FIRST SECTION
CASE OF PERUŠKO v. CROATIA
(Application no. 36998/09)
JUDGMENT
STRASBOURG
15 January 2013
This judgment will become final in the circumstances set out in Article 44 § 2 of the
Convention. It may be subject to editorial revision.
PERUŠKO v. CROATIA JUDGMENT
1
In the case of Peruško v. Croatia,
The European Court of Human Rights (First Section), sitting as a
Chamber composed of:
Isabelle Berro-Lefèvre, President,
Nina Vajić,
Anatoly Kovler,
Khanlar Hajiyev,
Mirjana Lazarova Trajkovska,
Julia Laffranque,
Linos-Alexandre Sicilianos, judges,
and Søren Nielsen, Section Registrar,
Having deliberated in private on 11 December 2012,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 36998/09) 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 Franko Peruško (“the
applicant”), on 25 May 2009.
2. The applicant was represented by Mr M. Pavičević, a lawyer
practising in Pula. The Croatian Government (“the Government”) were
represented by their Agent, Ms Š. Stažnik.
3. On 24 March 2011 the applicant’s complaint concerning his right to
access to court was communicated to the Government. It was also decided
to rule on the admissibility and merits of the application at the same time
(Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
4. The applicant was born in 1951 and lives in Pula.
5. The applicant worked as a janitor for the Ministry of the Interior
(Ministarstvo unutarnjih poslova Republike Hrvatske; hereinafter - “the
Ministry”) until 3 August 2001, when the Ministry dismissed him as his job
had become redundant.
6. On 21 August 2001 the applicant appealed against that decision to the
Minister of the Interior.
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PERUŠKO v. CROATIA JUDGMENT
7. The applicant also brought a civil action against the Ministry in the
Pula Municipal Court (Općinski sud u Puli) on 20 September 2001,
challenging his dismissal and asking to be reinstated.
8. Simultaneously (since the Minister had not decided on his appeal of
21 August 2001 within the statutory time-limit of thirty days), on
25 September 2001 the applicant brought an action against the Ministry in
the Administrative Court (Upravni sud Republike Hrvatske) as though his
appeal had already been dismissed. In particular, he contested the decision
of 3 August 2001 to dismiss him.
9. On 5 December 2001 the Pula Municipal Court, concerning the
applicant’s civil action of 20 September 2001, declined its jurisdiction in the
matter on the basis that the Administrative Court was the appropriate court
to hear the applicant’s case.
10. On 13 December 2001 the Minister of the Interior dismissed the
applicant’s appeal of 21 August 2001 lodged against the Ministry’s decision
to make him redundant. However, he reversed the first-instance decision of
3 August 2001 by extending the applicant’s notice period and changing the
date of the termination of employment.
11. Consequently, on 29 December 2001 the applicant withdrew the
administrative action he had brought before the Administrative Court on
25 September 2001 (see paragraph 8 above).
12. On 30 December 2001 the applicant lodged an appeal with the Pula
County Court (Županijski sud u Puli) against the decision of the Pula
Municipal Court of 5 December 2001 declining the jurisdiction in his case.
13. On 31 December 2001 the applicant then brought a fresh
administrative action against the Ministry in the Administrative Court – this
time contesting the Minister’s decision of 13 December 2001.
14. On the basis of the applicant’s withdrawal of his administrative
action of 25 September 2001, the Administrative Court on 28 February
2002 discontinued the proceedings instituted by that action (see
paragraphs 8 and 11 above).
15. On 4 November 2002 the Pula County Court dismissed the
applicant’s appeal of 30 December 2001 and upheld the first-instance
decision of the Pula Municipal Court declining jurisdiction to deal with the
applicant’s civil action of 20 September 2001, on the ground that the matter
was within the competence of the Administrative Court (see paragraphs 9
and 12 above). The case was transferred to the Administrative Court on
22 November 2002.
16. On 2 December 2002 the applicant withdrew his civil action of
20 September 2001.
17. On 13 January 2003 the Pula Municipal Court informed the
Administrative Court that the applicant had withdrawn his civil action.
