FIRST SECTION

CASE OF POPARA v. CROATIA

(Applications no. 11072/03)

JUDGMENT

STRASBOURG

15 March 2007

FINAL

15/06/2007

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

 

In the case of Popara v. Croatia,

The European Court of Human Rights (First Section), sitting as a Chamber composed of:

Mr C.L. Rozakis, President
 Mr L. Loucaides
 Mrs N. Vajić
 Mr K. Hajiyev
 Mr D. Spielmann
 Mr S.E. Jebens, 
 Mr G. Malinverni, judges
and Mr S. Nielsen, Section Registrar,

Having deliberated in private on 20 February 2007,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1.  The case originated in an application (no. 11072/03) 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 two Croatian nationals, Mrs Marija Popara and Mrs Željka Popara (“the applicants”), on 15 March 2003

2.  The applicants were represented by Mr M. Mihočević, a lawyer practising in Zagreb. The Croatian Government (“the Government”) were represented by their Agent, Ms Štefica Stažnik.

3.  On 8 December 2004 the Court decided to communicate the complaint concerning the applicants' right of access to a court to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the applications at the same time as their admissibility.

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

4.  The applicants were born in 1976 and 1979 respectively and live in Karlovac.

5.  In 1991 business premises owned by D.P., the applicants' late father, were blown up by unknown perpetrators. Some time later, his car was also damaged beyond repair by an explosive device.

6.  D.P. instituted civil proceedings before the Zagreb Municipal Court (Općinski sud u Zagrebu) in 1994, seeking compensation from the State. He relied on section 180 of the Civil Obligations Act (Zakon o obveznim odnosima).

7.  On 17 January 1996 Parliament introduced an amendment to the Civil Obligations Act, which provided that all proceedings concerning actions for damages resulting from terrorist acts were to be stayed pending the enactment of new legislation. The new legislation was to be enacted within six months.

8.  Pursuant to the above legislation, the Zagreb Municipal Court stayed D.P.'s proceedings on 5 February 1998. On his appeal, on 31 August 1999 the Zagreb County Court (Županijski sud u Zagrebu) quashed that decision and remitted the case.

9.  D.P. died on 25 February 2000.

10.  The Municipal Court again issued a decision staying the proceedings on 16 July 2001.

11.  The applicants and their late mother, acting as D.P.'s heirs, filed a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske) on 7 May 2002, complaining about the length of the proceedings and the lack of access to a court. They relied on section 63 of the 2002 Constitutional Court Act and Article 29 § 1 of the Constitution.

12.  On 28 April 2004 the Constitutional Court accepted the applicants' complaint, ordered the Zagreb Municipal Court to bring the proceedings to an end within six months and awarded each of the complainants the amount of 4,400 Croatian kunas (HRK) wich is approximately euros (EUR) 600.

13.  The proceedings before the Zagreb Municipal Court were resumed on 18 May 2004 when it declared the applicants' action inadmissible finding that it no longer had jurisdiction in the matter. The decision was quashed by the Zagreb County Court on 30 December 2004.

14.  The proceedings are currently pending before the Zagreb Municipal Court.

II.  RELEVANT DOMESTIC LAW

15.  The relevant part of the Civil Obligations Act (Zakon o obveznim odnosima, Official Gazette, nos. 53/91, 73/91, 3/94, 7/96 and 112/99) provided as follows:

Section 180(1)

“Liability for loss caused by death or bodily injury or by damage or destruction of another's property, when it results from acts of violence or terrorist acts or from public demonstrations or manifestations, lies with the ... authority whose officers were under a duty, according to the laws in force, to prevent such loss.”

16.  The relevant part of the Act Amending the Civil Obligations Act (Zakon o izmjeni Zakona o obveznim odnosima, Official Gazette no. 7/1996 – “the 1996 Amendment”) reads as follows:

Section 1

“Section 180 of the Civil Obligations Act (the Official Gazette nos. 53/91, 73/91 and 3/94) shall be repealed.”

Section 2

“Proceedings for damages instituted under section 180 of the Civil Obligations Act shall be stayed.

