AS TO THE ADMISSIBILITY OF
Application no. 38770/02
by Milan KRIVOKUĆA
The European Court of Human Rights (First Section), sitting on 25 November 2004 as a Chamber composed of:
Mr C.L. Rozakis, President,
Mr P. Lorenzen,
Mrs N. Vajić,
Mrs S. Botoucharova,
Mrs E. Steiner,
Mr K. Hajiyev,
Mr D. Spielmann, judges,
and Mr S. Nielsen, Section Registrar,
Having regard to the above application lodged on 4 October 2002,
Having deliberated, decides as follows:
The applicant, Mr Milan Krivokuća, is a Croatian national, who was born in 1929 and lives in Maastricht, the Netherlands.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant is an owner of a weekend house in Sabunike near Zadar.
In May 1997 the applicant found out that a certain A.Š. had broken in and occupied the house in May 1995.
1. Civil and enforcement proceedings concerning eviction of A.Š.
On 28 May 1997 the applicant filed a civil action against A.Š. with the Zadar Municipal Court (Općinski sud u Zadru) seeking repossession of the house.
On 15 September 1998 the Municipal Court delivered a judgment by which it accepted the applicant's claim and ordered the defendant to vacate the house.
On 20 April 1999 the Municipal Court issued a supplementary judgment (dopunska presuda) at the applicant's request, by which it ordered the defendant to vacate also the ground floor of the house.
The proceedings ended on 29 November 1999 when the Zadar County Court (Županijski sud u Zadru) dismissed the defendant's appeals and upheld the first-instance judgments.
On 17 February 2000 the applicant filed a motion for enforcement (prijedlog za ovrhu) against A.Š. with the Zadar Municipal Court.
On 7 July 2000 the Municipal Court issued a writ of execution (rješenje o ovrsi). The court scheduled the intervention of the bailiff (sudski ovršitelj) for 8 October 2001. It appears that on the same date A.Š. voluntarily left the house and that the applicant repossessed it.
2. Civil proceedings concerning damages for act of violence
On 20 March 1999 the applicant filed a civil action against the State and the County of Zadar (Županija Zadarska) (“the County”) with the Zadar Municipal Court seeking damages. He argued that the State and the County were liable for A.Š.'s breaking into his house and the ensuing damage. In particular, the applicant sought compensation for the rent lost due to the prolonged inability to let the house to turists and for the value of the movable property stolen.
On 25 May 2000 the Municipal Court dismissed the applicant's claim on its merits. It found that A.Š.'s act was not to be qualified as a terrorist act or act of violence for which the State or the County was liable. Accordingly, there was no need to stay the proceedings pursuant to the 1996 Amendments to the Civil Obligations Act (“the 1996 Amendments”) which provided that all proceedings concerning actions for damages resulting from acts of violence or terrorist acts were to be stayed pending the enactment of new legislation on the subject.
The applicant appealed.
On 17 April 2002 the Zadar County Court quashed the first-instance judgment and remitted the case. It found that the subject matter of the case was to be considered an act of violence for which the State and the County were liable. Accordingly, it instructed the Municipal Court to stay the proceedings pursuant to the 1996 Amendments.
On 30 April 2002 the Municipal Court stayed the proceedings.
The proceedings have so far not been resumed.
B. Relevant domestic law
The relevant part of the Civil Obligations Act reads 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. 7/1996) 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 the Civil Procedure Act (Zakon o parničnom postupku) provides:
“Proceedings shall be stayed:
(6) where another statute so prescribes.”
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) provides, inter alia, that the State is to compensate only damages resulting in 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.
The relevant part of the Reconstruction Act (Zakon o obnovi, Official Gazette nos. 24/1996, 54/1996, 87/1996 and 57/2000) provides, inter alia, that the State shall grant reconstruction assistance to the owners of property which has been damaged during the war under certain conditions. The request is to be submitted to the competent ministry.
1. The applicant complains about the length of the proceedings under (1) and the prolonged inability to access his property. He relies on Article 1 of Protocol No. 1 to the Convention.
2. The applicant also complains under Article 1 of Protocol No. 1 about the prolonged impossibility, in the proceedings under (2), to obtain damages for his property.
1. The applicant complains about the length of the proceedings under (1) and the inability to access his property for a long period of time. He relies on Article 1 of Protocol No. 1 to the Convention.
The Court observes that the proceedings complained of ended on 8 October 2001 when the applicant repossessed his house. However, he introduced his application only on 4 October 2002 i.e. more than six months later. Therefore, this part of the application is inadmissible under Article 35 § 1 and must be rejected pursuant to Article 35 § 4 of the Convention.
2. The applicant further complains, in respect of the proceedings under (2), about the prolonged inability to obtain compensation for his property. He relies on Article 1 of Protocol No. 1 to the Convention.
The Court considers that this situation is due to the 1996 legislation which prevented the courts from deciding on the merits of the applicant's action for damages (see Kutić v. Croatia, no. 48778/99, ECHR 2002-II). Therefore, the case falls to be examined under Article 6 § 1 which, in the relevant part, reads as follows:
“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing ... by [a] ... tribunal...”
The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.
For these reasons, the Court unanimously
Decides to adjourn the examination of the applicant's complaint concerning access to a court;
Declares the remainder of the application inadmissible.
Søren Nielsen Christos Rozakis
KRIVOKUĆA v. CROATIA DECISION
KRIVOKUĆA v. CROATIA DECISION