CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 10 janvier 2008

.s800EAC49 { font-size:12pt } .s523616E0 { margin-top:0pt; margin-bottom:12pt; text-align:center; font-size:14pt } .sBB9EE52A { font-family:Arial } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .sA75E1884 { margin-top:0pt; margin-left:25.65pt; margin-bottom:0pt; text-indent:-25.65pt } .s339CF326 { width:25.65pt; text-indent:0pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .s529179AF { width:2.7pt; text-indent:0pt; display:inline-block } .s76CF415B { page-break-before:always; clear:both } .s967D43C6 { margin-top:36pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s7EE1C8F0 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sC702907E { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s34D46E87 { margin-top:12pt; margin-bottom:6pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s9D48DD53 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s8C6C4B { width:7.65pt; text-indent:0pt; display:inline-block } .sB8084949 { width:138.49pt; display:inline-block } .s9DAED311 { width:4.99pt; text-indent:0pt; display:inline-block } .s8378218E { margin-top:12pt; margin-left:48.75pt; margin-bottom:6pt; text-indent:-17pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sB72B0293 { width:1.66pt; text-indent:0pt; display:inline-block } .sB90861A5 { font-family:Arial; font-style:italic; letter-spacing:-0.1pt } .s88A92475 { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sDD165512 { margin-top:12pt; margin-left:14.2pt; margin-bottom:0pt; text-align:justify } .s7CB9076 { margin-top:36pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid } .sF4B1D9D5 { width:24.87pt; display:inline-block } .s61E420C2 { font-family:Arial; font-variant:small-caps } .s25347E17 { width:182.43pt; display:inline-block } .sA2E62387 { width:204.97pt; display:inline-block } FIRST SECTION DECISION AS TO THE ADMISSIBILITY OF Application no. 18584/05 by Ivan and Ilija JAKEŠEVIĆ against Croatia The European Court of Human Rights (First Section), sitting on 10   January   2008 as a Chamber composed of:   Christos Rozakis, President,   Loukis Loucaides,   Nina Vajić,   Anatoli Kovler,   Elisabeth Steiner,   Sverre Erik Jebens,   Giorgio Malinverni, judges, and André Wampach, Deputy Section Registrar , Having regard to the above application lodged on 8 April 2005, Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together. Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants, Having deliberated, decides as follows: THE FACTS The applicants, Mr Ivan Jakešević and Mr Ilija Jakešević, are Croatian nationals who were born in 1941 and 1962 respectively and live in Grubišno Polje. They were represented before the Court by Mr B. Kozjak, a lawyer practising in Virovitica. The Croatian Government (“the Government”) were represented by their Agent, Mrs   Š. Stažnik. A.     The circumstances of the case The facts of the case, as submitted by the parties, may be summarised as follows. On 15 August 2000 the first applicant’s wife and son, and the second applicant’s mother and brother, died in a road accident. 1. Criminal proceedings On 15 December 2000 the Daruvar State Attorney’s Office ( Općinsko državno odvjetništvo u Daruvaru ) indicted a certain D.P. for the criminal offence of causing the above road accident. At the hearing held on 19 December 2001 the Bjelovar Municipal Court ( Općinski sud u Bjelovaru ) heard evidence from D.P., the first applicant and several other witnesses. The court subsequently requested an expert opinion, which was obtained on 29 November 2003. On 27 February 2004 the court held another hearing and adopted a judgment finding D.P. guilty as charged and sentencing him to nine months’ imprisonment. Following an appeal by both parties, on 27 May 2004 the Bjelovar County Court ( Županijski sud u Bjelovaru ) quashed the first-instance judgment and remitted the case. In the resumed proceedings, the court ordered a combined traffic and forensic expert opinion in order to establish the cause of the accident. On 16   May 2005 the experts submitted their opinion. On 17 June 2005 the court held another hearing and adopted a judgment again finding D.P. guilty as charged and sentencing him to six months’ imprisonment. On appeal, on 6 October 2005 the Bjelovar County Court increased the sentence to one years’ imprisonment. The applicants participated in the proceedings from the beginning as injured parties ( oštećenici ) but never filed a civil (pecuniary) claim for damages. 2. Civil proceedings Meanwhile, on 22 July 2003 the first applicant brought a civil action in the Grubišno Polje Municipal Court ( Općinski sud u Grubišnom Polju ) against the insurance company C.O. seeking damages for the death of his son. Shortly afterwards, the second applicant brought an identical action before the same court. On 23   September 2003 the two cases were joined. On 24 September 2003 the court stayed the proceedings pending the outcome of the above criminal trial. The parties did not appeal against that decision. After it had been informed that the criminal proceedings had ended, on 28   October 2005 the court resumed the civil proceedings. The Court held hearings on 6 and 20 December 2005, 24 January and 20   February 2006. On 2 March 2006 the court gave judgment accepting the applicants’ claim in part. The first applicant appealed. On 7 September 2006 the Bjelovar County Court ( Županijski sud u Bjelovaru ) dismissed the first applicant’s appeal and upheld the first-instance judgment, which thereby became final. 3. The proceedings before the Constitutional Court Meanwhile, on 12 January 2004 the applicants lodged a constitutional complaint under section 63 of the Constitutional Court Act complaining about the length of the above criminal proceedings. They argued, inter alia , that the duration of those proceedings had direct impact on the determination of their claim for damages in the above civil proceedings as they had been stayed pending the outcome of the criminal proceedings complained of. On 17 December 2004 the Constitutional Court ( Ustavni sud Republike Hrvatske ) declared their complaint inadmissible. It found that the applicants were not defendants in the impugned criminal proceedings and that those proceedings therefore did not concern the determination of a criminal charge against them. B.     