CASE OF SOSTARIC v. CROATIA
Violation of Art. 6-1
Loukis Loucaides
4. The applicant was born in 1973 and lives in Križ. 5. On 8 March 2000 the Ivanić Grad Municipal Court (Općinski sud u Ivanić Gradu) gave judgment ordering a certain S.R. to pay the applicant 9,600 German marks (DEM). The judgment became final and enforceable on 17 June 2000. 6. On 28 November 2001 the applicant sought enforcement of the above judgment. On 7 December 2001 the Sisak Municipal Court (Općinski sud u Sisku) issued an enforcement order. It decided to seize S.R.'s movable property and sell it at a public auction. On 5 March 2002 the applicant informed the court that he advanced the costs of the proceedings. 7. The court bailiff attempted to conduct the first on-site inspection on 22 April 2002, but S.R. was not found on the address provided by the applicant. His parents, I. and J.R., informed the bailiff that S.R. had not lived at that address for the past three years. 8. The court scheduled another on-site inspection for 3 September 2002. However, the court bailiff could not enter S.R.'s house, because it was locked. On 4 September 2002 the applicant asked the court to set another date for the bailiff's intervention with the assistance of the police and the locksmith. He also requested temporary seizure of S.R.'s passport. 9. On 2 October 2002 the court held a hearing. It invited the applicant to again advance the costs and scheduled another on-site inspection for 30 October 2002. The inspection again failed since S.R.'s house was locked. On 4 November 2002 the applicant requested the temporary seizure of S.R's passport. 10. The court scheduled yet another on-site inspection for 3 February 2003, with the assistance of the police and a locksmith. On that date, the court bailiff entered S.R.'s house and seized the following movables: two motorbikes, a lawnmower, a welding machine, a TV and a stereo. One day later, the applicant repeated his request for seizure of the passport. 11. On 13 February 2003 the debtor's parents as third parties filed an objection against the enforcement on the seized movables, claiming they were the owners of the seized property which could therefore not be the object of enforcement. On 22 May 2003 the court invited the applicant to respond to the objection raised. Eight days later the applicant did so by contesting the third parties' allegations. 12. On 9 January 2004 the applicant repeated his request for temporary seizure of S.R.'s passport. Finally, on 2 March 2004 the court dismissed the applicant's motion in this respect. On appeal, on 4 October 2004 the second-instance court upheld the first-instance decision finding that the seizure of the passport was not allowed under the legislation in force. 13. On 25 February 2005 the court inquired with the police about S.R.'s place of residence. The police replied that S.R. left for Germany. 14. Subsequently, on 25 March 2005 the applicant invited the court to continue with the enforcement on the seized movables. 15. On 2 November 2005 the court instructed S.R.'s parents, to institute separate civil proceedings to declare the enforcement on the seized movables inadmissible. The third parties did so and it would appear that those proceedings are still pending. 16. The relevant part of section 63 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: “(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 applicant'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.” 17. Under the case-law of the Constitutional Court, constitutional complaints lodged under section 63 in the context of enforcement proceedings were to be declared inadmissible. In its decision no. U-IIIA/1165/2003 of 12 September 2003 the Constitutional Court interpreted section 63 as follows: “The Constitutional Court shall institute proceedings pursuant to a constitutional complaint lodged under section 63 of the Constitutional Act [on the Constitutional Court] for the length of proceedings only in cases where the court has not decided within a reasonable time on the merits of the rights and obligations of the complainant, that is, where it has failed to deliver a decision on the merits within a reasonable time. In the present case the constitutional complaint has been lodged for non-enforcement of a final decision by which the party's rights and obligations had already been decided. Taking into consideration the above cited provisions of the Constitutional Act [on the Constitutional Court] ..., the Constitutional Court is of the opinion that in this case the conditions for applicability of section 63 were not met.” In its decision no. U-IIIA/781/2003 of 14 May 2004 the Constitutional Court provided further interpretation of section 63: “Taking into consideration the above cited provisions of the Constitutional Act [on the Constitutional Court] and the fact that the constitutional complaint was not lodged for a failure to deliver a decision within a reasonable time but rather because the enforcement was not carried out, the Constitutional Court is of the opinion that in this case the conditions for applicability of section 63 were not met.” 18. In decision no. U-IIIA/1128/2004 of 2 February 2005 the Constitutional Court changed its practice, accepting a constitutional complaint and awarding compensation as well as ordering the competent court to conclude the enforcement proceedings within six months from its decision. In doing so, the Constitutional Court expressly relied on the Court's case-law on the matter.