PERUŠKO v. CROATIA JUDGMENT
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18. On that basis, on 16 January 2003 the Administrative Court
discontinued the proceedings instituted by that action. The decision of the
Administrative Court reads:
“The plaintiff, through a representative, lodged his action against the decision of the
Ministry of the Interior ... of 13 December 2001, by which the decision of the same
Ministry of 3 August 2001 was reversed in that the plaintiff’s employment in the
Istarska Police Department was to be terminated five months after the expiry of the
notice period which started running on 6 August 2001 ...
Section 28 of the Administrative Disputes Act (Official Gazette, nos. 53/1991,
9/1992, 77/1992) provides that the plaintiff can withdraw his action until the court
orders that the decision be served on the parties, in which case the court shall issue a
decision discontinuing the proceedings.
Since the plaintiff, by a letter received in this court on 13 January 2003, which had
been filed in the case file, had withdrawn his action, this court, acting under
Section 28 of the Administrative Disputes Act, decided as noted in the operative part
of this decision.”
19. On 2 October 2004, since he had received no reply concerning the
administrative action he had brought before the Administrative Court on
31 December 2001 (see paragraph 13 above) the applicant urged it to decide
on his action. He pointed out that, in order to avoid any possible confusion,
it was necessary to distinguish the civil action which he had brought before
the Pula Municipal Court, which had been transferred to the Administrative
Court and which he had withdrawn, from the administrative action which he
wanted to pursue. However, the applicant received no reply from the
Administrative Court.
20. Therefore, on 12 August 2005 the applicant lodged a constitutional
complaint under section 63 of the Constitutional Court Act with the
Constitutional Court (Ustavni sud Republike Hrvatske), complaining about
the length of the proceedings before the Administrative Court instituted by
his action of 31 December 2001.
21. The applicant pointed out that the civil action he had brought before
the Pula Municipal Court had been transferred to the Administrative Court
and that he had then withdrawn that action. Consequently, on 16 January
2003, the Administrative Court had discontinued those proceedings.
However, he had never received any information or court decision
concerning his administrative action of 31 December 2001 although those
proceedings had been pending for almost four years.
22. On 17 October 2007 the Constitutional Court informed the applicant
that, according to the information provided by the Administrative Court, the
proceedings complained of had been discontinued by the Administrative
Court on 16 January 2003, because the applicant had withdrawn that action.
The Constitutional Court therefore asked the applicant whether he wished to
maintain his constitutional complaint.
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PERUŠKO v. CROATIA JUDGMENT
23. On 30 October 2007 the applicant informed the Constitutional Court
that he did wish to maintain his constitutional complaint, and explained that
the Administrative Court decision of 16 January 2003 referred to the
proceedings instituted by his civil action of 20 September 2001, whereas he
was, in fact, complaining about the proceedings instituted by his
administrative action of 31 December 2001. The applicant also pointed out
that he had never received any notice or decision from the Administrative
Court concerning that action.
24. On 19 November 2008 the Constitutional Court declared the
applicant’s constitutional complaint inadmissible. It found that the
proceedings complained of had ended on 16 January 2003, when the
Administrative Court discontinued those proceedings, whereas the applicant
had lodged his constitutional complaint after that date, on 12 August 2005.
It then reiterated its settled case-law, to the effect that section 63 of the
Constitutional Court Act could not be interpreted as allowing constitutional
complaints to be lodged about the length of proceedings that had already
ended.
25. However, Judge Davor Krapac expressed a dissenting opinion, in
which he first explained that when, on 22 November 2002, the civil court
had forwarded the case originating from the applicant’s civil action of
20 September 2001 to the Administrative Court, that court had filed the
documents belonging to that case together with those relating to the
applicant’s administrative action of 31 December 2001. Therefore, when the
applicant had withdrawn his civil action of 20 September 2001, the
Administrative Court had also discontinued the proceedings instituted by his
administrative action of 31 December 2001. The Judge also noted that the
applicant had urged the Administrative Court on 2 October 2004 to decide
on his administrative action, showing that he had wanted his proceedings in
the Administrative Court to be continued. Furthermore, since he had had no
right to appeal against an erroneous decision of the Administrative Court, he
had also been unable to submit a request for the reopening of proceedings
under the relevant law.
