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Decyzja
Europejskiego Trybunału Praw Człowieka
z dnia 19 maja 2015 r.
43443/11

UZASADNIENIE

Wstęp

FIRST SECTION

DECISION

Application no. 43443/11

Veljko ĐUZEL

against Croatia

The European Court of Human Rights (First Section), sitting on 19 May 2015 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 15 July 2011,

Having regard to the declaration submitted by the respondent Government on 4 March 2014 requesting the Court to strike the application out of the list of cases,

Having deliberated, decides as follows:

Uzasadnienie faktyczne

FACTS

1. The applicant, Mr Veljko Đuzel, is a Croatian national, who was born in 1959 and lives in Zagreb He was represented before the Court by Ms L. Kušan, an advocate practising in Ivanić-Grad.

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.

1. Civil proceedings

4. On 21 June 2001 the applicant brought a civil action in the Makarska Municipal Court (Općinski sud u Makarskoj) against a certain Mr I.M. seeking removal of a kiosk and damages.

5. By a judgment of 2 September 2002 the first-instance court dismissed the applicant's action.

6. By a judgment of 24 January 2006 the Požega County Court (Županijski sud u Požegi) dismissed the applicant's appeal and upheld the first-instance judgment.

7. Following an appeal on points of law (revizija) by the applicant, the Supreme Court (Vrhovni sud Republike Hrvatske) by a decision of 5 June 2007 quashed the lower-courts' judgements and remitted the case to the first-instance court.

8. In the fresh proceedings, by a decision of 13 June 2011 the Makarska Municipal Court decided to stay the proceedings (prekid postupka) pending the final outcome of concurrent civil proceedings instituted by the applicant on 1 August 2002 in which the issue of preliminary importance for the present proceedings was being examined.

9. The final judgment in those concurrent civil proceedings had been adopted on 26 September 2012, and served on the applicant's representative on 25 March 2013.

10. Accordingly, by a decision of 4 June 2013 the Makarska Municipal Court decided to resume the current proceedings.

11. By a judgment of 31 March 2014 the Municipal Court dismissed the applicant's action.

12. In the absence of appeals by either party, the judgment became final on 25 April 2014.

2. Proceedings following the applicant's request for the protection of the right to a hearing within a reasonable time.

13. Meanwhile, on 8 July 2008 the applicant lodged a request for protection of right to a hearing within a reasonable time (zahtjev za zaštitu prava na suđenje u razumnom roku) with the Split County Court (Županijski sud u Splitu), complaining about the length of the above civil proceedings.

14. By a decision of 8 February 2011 the Split County Court found a violation of the applicant's right to a hearing within a reasonable time and awarded him HRK 10,000 in compensation and ordered the Makarska Municipal Court to adopt a decision in the applicant's case within the shortest time possible but no later than nine months of service of its decision.

Zarzuty

COMPLAINTS

15. The applicant complained under Article 6 § 1 of the Convention about the length of the above civil proceedings.

16. He also complained under Article 13 of the ineffectiveness of the domestic remedy he had resorted to in order to complain about the length of those civil proceedings

Uzasadnienie prawne

THE LAW

A. Alleged violation of Article 6 § 1 of the Convention

17. The applicant complained that the length of the above–mentioned civil proceedings was incompatible with the "reasonable time" requirement laid down in 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 within a reasonable time by [a] ... tribunal..."

18. After the failure of attempts to reach a friendly settlement, by a letter of 4 March 2014 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issue raised by this part of the application. They further requested the Court to strike out the application in accordance with Article 37 of the Convention.

19. The relevant part of the declaration provided that the Government:

"(a) acknowledges that in the instant case there has been a violation of the applicant's right to a fair trial within a reasonable time, guaranteed by the Article 6 § 1 of the Convention; and

(b) is ready to pay to the applicant 950 euros to cover any and all non-pecuniary damage as well as costs and expenses, plus any tax that may be chargeable to the applicant.

This sum will be converted into Croatian kunas at the rate applicable on the date of payment, and will be payable within three months from the date of notification of the decision by the Court pursuant to Article 37 § 1 of the European Convention on Human Rights to the account indicated by the applicant. In the event of failure to pay this sum within the said three-month period, the Government undertake to pay simple interest on it, from expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. The payment will constitute the final resolution of the case."

