The duration of the proceedings exceeding 15 and 10 years was not reasonable. Lack of effective remedies to expedite proceedings. Violation of a fair trial

JUDGMENT

Kirinčić and others v. Romania (app. no. 31386/17) and Marić v. Croatia 30.07.2020 (app. no. 9849/15)

SUMMARY

Reasonable trial time and effective legla remedies to speed up the process.

The applicants went to court for compensation for forced expropriation in the first application and for civil liability compensation in the second. The overall process in three levels of jurisdiction lasted 15 years and 2 months and 10 years respectively in each case.

The ECtHR found in both cases that the length of the proceedings was clearly excessive and could not be justified by exceptional circumstances. It held that the proceedings had not complied with the “reasonable time” requirement and had violated the right to a fair trial (Article 6 § 1).

The ECtHR also found that in both cases the applicants did not have an effective remedy to expedite the proceedings or to compensate for the excessive length of the proceedings. The ECtHR therefore held that there had been a violation of Article 13 of the Convention and awarded EUR 9,000 and EUR 1,250 respectively to the applicants for non-pecuniary damage.

PROVISIONS

Article 6§1

Article 13

PRINCIPAL FACTS

Kirinčić and Others v. Croatia

The applicants were Smiljka Kirinčić, Branka Ivančić and Smiljan Kirinčić. They are Croatian nationals
born in 1932, 1952 and 1956 and live in Dobrinj and Rijeka (all in Croatia).

Between May 2000 and May 2015 the applicants, represented by the third applicant, were involved
in proceedings to regulate the ownership of previously nationalised property. A first-instance
decision in civil proceedings in October 2002, upheld on appeal in December 2006, found for them.
In February 2007 one of the defendants in the civil proceedings lodged an appeal on points of law,
which the Supreme Court eventually dismissed in May 2015.

In November 2014 the applicants lodged a request for protection of the right to a hearing within a
reasonable time with the President of the Supreme Court, a remedy under the 2013 Courts Act designed to accelerate proceedings. In May 2015 the President of the Supreme Court found the
request well-founded and ordered that a decision on the appeal on points of law be issued within six
months. However, a judgment had already been issued two days earlier, which was served on the
applicants in October 2015.

The applicants lodged a constitutional complaint about the length of the proceedings in January
2015. The Constitutional Court dismissed the complaint in October 2016. It found that the time to be
taken into account ran from the adoption of the decision by the President of the Supreme Court in
May 2015 to the serving of the Supreme Court’s decision on the appeal on points of law on the
applicants in October 2015, which was just over five months. Their right to a hearing within a
reasonable time had thus not been breached.

Marić v. Croatia

The applicant, Mirjana Marić, is a Croatian national who was born in 1951 and lives in Zagreb.
In October 2007 Ms Marić began proceedings for compensation against the City of Zagreb after a
traffic accident caused by an icy road which had not been salted. Zagreb Country Court handed
down the final judgment in appeal proceedings in March 2017, awarding her compensation for
pecuniary and non-pecuniary damage, which was served on her in May 2017.

The applicant, relying on the 2005 Courts Act, lodged a request for the protection of the right to a
hearing within a reasonable time in June 2010, which was ultimately dismissed by the Supreme
Court in October 2011.

She lodged a constitutional complaint about excessive length of proceedings in January 2014,
arguing that the remedy provided by a new Act, the 2013 Courts Act, was not effective.
The Constitutional Court dismissed her complaint for failure to use other remedies for excessive
length of proceedings, notably those under the 2013 Courts Act. It could not assess her complaint in
the abstract and doubts about the remedy’s effectiveness did not mean she did not have to try it
first.

THE DECISION OF THE COURT…

Kirinčić and Others v. Croatia

The Court found that the proceedings overall had lasted 15 years and five months at three levels of
jurisdiction. That was clearly excessive and could only be justified in exceptional circumstances,
which were, however, not present. The Court found that the proceedings had failed to meet the
“reasonable time” requirement and had violated Article 6 § 1.