Relevant domestic law Under Croatian law a victim of a criminal offence (injured party) may seek damages from the perpetrator either by filing a pecuniary claim in criminal proceedings pursuant to the Criminal Procedure Act, or by bringing a separate civil action according to the Civil Procedure Act. 1. The Criminal Procedure Act The relevant part of the Criminal Procedure Act (consolidated text) ( Zakon o kaznenom postupku , Official Gazette no.110/97, 27/98, 58/99, 112/99, 58/02, 143/02 and 62/03), as in force at the material time, provided as follows: Section 127   (1) “A pecuniary claim arising out of the commission of a criminal offence shall be examined in the criminal proceedings following the request of authorised persons, provided that this does not delay the proceedings considerably. Section 128 The pecuniary claim may be asserted in criminal proceedings by a person entitled to do so in civil proceedings. 2. The Civil Procedure Act The relevant part of the Civil Procedure Act ( Zakon o parničnom postupku , Official Gazette nos. 53/91, 91/92, 112/99 and 117/03) reads as follows: Section 12   (3) “In civil proceedings the court is bound by a final judgment given in criminal proceedings finding the accused guilty in so far as it concerns the existence of a criminal offence and the criminal liability of the accused. Section 213 ... [T]he court shall stay the proceedings:   1. When it decided not to rule on a preliminary issue itself.   .... The court may stay the proceedings if the decision on the merits depends on ... whether a criminal act has been committed ..., who committed it and whether that person may be held liable...” Section 215 (2, 3) “If the court has stayed the proceedings for the reasons set out in paragraph 1 (1), or paragraph 2 of section 213, the proceedings shall resume when the [concurrent] proceedings before a court or other competent authority end with a final decision, or when the court finds that the reasons for awaiting their outcome no longer exist. In all other cases stayed proceedings shall be resumed at the request of a party as soon as the reasons for their stay cease to exist.” 3. The Constitutional Court Act The relevant part of the Constitutional Act on the Constitutional Court ( Ustavni zakon o Ustavnom sudu Republike Hrvatske , Official Gazette no.   49/2002 of 3 May 2002 – “the Constitutional Court Act”) reads as follows: Section 63   “(1) The Constitutional Court shall examine a constitutional complaint whether or not all legal remedies have been exhausted if the competent court fails to decide a claim concerning the individual’s rights and obligations or a criminal charge against him or her within a reasonable time ... (2) If a constitutional complaint ... under paragraph 1 of this section is upheld, the Constitutional Court shall set a time-limit within which the competent court must decide the case on the merits... (3) In a decision issued under paragraph 2 of this section, the Constitutional Court shall assess appropriate compensation for the applicant for the violation of his or her constitutional rights ... The compensation shall be paid out of the State budget within three months from the date a request for payment is lodged.” COMPLAINTS   1. The applicants complained under Article 6   §   1 of the Convention about the length of the above criminal and civil proceedings. 2. They also complained under Article 13 of the Convention, taken in conjunction with Article 6 §   1 thereof, that they had not had an effective remedy for their length complaint. THE LAW A.     Alleged violation of Article 6 § 1 of the Convention The applicants complained that the length of both the criminal and the civil proceedings had been 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 ... hearing within a reasonable time by [a] ... tribunal...” The Government rejected that allegation. 1.   The arguments of the parties (a) The Government The Government first submitted that the applicants had failed to exhaust domestic remedies in so far as their complaint concerned the length of the civil proceedings because they had never complained to the Constitutional Court about the length of those proceedings. Instead, in their constitutional complaint of 12   January 2004 the applicants had complained only about the length of the criminal proceedings – wherein they had never filed a civil claim but only participated as injured parties – which had not concerned the determination of their civil rights and obligations or a criminal charge against them. It would have been more appropriate for the applicants to have lodged a constitutional complaint in respect of the civil proceedings also because their civil claim had not been directed against D.P. as the accused in the criminal proceedings but against the insurance company C.O. As to the merits of the case, the Government submitted that the applicants had agreed to, and had never appealed against the decision to stay the civil proceedings, even though the criminal liability of D.P. had not been a precondition for deciding on the contractual liability of the insurance company. Moreover, nothing had prevented them from requesting the court that the proceedings be resumed at any time. The Government further argued that both the civil and the criminal proceedings had been factually complex and that the competent authorities had conducted them without undue delays. In particular, the length of the civil proceedings after their resumption in 2005 left no room for criticism. (b) The applicants The applicants maintained that the criminal proceedings against D.P. had lasted more than five years. Bearing in mind their procedural role in the case as injured parties, the applicants deemed that they had been entitled to complain about the length of those proceedings. In respect of the civil proceedings, the applicants argued that they could not have asked the first-instance court to resume those proceedings because no such opportunity existed under domestic law when proceedings were stayed pending the resolution of a preliminary issue. In any event, the criminal liability of D.P. had been vital for deciding their civil claim for damages since the insurance company C.O. had claimed that he had not been responsible for causing the car accident resulting in death of their family members.   