26. This situation, in Judge Krapac’s view, had amounted to a grave
violation of the right of access to court. In his dissenting opinion he noted:
“ ... when a judicial body (having in mind all parts of that body, including the
court’s administration) creates a situation, whether by its actions or omissions, where
a certain action is not only not decided, within a reasonable time but, owing to
complete ignorance of its existence, not decided at all, then this amounts to a grave
violation of the right of access to a court and an extreme form of violation of the right
to a fair hearing within a reasonable time.”
27. The Constitutional Court served its decision on the applicant’s
representative on 28 November 2008.
PERUŠKO v. CROATIA JUDGMENT
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II. RELEVANT DOMESTIC LAW
28. The relevant provision of the Constitution of the Republic of Croatia
(Ustav Republike Hrvatske, Official Gazette no. 56/1990, 135/1997,
113/2000, 28/2001) reads as follows:
Article 29
“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.”
29. The relevant provisions of the Constitutional Act on the
Constitutional Court of the Republic of Croatia (Ustavni zakon o Ustavnom
sudu Republike Hrvatske, Official Gazette nos. 99/1999 and 29/2002) read
as follows:
Section 63
“(1) The Constitutional Court shall examine a constitutional complaint whether or
not all legal remedies have been exhausted if the competent court fails to determine a
claim concerning an individual’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 subsection 2 of this section, the Constitutional Court
shall assess the appropriate compensation for an applicant for a violation of his or her
constitutional rights ... The compensation shall be paid out of the State budget within
three months of the date on which a request for payment is submitted.”
30. The relevant provisions of the Administrative Disputes Act (Zakon o
upravnim sporovima, Official Gazette nos. 53/1991, 9/1992 and 77/1992),
as in force at the material time, provided:
Section 28
“The plaintiff can withdraw his action until the court orders that the decision be
served on the parties, in which case the court shall issue a decision discontinuing the
proceedings.”
Section 67 of the Administrative Disputes Act also provided for special
proceedings for the protection of constitutional rights and freedoms from the
unlawful acts of public officials - specifically that an action could be
brought if the following conditions were met: (a) an unlawful action had
already taken place; (b) such action was the work of a government
official/body/agency or another legal entity; (c) the action resulted in a
violation of one or more of the plaintiff’s constitutional rights; and (d) the
Croatian legal system did not provide for any other form of redress.
PERUŠKO v. CROATIA JUDGMENT
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THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
31. The applicant complained that he had not had access to a court as
provided for in Article 6 § 1 of the Convention, which reads as follows:
“In the determination of his civil rights and obligations ... everyone is entitled to a
fair ... hearing ... by [a] ... tribunal ...”
A. Admissibility
1. Compliance with the six-month time-limit
32. The Government argued that the date on the application form was
25 May 2009 but that it was not clear when the form had been submitted to
the Court. They pointed out that it bore the Registry’s stamp dated 4 June
2009 and that the final domestic court decision, namely the Constitutional
Court’s decision of 19 November 2008, had been served on the applicant on
28 November 2008. They suggested, therefore, that the applicant had lodged
his application with the Court outside the six-month time-limit.
33. The applicant submitted that he had sent his application to the Court
through the post office on 26 May 2009, as was clear from the postal service
log-book that he had also submitted to the Court. Therefore, he had lodged
his application with the Court within the six-month time-limit.
