SEKUL v. CROATIA
Inadmissible
Dmitry Dedov;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque;Ksenija Turković
1. The applicant, Mr Zorislav Sekul, is a national of Croatia and Australia, who was born in 1936 and lives in Supetar. He was represented before the Court by Ms L. Kušan, a lawyer practising in Ivanić Grad. 2. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. The applicant and his wife moved to Croatia from Australia sometimes in 1997/1998 and they bought a flat in Supetar from B.M. and D.M.E. Although there was no written purchase agreement, the applicant paid the full purchase price and moved into the flat. 5. Meanwhile, the applicant’s wife was admitted to a nursing home in Nerežišća and the applicant moved to a rest home in Supetar. 6. On 18 January 1999 the applicant brought an action in the Supetar Municipal Court (Općinski sud u Supetru) against B.M. and D.M.E., seeking a court order for the conclusion of a written sale and purchase agreement concerning the flat. 7. On 10 May 1999 the Supetar Municipal Court ruled in the applicant’s favour but on 4 October 2002 the Split County Court (Županijski sud u Splitu), as the court of appeal, quashed the first-instance judgment and remitted the case on the grounds of inadequate reasoning of the judgment. 8. In the resumed proceedings, on 14 January 2003, the applicant, represented by lawyer Z.I., amended his civil action seeking the award of title of ownership over the flat and the performance of certain construction works by B.M. and D.M.E. 9. During the proceedings, B.M. and D.M.E. lodged a counterclaim against the applicant seeking annulment of the oral sale and purchase agreement. 10. On 22 August 2003 the Supetar Municipal Court accepted the applicant’s action, awarded him the title of ownership over the flat and ordered B.M. and D.M.E. to perform the requested construction works. It also dismissed B.M.’s and D.M.E.’s counterclaim. 11. On 9 June 2005 the Split County Court upheld the first-instance judgment concerning the title of the applicant’s ownership and the dismissal of B.M.’s and D.M.E.’s counterclaim, whereas it quashed the part of the judgment concerning the performance of construction works and in that part remitted the case for re-examination. 12. In the resumed proceedings the applicant complained to the Split County Court about the length of the proceedings before the Supetar Municipal Court. 13. On 25 January 2008 the Split County Court found a violation of the applicant’s right to a hearing within a reasonable time, awarded him 7,000 Croatian kunas (HRK) in compensation and ordered the Supetar Municipal Court to decide the case within six months. 14. In September 2008 lawyer Z.I. informed the Supetar Municipal Court that he no longer represented the applicant, and in January 2009 lawyer J.A.M. informed that court that he was the applicant’s representative. 15. On 30 January 2009 the Supetar Municipal Court partially accepted the applicant’s civil action concerning the construction works, ordering B.M. and D.M.E. to carry out some additional works on the doors and windows, façade and the parquet floor in the applicant’s flat. In addition, it authorised the applicant, in the case of a failure of B.M. and D.M.E. to comply with that order, to carry out the construction works himself at the expense of B.M. and D.M.E. The applicant was also awarded costs and expenses in the amount of HRK 88,732. 16. This judgment was upheld on appeal by the Split County Court on 21 January 2010. It thus became final, and on 17 March 2010 it became fully enforceable. 17. On 29 November 2011 the applicant, represented by lawyer D.R., instituted enforcement proceedings against B.M. and D.M.E. in the Supetar Municipal Court concerning the performance of construction works ordered in the judgment of 30 January 2009 (see paragraphs 15 and 16 above). Relying on section 217 of the Enforcement Act, the applicant requested that B.M. and D.M.E. should comply with their duty to finish the construction work within a period of eight days and, in case of a failure on their part to comply with the judgment, to pay an enforcement fine (sudski penali) of HRK 500 for every further day of delay. 18. After unsuccessful friendly settlement arrangements, and several orders of the Supetar Municipal Court to correct his request for enforcement, on 29 June 2012 the applicant reiterated his request, under section 217 of the Enforcement Act, asking that B.M. and D.M.E. be given an additional period of fifteen days to comply with the judgment and, in case of a failure on their part, to pay an enforcement fine of HRK 500 for every further day of delay. 