Marić v. Croatia

Admissibility

The Government argued that the applicant’s complaint was not admissible as she had not fully
exhausted domestic remedies, in particular the procedure under the 2013 Courts Act. The applicant
submitted that a Constitutional Court complaint had been the only effective remedy in her case.
The Court first held that the period to be taken into account was just over four years, running from
when the 2013 Courts Act had come into force to when the final judgment had been served on her.
It observed that the 2013 Courts Act provided a two-step procedure for excessively long
proceedings: first, it was possible to obtain a decision by the president of the court dealing with the
case to accelerate the proceedings, which could provide a six-month deadline. Second, it was
possible to obtain compensation for a violation of the right to a hearing within a reasonable time.
In its decision in Novak v. Croatia it had found that the first step of the procedure, the purely
acceleratory remedy, could not be considered effective as it could only prevent further violations of
the right to a hearing within a reasonable time when such a violation had already occurred. On the
other hand, it had held in Novak, that the secondary, compensatory, remedy could be effective.

Nevertheless, the secondary remedy had restrictions: it could only be used where a complaint under
the first, acceleratory remedy had been upheld and the judge hearing the case had failed to meet
the deadline to deliver a judgment.

The question was thus whether the applicants had anyway to make use of the first leg of the
remedy: the Court found that they did not. The availability of the secondary remedy was restricted
to such an extent that it dispensed applicants from first having to use the primary, purely
acceleratory remedy.

The Court considered it understandable that Ms Marić had not used the purely accelerator remedy
as that would have gone beyond the duties incumbent on applicants under the Convention’s
admissibility rules. On the other hand, anyone who had used the first step of the procedure had to
use the second step too in order to exhaust domestic remedies for the purposes of admissibility if
the judge hearing the case had failed to meet the deadline to deliver a judgment.

Merits

The Court found that the Government had not put forward any fact or argument which justified the
length of the proceedings in the applicant’s case and there had been a breach of Article 6 § 1.

Article 13

Kirinčić and Others v. Croatia

The applicants submitted that they had never received any compensation for their protracted
proceedings, which had lasted more than 15 years. The Government argued that the remedies
available to the applicants had been effective.

The Court noted that in May 2015 the President of the Supreme Court had granted their request for
a remedy to accelerate the proceedings in their case and had ordered that a judgment be delivered
within six months. However, a judgment had already been delivered two days earlier.

Given that the proceedings had by that time lasted 15 years, the remedy could only be considered
effective if it had been accompanied by a compensatory step. However, compensation was not
possible as the deadline for the accelerated judgment had not been exceeded. The purely
acceleratory remedy under the 2013 Courts Act had therefore not been an effective remedy for the
applicants’ complaint about the length of the proceedings.

The Court went on to examine whether the complaint to the Constitutional Court was effective. It
noted that in December 2014 the Constitutional Court had decided that complaints about the length
of proceedings could be made to it, if the other remedies had been used first.

The Court noted, however, that in the applicants’ case the Constitutional Court had not taken into
account the overall length of the proceedings, more than 15 years, but had only considered the
period of about five months between the President of the Supreme Court granting their request for
an acceleratory remedy and the delivery of the final judgment in their civil case.

It reiterated that a remedy to raise a complaint about length of proceedings could only be
considered effective if it was capable of covering all stages of the proceedings and their overall
length. It therefore found that a complaint under section 63 of the Constitutional Court Act was not
an effective remedy for the applicants.

The Court noted that the Constitutional Court’s decision in the applicants’ case had reflected a
practice which had existed between December 2014 and May 2018, which had definitely changed in
March 2019, when the Constitutional Court had begun to consistently take account of the overall
duration of proceedings. Since the decisions suggesting the change in practice were published in
April and May 2019, the Court considered that that new practice must have become public
knowledge from November 2019.

The Court concluded that between January 2015 and mid-May 2019 a constitutional complaint was
not an effective remedy for complaints about the length of proceedings in cases where one of the
other remedies had been granted. However, it was effective if such a remedy had been denied.
The applicants had thus not had an effective remedy to complain about the excessive length of the
proceedings in their case and there had been a violation of Article 13.

Marić v. Croatia

The Court noted its findings in Ms Marić’s case in relation to Article 6 § 1 and that it had dismissed
the Government’s objections of non-exhaustion of domestic remedies as she had not had to use the
remedy available under the 2013 Courts Acts.

It concluded that there had also been a violation of Article 13 in her case.

Article 41 (just satisfaction)

The Court held that Croatia was to pay each of the applicants in Kirinčić and Others v. Croatia 9,000
euros (EUR) in respect of non-pecuniary damage and EUR 22 jointly in respect of costs and expenses. It held that Croatia was to pay the applicant in Marić v. Croatia EUR 1,250 in respect of
non-pecuniary damage and EUR 2,500 in respect of costs and expenses.

 


ECHRCaseLaw

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