The case concerns delayed enforcement of a decision awarding the applicant a certain property he bought at a public auction in the enforcement proceedings against third persons.
CASE OF ŽIBRAT v. CROATIA
(Application no. 38100/15)
14 October 2021
This judgment is final but it may be subject to editorial revision.
In the case of Žibrat v. Croatia,
The European Court of Human Rights (First Section), sitting as a Committee composed of:
Erik Wennerström, President,
Lorraine Schembri Orland,
Ioannis Ktistakis, judges,
and Attila Teplán, Acting Deputy Section Registrar,
Having regard to:
the application (no. 38100/15) against the Republic of Croatia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Croatian national, Mr Boris Žibrat (“the applicant”), on 29 July 2015;
the decision to give notice to the Croatian Government (“the Government”) of the complaints concerning excessive length of proceedings, peaceful enjoyment of possessions and the lack of an effective remedy;
the parties’ observations;
Having deliberated in private on 21 September 2021,
Delivers the following judgment, which was adopted on that date:
1. The case concerns delayed enforcement of a decision awarding the applicant a certain property he bought at a public auction in the enforcement proceedings against third persons.
2. The applicant was born in 1956 and lives in Zagreb. He was represented by Mr I. Kobaš, an advocate practising in Zagreb.
3. The Government were represented by their Agent, Ms Š. Stažnik.
4. The facts of the case, as submitted by the parties, may be summarised as follows.
I. Enforcement proceedings
5. On 19 May 1999 the C. bank instituted enforcement proceedings before the Zagreb Municipal Court (Općinski sud u Zagrebu, hereafter “the enforcement court”) against a certain Mr T.C. (hereafter “the enforcement debtor”) by seizure and sale of his house in Zagreb.
6. On 27 January 2010 a public auction was held at which the applicant bought T.C.’s house for HRK 523,444 whereupon the enforcement court issued a decision awarding him the house in question. That decision became final on 10 February 2010.
7. By a decision of 19 April 2010 the enforcement court ordered that the house be handed over to the applicant and ordered the registration of his right of ownership in the land register.
8. On 27 April 2010 the applicant urged the enforcement court to set the date for the handover of the house. The enforcement court did so by a decision of 19 May 2011 whereby it ordered the eviction of the enforcement debtor and his family (wife and five children) from the house in question and scheduled the eviction for 6 July 2011.
9. In the subsequent course of the proceedings the enforcement debtor and his wife lodged numerous remedies against the above-mentioned decisions (see paragraphs 6-8 above) as well as multiple requests for postponement of enforcement and for withdrawal of the enforcement judge and the court president.
10. The evictions scheduled for 6 July 2011 (see paragraph 8 above), 16 January 2012 and 28 January 2013 were postponed because of the enforcement debtor’s request for withdrawal of the enforcement judge assigned to the case. The evictions scheduled for 19 February and 17 and 24 March 2015 failed because the activists and sympathisers of Human Shield (Živi zid) association together with T.C.’s neighbours blocked access to the property and prevented the enforcement officer and the police from carrying out the evictions.
11. On 1 April 2015 the case was transferred to the newly established Novi Zagreb Municipal Court (Općinski sud u Novom Zagrebu, hereinafter “the enforcement court”).
12. The house was eventually handed over to the applicant on 10 July 2015.
13. By a decision of 17 January 2018 the enforcement court concluded the enforcement proceedings.
14. Meanwhile, on 27 July 2015 the applicant applied to the enforcement court for a reimbursement of the costs of the enforcement proceedings.
15. By a decision of 7 August 2020, the enforcement court ordered the enforcement debtor to pay the applicant HRK 70,708.40 for the costs of the enforcement proceedings. On 20 October 2020 the Zagreb County Court dismissed an appeal by the enforcement debtor and upheld that decision.
II. Proceedings following the use of remedies for protection of the right to a hearing within a reasonable time
16. Meanwhile, on 22 November 2013 the applicant lodged a request for protection of the right to a hearing within a reasonable time with the President of the Zagreb Municipal Civil Court (Općinski građanski sud u Zagrebu) – a purely acceleratory remedy under the 2013 Courts Act (see paragraph 31 below) – complaining of the excessive delay in the above enforcement proceedings.
17. By a decision of 17 January 2014 the President of the Zagreb Municipal Civil Court ordered the enforcement judge assigned to the applicant’s case to complete the enforcement within twelve months.