19. On 5 July 2012 the Supetar Municipal Court accepted the applicant’s request and ordered B.M. and D.M.E. to comply with the judgment of 30 January 2009 within a period of fifteen days, and, in case of a failure to that effect, to pay an enforcement fine in the amount of HRK 500 to the applicant for every further day of delay. 20. On 13 July 2012 B.M. and D.M.E. challenged the time-limit set out for the enforcement, seeking its postponement due to the upcoming tourist season. On 10 May 2013 the Supetar Municipal Court dismissed the request unfounded. 21. On 27 May 2013 B.M. and D.M.E. appealed to the Split County Court against the dismissal of their request for the postponement of the enforcement, arguing in particular that the construction works could not be performed during the tourist season and that the applicant had denied their workers access to the flat. 22. On 23 July 2013 the Split County Court dismissed the appeal lodged by B.M. and D.M.E. as unfounded, upholding the Supetar Municipal Court’s order for the payment of an enforcement fine. 23. The applicant did not seek the enforcement of that order by seeking payment of the awarded amount. 24. On 23 October 2008 lawyer Z.I., who represented the applicant in his civil proceedings instituted against B.M. and D.M.E. (see paragraphs 8-14 above), asked a public notary in Solin to issue an enforcement order on the applicant’s property in general for the payment of lawyer’s fees in the amount of HRK 83,229.86, together with the statutory default interest. 25. The following day the public notary accepted the request and issued an enforcement order on the applicant’s property. It instructed the applicant that he could lodge an objection against the order with the competent civil court within a period of eight days following its service on him. 26. The material available to the Court contains a delivery note of this decision dated 31 October 2008, bearing in handwriting the applicant’s last name. 27. As there was no objection against the public notary’s decision it became final on 8 November 2008. 28. On 12 February 2009 the applicant, represented by lawyer J.A.M., requested the public notary to re-open the proceedings arguing that he had not received the enforcement order on 31 October 2008, and that he had only later learnt of its existence. He also challenged the validity of the enforcement order. 29. After receiving the request, the public notary forwarded it to the Supetar Municipal Court for its examination and decision. 30. On 9 June 2009, after hearing the parties’ arguments, the Supetar Municipal Court declared the applicant’s request inadmissible as being lodged out-of-time. In particular, the Supetar Municipal Court found that there was no doubt that the enforcement order issued by the public notary had been served on the applicant on 31 October 2008, which was therefore taken as the date when the three-month time-limit for lodging a request for re-opening had started running. Accordingly, as the applicant’s request had been lodged on 12 February 2009, it followed that it was lodged out-of-time. 31. The Supetar Municipal Court informed the applicant that he could lodge an appeal against this decision with the Split County Court. The applicant did not avail himself of that possibility. 32. Meanwhile, Z.I. asked the Supetar Municipal Court to enforce the public notary’s enforcement order by the judicial sale of the applicant’s flat. Following the applicant’s protests, the Supetar Municipal Court on 8 February 2010 invited the parties to provide further comments on the case. 33. After receiving the parties’ further submissions, on 23 February 2010 the Supetar Municipal Court, in view of the applicant’s specific complaints, advised him to institute a separate set of civil proceedings requesting an interdiction of the further enforcement on his property based on Z.I.’s enforcement request. The applicant did not avail himself of this possibility. 34. On 20 May 2010 a hearing was held before the Supetar Municipal Court with a view of establishing the value of the applicant’s flat. It was decided that the competent tax authority would be requested to provide the relevant information in that respect. 35. On 3 February 2011 the Supetar Municipal Court, on the basis of available information, set the value of the flat at HRK 84,000 and ordered its judicial sale on 13 April 2011. 36. On 7 April 2011 Z.I. asked the Supetar Municipal Court to postpone the judicial sale of the applicant’s flat for a further six months so as to allow him the possibility to settle the debt by other means. 37. In October 2011 Z.I. requested the Supetar Municipal Court to resume the enforcement proceedings. 