CASE OF MEČIĆ v. CROATIA
Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time)
Jon Fridrik Kjølbro;Paul Lemmens;Ksenija Turković
5. The applicant was born in 1974 and lives in Vinkovci. 6. By a judgment of 1 June 2006 the Vinkovci Municipal Court (Općinski sud u Vinkovcima) ordered the applicant’s former employer, the company MD Profil d.o.o. (hereinafter “the debtor company”), to pay him 20,921.18 Croatian kunas (HRK) as remuneration for overtime work, together with accrued statutory default interest, and HRK 19,495.90 in costs. On 10 March 2008 the Vukovar County Court (Županijski sud u Vukovaru) upheld the first-instance court’s judgment, which thereby became final. 7. By a judgment of 17 January 2008 the Županja Municipal Court (Općinski sud u Županji) found the applicant guilty of the criminal offence of embezzlement committed against his former employer, the debtor company. It sentenced him to ten months’ imprisonment, suspended for a period of two years provided that in that period he did not commit a further offence. The court also ordered the applicant to pay the debtor company HRK 20,311.78 in compensation for pecuniary damage caused by his offence. 8. On 14 April 2008 the applicant applied to the Đakovo Municipal Court (Općinski sud u Đakovu) for enforcement of the above judgment of 1 June 2006 (see paragraph 6 above). 9. The next day, on 15 April 2008, that court issued a writ of execution (rješenje o ovrsi) whereby it ordered the seizure of funds in the debtor company’s bank account in order to satisfy the applicant’s claim. 10. The debtor company lodged an appeal, and on 28 August 2008 the Osijek County Court (Županijski sud u Osijeku) quashed the writ of execution and remitted the case to the first-instance court. It found that the judgment sought to be enforced had not been stamped with a certificate of enforceability and that a grace period for voluntary compliance (paricijski rok) had not been set. 11. In the new proceedings before the Đakovo Municipal Court the applicant submitted on 25 September 2008 a copy of the judgment that he was seeking to enforce stamped with a certificate of enforceability. At the same time, he asked the court to set a grace period for voluntary compliance, pursuant to the law. 12. On 7 November 2008 the court issued a new writ of execution. It ordered the debtor company to pay the applicant, within a grace period of eight days (a) the sums it had been ordered to pay under the judgment of 1 June 2006 (that is to say the main debt, together with accrued statutory default interest, and the costs of the civil proceedings, see paragraph 6 above), (b) the statutory default interest accrued on the costs of the civil proceedings from the date of delivery of that judgment, and (c) the costs of enforcement proceedings, together with the statutory default interest accrued on those costs from the date of issuance of the writ of execution. 13. By a decision of 19 February 2009 the Osijek County Court dismissed the debtor company’s appeal and upheld the writ of execution. 14. Upon receiving, on 27 February 2009, the final judgment of the criminal court of 17 January 2008 (see paragraph 7 above), the debtor company on 9 March 2009 sent a letter containing a set-off statement to the applicant’s legal representative whereby it set off (prijeboj) its claim for compensation against the applicant stemming from that judgment with his claim for payment of overtime work against the debtor company stemming from the judgment he was seeking to enforce. 15. On the same day, 9 March 2009, the debtor company informed the court that it had received the above-mentioned final judgment of the criminal court and that it had executed the set-off described above (see the preceding paragraph). The debtor company at the same time lodged an extraordinary appeal against the writ of execution of 7 November 2008 (see paragraph 12 above) and lodged an application to postpone the enforcement. 16. By a decision of 27 March 2009 the Đakovo Municipal Court decided on the debtor company’s motion for postponement, instructing the debtor company to institute separate civil proceedings for the enforcement to be declared inadmissible (in full or in part). At the same time it postponed the enforcement pending the final outcome of those proceedings. 17. The debtor company instituted those civil proceedings on 14 April 2009. They ended on 31 March 2011, when the Osijek County Court upheld the first-instance judgment of the Đakovo Municipal Court of 21 October 2010, whereby the enforcement of up to HRK 20,095.30 was declared inadmissible. The second-instance judgment was served on the debtor company on 11 May 2011 and on the applicant a day later. 18. Following an appeal lodged by the applicant, on 21 January 2010 the Osijek County Court quashed the first-instance decision of 27 March 2009 (see paragraph 16 above) in so far as it allowed the postponement of the enforcement and in this respect remitted the case. It dismissed the remainder of the applicant’s appeal and upheld the first-instance decision in the remaining part. 19. In the resumed proceedings, by a decision of 17 June 2010 the Đakovo Municipal Court again postponed the enforcement. 20. On 3 February 2011 the Osijek County Court dismissed the applicant’s appeal against that decision and upheld it. 21. On 24 May 2011 the applicant informed the Đakovo Municipal Court that the judgment declaring the enforcement inadmissible in part had become final (see paragraph 17 above) and asked it to continue with the enforcement in the remaining part. 22. By a decision of 2 June 2011 that court decided to resume the enforcement in the remaining part. By another decision of the same date that court ordered the debtor company to pay the applicant: (a) HRK 599.40 for unpaid overtime work, together with statutory default interest accrued since 11 March 2009, (b) HRK 19,495.90 in costs of civil proceedings, together with statutory default interest accrued since 1 June 2006, and (c) HRK 2,606.25 in costs of enforcement proceedings, together with statutory default interest accrued since 7 November 2008. This decision became final on 17 June 2011. 23. On 20 June 2011 the court informed the Domestic Payments Agency (Financijska agencija – FINA) of its second decision of 2 June 2011 (see the preceding paragraph). In the execution of that decision the agency on 21 July 2011 transferred HRK 38,306.87 from the debtor company’s bank account to those of the applicant and his legal representative. 24. Meanwhile, on 9 October 2009 the applicant lodged a request for protection of the right to a hearing within a reasonable time (zahtjev za zaštitu prava na suđenje u razumnom roku) with the Osijek County Court, complaining about the length of the above enforcement proceedings. 25. By a decision of 9 November 2010 the Osijek County Court dismissed the applicant’s request. It held that, while the case was indeed important for the applicant, the proceedings complained of were complex and he had contributed to their length in that he had not initially submitted a copy of the judgment he was seeking to enforce stamped with a certificate of enforceability (see paragraphs 8-11 above). 26. On 25 November 2010 the applicant appealed against that decision. 27. By a decision of 6 June 2011 the Supreme Court (Vrhovni sud Republike Hrvatske) dismissed the applicant’s appeal and served its decision on his representative on 26 August 2011. 28. On 23 September 2011 the applicant lodged a constitutional complaint against the second-instance decision. 29. By a decision of 12 December 2012 the Constitutional Court (Ustavni sud Republike Hrvatske) declared inadmissible the applicant’s constitutional complaint and served that decision on his representative on 31 December 2012. It held that the contested second-instance decision was not open to constitutional review.