20. The applicant did not submit any comments in reply to the Government's unilateral declaration. Instead, on 11 December 2014 he submitted his claim for just satisfaction whereby he claimed 7,000 euros (EUR) in respect of non-pecuniary damage and EUR 1,600 for the costs and expenses.

21. The Court reiterates that Article 37 of the Convention provides that it may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to one of the conclusions specified, under (a), (b) or (c) of paragraph 1 of that Article. Article 37 § 1 (c) enables the Court in particular to strike a case out of its list if:

"for any other reason established by the Court, it is no longer justified to continue the examination of the application".

22. It further reiterates that in certain circumstances, it may strike out an application under Article 37 § 1(c) on the basis of a unilateral declaration by a respondent Government even if the applicant wishes the examination of the case to be continued.

23. To this end, the Court will examine carefully the declaration in the light of the principles emerging from its case-law, in particular the Tahsin Acar judgment (Tahsin Acar v. Turkey [GC], no. 26307/95, §§ 75-77, ECHR 2003-VI; WAZA Spółka z o.o. v. Poland (dec.), no. 11602/02, 26 June 2007; and Sulwińska v. Poland (dec.), no. 28953/03, 18 September 2007).

24. The Court has established in a number of cases (see, for example, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII; Cocchiarella v. Italy [GC], no. 64886/01, §§ 69-98, ECHR 2006–V; Majewski v. Poland, no. 52690/99, 11 October 2005; and Wende and Kukówka v. Poland, no. 56026/00, 10 May 2007), including those brought against Croatia (see, for example, Horvat v. Croatia, no. 51585/99, ECHR 2001–VIII; Kozlica v. Croatia, no. 29182/03, 2 November 2006; and Pavić v. Croatia, no. 21846/08, 28 January 2010), its practice concerning complaints about the violation of one's right to a hearing within a reasonable time.

25. Having regard to the nature of the admissions contained in the Government's declaration, as well as the amount of compensation proposed - which is consistent with the amounts awarded in similar cases - the Court considers that it is no longer justified to continue the examination of this part of the application (Article 37 § 1(c)).

26. Moreover, in light of the above considerations, and in particular given the clear and extensive case-law on the topic, the Court is satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of this part of the application (Article 37 § 1 in fine).

27. Finally, the Court emphasises that, should the Government fail to comply with the terms of their unilateral declaration, the application could be restored to the list in accordance with Article 37 § 2 of the Convention (Josipović v. Serbia (dec.), no. 18369/07, 4 March 2008).

28. In view of the above, it is appropriate to strike the case out of the list in so far as it relates to the above complaint.

B. Alleged violation of Article 13 of the Convention

29. The applicant also complained that the domestic remedy he had resorted to in order to complain about the above civil proceedings had been ineffective in that the remedial proceedings themselves had lasted too long and because the first-instance court had not complied with the order of the higher court to deliver a decision within the specified time-limit. He relied on Article 13 of the Convention, which 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."

30. The Court reiterates that a request for protection of the right to a hearing within a reasonable time was in the period between 29 December 2005 and 13 March 2013 an effective remedy under Article 13 of the Convention in respect of the length of judicial proceedings in Croatia (see Pavić v. Croatia, cited above, § 36) and that this complaint by the applicant only concerns its alleged ineffectiveness in the specific circumstances of the present case.

31. The Court further reiterates that Article 13 requires a remedy in domestic law only where an individual has an "arguable claim" that one of his or her rights or freedoms set forth in the Convention has been violated (see, for example, Boyle and Rice v. the United Kingdom, 27 April 1988, § 52, Series A no. 131). However, given its above findings according to which it is no longer justified to continue the examination of the application in so far as it concerns the applicant's main complaint under Article 6 § 1 of the Convention, the Court considers that his related complaint under Article 13 thereof cannot be considered "arguable" within the meaning of the Court's case-law.

32. It follows that this complaint is inadmissible under Article 35 § 3 (a) of the Convention as manifestly ill-founded and must therefore be rejected pursuant to Article 35 § 4 thereof.

Sentencja

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

Takes note of the terms of the respondent Government's declaration under Article 6 § 1 of the Convention and of the modalities for ensuring compliance with the undertakings referred to therein;

Decides to strike a part of the application out of its list of cases in accordance with Article 37 § 1 (c) of the Convention.

Declares the remainder of the application inadmissible.

Done in English and notified in writing on 11 June 2015.

André Wampach

Mirjana Lazarova Trajkovska

Deputy Registrar

President