18. Since that time-limit had not been complied with (see paragraphs 10‑13 above), on 31 March 2015 the applicant lodged a request for payment of appropriate compensation – a combined compensatory and acceleratory remedy under the 2013 Courts Act (see paragraph 31 below).
19. By a decision of 27 April 2016 the Velika Gorica County Court (Županijski sud u Velikoj Gorici) awarded the applicant HRK 7,500 in compensation for the violation of his right to a hearing within a reasonable time. It held that the applicant had not contributed to the delay in the enforcement, which had been mainly attributable to the enforcement court’s inefficient conduct of the proceedings.
20. Upon an appeal by the State, on 20 October 2016 the Supreme Court (Vrhovni sud Republike Hrvatske) reduced the amount of compensation to HRK 3,500. It held that the County Court had not sufficiently taken into account the fact that the delay had been partially attributable to the conduct of the enforcement debtor and the third parties and to their abuse of their procedural rights, that is, to the circumstances outside the enforcement court’s control.
21. On 21 December 2016, the applicant lodged a constitutional complaint relying on his right to a hearing within a reasonable time and his right of ownership, both guaranteed by the Croatian Constitution. He also relied on Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 thereto.
22. By a decision of 10 July 2019 the Constitutional Court (Ustavni sud Republike Hrvatske) dismissed the applicant’s constitutional complaint. It took into account the fact that the Supreme Court had already awarded him compensation for the excessive length of the enforcement proceedings (see paragraph 20 above).
III. other Proceedings
A. Civil proceedings for unjust enrichment
23. On 29 July 2015 the applicant brought a civil action for unjust enrichment in the Zagreb Municipal Civil Court against T.C. and the members of his family. He argued that by the enforcement court’s decision of 27 January 2010, which became final on 10 February 2010 (see paragraph 6 above), he had become the owner of the house in which the respondents had unlawfully continued to reside until their eviction on 10 July 2015 (see paragraph 12 above). He contended that, by illegally residing in his property for free in the period between 1 August 2011 and 10 July 2015, the respondents had unjustly enriched themselves for the amount corresponding to the market rent for the house.
24. By a judgment of 11 June 2019 the Municipal Court ruled for the applicant and ordered the respondents to jointly and severally pay him HRK 296,719 together with the accrued statutory default interest, as well as HRK 61,759.04 in costs. The respondents appealed against the judgment whereas the applicant appealed only against the ruling on costs.
25. The case is currently pending before the Dubrovnik County Court.
B. Civil proceedings for compensation against the State
26. On 5 November 2015 the applicant brought a civil action against the State in the Zagreb Municipal Civil Court seeking compensation for pecuniary and non-pecuniary damage sustained by delayed enforcement. He argued that the conduct of the judicial and police authorities’ in the above enforcement proceedings had been wrongful or had, at least, amounted to malpractice for which the State was liable under domestic law. The applicant claimed HRK 533,120.80 on account of pecuniary damage (of which HRK 171,120.80 for the actual loss and HRK 362,000 for loss of profit), HRK 300,000 on account of non-pecuniary damage, the statutory default interest accrued on those amounts, and the costs of proceedings.
27. By a judgment of 26 April 2018 the Municipal Court dismissed the applicant’s action. On 21 March 2019 Osijek County Court dismissed an appeal by the applicant and upheld the first-instance judgment.
28. The civil courts held that the conduct of the judicial and police authorities in the enforcement proceedings in question had not been wrongful or constituted malpractice, and that the applicant was therefore not entitled to pecuniary damage. As regards non-pecuniary damage, the civil courts held that the applicant had already received compensation for that type of damage (see paragraphs 19-20 above).
29. On 9 May 2019 the applicant lodged an appeal on points of law with the Supreme Court. Neither party lodged a constitutional complaint.
30. The case is currently pending before the Supreme Court.
RELEVANT LEGAL FRAMEWORK AND PRACTICE
31. The relevant domestic law and practice concerning length‑of‑proceedings remedies in Croatia is set out in Mirjana Marić v. Croatia (no. 9849/15, §§ 29-41, 30 July 2020), and Vrtar v. Croatia (no. 39380/13, § 51-56 and 61-64, 7 January 2016).