34. The Court reiterates that it may only deal with an application if it is
lodged with the Court within the six-month time-limit. The purpose of the
six-month rule is to promote legal certainty and to ensure that cases raising
issues under the Convention are dealt with within a reasonable time as well
as to protect the authorities and other persons concerned from being under
any uncertainty for an extended period of time. Finally, it should ensure the
possibility of ascertaining the facts of the case before the chance to do so
fades away, making the fair examination of the question at issue next to
impossible (see Kelly v. the United Kingdom, no. 10626/83, Commission
decision of 7 May 1985, Decisions and Reports (DR) 42, p. 205, and
Baybora and Others v. Cyprus (dec.), no. 77116/01, 22 October 2002).
35. As to the date when the application is lodged with the Court, the
Court has already held that the date of the postmark recording on which day
the application was sent is treated as the date of the application, and not the
date of receipt stamped on the application (see, for example, Kipritçi v.
Turkey, no. 14294/04, § 18, 3 June 2008).
36. The Court notes that the date on which the application form was
written is 25 May 2009 and that the date on the postmark recording when
the application was sent is 26 May 2009.
PERUŠKO v. CROATIA JUDGMENT
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37. Since the final domestic court’s decision, namely the decision of the
Constitutional Court of 19 November 2008, was served on the applicant’s
representative on 28 November 2008, it follows that the application was
lodged with the Court within the six-month time-limit. Thus the
Government’s objection must be dismissed.
2. Exhaustion of domestic remedies
38. The Government submitted that the applicant had failed to exhaust
the domestic remedies. Firstly, they pointed out that the applicant had
lodged a constitutional complaint concerning the length of the proceedings
before the Administrative Court and not concerning the access to a court. In
their view, the applicant should have understood from the wording of the
Administrative Court’s decision of 16 January 2003 that the proceedings
concerning his administrative action had been discontinued and then he
would have been able to complain of a violation of his right to access to a
court. Instead, in his constitutional complaint he had complained only about
the length of the proceedings. Furthermore, the applicant could have
brought an administrative action under section 67 of the Administrative
Disputes Act seeking protection from the unlawful act of the Administrative
Court, and also a civil action for damages against the State, which he had
failed to do.
39. The applicant argued that he could not have known that the decision
of the Administrative Court of 16 January 2003 concerned his
administrative action of 31 December 2001. That was because he had
withdrawn the civil action he had lodged with the Pula Municipal Court,
which had later been transferred to the Administrative Court, and not his
administrative action. He had never received any decision or notification
from the Administrative Court that these two actions had been merged - if
indeed they had been – or that the Administrative Court would decide to
examine them together. Therefore, he had complained to the Constitutional
Court that he had not received the decision of the Administrative Court
concerning his administrative action within a reasonable time. The applicant
also argued that he could not have brought an action under section 67 of the
Administrative Disputes Act or a civil action for damages against the State
since he had not known that there had been an unlawful act until he had
been so informed by the decision of the Constitutional Court.
40. The Court considers that the question of exhaustion of domestic
remedies should be joined to the merits, since it is closely linked to the
substance of the applicant’s complaint about his right to access to court.
3. Conclusion
41. The Court notes that the application is not manifestly ill-founded
within the meaning of Article 35 § 3 (a) of the Convention. It further notes
PERUŠKO v. CROATIA JUDGMENT
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that it is not inadmissible on any other grounds. It must therefore be
declared admissible.
B. Merits
1. The parties’ arguments
42. The applicant contended that he had brought his actions against his
dismissal from work in both the ordinary civil courts, namely the Pula
Municipal Court, and the Administrative Court, since he had expected the
civil courts, to be able to deal with his case much more quickly than the
Administrative Court. However, he had withdrawn the civil action he had
brought before the Pula Municipal Court on 20 September 2001 and the
administrative action brought before the Administrative Court on
25 September 2001 in order to avoid more proceedings on the same matter.
He had then brought an action before the Administrative Court on
31 December 2001, expecting to have his case examined in the proceedings
concerning that action, but the Administrative Court had erroneously
discontinued those proceedings and the Constitutional Court, with its
excessively formal approach, had refused to remedy the situation.
