NOVAK v. CROATIA
Inadmissible
Julia Laffranque;Nebojša Vučinić;Paul Lemmens;Stéphanie Mourou-Vikström;Ksenija Turković
1. The applicant, Ms Mihaela Novak, is a Croatian national, who was born in 1974 and lives in Selnica. She was represented before the Court by Ms M. Drča, an advocate practising in Zagreb. 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. On 27 February 2008 the applicant sustained an injury at work. 5. On 13 September 2010 the applicant brought a civil action in the Čakovec Municipal Court (Općinski sud u Čakovcu) against her employer, company I., seeking compensation for pecuniary and non-pecuniary damage sustained. 6. On 6 October 2010 the applicant’s statement of claim was forwarded to the defendant, which responded to it on 18 October 2010 by arguing that the injury had been exclusively her fault and by objecting to the level of compensation sought. The applicant made further submissions on 25 October 2010. 7. On 5 January, 25 May, 17 October and 20 December 2011 the applicant urged the court to schedule a hearing 8. The first hearing in the case was held on 12 March 2013 at which the applicant asked the court to obtain an opinion of a medical expert and opposed the defendant’s proposal to examine certain witnesses. 9. On 22 May 2013 the court decided to obtain an opinion of a forensic expert in medicine and invited the applicant to advance the costs thereof. The applicant did so on 8 July 2013. 10. On 12 September 2013 the expert submitted his opinion suggesting that a further expert opinion of an expert in psychiatry be obtained. 11. On 3 October 2013 the defendant submitted its comments on the expert opinion whereas the applicant did so on 29 October 2013. In her submissions she endorsed the proposal to obtain a further expert opinion of an expert in psychiatry and amended her action in accordance with the opinion of a medical expert already obtained. 12. On 5 November 2013 the court decided to obtain an opinion of a forensic expert in psychiatry. 13. On 17 December 2013 the expert in psychiatry submitted her opinion. 14. On 10 January 2014 the applicant commented on the expert opinion and amended her action accordingly whereas, on 23 January 2014, the defendant contested that opinion. 15. On 13 March 2014 the court held a hearing at which it heard the parties and the two experts and examined four witnesses. 16. Further hearings were held on 29 April and 15 May 2014. At the latter hearing the court closed the main hearing and scheduled a hearing for pronouncement of the judgment for 2 June 2014. 17. By a judgment pronounced on 2 June 2014 the Municipal Court ruled for the applicant and awarded her 44,840 Croatian kunas (HRK) in compensation together with the accrued statutory default interest and HRK 18,300 in costs. 18. On 10 June 2014 the defendant appealed against that judgment. 19. By a decision of 30 October 2014 the Varaždin County Court dismissed the appeal by the defendant and upheld the first-instance judgment which thereby became final. 20. Meanwhile, on 1 October 2013 the applicant lodged a request for protection of the right to a hearing within a reasonable time with the President of the Čakovec Municipal Court. She relied on section 65 of the 2013 Courts Act (see paragraph 23 below). 21. On 11 November 2013 the President issued a decision holding that the applicant’s request was well-founded and ordering the judge hearing the case to give a decision in the above civil proceedings within six months. 22. Section 63 of the Constitutional Act on the Constitutional Court of the Republic of Croatia (Ustavni zakon o Ustavnom sudu Republike Hrvatske, Official Gazette of the Republic of Croatia no. 99/1999 with subsequent amendments– “the Constitutional Court Act”), reads as follows: “(1) Anyone may lodge a constitutional complaint with the Constitutional Court if he or she deems that the decision of a State authority, local or regional government, or a legal person vested with public authority, on his or her rights or obligations, or as regards suspicion or accusation of a criminal offence, has violated his or her human rights or fundamental freedoms, or the right to local or regional government, guaranteed by the Constitution (‘constitutional rights’)... (2) If another legal remedy is available in respect of the violation of the constitutional rights [complained of], the constitutional complaint may be lodged only after this remedy has been exhausted. (3) In matters in which an administrative action or, in civil and non-contentious proceedings, an appeal on points of law [revizija] is available, remedies shall be considered exhausted only after a decision on these legal remedies has been given.” “(1) The Constitutional Court shall examine a constitutional complaint even before all legal remedies have been exhausted if the relevant court has failed to decide within a reasonable time on the rights or obligations of a party [to the proceedings] or as regards a suspicion or accusation of a criminal offence... (2) If it finds the constitutional complaint for failure to decide within a reasonable time referred to in paragraph 1 of this section well-founded, the Constitutional Court shall set a time-limit within which the relevant court must decide the case on the merits... (3) In a decision issued under paragraph 2 of this section, the Constitutional Court shall award appropriate compensation to the complainant for the violation of his or her constitutional right ... to a hearing within a reasonable time. The compensation shall be paid from the State budget within three months of the date on which a request for payment is lodged.” 23. The relevant provisions of the Courts Act of 2013 (Zakon o sudovima, Official Gazette no. 28/13), which entered into force on 14 March 2013, read as follows: “A party to judicial proceedings which considers that the competent court did not decide within a reasonable time on its rights or obligations, or on a suspicion or accusation of a criminal offence, shall have the right to judicial protection in accordance with this Act.” “(1) The legal remedies for the protection of the right to a hearing within a reasonable time are: 1. The request for protection of the right to a hearing within a reasonable time, 2. The request for payment of appropriate compensation for the violation of the right to a hearing within a reasonable time. (2) In the proceedings for deciding the requests referred to in paragraph 1 of this section the rules of non-contentious procedure shall apply mutatis mutandis, and, in principle, no hearing shall be held.” “(1) The request for protection of the right to a hearing within a reasonable time shall be lodged with the court before which the proceedings are pending. (2) The request shall be decided by the President of the court unless he or she is the judge hearing the case, in which situation the request shall be decided by the Vice-President of the court. (3) The President of the court shall, within 15 days of the receipt of the request, demand the judge hearing the case [to submit] a report on the length of the proceedings