AS TO THE ADMISSIBILITY OF
Application no. 33250/02
by Dragoljub and Barbara BIJELIĆ
The European Court of Human Rights (First Section), sitting on 19 May 2005 as a Chamber composed of:
Mr C.L. Rozakis, President,
Mrs F. Tulkens,
Mr P. Lorenzen,
Ms N. Vajić,
Mrs S. Botoucharova,
Mr A. Kovler,
Mr D. Spielmann, judges,
Mr S. Nielsen, Section Registrar,
Having regard to the above application lodged on 22 July 2002,
Having regard to the partial decision of 12 February 2004,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having deliberated, decides as follows:
The applicants, Mr Dragoljub Bijelić and Ms Barbara Bijelić, are Croatian citizens, who were born in 1933 and 1942 espectively and live in Karlovac. They are represented before the Court by Mr N. Mamula, a lawyer practising in Karlovac. The respondent Government are represented by their Agents, Ms L. Lukina-Karajković and subsequently by Ms Š. Stažnik.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
On 25 February 1993 the applicants' house in Turanj, Croatia was blown up by unknown perpetrators.
On 17 January 1996 Parliament introduced an amendment to the Civil Obligations Act (“the 1996 Amendment”) 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.
On 15 December 2000 the applicants instituted civil proceedings in the Karlovac Municipal Court (Općinski sud u Karlovcu) seeking damages for their destroyed property from the State.
At a hearing held on 19 March 2002 the Municipal Court decided to stay the proceedings pursuant to the above legislation. It appears that the court nevertheless continued the proceedings.
On 11 October 2002 the Municipal Court gave judgment dismissing the applicants' claim as time barred.
Following an appeal, on 14 May 2004 the Karlovac County Court (Županijski sud u Karlovcu) upheld the first instance judgment. The applicants filed a request for revision on points of law and the proceedings still appear to be pending before the Supreme Court (Vrhovni sud Republike Hrvatske).
Meanwhile, on 14 July 2003 Parliament introduced the Act on Liability for Damage Resulting from Terrorist Acts and Public Demonstrations (“the 2003 Liability Act”).
B. Relevant domestic law
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:
“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 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 relevant part of the Act Amending the Civil Obligations Act (Zakon o izmjeni Zakona o obveznim odnosima – Official Gazette no. 7/96; “the 1996 Amendment”) reads as follows:
“Section 180 of the Civil Obligations Act (the Official Gazette nos. 53/91, 73/91 and 3/94) 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 be resumed after the enactment of special legislation governing liability for damage resulting from terrorist acts.”
The relevant part of section 63 of the Constitutional Act on the Constitutional Court (Ustavni zakon o Ustavnom sudu Republike Hrvatske, Official Gazette no. 49/02; “the Constitutional Court Act”) reads as follows:
“(1) The Constitutional Court shall examine a constitutional complaint even before all legal remedies have been exhausted in cases when a competent court has not decided within a reasonable time a claim concerning the applicant's rights and obligations or a criminal charge against him ...
(2) If the constitutional complaint ... under paragraph 1 of this Section is accepted, the Constitutional Court shall determine a time-limit within which a competent court shall decide the case on the merits...
(3) In a decision under paragraph 2 of this Article, the Constitutional Court shall fix appropriate compensation for the applicant in respect of the violation found concerning his constitutional rights ... The compensation shall be paid from the State budget within a term of three months from the date when the party lodged a request for its payment.”
Article 29 § 1 of the Constitution (Ustav Republike Hrvatske, Official Gazette no. 41/01) 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.”
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. 117/03; “the 2003 Liability Act”) provides that all compensation for damage to property resulting from terrorist acts is to be sought under the Reconstruction Act. Section 10 provides that all proceedings stayed pursuant to the 1996 Amendment are to be resumed.
The Reconstruction Act (Zakon o obnovi – Official Gazette nos. 24/96, 54/96, 87/96 and 57/00) provides that the State shall grant reconstruction assistance to the owners of property damaged during the war. Any requests in this respect are to be filed with the competent administrative authority.
In its decision no. Rev 86/02-2 the Supreme Court ruled that proceedings concerning damages for terrorist acts, instituted after the 1996 Amendment entered into force, are not to be stayed.
The applicants complain that the 1996 legislation prevented them from having their claim finally determined as guaranteed by Article 6 § 1 of the Convention.
The applicants complain 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, the relevant part of which 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...”
The Government request the Court to reject the present application because the applicants' proceedings were never stayed pursuant to the 1996 Amendment. Moreover, the first instance court gave its judgment in their case in 2002 and the proceedings following the applicants' request for revision on points of law are still pending.
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 Amendment constituted violations 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, the domestic courts actually stayed the applicants' proceedings pursuant to the 1996 Amendment.
In the present case, it has not been disputed that the applicants were able to introduce their claim for damages in 2000, long after the 1996 Amendment entered in force, the competent court subsequently held several hearings and it gave judgment on 11 October 2002 dismissing the applicants' claim. The proceedings are still pending before the Supreme Court. Moreover, no stay of the proceedings is possible since the entry into force of the 2003 Liability Act. The situation which could have raised an issue under the Convention thus never materialised. In these circumstances, the Court considers that there is no appearance of a violation of Article 6 § 1 of the Convention.
It follows that the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and 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.
Søren Nielsen Christos ROZAKIS Registrar President
BIJELIĆ v. CROATIA DECISION
BIJELIĆ v. CROATIA DECISION