38. In January 2014 Z.I. informed the Supetar Municipal Court that so far he managed to receive HRK 22,307.21 from the applicant and that the applicant still owned him HRK 60,922.55. He therefore adjusted his claim, asking seizure of the amount awarded to the applicant on account of costs and expenses of the proceedings against B.M. and D.M.E. (see paragraph 15 above). 39. On 7 February 2014 the Supetar Municipal Court accepted Z.I.’s revised enforcement request. 40. It appears that the enforcement proceedings are still pending. 41. The relevant provisions of the Constitution of the Republic of Croatia (Ustav Republike Hrvatske, Official Gazette nos. 56/1990, 135/1997, 8/1998, 113/2000, 124/2000, 28/2001, 41/2001, 55/2001, 76/2010, 85/2010 and 5/2014) read as follows: “In the determination of his rights and obligations or of any criminal charge against him, everyone is entitled to a fair hearing within a reasonable time by an independent and impartial court established by law.” “Everyone has a right to respect for and legal protection of his ... family life, ...” “The right of ownership shall be guaranteed ...“ 42. The relevant provisions of the Enforcement Act (Ovršni zakon, Official Gazette, nos. 57/96, 29/99, 42/00, 173/03, 194/03, 151/04, 88/05, 121/05 and 67/08), which was in force between 11 August 1996 and 14 October 2012, read as follows: “(1) The enforcement proceedings shall be instituted upon the request of the creditor ...” “(1) The court shall order enforcement ... by the means and on the objects set out in the request for enforcement ...” “... (2) An enforcement order issued on the basis of a reliable document can be challenged by an objection. ...” “... (2) Reinstatement of the proceedings shall be allowed only in case of a failure to meet the time-limits for an appeal or objection.” “(1) In the enforcement proceedings ... the provisions of the Civil Procedure Act shall apply mutatis mutandis, unless otherwise provided under this or some other Act. ...” “(1) Against the enforcement order the debtor may lodge an appeal: ... 10. if the enforcement of the claim is, even if temporarily, postponed, prohibited, amended or otherwise impossible due to the fact which appeared at the moment when the debtor could not have raised it any longer in the proceedings in which the decision adopted ..., or 11. if the claim, set out in the enforcement document, is time-barred.” “(1) If an appeal has been lodged for one of the reasons under section 46 § 1 ... (9)-(11) of this Act, the first-instance court [conducting the enforcement proceedings] shall forward the appeal to the creditor for a comment ... (2) If the creditor accepts that one of the reasons referred to in the appeal exists, the court shall terminate the enforcement proceedings. (3) If the creditor challenges the existence of those reasons ..., the first-instance court [conducting the enforcement proceedings] shall without further delay instruct the debtor that he or she can, within the period of fifteen days following the finality of the decision [by which the instruction has been issued], institute the civil proceedings asking for an interdiction of the further enforcement on the grounds of the existence of reasons referred to in paragraph 1 of this section for which the appeal has been lodged. ...” “(1) If in his or her objection against the enforcement order issued on the basis of a reliable document the debtor has not indicated in which part the order is challenged, it shall be presumed that the order is challenged in whole. (2) If the enforcement order is challenged in whole, or only in the part in which the debtor was ordered to comply with the claim, the court to which the objection has been submitted shall set aside the enforcement order in the part in which the enforcement had been ordered ... and the proceedings shall continue as if an objection against a payment order [issued by the competent civil court] has been made.” “(1) If the debtor does not comply with his or her non-monetary duty to perform an action ... established in a final court decision ..., the court in the enforcement proceedings shall, on the basis of a request by the creditor, set out a further appropriate time-limit for the debtor [to comply with his or her duty] and [it will also] order that the debtor shall, in case of a failure to comply with his or her duty within that time-limit, pay to the creditor a certain amount of money for each day of delay ... (enforcement fine), starting from the expiry of the time-limit. ... (4) The payment of the enforcement fine can be sought until, on the basis of the enforceable [title], the enforcement of the non-monetary relief is sought. (5) The right to [seek] the enforcement