CASE OF HORVAT v. CROATIA
Preliminary objection rejected (non-exhaustion);Violation of Art. 6-1;Violation of Art. 13;Non-pecuniary damage - financial award
Georg Ress
7. On 19 October 1992 the applicant lent to MJB, a company in Zagreb, 10,000 German marks (DEM) for a period of three months at a rate of interest of 27%. On 23 November 1992 she lent to ZIP, a company in Zagreb, DEM 20,390 for a period of one month at a rate of interest of 20%. 8. As the said companies failed to repay the loans, the applicant instituted proceedings against ZIP and MJB in the Zagreb Municipal Court (Općinski sud u Zagrebu). 9. The proceedings against ZIP and its alleged owner Ž.M. commenced on 29 March 1995 when the applicant, together with thirty-nine other plaintiffs, filed an action for repayment of their loans. 10. On 17 May 1995 the court asked the applicant’s counsel to provide the address of the second defendant. On 23 May 1995 the applicant’s counsel submitted the address concerned. 11. A hearing was scheduled for 4 October 1995 but it was adjourned since the defendants failed to appear. It turned out that the defendants had not received notice of the date of the hearing as the address indicated was incorrect. The court asked the applicant’s counsel to submit the defendants’ correct address within thirty days. 12. The next hearing was scheduled for 24 January 1996. However, it appears that in the meantime ZIP had ceased to exist and, as Ž.M.’s address remained unknown, the court ordered the applicant’s counsel to request the Social Welfare Centre (Centar za socijalnu skrb) to appoint a legal representative for Ž.M. 13. On 20 June 1996 the applicant’s counsel informed the court that the Zagreb Social Welfare Centre had, by its decision of 11 March 1996, appointed a legal representative for Ž.M. 14. On 13 September 1996 the court asked the applicant’s counsel to submit within thirty days a certificate from the registry of the Zagreb Commercial Court (Trgovački sud u Zagrebu) concerning the legal status of ZIP. 15. The next hearing, scheduled for 2 December 1999, was also adjourned due to the absence of the defendants. It turned out again that ZIP and Ž.M. had not received notice of the hearing date as the address indicated was incorrect. The court invited the applicant’s counsel to inform it within thirty days whether ZIP had in fact ceased to exist. 16. According to the Government, during the next hearing on 7 June 2000, the court decided upon the parties’ application to return the proceedings to the status quo ante (zahtjev za povrat u prijašnje stanje). Due to the absence of ZIP the hearing was adjourned to 17 October 2000. It appears that the proceedings are still pending before the Zagreb Municipal Court. 17. The proceedings against MJB and its alleged owner B.J. commenced on 30 March 1995 when the applicant, together with thirty other plaintiffs, filed an action for repayment of their loans with the Zagreb Municipal Court. 18. The court asked the applicant’s counsel to provide the address of B.J. On 25 August 1995 the applicant’s counsel informed the court of B.J.’s address. 19. The hearing scheduled for 2 October 1995 was adjourned due to the absence of the defendants. It turned out that MJB was no longer at its previous address and that B.J. was in detention on remand. The applicant’s counsel informed the court that B.J. had been released from detention and requested that the notices for the next hearing be sent to the defendants at the same addresses as before. 20. The hearing on 27 November 1995 was again adjourned due to the defendants’ absence. It appears that MJB had in the meantime ceased to exist and that B.J. had changed her address. The court invited the applicant’s counsel to inform it within thirty days whether MJB had in fact ceased to exist and of the correct address of B.J. 21. On 7 December 1995 the applicant’s counsel informed the court of the defendants’ addresses. 22. The next hearing, on 14 February 1996, was also adjourned due to the defendants’ absence for the same reasons as before, that is that MJB had ceased to exist and that B.J. had changed address. The court decided to look into the criminal case file no. KO-1574/93 in the same court, where criminal proceedings had been instituted against B.J., in order to obtain her proper address. Through that the court found her address. 23. By order of 11 September 1996 the applicant’s counsel was requested to furnish the court with a certificate from the registry of the Zagreb Commercial Court regarding the legal status of MJB. 24. On 20 September 1996 the applicant’s counsel submitted the requested document. 25. The next hearing, scheduled for 7 November 1997, was adjourned due to the defendants’ absence. The documents indicate that they had not received the notice of the hearing date. 26. The next hearing, scheduled for 26 January 1998, was adjourned for the same reason. The court invited the applicant’s counsel to submit B.J.’s correct address within sixty days. 27. On 6 February 1998 the applicant’s counsel informed the court that in the police registry B.J.’s address was the same as before. He proposed that a legal representative be appointed for B.J. 28. On 13 February 1998 the court ordered the applicant’s counsel to request the Social Welfare Centre to appoint a legal representative for B.J. 29. On 2 April 1998 the applicant’s counsel informed the court that the Zagreb Social Welfare Centre had, by its decision of 26 March 1998, appointed a legal representative for B.J. 30. According to the Government, during the next hearing, on 2 July 1998, the court issued a default judgment (presuda zbog izostanka) against B.J. The available documents show that MJB had ceased to exist. 31. On 22 July 1998 the court sent a letter to the Zagreb Commercial Court asking for a certificate regarding the legal status of MJB. On 24 September 1998 the court received a letter from the Zagreb Commercial Court with a certificate that wrongly contained information about another firm, instead of MJB. 32. On 13 April 2000 the court again sent a letter to the Zagreb Commercial Court asking whether MJB still existed. On the same day the court also requested the applicant’s counsel to submit the same information. It appears that the case is still pending before the Zagreb Municipal Court. 33. The relevant part of the Constitutional Act on the Constitutional Court (“the Constitutional Court Act” – Ustavni zakon o Ustavnom sudu), which came into force on 24 September 1999, reads as follows: “The Constitutional Court may, exceptionally, examine a constitutional complaint prior to exhaustion of other available remedies, if it is satisfied that a contested act, or failure to act within a reasonable time, grossly violates a party’s constitutional rights and freedoms and that, if it does not act, a party will risk serious and irreparable consequences.”