CASE OF MIKULIĆ v. CROATIA
Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time);Violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for private life);Violation of Article 13+6-1 - Right to an effective remedy (Article 13 - Effective remedy) (Article 6 - Right to a fair trial;Article 6-1 - Reasonable time);Non-pecuniary damage - award
Christos Rozakis
8. The applicant is a child born out of wedlock on 25 November 1996. On 30 January 1997 the applicant and her mother filed a civil suit against H.P. before the Zagreb Municipal Court (Općinski sud u Zagrebu) in order to establish paternity. 9. At the hearing on 17 June 1997 the Municipal Court pronounced judgment by default against the defendant. The adoption of such a judgment, however, is expressly prohibited by the Marriage and Family Act (Zakon o braku i porodičnim odnosima – 1977, 1980, 1982, 1984, 1987, 1989, 1990, 1992 and 1999) in “civil-status matters” (statusni sporovi). On 1 July 1997 the defendant appealed against that judgment. 10. At the hearing on 6 October 1997 the Zagreb Municipal Court annulled its own judgment. The next hearing was scheduled for 9 December 1997. 11. Meanwhile, H.P. filed a motion accusing the presiding judge of bias, which was allowed on 27 January 1998 by the President of the Zagreb Municipal Court. Consequently, on 23 February 1998 the case was transferred to another judge. 12. The hearing scheduled for 18 June 1998 was adjourned owing to the absence of H.P.'s counsel. 13. The hearing scheduled for 14 July 1998 was adjourned as H.P.'s counsel had died. 14. At the hearing on 14 October 1998 H.P.'s new counsel argued that the applicant's mother had had relations with persons other than H.P. at the relevant time (exceptio plurium concubentium) and invited the court to summon several witnesses. 15. At the hearing on 21 January 1999 only two witnesses were heard, as the other witnesses failed to appear. 16. At the next hearing on 18 March 1999 the court ordered a DNA blood test. The appointment at the relevant clinic was scheduled for 21 May 1999, but H.P. failed to appear. 17. The next appointment was scheduled for 18 June 1999, but H.P. informed the court that he would be absent from 1 June 1999 until 15 September 1999. 18. On 19 July 1999 the court ordered another appointment for the blood test, which was scheduled for 27 September 1999, but H.P. again failed to appear. 19. On 13 October 1999 the court ordered a fourth appointment, scheduled for 22 October 1999, but H.P. informed the court that he would be absent that day. 20. On 28 November 1999 the court ordered a fifth appointment, scheduled for 6 December 1999, and once again H.P. failed to appear. 21. The next hearing scheduled for 17 February 2000 was adjourned as H.P. did not appear. 22. At the hearing on 29 February 2000 the court heard testimonies from the parties and scheduled the sixth appointment for the DNA tests for 25 April 2000, at which H.P. failed to appear. 23. The next hearing, scheduled for 5 June 2000, was adjourned, as H.P. did not appear. 24. On 12 July 2000 the court concluded the trial. 25. On 3 October 2000 the applicant's counsel received the Municipal Court's judgment of 12 July 2000 establishing the defendant's paternity and granting the applicant maintenance. The first-instance court found that the fact that the defendant had been avoiding DNA tests supported the applicant's claim. On 27 November 2000 H.P. appealed against the judgment. 26. On 3 April 2001 the Zagreb County Court (Županijski sud u Zagrebu) quashed the first-instance judgment and remitted the case for retrial. The appellate court found that the first-instance court had failed to establish all the relevant evidence and that H.P.'s paternity could not have been established primarily on his avoidance of DNA tests. It ordered the first-instance court to hear several witnesses who, as alleged by H.P., had had intimate relationships with the applicant's mother during the critical period. 27. On 15 May and 13 July 2001 the applicant requested the President of the Supreme Court to speed up the proceedings. 28. The hearings scheduled for 26 July and 30 August 2001 in the Zagreb Municipal Court were adjourned because H.P. and his counsel did not appear. 29. At the hearing on 27 September 2001 H.P.'s counsel accused the presiding judge of bias. 30. On 19 November 2001 the court of first instance concluded the trial and gave judgment, establishing the defendant's paternity and granting the applicant maintenance. It found that H.P.'s avoidance of DNA tests corroborated the applicant's mother's testimony that H.P. was the applicant's father. 31. On 7 December 2001 the applicant filed an appeal against the first-instance judgment, objecting to the amount of maintenance H.P. would have to pay her. H.P. also appealed against the judgment. 32. It appears that the proceedings are currently pending before the appellate court. 33. Section 8 of the Civil Procedure Act (Zakon o građanskom postupku – Official Gazette nos. 53/1991, 91/1992 and 112/1999) provides that courts are to determine civil matters according to their own discretion after carefully assessing all the evidence presented individually and as a whole and taking into consideration the results of the overall proceedings. 34. Section 59(4) of the Constitutional Act on the Constitutional Court (which entered into force on 24 September 1999 – “the Constitutional Court Act” (Ustavni zakon o Ustavnom sudu)) 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.”