CASE OF SUKOBLJEVIC v. CROATIA
Preliminary objection joined to merits (non-exhaustion of domestic remedies) and dismissed;Violation of Art. 6-1;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
Christos Rozakis
4. The applicant was born in 1944 and lives in Zagreb. 5. On 24 March 1993 the applicant brought a civil action against the company T. (“the employer”) in the Zagreb Municipal Court (Općinski sud u Zagrebu) seeking damages for a work-related injury. 6. On 3 February 1995 the Municipal Court gave judgment awarding damages to the applicant in the amount of 31,780 Croatian kunas (HRK) and the litigation costs. 7. On 21 May 1996 the employer appealed to the Zagreb County Court (Županijski sud u Zagrebu). 8. On 23 March 1999 the County Court quashed the first-instance judgment and remitted the case. 9. In the resumed proceedings, the Municipal Court held a hearing on 7 December 1999 at which it requested the applicant to provide the minutes drawn up by the labour inspectorate concerning the incident resulting in his injury or to indicate a person or authority who possessed that document. On 12 June 2000 the court repeated its request. 10. On 16 June 2000 and 3 January 2001 the applicant requested the court to invite the employer to produce the above evidence. On 26 June 2001 the court did so. 11. At the hearing held on 14 December 2001 the court decided to effect an in situ inspection (očevid) on 15 February 2002 with the assistance of an expert, and invited the applicant to advance the costs. Since the applicant did so only on 19 February 2002, the inspection did not take place. 12. On 3 January 2002 the Zagreb Commercial Court (Trgovački sud u Zagrebu) decided to open bankruptcy proceedings against the employer. It invited the creditors to report their claims by 28 February 2002 and scheduled a hearing, at which the reported claims were to be examined, for 20 March 2002. In accordance with the Bankruptcy Act, the decision was published in the “Official Gazette” no. 6/02 of 21 January 2002. 13. On 8 May 2002 the Zagreb Municipal Court invited the applicant to inform it whether the bankruptcy proceedings had been opened against the employer. On 8 June 2002 the applicant replied in the affirmative and requested that any future communication with the employer be conducted through its bankruptcy manager (stečajni upravitelj). 14. On 12 June 2002 the Municipal Court stayed the proceedings on account of the pending bankruptcy proceedings. 15. On 13 June 2002 the applicant reported his claim to the Zagreb Commercial Court. On 8 January 2004 and 30 June 2005 he filed two rush notes with that court urging the delivery of a decision on his claim. 16. On 20 March 2006 the Commercial Court, without issuing a formal decision, replied that in the bankruptcy proceedings against the employer the applicant’s claim had never been examined. 17. It would appear that both the civil and the bankruptcy proceedings are formally still pending. 18. Meanwhile, on 18 June 2002 the applicant lodged a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske) complaining about the length of the civil proceedings. 19. On 16 December 2002 the Constitutional Court dismissed the applicant’s complaint. It examined the length of the proceedings in their part following the Convention’s entry into force with respect to Croatia. The Constitutional Court held that the delay was attributable to the complexity of the case and the applicant’s conduct. It found that the applicant had contributed to the length of the proceedings in that he had not responded to the Municipal Court’s request of 7 December 1999 for more than six months, that he had failed to advance the inspection costs in due time and that he had failed to request the Municipal Court to invite the bankruptcy manager to take over the civil proceedings which would have resulted in their resumption. 20. The relevant part of section 63 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: “(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.” 21. The Civil Procedure Act (Zakon o parničnom postupku, Official Gazette nos. 53/91, 91/92, 58/93, 112/99, 88/01 and 117/03) in the relevant part provides as follows: 22. Section 212(1) provides that proceedings shall be stayed, inter alia, if bankruptcy proceedings are opened (against one or both of the parties). 23. Section 215(1) provides that proceedings shall resume when the bankruptcy manager takes over the proceedings or when the court, of its own motion or at the initiative of the opposite party, invites the bankruptcy manager to do so. 24. The Bankruptcy Act (Stečajni zakon, Official Gazette nos. 44/96, 29/99, 129/00, 123/03, 197/03, 187/04 and 82/06) in the relevant part provides as follows: 25. Section 7(2) provides that bankruptcy proceedings are urgent. 26. Section 55(1) provides that in its decision to open the bankruptcy proceedings the court shall set a date for the examination hearing (ispitno ročište) which shall be scheduled within two months after the lapse of the time-limit left to the creditors to report their claims to the bankruptcy manager. 27. Section 96 provides that creditors shall realise their claims against the bankrupt only in bankruptcy proceedings. 28. Section 173(1) provides that creditors shall report their claims against the bankrupt to the bankruptcy manager in writing, stating the basis and the amount thereof. 29. Section 175 provides for an examination hearing before the competent commercial court at which the bankruptcy manager shall either accept or oppose each of the reported claims. Likewise, a creditor can oppose the claim reported by another creditor. 30. Section 176(2) provides that the claims reported within three months after the first examination hearing may be examined at one or more separate examination hearings. Those hearings shall be scheduled by the court at the proposal of the creditors who failed to report their claims in due time, and under the condition that they advance the costs. If the costs are not advanced, the separate hearing shall not be held and the belated reports shall be declared inadmissible. 31. Section 176(4-6) provides that the court shall declare inadmissible the reports submitted after the expiry of the time-limit set forth in paragraph 2. The creditor which submitted the report shall have a right to appeal against that decision. 32. Section 177 provides that the claim is deemed to have been accepted if no objection has been raised by either the bankruptcy manager or another creditor. The commercial court shall prepare a schedule of examined claims on the basis of which it shall issue a decision (rješenje) showing which claims have been accepted and which were opposed, while setting out the amount and priority of each claim. 33. Section 179(1) provides that civil proceedings that concern a claim reported to the bankruptcy manager and that were pending at the moment of the opening of bankruptcy proceedings, shall be resumed by taking over of these proceedings (by an authorised person in the name of the bankrupt). The motion to resume the civil proceedings can be made by the plaintiff whose claim has been opposed in bankruptcy or, in the name of the bankrupt, the bankruptcy manager or another creditor that opposed the plaintiff’s claim. 34. Section 181(1) provides that a final decision establishing the claim and its priority, or establishing that a claim does not exist, shall be effective against the bankrupt and all its creditors.