The proceedings referred to in sub-section 1 of this section shall be resumed after the enactment of special legislation governing liability for damage resulting from terrorist acts.”

17.  The relevant part of the Civil Procedure Act (Zakon o parničnom postupku, Official Gazette nos. 53/91, 91/92, 58/93, 112/99, 88/01 and 117/03) provides:

Section 212

“Proceedings shall be stayed:

...

(6) where another statute so prescribes.”

18.  The relevant part of the Reconstruction Act (Zakon o obnovi, Official Gazette nos. 24/96, 54/96, 87/96 and 57/00) provides, inter alia, that the State shall grant, under certain conditions, reconstruction assistance to owners of property (flats and family houses only) which has been damaged during the war. The request is to be submitted to the competent ministry.

19.  The Act on Liability for Damage Resulting from Terrorist Acts and Public Demonstrations (Zakon o odgovornosti za štetu nastalu uslijed terorističkih akata i javnih demonstracija, Official Gazette no. 117/2003 –  “the 2003 Liability Act”) provides, inter alia, that the State is to compensate only damage resulting from bodily injuries, impairment of health or death. All compensation for damage to property is to be sought under the Reconstruction Act. Section 10 provides that all proceedings stayed pursuant to the 1996 Amendment are to be resumed.

20.  Article 29 § 1 of the Constitution (Ustav Republike Hrvatske, Official Gazette no. 41/2001 of 7 May 2001) reads as follows:

“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.”

21.  The relevant part 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:

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 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.”

Section 23 provides that, in proceedings before the Constitutional Court, each participant shall pay its own costs unless the court decides otherwise. The term “costs of proceedings” does not include the court fees since no such fees are payable in the proceedings before the Constitutional Court. Under the case-law of the Constitutional Court the issue of the recovery of the costs of proceedings is to be decided by that court if a participant makes a request to that end. For example, in case no. U-III-1384/2000 of 30 November 2000 the Constitutional Court denied the complainant's request for recovery of costs since the constitutional complaint had been dismissed.

THE LAW

I.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

22.  The applicants complained that Parliament's enactment of the 1996 Amendment violated their right of access to a court as provided 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 ... hearing ... by [a] ... tribunal...”

A.  Admissibility

1.  The parties' arguments

23.  The Government submitted that the applicants could no longer claim to be victims within the meaning of Article 34 of the Convention since on 31 July 2003 the Liability Act entered into force, which provided that the proceedings stayed under the 1996 Amendment were to be resumed. Moreover, the Constitutional Court had accepted the applicants' constitutional complaint, found a violation of their constitutional right of access to a court, and awarded them compensation. The violation complained of had, therefore, been remedied before the domestic authorities and the applicants had lost their victim status.

24.  The applicants submitted that, in spite of the Constitutional Court's decision of 28 April 2004, they were still “victims” within the meaning of Article 34 of the Convention. They argued that the amount of compensation was insufficient and significantly lower than amounts awarded by the Court in similar cases (see Kutić v. Croatia, no. 48778/99, § 39, ECHR 2002-II).

2.  The Court's assessment

25.  The Court recalls that in the Tomašić case (see Tomašić v. Croatia, no. 21753/02, §§ 26-36, 19 October 2006), the amount of awarded compensation, i.e. approximately 15% of what it generally awards in similar Croatian cases, was found to be manifestly unreasonable in the circumstances of that case. The applicants having received the same amount in the present case, the Court observes that it does not differ in any way from the Tomašić case and finds no reason to depart from its conclusion therein. Accordingly, the applicants can still claim to be “victims” of a breach of their right of access to a court, and the Government's objection must therefore be dismissed.

26.  The Court further notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It also notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B.  Merits

27.  The Court has frequently found violations of the applicants' right of access to a court under Article 6 § 1 of the Convention in cases raising issues similar to the one in the present case (see Kutić v. Croatia, no. 48778/99, ECHR 2002 - II and Multiplex v. Croatia, no. 58112/00, 10 July 2003).

28.  Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case.

There has accordingly been a breach of Article 6 § 1.

