Having regard to the Rules adopted by the Committee of Ministers concerning the application of Article 46, paragraph 2, of the Convention;

Having invited the government of the respondent state to inform it of the mea s ures which had been taken in consequence of the European Court ' s judgments, having regard to Croatia ' s obligation under Article 46, paragraph 1, of the Conve n tion to abide by them;

Having satisfied itself that the Government of Croatia paid all the applicants, within the time-limits set, the sums awarded by the European Court as just satisfaction (see details in Appendix I);

Having noted the individual measures taken by the authorities to grant the applicants redress for the violations found ( restitutio in integrum ), in particular by accelerating as far as possible those proceedings which were still pending after the finding of violations by the Court (see details in Appendix II);

Considering furthermore the general measures taken to prevent new violations of the same kind as those found in the present judgments; these measures are summarised in Appendix II to this resolution;

Welcoming in particular the legislative reform establishing, in conformity with the Convention ' s requirements, an effective remedy at the national level making it possible to complain of the excessive length of judicial proceedings;

Welcoming furthermore the direct effect increasingly granted to the European Court ' s judgments by the Croatian Constitutional Court and stressing the importance of these developments for effective prevention of new violations of the Convention,

Declares, after having examined the information supplied by the Government of Croatia, that it has exe r cised its functions under Article 46, paragraph 2, of the Convention in these cases.

Appendix I to Resolution ResDH(2005)60

Details of the just satisfaction awarded to the applicants

Cases

Date of judgment

Final on

Non-pecuniary damages

Costs and expenses

P ayment on

Radoš Zvonimir and others

45435/99

07/11/2002

07/02/2003

12 300 euros [1]

-

31/03/2003

Šoć Draško

47863/99

09/05/2003

09/08/2003

-

500 euros 1

13/10/2003

Delić P etar

48771/99

27/06/2002

27/09/2002

7 000 euros 1

180 euros 1

21/11/2002

Rajak Rajko

49706/99

28/06/2001

12/12/2001

30 000 Croatian Kunas

5 800 Croatian Kunas

22/02/2002

Horvat Anika

51585/99

26/10/2001

20 000 Croatian Kunas

-

Fütterer Aleksandar

52634/99

20/12/2001

20/03/2002

20 000 Croatian Kunas

2 440 Croatian Kunas

29/04/2002

Cerin ÄŒedomil

54727/00

15/11/2001

15/02/2002

30 000 Croatian Kunas

2 500 Croatian Kunas

26/04/2002

Rajčević Ilija

56773/00

23/07/2002

06/11/2002

-

17/01/2003

Sahini Sefket

63412/00

19/06/2003

19/09/2003

-

500 euros 1

20/11/2003

Muženjak Stjepan

73564/01

04/03/2004

04/06/2004

2 000 euros 1

1 500 euros 1

09/07/2004

Appendix II to Resolution ResDH(2005)60

Information provided by the Government of Croatia during the examination of the Horvat case and 9 other cases concerning the excessive length of certain civil proceedings and the right to an effective remedy by the Committee of Ministers

I. As regards individual measures

In all these cases, except those of Horvat, Cerin, Futterer, Delić and Radoš and others, the domestic proceedings impugned by the European Court have ended. As regards civil proceedings relating to these five cases, the competent courts ' attention was drawn to the European Court ' s findings with a view to accelerating the proceedings as far as possible. The conduct of proceedings in these cases is being supervised.

II. As regards general measures

1) Legislative reform introducing an effective remedy against the excessive length of proceedings

Following the European Court ' s judgment in the Horvat case, 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), P laftak 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 granting of direct effect to the European Court ' s judgments in interpretation of the relevant provisions of Croatian Law (see below).

2) Direct effect of the Convention and 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 law. Several examples of national courts ' decisions were submitted to show the development of the direct effect of the Convention and of the European Court ' s case-law at national level, in particular with regard to the right to a fair trial (decisions of the Constitutional Court Nos. U-III-727/1997 of 10/01/2000, U-I-745/1999 of 08/11/2000 and U-IIIA-829/2002 of 24/03/2004).

Following the legislative reform of 2002, the European Court ' s judgments were also granted direct effect in cases of excessive length of judicial proceedings, including enforcement proceedings. The Constitutional Court thus found several violations of plaintiffs ' rights under Article 29, paragraph 1, of the Constitution on account of the excessive length of judicial proceedings. Accordingly, it ordered the courts concerned to give a decision within certain time-limits and awarded compensation for the delays that have already occurred (see, for example, decisions No. U-IIIA/1128/2004 of 02 February 2005 and U-III/A/1978/2002 of 24 February 2005 ). The Constitutional Court considered the reasonable character of the length of proceedings in these cases in the light of the criteria laid down in the European Court ' s case-law, in particular the complexity of the case, the conduct of the parties and that of the relevant authorities.

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

3) Legislative and other measures to ensure the reasonable length of judicial proceedings

An Act amending the Code of Civil P rocedure was adopted on 14 July 2003. This law aims particularly at strengthening procedural discipline and accelerating civil proceedings. The most important changes are as follows:

- courts ' inquisitorial function was repealed in favour of adversarial civil proceedings. Thus only parties to proceedings will be required to establish facts, and only during the examination of the case before the first-instance court. Consequently, failure of a court to establish certain facts by its own motion may no longer be a ground for quashing a court decision and returning the case for new examination (Articles 7 and 195);

- a single judge will, as a general rule, be able to hear civil cases at first instance (Articles 13, 20, 21 and 23) ;

- the rules governing summonses, which used to cause delays in the civil proceedings, have been entirely reformed (Articles 66-79);

- new pecuniary penalties have been introduced against parties who abuse their procedural rights and thus cause unjustified delays in proceedings (Articles 4, 56 and 84);

- the number of situations in which civil cases may alternatively be settled out of courts has been increased (Article 99);

- the possibility for the State Attorney to ask for revision of final judgments in the framework of extraordinary proceedings has been repealed (Article 239).

This legislative reform is part of the “Strategy for the Reform of the Judicial System”, adopted by the Croatian government and setting the short-term and long-term objectives for overall judicial reform. The strategy is intended to be implemented before the end of 2007.

With a view to facilitating the development of the direct effect of the Convention and the case-law of the European Court in Croatian law, the Ministry of Justice sent the judgments in all these cases, translated into Croatian and accompanied by a circular letters, to the competent domestic courts.

The judgments of the European Court have been published on the Internet site of the Supreme Court www.vsrh.hr , on the official internet site of the Government, www.vlada.hr , and in legal journals such as the Informer , the Collected P apers of the Zagreb Law School and the Bulletin of the Association of Croatian Judges.

III. Conclusion

The government believes that the measures taken make it possible, first, to erase as far as possible the consequences of the violations found in the present cases and, secondly, to prevent new, similar violations of the right to a trial within reasonable time and of the right to an effective domestic remedy against the excessive length of judicial proceedings. The government therefore considers that Croatia has fulfilled its obligations under Article 46, paragraph 1, of the Convention with regard to the present judgments.

[1] To be converted into the national currency at the rate applicable on the date of settlement