AS TO THE ADMISSIBILITY OF
Application no. 13854/02
by Petar MARINKOVIĆ
The European Court of Human Rights (First Section), sitting on 16 June 2005 as a Chamber composed of:
Mr C.L. Rozakis, President,
Mr P. Lorenzen,
Ms N. Vajić,
Mrs S. Botoucharova,
Mr A. Kovler,
Mrs E. Steiner,
Mr K. Hajiyev, judges,
and Mr S. Quesada, Deputy Section Registrar,
Having regard to the above application lodged on 1 March 2002,
Having regard to the decision to invite the Government to submit written observations on admissibility and merits in respect of the applicant's complaint that the Civil Obligations (Amendments) Act 1996 deprived him of access to court and of an effective remedy as guaranteed by Articles 6 § 1 and 13 of the Convention,
Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
The applicant, Mr Petar Marinković, is a Croatian national who was born in 1944 and lives in Rijeka, Croatia. The respondent Government were represented by their Agent, L. Lukina-Karajković, and subsequently their Co-Agent, Mr D. Maričić.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
On 5 April 1992 the applicant's house in Poljica, Croatia, was blown up for the first time by unknown perpetrators. The applicant allegedly reconstructed the house at his own expense.
On 7 August 1995 the house in issue was blown up for the second time. The perpetrators again remained unknown.
On 3 February the Civil Obligations (Amendments) Act 1996 (Zakon o izmjeni Zakona o obveznim odnosima) entered into force. It provided that proceedings which were instituted under section 180 of the Civil Obligations Act (Zakon o obveznim odnosima) would be stayed.
On 8 February 1996 the applicant instituted civil proceedings before the Zadar Municipal Court (Općinski sud u Zadru) seeking damages from the State for his damaged property (under section 180 of the Civil Obligations Act).
At the hearing of 27 August 1998 the respondent submitted that the applicant's claim was unsubstantiated.
At the hearing of 6 April 2000 the respondent challenged the applicant's ownership of the house in issue. The court requested the applicant to provide evidence of his ownership.
On 11 May 2000 the applicant submitted the requested evidence.
It would appear that the proceedings in issue are still pending.
B. Relevant domestic law
The relevant part of the Civil Obligations Act (Zakon o obveznim odnosima, Official Gazette nos. 53/1991, 73/1991, 3/1994, 7/1996 and 112/1999) read as follows:
“Liability for loss caused by death or bodily injury or by damage or destruction of another's property, when it results from violent acts or terror 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.”
The Civil Obligations (Amendments) Act 1996 (Zakon o izmjeni Zakona o obveznim odnosima, Official Gazette no. 7/1996, hereinafter “the 1996 Act”) entered into force on 3 February 1996. The relevant part of that Act read as follows:
“Section 180 of the Civil Obligations Act ... shall be repealed.”
“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 resume after the enactment of special legislation governing responsibility for damage resulting from terrorist acts.”
The relevant part of the Civil Procedure Act (Zakon o parničnom postupku, Official Gazette nos. 53/1991, 91/1992, 112/1999 and 117/2003) provides:
“Proceedings shall be stayed:
(6) where another statute so prescribes.”
The “Damage from Terrorist Acts and Public Demonstrations Act 2003” (Zakon o odgovornosti za štetu nastalu uslijed terorističkih akata i javnih demonstracija, Official Gazette no. 117/2003, hereinafter “the 2003 Act”) entered into force on 31 July 2003. It provides that proceedings which were stayed pursuant to the 1996 Act will resume and defines circumstances in which the State is liable for damage resulting from terrorist acts and public demonstrations.
The relevant part of section 63 of the Constitutional Court Act 1999 (Ustavni zakon o Ustavnom sudu Republike Hrvatske, its consolidated text was published in the Official Gazette no. 49/2002), as amended on 15 March 2002, reads as follows:
“(1) The Constitutional Court shall examine a constitutional complaint whether or not all legal remedies have been exhausted if the court with jurisdiction 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 court with jurisdiction 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.”