43. The Government argued that the applicant had simultaneously
brought an action before the Pula Municipal Court and the Administrative
Court concerning the same matter. Therefore it cannot be said that he had
not had access to a court. However, the applicant had withdrawn his first
administrative action and then had brought another administrative action on
31 December 2001 before the Administrative Court, which had been
substantively identical to the civil action he had brought before the Pula
Municipal Court. This lack of diligence on the part of the applicant meant
that two substantively identical sets of proceedings were pending before the
courts at the same time which was not permissible under the relevant
domestic law. Therefore, the Administrative Court could only have declared
the applicant’s action of 31 December 2001 inadmissible. It followed that
the applicant had withdrawn the civil action he had brought before the Pula
Municipal Court and that the Administrative Court, on account of the
prohibition of concurrent sets of proceedings concerning the same issue,
could not have examined the action he had brought on 31 December 2001.
Therefore, it could not be said that the applicant had not had access to a
court.
PERUŠKO v. CROATIA JUDGMENT
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2. The Court’s assessment
(a) General principles
44. The Court has held on many occasions that Article 6 § 1 embodies
the “right to a court”, of which the right of access, that is, the right to
institute proceedings before a court, constitutes one aspect only; however, it
is that aspect which enables an individual to benefit from the further
guarantees laid down in paragraph 1 of Article 6. The fair, public and
expeditious characteristics of judicial proceedings are indeed of no value at
all if such proceedings are not first initiated. And in civil matters one can
scarcely conceive of the rule of law without there being a possibility of
having access to the courts (see, among many other authorities, Golder v.
the United Kingdom, 21 February 1975, §§ 34 in fine and 35-36, Series A
no. 18; Z. and Others v. the United Kingdom [GC], no. 29392/95, §§ 91-93,
ECHR 2001-V; and Kreuz v. Poland, no. 28249/95, , § 52, ECHR 2001-VI).
45. The right of access to court is not, however, absolute. It may be
subject to legitimate restrictions such as statutory limitation periods,
security – for - costs orders, and regulations concerning minors and persons
of unsound mind (see Stubbings and Others v. the United Kingdom,
22 October 1996, §§ 51-52, Reports of Judgments and Decisions 1996-IV;
Tolstoy Miloslavsky v. the United Kingdom, 13 July 1995, §§ 62-67,
Series A no. 316-B; and Golder, cited above, § 39). Where the individual’s
access is limited either by operation of law or in fact, the Court will
examine whether the limitation imposed impaired the essence of the right
and, in particular, whether it pursued a legitimate aim and whether there was
a reasonable relationship of proportionality between the means employed
and the aim sought to be achieved (see Ashingdane v. the United Kingdom,
28 May 1985, § 57, Series A no. 93; Związek Nauczycielstwa Polskiego
v. Poland, no. 42049/98, § 29, ECHR 2004-IX; and Szwagrun-Baurycza
v. Poland, no. 41187/02, § 49, 24 October 2006). If the restriction is
compatible with these principles, no violation of Article 6 will arise (see
Z and Others v. the United Kingdom, cited above, §§ 92-93).
46. In this connection the Court reiterates that, in accordance with
Article 19 of the Convention, its duty is to ensure the observance of the
obligations undertaken by the Contracting Parties to the Convention. In
particular, it is not its function to deal with errors of fact or law allegedly
committed by a national court, unless and in so far as they may have
infringed rights and freedoms protected by the Convention (see Běleš and
Others v. the Czech Republic, no. 47273/99, § 48, ECHR 2002-IX).
(b) Application of these principles to the present case
47. The Court notes that the applicant brought two actions in the
Administrative Court and one action in the ordinary civil courts challenging
the decision on his dismissal from work. However, his administrative action
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PERUŠKO v. CROATIA JUDGMENT
of 31 December 2001, in respect of which he had complained of before the
Court (see paragraph 42 above), was never examined on the merits and the
proceedings were discontinued solely on procedural grounds.