I. ALLEGED VIOLATIONS OF ARTICLE 6 § 1 OF THE CONVENTION and of ARTICLE 1 OF PROTOCOL nO. 1
32. The applicant complained that the delay in the enforcement of the decision of 19 April 2010 (see paragraph 7 above), whereby the enforcement court had ordered the handover of the house he had bought at a public auction, had been excessive and thus incompatible with the “reasonable time” requirement laid down in Article 6 § 1 of the Convention. The relevant part of that Article reads as follows:
“In the determination of his civil rights and obligations … everyone is entitled to a … hearing within a reasonable time by [a] … tribunal …”
33. The applicant also complained that the excessive delay in the enforcement of that decision had also resulted in breach of his right to the peaceful enjoyment of his possessions. He relied on Article 1 of Protocol No. 1 to the Convention which reads as follows:
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
34. Lastly, the applicant complained that the said excessive delay in the enforcement had also meant that he had not had an effective remedy for the protection of his right to the peaceful enjoyment of his possessions. He relied on Article 13 of the Convention taken in conjunction with Article 1 of Protocol No. 1. Article 13 reads as follows:
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
35. Given that the safeguards of Article 6 § 1 of the Convention are stricter than those of Article 13 (see Kudła v. Poland [GC], no. 30210/96, § 146, ECHR 2000 XI), the Court considers that the applicant’s complaint under Article 13 of the Convention is absorbed by his complaint under Article 6 § 1 above (see paragraph 32 above).
36. The Court considers that the period to be taken into consideration began on 19 April 2010 when the enforcement court ordered that the house be handed over to the applicant (see paragraph 8 above) and ended on 10 July 2015 when he entered into the possession of the house (see paragraph 12 above). It thus lasted over five years and two months.
1. Parties’ submissions
(a) The Government
37. The Government argued that the applicant could no longer claim to be a victim of the violations complained of because the Supreme Court had awarded him compensation which was appropriate in the given circumstances (see paragraph 19 above). Those violations had, therefore, been remedied at the domestic level and, as a result, the applicant had lost his victim status.
38. The Government further disputed the admissibility of the applicant’s complaint under Article 1 of Protocol No. 1 to the Convention (see paragraph 31 above), arguing that he had not exhausted domestic remedies. Specifically, they submitted that the civil proceedings for unjust enrichment were still pending (see paragraph 25 above) and that this complaint was therefore premature. Furthermore, they submitted that the applicant had not lodged a constitutional complaint against the second-instance judgment in the civil proceedings for compensation against the State (see paragraph 29 above).
(b) The applicant
39. The applicant argued that he could still claim to be a victim of the violations in question, because the compensation he had been awarded domestically was insufficient.
40. He further submitted that the civil action for unjust enrichment against the enforcement debtor and his family and the civil action for compensation against the State were not remedies which could be considered effective. The civil action for compensation against the State was not effective because the State liability under domestic law for wrongful conduct of judicial or administrative authorities or for their malpractice was much narrower than the State’s liability for a violation of the Convention. The civil action for unjust enrichment was ineffective because the enforcement debtor and his family were insolvent and thus could not pay him the amounts awarded (see paragraph 24 above).
2. The Court’s assessment
(a) The applicant’s victim status
41. The Court first notes that the enforcement proceedings in the applicant’s case lasted five years and some two and a half months (see paragraph 36 above). It further notes that the Supreme Court awarded him the equivalent of approximately EUR 465 (see paragraph 19 above). The compensation awarded by that court does not correspond to what the Court would have been likely to award him under Article 41 of the Convention in respect of the same period, nor can it otherwise be regarded as adequate in the circumstances of the case (see the principles established under the Court’s case-law in Cocchiarella v. Italy [GC], no. 64886/01, §§ 65-107, ECHR 2006‑V, or Scordino v. Italy (no. 1) [GC], no. 36813/97, §§ 178-213, ECHR 2006-V).
42. Having regard to the above, the Court considers that the applicant has not lost his victim status within the meaning of Article 34 of the Convention. It follows that the Government’s objection concerning the applicant’s victim status has to be rejected.
(b) Exhaustion of domestic remedies
43. The Court reiterates that the applicant may be required to have recourse to two separate remedies before the national authorities with a view to obtaining a full redress for the alleged violation. In Omasta the Court therefore held that the applicant had been required both to lodge a constitutional complaint, and to bring a civil action for compensation against the State in order to obtain full redress for the alleged violation of his rights under Article 1 of Protocol No. 1 resulting from the excessive length of the enforcement proceedings. Specifically, the Court held that by lodging a constitutional complaint the applicant could have obtained compensation for non-pecuniary damage whereas by bringing the civil action in question he could have obtained compensation for the pecuniary damage which consisted of his inability – caused by the excessive delay – to recover the sum adjudicated to him (see Omasta v. Slovakia (dec.), no. 40221/98, 10 December 2002).
