CASE OF LUKAVICA v. CROATIA
Violation of Art. 6;Violation of P1-1
Christos Rozakis
4. The applicant was born in 1962 and lives in Jastrebarsko. 5. On 3 February 1994 the police authorities impounded the applicant's vehicle suspecting that it had been stolen. 6. On 25 November 1994 the Osijek Municipal State Attorney's Office gave a decision by which it refused to institute criminal proceedings against a certain M.S. – a person from whom in 1992 the applicant had bought the car – and dismissed the criminal complaint relating thereto. It however failed to decide on returning the vehicle to the applicant. 7. Meanwhile, on 23 June 1994 the applicant brought a civil action against the State in the Zagreb Municipal Court (Općinski sud u Zagrebu) seeking recovery of the impounded vehicle or, alternatively, pecuniary damages. Subsequently, on 9 November 1999, the applicant withdrew the first claim maintaining the one for damages. 8. On 10 October 1997 the Municipal Court gave judgment dismissing the applicant's claim. The applicant appealed. 9. On 11 May 1999 the Zagreb County Court (Županijski sud u Zagrebu) quashed the first-instance judgment for misapplication of substantive law and remitted the case. 10. In the resumed proceedings, the Municipal Court held hearings on 5 November 1999, 5 September 2001, 7 March 2003 and 11 March 2004. The hearings scheduled for 16 March 2001 and 2 July 2002 were adjourned owing to the illness of the judge assigned to hear the case, and to the applicant's absence, respectively. 11. On 11 March 2004 the parties reached an in-court settlement (sudska nagodba) whereby the State was to return the vehicle to the applicant, pay her 30,000 Croatian kunas (HRK) in respect of pecuniary damages, cover the costs of the proceedings in the amount of HRK 13,664 and pay the statutory default interest on these amounts accruable from the date of settlement, all within eight days. Under Croatian law an in-court settlement is equal, in terms of its effects, to a res judicata judgment and constitutes an enforcement title. 12. Since the State failed to perform the assumed obligations, on 15 September 2004 the applicant applied to the Zagreb Municipal Court for enforcement of the part of the above settlement concerning payment of damages and costs of proceedings. The case was later on transferred to the Jastrebarsko Municipal Court (Općinski sud u Jastrebarskom). 13. On 15 February 2005 the Jastrebarsko Municipal Court issued a writ of execution (rješenje o ovrsi), which was carried out on 5 April 2005. 14. The applicant's vehicle has not been returned to her. The Government submitted that she had never attempted to enforce that part of the in-court settlement. The applicant, however, submitted that, relying on the settlement, she had attempted to retrieve her vehicle from the police authorities but had been sent from one location to another, at none of which her car could be found. 15. Meanwhile, on 16 July 2002 the applicant lodged a constitutional complaint under section 63 of the Constitutional Court Act complaining about the length of the above proceedings. On 29 September 2004 the Constitutional Court (Ustavni sud Republike Hrvatske) dismissed her complaint finding that the delay was attributable to the complexity of the case and the applicant's conduct. In particular, it found that the applicant had contributed to the length of the proceedings in that she had failed to attend the hearing of 2 July 2002. As to the conduct of the Municipal Court, the Constitutional Court observed that there had existed two substantial periods during which no hearings had been held. However, even though they altogether amounted to more than two years, they had been justified because in that period the Municipal Court had been taking evidence by corresponding with the competent administrative authorities. 16. 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 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. The relevant provisions of the Criminal Procedure Act (Zakon o krivičnom postupku, Official Gazette nos. 53/91, 91/92, 34/93 (consolidated text), 38/93 (errata) and 28/96), as in force at the material time, provided as follows: Objects of evidentiary value shall be impounded temporarily and returned to the owner after the conclusion of the proceedings. If such an object is indispensable to the owner, it may be returned to him or her even before the conclusion of the proceedings but he or she shall be obliged to bring it upon request. If there is a risk of delay, the police authorities may even before the commencement of the investigation temporarily impound objects pursuant to the provision of section 201 of this Act ... (1) Objects which have to be seized pursuant to the Criminal Code, or which may be used as evidence in criminal proceedings, shall be temporarily impounded and deposited with a court, or their safe-keeping shall be secured in another way. ... (4) The police authorities may impound the objects referred to in paragraph (1) when acting under the provisions of [inter alia, section] ... 145 of this Act, or when executing a court order. The objects which were temporarily impounded in the course of the criminal proceedings shall be returned to their owner or holder upon the termination of the proceedings if their seizure is not required (section 487). (1) Objects that must be seized according to the Criminal Code shall also be seized when criminal proceedings do not end with a judgment convicting the accused, provided that this is required by considerations of public safety or the protection of morals. (2) The authority before which the proceedings were pending at the time they ended or were discontinued shall render a separate decision thereon. (3) The decision on the seizure of objects referred to in paragraph (1) of this section shall also be given by a court when it has failed to give such a decision in a judgment convicting the accused. (4) A certified written copy of the decision on the seizure of objects shall be served on the owner of the object, if he is known. (5) The owner of the object is entitled to appeal against the decision referred to in paragraphs (2) and (3) of this section if he or she considers that no legal ground for the seizure of the object existed. If the decision referred to in paragraph (2) of this section was not given by a court, the panel of the competent first-instance court shall decide on the appeal.