48. In this respect the Court reiterates that the fact that the applicant was
able to bring an action in the domestic courts does not necessarily satisfy the
requirements of Article 6 § 1 of the Convention since the degree of access
afforded by the national legislation must also be sufficient to secure the
individual’s “right to a court”, having regard to the principle of the rule of
law in a democratic society (see Yagtzilar and Others v. Greece,
no. 41727/98, § 26, ECHR 2001-XII). Article 6 § 1 of the Convention
secures to everyone the right to have any claim relating to his civil rights
and obligations brought before a court or tribunal. In this way it embodies
the “right to a court”, which, according to the Court’s case-law, includes not
only the right to institute proceedings but also the right to obtain the
“determination” of the dispute by a court (see Kutić v. Croatia,
no. 48778/99, § 25, ECHR 2002-II, and Menshakova v. Ukraine,
no. 377/02, § 52, 8 April 2010).
49. The Court observes that the present case concerns a complex factual
set of circumstances which can be summarised as follows. After he was
dismissed from his post in the Ministry of the Interior, the applicant brought
three different actions before the domestic courts. Two of these actions, on
25 September 2001 (see paragraph 8 above) and 31 December 2001 (see
paragraph 13 above), were brought before the Administrative Court and
one, on 20 September 2001 (see paragraph 7 above), was brought before the
ordinary civil courts, namely the Pula Municipal Court. All the actions
concerned the same factual and legal background although, in fact, the
action of 25 September 2001, before the Administrative Court, and the one
of 20 September 2001, before the Pula Municipal Court, concerned the firstinstance decision of the Ministry (see paragraph 5 above), while the action
of 31 December 2001, before the Administrative Court, concerned the
second-instance decision of the Minister of the Interior (see paragraph 10
above).
50. During these proceedings, the applicant withdrew the action he had
brought before the Administrative Court on 25 September 2001 and the
Administrative Court discontinued the proceedings on 28 February 2002
(see paragraphs 11 and 14 above). He also withdrew the civil action he had
brought before the Pula Municipal Court on 20 September 2001 (see
paragraph 16 above). Since this civil action had been transferred, in the
meantime, to the jurisdiction of the Administrative Court, that court, on the
basis of the applicant’s withdrawal of the action, discontinued the
proceedings on 16 January 2003 (see paragraph 18 above).
51. The Court observes that the decision of the Administrative Court of
16 January 2003 appears rather unclear since it refers to the applicant’s
withdrawal of the civil action he had brought before the Pula Municipal
PERUŠKO v. CROATIA JUDGMENT
11
Court, whereas it actually concerns the second-instance decision of the
Minister of the Interior of 13 December 2001 against which no civil action
was brought. Therefore, the Court accepts the applicant’s assertion that he
considered that the administrative action he had brought before the
Administrative Court of 31 December 2001, was still pending as he had not
withdrawn it and had never received any confirmation or decision from the
Administrative Court, stating that his civil action would be examined
together with his administrative action. In fact it appears that no such
confirmation or decision was issued. Therefore the applicant reasonably
expected that his proceedings regarding the administrative action of
31 December 2001 were still pending.
52. The Court also notes that the applicant, after he had received the
decision of 16 January 2003 on discontinuing the proceedings, urged the
Administrative Court to decide upon his administrative action of
31 December 2001. In view of the facts referred to above, this excludes any
possibility of passivity or lack of diligence on the applicant’s part (see,
mutatis mutandis, Díaz Ochoa v. Spain, no. 423/03, § 47, 22 June 2006).
However, having never received any reply from the Administrative Court he
therefore lodged a constitutional complaint with the Constitutional Court
about the length of the proceedings, only to discover from the Constitutional
Court that the decision of 16 January 2003 to discontinue the proceedings
concerned his administrative action of 31 December 2001.
53. Since the applicant did not withdraw his administrative action of
31 December 2001, it is clear that the Administrative Court erroneously
discontinued those proceedings. In this connection the Court refers to the
findings of the Constitutional Court’s dissenting Judge, who found flaws in
the handling of the applicant’s case file by the Administrative Court (see
paragraph 25 above), in that the civil action transferred from the civil courts
to the Administrative Court was put into the same file together with the
administrative action of 31 December 2001. Therefore, when the applicant
withdrew his civil action, the Administrative Court erroneously
discontinued the proceedings concerning his administrative action.