fine terminates on the day when the request for enforcement referred to in paragraph 4 of this section is submitted. Enforcement of the payment of [the amount awarded by] the enforcement fine due on that day can be sought [by seizure of the debtor’s bank accounts]. ...” “On the basis of a final decision ordering the enforcement fine under section 217 of this Act, the court shall, in the same enforcement proceedings where that decision was made, upon the request of the creditor, order the enforcement of the [amount] awarded by the enforcement fine.” “(1) The enforcement of the duty to an action which can also be performed by another person shall be conducted so that the court shall authorise the creditor to commission, within a certain time-limit and on the expense of the debtor, from another person the performance of that action or to carry it out himself or herself. (2) In his or her request, the creditor may ask the court to order the debtor to deposit in advance certain amount [of money] at the court, necessary for the expenses related to the performance of the action by the third party or the creditor. ...” “Public notaries shall be competent to decide upon a request for enforcement on the basis of a reliable document, in accordance with this Act.” “(1) If the public notary finds that the request for enforcement is admissible and justified, he or she shall issue an enforcement order on the basis of a reliable document and shall serve it on the parties. ...” “(1) The debtor may lodge an objection against the enforcement order issued on the basis of a reliable document to the public notary who issued [the order]. (2) The public notary who received a belated or inadmissible objection against the order which he or she had issued, shall forward the case file for a decision on the objection to the competent court (section 252j), which shall declare such an objection inadmissible. ... (4) The case file forwarded to the competent court ..., upon the termination of the [relevant] proceedings, shall remain at the court.” 43. The Civil Procedure Act (Zakon o parničnom postupku, Official Gazette nos. 53/91, 91/92, 58/93, 112/99, 88/01, 117/03, 88/05, 02/07 and 84/08) in its relevant part provides: “(1) If a party fails to meet ... the time-limit for a procedural action and therefore loses the right take that action, the court shall, upon his or her request, allow to that party to take that action later (reinstatement of the proceedings) if it finds that this omission was the result of a justifiable reason. ...” “... (4) After the expiry of three months following the failure [to take the procedural action] the reinstatement of the proceedings cannot be sought. ...” “(1) If the defendant objects to the payment order ..., the court shall first decide upon that objection. If it finds that the objection is justified, it shall quash the payment order and, after the finality of that decision, open the proceedings on the subject matter [of the dispute] ... (2) If the court does not accept that objection, it shall open the proceedings on the subject matter [of the dispute], and the decision of the court [concerning the objection] shall be part of the decision on the subject matter [of the dispute]. ...” 44. The relevant provisions of the Courts Act (Zakon o sudovima, Official Gazette nos. 150/2005, 16/2007, 113/2008, 153/2009, 116/2010, 122/2010, 27/2011, 57/2011 and 13/2011), applicable in the case issue, read as follows: “(1) A party to court proceedings who considers that the court has failed to decide within a reasonable time on his or her rights or obligations or a criminal charge against him or her, may lodge a request for the protection of the right to a hearing within a reasonable time with a court at the next higher level of jurisdiction. ...” Section 28 (1) If the court referred to in section 27 of this Act finds the request well founded, it shall set a time-limit within which the court before which the proceedings are pending must decide on a right or obligation of, or a criminal charge against, the person who lodged the request, and may award him or her appropriate compensation for a violation of his or her right to a hearing within a reasonable time. (2) The compensation shall be paid out of the State budget within three months of the date on which the party’s request for payment is lodged. ...” 45. The relevant provision of the Civil Obligations Act (Zakon o obveznim odnosima, Official Gazette nos. 35/2005, 41/2008 and 125/2011) provides: “(1) All claims established by a final court decision ... shall be time-barred after the expiry of [the time-limit of] ten years, even if the law provides shorter period of prescription. ...”