44. In the present case the applicant, who was in a similar situation, obtained compensation for the non-pecuniary damage sustained but that compensation was insufficient (see paragraph 41 above). This means that even if the applicant obtains compensation for pecuniary damage by pursuing the remedies suggested by the Government (see paragraph 38 above above), he would not obtain the full redress anyway.
45. It is true that in one of those remedies, namely in the civil action for compensation against the State, the applicant, beside compensation for pecuniary damage, also sought compensation for non-pecuniary damage (see paragraph 26 above). However, the civil courts in their judgments dismissed that part of the applicant’s claim holding that he had already received compensation for that type of damage in the proceedings upon his length-of-proceedings remedies (see paragraph 28 above). To lodge a constitutional complaint against those judgments would, in the Court’s view, have lacked any prospect of success as it is very unlikely that the Constitutional Court would change its view expressed in its decision upon the applicant’s constitutional complaint of 21 December 2016 where it held that the compensation he had received in those proceedings was sufficient (see paragraphs 21-22 above).
46. It follows that the Government’s objection as to the exhaustion of domestic remedies must be rejected.
(c) Conclusion as regards admissibility
47. The Court further notes that these complaints are neither manifestly ill‑founded nor inadmissible on any other grounds listed in Article 35 of the Convention. They must therefore be declared admissible.
1. Alleged violation of Article 6 § 1 of the Convention
48. To decide if the delay in the enforcement was reasonable, the Court will look at the complexity of the enforcement proceedings, how the applicant and the authorities behaved, and the nature of the award (see Raylyan v. Russia, no. 22000/03, § 31, 15 February 2007).
49. In the present case, the Court notes that the domestic courts found that the length of the enforcement proceedings in the applicant’s case had exceeded reasonable time (see paragraphs 19-20 above). The Court sees no reason to hold otherwise as it has itself frequently found violations of Article 6 § 1 of the Convention in cases raising similar issues as the present one (see, for example, Cvijetić v. Croatia, no. 71549/01, §§ 32‑37 and 40‑43, 26 February 2004; Pibernik v. Croatia, no. 75139/01, §§ 48‑50 and 56-60, 4 March 2004, and Casa di Cura Valle Fiorita S.r.l. v. Italy, no. 67944/13, §§ 46-54, 13 December 2018).
50. In the light of the foregoing, the Court considers that there has been a violation of Article 6 § 1 of the Convention.
2. Alleged violation of Article 1 of Protocol No. 1 to the Convention
51. In the Court’s view, the delay in the enforcement also had a direct impact on the applicant’s right to the peaceful enjoyment of his possessions as it had prevented him from enjoying his property for over five years (compare with Kunić v. Croatia, no. 22344/02, § 67, 11 January 2007, and Marini v. Albania, no. 3738/02, §§ 173 and 186, 18 December 2007).
52. In this connection the Court refers to its above findings under Article 6 § 1 of the Convention (see paragraph 49 above), which are in the present case equally relevant for assessing whether the State has complied with its positive obligations under Article 1 of Protocol No. 1.
53. In view of those findings the Court considers that, although social considerations and the requirements of public order may sometimes justify a delay in enforcement, that was not so in the applicant’s case (see, for example, Casa di Cura Valle Fiorita S.r.l, §§ 55-60).
54. There has accordingly been a violation of Article 1 of Protocol No. 1 to the Convention.
II. ALLEGED VIOLATION OF ARTICLE 13 of THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 6 § 1 THEREOF
55. The applicant also complained, under Article 6 § 1 of the Convention, that that the remedies he had resorted to in order to complain about the excessive length of the enforcement proceedings had been ineffective.
56. Having regard to its case-law (see, notably, Kudła, cited above, § 147) the Court considers that this complaint falls to be examined under Article 13 of the Convention taken in conjunction with Article 6 § 1.
57. The Court does not find it necessary to reproduce the parties’ arguments in this regard because this complaint is in any event inadmissible for the reasons set out below.