and the reasons why [they] have not been completed, as well as an opinion on the period within which the case could be decided. The President of the court may himself or herself inspect the case-file. (4) The judge hearing the case shall submit the report immediately, but no later than 15 days from the time the President of the court demanded him or her to do so. (5) In deciding on the request the President of the court shall in particular take into account the type of the case, [its] factual and legal complexity, the conduct of the parties and of the court. (6) The President of the court shall decide on the request within 60 days of its receipt.” “ (2) If the judge does not decide the case within the specified time-limit, he or she must within 15 days of its expiry, submit a written report to the President of the court giving reasons for having failed to do so. The President of the Court shall without delay forward the judge’s report and his or her [own] observations to President of the immediately higher court and to the Ministry of Justice.” “(1) If the President of the court finds the request unfounded, he or she shall dismiss it by a decision against which the [requesting] party shall have the right to appeal within eight days of the receipt of the decision. (2) The [requesting] party shall have the right to appeal also when the President of the court, within 60 days from receiving it, does not decide on the request. (3) The appeal shall be decided by the President of the immediately higher court. If the request concerns the proceedings pending before the Supreme Court, the appeal shall be decided by a panel of three judges of that court. The President of the immediately higher court or the panel may dismiss the appeal as unfounded and uphold the first-instance decision or reverse [that] decision.” “(1) If the court does not decide on the case referred to in section 65 of this Act within the specified time-limit, the [requesting] party may within a further period of six months lodge a request for payment of appropriate compensation for the violation of the right to a hearing within a reasonable time with the immediately higher court. (2) If the request concerns the proceedings pending before the High Commercial Court, the High Administrative Court or the High Court for Administrative Offences, the request shall be decided by the Supreme Court. (3) The request referred to in paragraph 1 of this section shall be decided by a decision of a single judge. (4) If the request concerns the proceedings pending before the Supreme Court, the request shall be decided by a panel of three judges of that court. (5) The immediately higher court shall decide on the request within six months.” “(1) The immediately higher court or the panel of the Supreme Court shall specify the time-limit within which the court before which the proceedings are pending must decide the case, and shall award [the requesting party] appropriate compensation for the violation of his or her right to a hearing within a reasonable time. (2) The total amount of appropriate compensation awarded in one case may not exceed 35,000 Croatian kunas. (3) An appeal, to be lodged within eight days with the Supreme Court, lies against the decision on the request for payment of adequate compensation for the violation of the right to a hearing within a reasonable. The appeal shall be decided by a panel of three judges of that court, and, if the decision was rendered by the panel of the Supreme Court referred to in section 68 paragraph 4 of this Act, the appeal shall be decided by a panel of five judges of that court. (4) The decision awarding appropriate compensation for the violation of the right to a hearing within a reasonable time shall immediately after becoming final be forwarded to the President of the court before which the violation of the right to a hearing within a reasonable time occurred, to the President of the Supreme Court and to the Ministry of Justice. (5) The compensation referred to in paragraph 1 of this section shall be paid out of the State budget. (6) If the case referred to in paragraph 1 of this section is not decided within the specified time-limit, the court president must within 15 days of its expiry, submit a written report to the President of the immediately higher court and the Ministry of Justice giving reasons for having failed to do so.” “If before the European Court of Human Rights proceedings have been instituted for the protection of the right to a hearing within a reasonable time and the Government’s representative before the European Court of Human Rights has requested information on the case from the [domestic] court before which the proceedings [complained of] are pending, that court shall inform the President of the immediately higher court, the President of the Supreme Court and the Ministry of Justice of the Government representative’s request and of the reasons for the delay.” “Requests for protection of the right to a hearing within a reasonable time received before the entry into force of this Act shall be dealt with in accordance with the provisions of the 2005 Courts Act.” 24. On 23 December 2014 the Constitutional Court issued a decision no. U-IIIA-322/2014, where it held that complainants wishing to lodge constitutional complaints under section 63 of the Constitutional Court Act (see paragraph 22 above) to complain about the excessive length of ongoing judicial proceedings were first required to make full use of remedies available under the 2013 Courts Act (see paragraph 23 above). It therefore declared inadmissible a constitutional complaint lodged under section 63 of the Constitutional Court Act (see paragraph 22 above) by the complainant who did not attempt to avail herself of those remedies before lodging her constitutional complaint. The Constitutional Court’s decision was published in the Official Gazette no. 8/15 of 23 January 2015. The relevant part of that decision reads as follows: “3.1. It follows from the foregoing that since the introduction in 2005 in the domestic legal system of a new remedy (a request for protection of the right to hearing within a reasonable under sections 27 and 28 of the 2005 Courts Act), a constitutional complaint under section 63 of the Constitutional Court Act was no longer the only remedy in the Republic of Croatia for protection of the constitutional right to a hearing within a reasonable time. In other words, the Constitutional Court was no longer competent for the protection of the right to a hearing within a reasonable time in the first instance ... 5. ... - Apart from the general procedural requirements that every constitutional complaint must meet, a prerequisite for deciding on the constitutional complaint in which a violation of the constitutional right to a hearing within a reasonable time was alleged ([regardless of the fact] whether it was lodged under section 62 or section 63 of the Constitutional Court Act) is, as a rule, that the complainant had used beforehand all available remedies [to complain] against the unreasonable length of the proceedings.