2.   The Court’s assessment The Court does not find it necessary to examine the Government’s objection as to the non-exhaustion of domestic remedies, as this complaint is in any event inadmissible for the following reasons. (a) Criminal proceedings The Court notes at the outset that the applicants were not the accused but the injured parties in the criminal proceedings complained of. Thus, the criminal limb of Article 6 § 1 does not apply. However, Article 6 § 1 under its “civil head” applies 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). In the present case, the applicants participated in the criminal proceedings from the outset as the injured parties without filing a pecuniary claim for damages. Instead, they sought damages in separate civil proceedings, which were stayed shortly after they had been instituted, pending the outcome of the aforementioned criminal proceedings. Thus, it was only when those civil proceedings were instituted on 22   July 2003 that the outcome of the criminal proceedings became relevant for the determination of the applicants’ “civil right” to compensation thereby attracting the applicability of Article 6 § 1 under its civil head to the criminal proceedings at issue ( conf. , mutatis mutandis , Karlsson and others v. Finland (dec.), no.   13265/02, 5   September 2006). Accordingly, the period to be taken into consideration began on that date and ended on 6 October 2005 with the judgment of the Bjelovar County Court. It thus lasted some two years and two months for two levels of jurisdiction. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Cocchiarella v. Italy [GC], no.   64886/01, §   68, to be published in ECHR; and Frydlender v.   France   [GC], no. 30979/96, § 43, ECHR 2000-VII). Having examined all the material submitted to it and having regard to its case-law on the subject, the Court considers that the above period – during which the domestic courts acted expeditiously delivering altogether four decisions on the merits of the case – cannot be considered excessive. It follows that this complaint is inadmissible under Article   35   § 3 of the Convention as manifestly ill-founded and must be rejected pursuant to Article   35   §   4 thereof.   (b) Civil proceedings The period to be taken into consideration began on 22 July 2003, when the civil proceedings where instituted. It ended on 7 September 2006 when the Bjelovar County Court upheld the first-instance judgment. The proceedings thus lasted three years and one month for two levels of jurisdiction. Two months after their institution, the civil proceedings were stayed pending the outcome of the criminal case. The Court considers that staying the proceedings was justified for the proper administration of justice given that the insurance company had claimed that D.P. had not been responsible for causing the car accident. As already noted above, in the following two years during which the proceedings remained stayed, the criminal courts proceeded without undue delays. Once the criminal proceedings ended and the first-instance court resumed the civil proceedings in October 2005, it proceeded with the case expeditiously and gave its judgment only four months later. The proceedings on appeal were pending for merely six months. In the light of the foregoing and the criteria established in its case-law on the question of “reasonable time” (see above), the Court considers that the above period of some three years and one month cannot be considered unreasonable. It follows that this complaint is also inadmissible under Article   35   § 3 as manifestly ill-founded and must be rejected pursuant to Article   35   §   4 of the Convention. B.     Alleged violation of Article 13 of the Convention The applicants further complained under Article 13 of the Convention, taken in conjunction with Article 6 § 1 thereof, that they had not had an effective remedy for the length of the proceedings complained of because the Constitutional Court had declared their constitutional complaint inadmissible. 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.” The Government contested that allegation. They reiterated their above arguments that the applicants had had at their disposal an effective remedy – a constitutional complaint – of which they had availed themselves. However, in doing so the applicants, instead of complaining about the length of the civil proceedings, had complained only about the length of the criminal proceedings in which they had made no pecuniary claims. The Court reiterates that Article 13 requires a remedy in domestic law only where an individual has an “arguable claim” that one of his rights or freedoms set forth in the Convention has been violated (see, for example, Boyle and Rice v. the United Kingdom , judgment of 27   April 1988, Series   A no.   131, p.   23, §   52). In this connection the Court refers to its above findings according to which the applicants’ length complaints are manifestly ill-founded. It follows that their complaint under Article 13 cannot be considered “arguable” for the purposes of Article   13 of the Convention. It is thus also inadmissible under Article   35   § 3 as manifestly ill-founded and must be rejected pursuant to Article   35   §   4 of the Convention. For these reasons, the Court unanimously Declares the application inadmissible.   André Wampach   Christos Rozakis Deputy Registrar   President