58. It is sufficient to note that the applicant had an opportunity, of which he availed himself, to use the combined compensatory and acceleratory remedy under the 2013 Courts Act and obtain compensation for the excessive delays in the enforcement proceedings complained of (see paragraphs 18-20 above). The Court has recognised that remedy as effective (see Novak v. Croatia (dec.), no. 7877/14, §§ 56-57, 7 July 2016, and Mirjana Marić v. Croatia, no. 9849/15, §§ 75, 78 and 81, 30 July 2020).
59. The mere fact that, in the particular circumstances, the compensation awarded to the applicant at the domestic level does not correspond to the amount the Court would have awarded him does not render the remedy ineffective (see, for example, Jakupović v. Croatia, no. 12419/04, § 28, 31 July 2007).
60. It follows that this complaint is inadmissible under Article 35 § 3 (a) of the Convention as manifestly ill-founded and must be rejected pursuant to Article 35 § 4 thereof.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
61. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
1. The Parties submissions
62. The applicant claimed 66,654 euros (EUR) in respect of pecuniary damage, where EUR 23,018 corresponded to the amount of the costs the applicant incurred in the enforcement proceedings in question, and EUR 42,636 to the profits lost due to his inability to rent out the house in question for the duration of those proceedings. The applicant also claimed EUR 40,000 on account of non-pecuniary damage.
63. The Government contested these claims as excessive, unsubstantiated and ill-founded. As regards the claim for pecuniary damage, the Government submitted that there was no causal link between the violations complained of and the applicant’s claim, as the pecuniary damage claimed could not have resulted from the length of the enforcement proceedings.
2. The Court’s assessment
(a) Pecuniary damage
64. The Court reiterates that a judgment in which it finds a breach imposes on the respondent State a legal obligation to put an end to the breach and make reparation for its consequences. Only if national law does not allow – or allows only partial – reparation to be made, Article 41 empowers the Court to afford the injured party such satisfaction as appears to it to be appropriate (see Iatridis v. Greece (just satisfaction) [GC], no. 31107/96, §§ 32-33, ECHR 2000-XI).
65. In this connection the Court first notes that the enforcement court already awarded the applicant the costs of the enforcement proceedings and that this decision became final (see paragraphs 15 and 62 above).
66. As regards the remainder of the applicant’s claim for pecuniary damage corresponding to the lost profits (see paragraph 62 above), the Court first notes that this damage mainly stems from the unlawful conduct of T.C. and the members of his family, who, regardless of the State’s obligations under the Convention in the enforcement of the judicial eviction order, were bound to surrender the house to the applicant (see, mutatis mutandis, Lo Tufo v. Italy, no. 64663/01, § 68, ECHR 2005‑III). The violations found in the present case were both procedural in nature and were subsequent to the enforcement debtor’s and his family’s own conduct (ibid.). The Court further notes that the relevant domestic proceedings the applicant instituted against T.C. and his family are currently pending before the appellate court after the first-instance court ruled in the applicant’s favour (see paragraphs 23-25 above).
67. It follows that the applicant can obtain redress for the pecuniary damage claimed (see paragraph 62 above) before the domestic authorities which are better placed than the Court to assess it (see Casa di Cura Valle Fiorita S.r.l., cited above, § 68). Since the national law therefore allows full reparation to be made for the pecuniary damage claimed by the applicant, the Court finds that there is no call to award him any sum on that account. It therefore rejects this claim (see Lo Tufo, cited above, § 69).
(b) Non-pecuniary damage
68. On the other hand, the Court considers that the applicant must have sustained non-pecuniary damage. Ruling on an equitable basis, it awards the him EUR 2,300 in respect of non-pecuniary damage, plus any tax that may be chargeable.
B. Costs and expenses
69. The applicant also claimed EUR 3,818 for the costs and expenses incurred before the domestic courts and for those incurred before the Court.
70. The Government contested these claims as excessive.
71. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these were actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 3,000 covering costs under all heads, plus any tax that may be chargeable to the applicant.
C. Default interest
72. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Declares the complaints concerning the excessive length of proceedings and the right of property admissible and the remainder of the application inadmissible;
2. Holds that there has been a violation of Article 6 § 1 of the Convention;
3. Holds that there has been a violation of Article 1 of Protocol No. 1 to the Convention;
(a) that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into Croatian kunas at the rate applicable at the date of settlement:
(i) EUR 2,300 (two thousand and three hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 3,000 (three thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
5. Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 14 October 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Attila Teplán Erik Wennerström
Acting Deputy Registrar President