1. The applicant complained that his right of access to court guaranteed by Article 6 § 1 of the Convention and his right to an effective remedy guaranteed by Article 13 of the Convention were violated as a consequence of the 1996 Act. He also invoked Article 17 of the Convention.
2. He further complained under Article 6 § 1 of the Convention about the length of the civil proceedings in issue.
3. He finally complained under Articles 5, 13 and 14 of the Convention and Article 1 of Protocol No. 1 to the Convention about the events of 5 April 1992 and 7 August 1995 in which his property was damaged.
1. The applicant complained that the 1996 Act deprived him of access to court and of an effective remedy in respect of his claim for damages because it provided for the stay on proceedings which had been instituted under section 180 of the Civil Obligations Act (such as his proceedings). He invoked Articles 6, 13 and 17 of the Convention, the relevant parts of which read as follows:
Article 6 § 1
“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”
“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.”
“Nothing in [the] Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention.”
The Government invited the Court to reject this complaint because the Zadar Municipal Court continued with the deliberations in the present case regardless of the 1996 Act. The applicant maintained that, while it was true that his proceedings were never formally stayed, they were unreasonably long.
The Court recalls its previous judgments in which it held that long periods for which those applicants were prevented from having their civil claims determined as a consequence of the 1996 Act constituted a violation of Article 6 § 1 of the Convention (see, for example, Kutić v. Croatia, no. 48778/99, § 33, ECHR 2002-II, and Freimann v. Croatia, no. 5266/02, § 28, 24 June 2004). In all those cases, however, relevant domestic courts stayed the applicants' proceedings pursuant to the 1996 Act.
The Court notes that it has not been disputed that the applicant was able to introduce his claim for damages several days after the 1996 Act entered in force, that the competent court held hearings in 1998 and 2000 (regardless of the 1996 Act) and that those proceedings are still pending. Moreover, no stay on the proceedings is possible since the entry into force of the 2003 Act given that it repealed the 1996 Act by implication. The applicant cannot therefore claim to be a victim of a violation of the Convention by the application of a stay that did not, and cannot, take place.
It follows that this complaint is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.
2. The applicant also complained about the length of the civil proceedings in issue. He invoked Article 6 of the Convention, the relevant part of which reads as follows:
Article 6 § 1
“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”
The Court recalls that in the Nogolica case (see Nogolica v. Croatia (dec.), no. 77784/01, ECHR 2002-VIII), which also concerned length of proceedings, it decided that a complaint under section 63 of the Constitutional Court Act 1999 (as amended on 15 March 2002) constituted a remedy to be exhausted although the application with this Court had been filed before the introduction of that remedy.
The applicant not having commenced such proceedings, this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for a failure to exhaust that domestic remedy.
3. He further complained because his property was damaged on 5 April 1992 and on 7 August 1995 and because the respondent State did not grant him any compensation for this loss. He invoked Articles 5, 13 and 14 of the Convention and Article 1 of Protocol No. 1 to the Convention. Articles 5 and 14 and Article 1 of Protocol No. 1, in so far as relevant, read as follows (see above for the text of Article 13):
“Everyone has the right to liberty and security of person ...”
“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
Article 1 of Protocol No. 1
“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.”
The Court notes that the impugned events took place on 5 April 1992 and on 7 August 1995 and that Croatia ratified the Convention on 5 November 1997. This part of the complaint is therefore incompatible ratione temporis with the provisions of the Convention within the meaning of Article 35 § 3. Consequently, his claim that, as a result of this loss, he was entitled to compensation by the Croatian authorities cannot be examined by the Court as it is also incompatible ratione temporis with the Convention (see Moldovan and Others and Rostaş and Others v. Romania (dec.), nos. 41138/98 and 64320/01, 13 March 2001).
It follows that this part of the application must be rejected in accordance with Article 35 § 4.
For these reasons, the Court unanimously
Decides to discontinue the application of Article 29 § 3 of the Convention and to declare the application inadmissible.
Santiago Quesada Christos Rozakis
Deputy Registrar President
MARINKOVIĆ v. CROATIA DECISION
MARINKOVIĆ v. CROATIA DECISION