54. As to the Government’s arguments that the Administrative Court
discontinued the proceedings in order to avoid the problem of having two
parallel sets of proceedings concerning the same matter pending at the same
time, the Court notes that the Administrative Court never referred, either
expressly or in substance, to any domestic rules concerning the
unlawfulness of two sets of proceedings on the same matter running
concurrently when it discontinued the applicant’s proceedings. Instead, it
expressly relied on the applicant’s withdrawal of his civil action (see
paragraph 18 above), erroneously discontinuing the applicant’s proceedings
concerning his administrative action on that ground.
55. Against the above background, the Court considers that by lodging a
constitutional complaint with the Constitutional Court concerning the
PERUŠKO v. CROATIA JUDGMENT
12
inefficient way in which his administrative action had been dealt with and
by explaining, in addition, the course of his proceedings (see paragraph 23
above) to the Constitutional Court, the applicant did bring his complaints
concerning the lower court’s lack of diligence in dealing with his case to the
attention of the Constitutional Court.
56. However, although aware of all the circumstances of the applicant’s
case and the obvious error made by the Administrative Court, the
Constitutional Court failed to intervene and ensure that the applicant’s right
to access to a court was respected. Consequently, the Court considers that it
was not necessary for the applicant to lodge an additional constitutional
complaint as the Government suggested. Equally, the applicant was not
required to seek protection of his rights under the Administrative Disputes
Act, which provided a remedy only when there was no other avenue of
redress available, or to bring a civil action for damages against the State, a
remedy pursuing a different aim from that of allowing the applicant to have
his case examined on the merits in the relevant domestic courts. Thus the
Government’s objection concerning the exhaustion of domestic remedies,
which it has previously joined to the merits (see paragraph 40 above), must
be dismissed.
57. In the circumstances of the present case, the Court considers that the
Administrative Court erroneously discontinued the applicant’s proceedings,
thus depriving him of his right of access to a court (see, mutatis mutandis,
Pelevin v. Ukraine, no. 24402/02, §§ 28-32, 20 May 2010).
58. There has accordingly been a violation of Article 6 § 1 of the
Convention.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
59. 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.”
A. Damage
60. The applicant claimed 11,250 euros (EUR) in respect of nonpecuniary damage.
61. The Government considered the applicant’s claim excessive,
unfounded and unsubstantiated.
62. Having regard to all the circumstances of the present case, the Court
accepts that the applicant suffered non-pecuniary damage which cannot be
compensated for solely by the finding of a violation. Making its assessment
PERUŠKO v. CROATIA JUDGMENT
13
on an equitable basis, the Court awards the applicant EUR 6,000 in respect
of non-pecuniary damage, plus any tax that may be chargeable to him.
B. Costs and expenses
63. The applicant also claimed EUR 2,078 for costs and expenses
incurred before the Court.
64. The Government considered the applicant’s claims excessive.
65. 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 have been 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 2,078 for the proceedings before the Court.
C. Default interest
66. 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. Decides to join to the merits the Government’s objection as to the
exhaustion of domestic remedies and rejects it;
2. Declares the application admissible;
3. Holds that there has been a violation of Article 6 § 1 of the Convention
in that the applicant did not have access to a court;
4. Holds
(a) that the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following amounts, to be converted
into Croatian kunas at the rate applicable at the date of settlement:
(i) EUR 6,000 (six thousand euros), plus any tax that may be
chargeable, in respect of non-pecuniary damage;
(ii) EUR 2,078 (two thousand and seventy-eight euros), plus any
tax that may be chargeable to the applicant, in respect of costs and
expenses;
PERUŠKO v. CROATIA JUDGMENT
14
(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 15 January 2013, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen
Registrar
Isabelle Berro-Lefèvre
President