II.  ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

29.  The applicants also complained that they had no effective remedy at their disposal as guaranteed by Article 13 of the Convention which 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.”

30.  Having regard to the finding relating to Article 6 § 1 (see paragraph 28 above), the Court considers that it is not necessary to examine the complaint under Article 13 since its requirements are less strict than, and are here absorbed by, those of Article 6 § 1 (see, for example, Dražić v. Croatia, no. 11044/03, § 43, 6 October 2005).

III.  ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1

31.  The applicants also complained that their property rights had been violated by destruction of their father's premises. They 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.”

32.  The Court firstly has to ascertain whether, and to what extent, it is competent ratione temporis to deal with this complaint. It reiterates that in accordance with the generally recognised rules of international law, the Convention only governs, for each Contracting Party, facts subsequent to its entry into force with regard to that Party (see, for example, Kadikis v. Latvia (dec.), no. 47634/99, 29 June 2000).

33.  The Court recalls that Croatia recognised the competence of the Court to receive applications “from any person, non-governmental organisation or group of individuals claiming to be a victim of a violation by Croatia of the rights recognised in the Convention through any act, decision or event occurring after 5 November 1997.” Accordingly, the Court is not competent to examine the present application in so far as it refers to facts occurring before the date of the ratification of the Convention. Finding to the contrary would amount to giving retroactive effect to the Convention which would be contrary to general principles of international law. At the same time it would render Croatia's declaration recognising the Court's competence to receive individual applications nugatory (see Kadikis v. Latvia, cited above, and the Stamulakatos v. Greece, judgment of 30 September 1993, Series A no. 271, p. 14, § 33).

34.  The Court considers that the act of destruction of the applicants' late father's property was an instantaneous act, which does not give rise to any possible continuous situation of a violation of the Convention. Furthermore, as to the proceedings concerning the applicants' claim for damages, in so far as they do fall within the Court's competence ratione temporis, the applicants did not make any separate complaints under Article 1 of Protocol No. 1 (see Kresović v. Croatia, (dec.), no. 75545/01, 9 July 2002).

It follows that this part of the application is incompatible ratione temporis with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.

IV.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

35.  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

36.  The applicants claimed HRK 2,093,493 in respect of pecuniary damage and EUR 30,000 in respect of non-pecuniary damage.

37.  The Government deemed the amounts claimed by the applicants excessive.

38.  The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim.

39.  As to the non-pecuniary damage sought, the Court reiterates that where an applicant had resorted to an available domestic remedy and thereby obtained a finding of a violation and was awarded compensation, but can nevertheless still claim to be a “victim”, the amount to be awarded under Article 41 may be less than the amounts the Court was awarding in similar cases. In that case an applicant must be awarded the difference between the amount obtained from the Constitutional Court and an amount that would not have been regarded as manifestly unreasonable compared with the amounts awarded by the Court (see, mutatis mutandis, Cocchiarella v. Italy [GC], cited above, §§ 139-140).

40.  The Court recalls that each applicant was awarded EUR 600 by the Constitutional Court. Having regard to the circumstances of the present case, the characteristics of the constitutional complaint as well as the fact that, notwithstanding this domestic remedy, the Court has found a violation, it considers, ruling on an equitable basis, that the applicants should be awarded jointly EUR 2,400 in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount.

B.  Costs and expenses

41.  The applicants did not make any claims for costs and expenses within the time-limit fixed. Therefore, the Court is not able to award the applicants any sum on that account.

C.  Default interest

42.  The Court considers it appropriate that the default interest 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 complaint concerning the applicants' right of access to a court admissible and the remainder of the applications inadmissible;

2.  Holds that there has been a violation of Article 6 § 1 of the Convention;

3.  Holds

(a)  that the respondent State is to pay the applicants jointly, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 2,400 (two thousand and four hundred euros) in respect of non-pecuniary damage, plus any tax that may be chargeable;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

4.  Dismisses the remainder of the applicants' claim for just satisfaction.

Done in English, and notified in writing on 15 March 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Søren Nielsen Christos Rozakis 
 Registrar President


POPARA v. CROATIA JUDGMENT


POPARA v. CROATIA JUDGMENT