FIRST SECTION

CASE OF MILAŠINOVIĆ v. CROATIA

(Application no. 41751/02)

JUDGMENT

STRASBOURG

24 May 2007

FINAL

24/08/2007

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 Milašinović 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 3 May 2007,

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

PROCEDURE

1.  The case originated in an application (no. 41751/02) 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, Mrs Ana Milašinović (“the applicant”), on 7 November 2002.

2.  The applicant was represented by Mr M. Mihočević, a lawyer practising in Zagreb. The Croatian Government (“the Government”) were represented by their Agents, first Mrs L. Lukina-Karajković and subsequently Mrs Š. Stažnik.

3.  On 29 January 2004 the Court decided to give notice of the application to the Government. Applying Article 29 § 3 of the Convention, it decided to rule on the admissibility and merits of the application at the same time.

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

4.  The applicant was born in 1950 and lives in Karlovac.

5.  Following her return from Germany in March 1992, the applicant found out that three business premises in her ownership had been blown up by unknown perpetrators.

A.  Civil proceedings

6.  On 1 March 1995 the applicant instituted three separate sets of proceedings against the State before the Zagreb Municipal Court (Općinski sud u Zagrebu) seeking damages. She relied on section 180 of the Civil Obligations Act.

7.  On 3 February 1996 the Amendment to the Civil Obligations Act (“the 1996 Amendment”) entered into force. It provided that all proceedings concerning actions for damages resulting from terrorist acts or acts of violence were to be stayed pending the enactment of new legislation on the subject.

8.  On 31 July 2003 the Act on Liability for Damage Resulting from Terrorist Acts and Public Demonstrations (“the 2003 Liability Act”) entered into force.

9.  Pursuant to the 2003 Liability Act, the Municipal Court resumed the proceedings. On 19 March 2004 it gave three decisions declaring the applicant's actions inadmissible for lack of jurisdiction. On 26 March 2003 the applicant appealed against those decisions to the Zagreb County Court (Županijski sud u Zagrebu).

10.  On 23 June and 22 October 2004 and 18 January 2005, respectively, the County Court quashed the impugned decisions and remitted the cases to the Municipal Court.

11.  In the resumed proceedings, on 28 January and 25 May 2005, respectively, the Municipal Court gave judgments dismissing the applicant's claims in two of those proceedings. On 4 April and 20 June 2006 the Zagreb County Court dismissed the applicant's appeals and upheld the first-instance judgments. The applicant then appealed on points of law (revizija) and the two cases are currently pending before the Supreme Court (Vrhovni sud Republike Hrvatske).

12.  As regards the third set of proceedings, on 23 May 2005 the Municipal Court decided to stay them because the applicant's husband, who was a co-plaintiff in that case, had died.

B.  Proceedings before the Constitutional Court

13.  Meanwhile, on 15 October 2002 the applicant lodged a constitutional complaint under section 63 of the Constitutional Court Act complaining about the length of the above three sets of civil proceedings and the lack of access to a court. On 25 November 2004 the Constitutional Court (Ustavni sud Republike Hrvatske) accepted the applicant's complaint. Relying on the Court's case law (Kutić v. Croatia, no. 48778/99, ECHR 2002-II), it found violations of her constitutional rights to a hearing within a reasonable time and of access to a court. It awarded her 12,750 Croatian kunas (HRK) in compensation, and ordered the Zagreb Municipal Court to give a decision in the proceedings complained of in the shortest time possible but no later than a year following the publication of the decision in the Official Gazette. The Constitutional Court's decision was published on 10 December 2004.

II.  RELEVANT DOMESTIC LAW

14.  The relevant part of the Civil Obligations Act (Zakon o obveznim odnosima, Official Gazette, nos. 53/1991, 73/1991, 3/1994, 7/1996 and 112/99) 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.”

15.  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.”

16.  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:

(1) when a party dies ...,

...

(6) where another statute so prescribes.”

17.  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.

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.  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.”

20.  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.”

THE LAW

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

21.  The applicant complained that Parliament's enactment of the 1996 Amendment violated her 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...”

22.  The Government contested that argument.

A.  Admissibility

1.  The parties' arguments

23.  The Government submitted that the Constitutional Court had accepted the applicant's constitutional complaint, found a violation of her constitutional right of access to a court, and awarded her compensation. That being so, the violation complained of had been remedied before the domestic authorities and the applicant had lost her victim status.

24.  The applicant submitted that, in spite of the Constitutional Court's decision of 25 November 2004, she was still a “victim” within the meaning of Article 34 of the Convention. She argued that the Constitutional Court had not responded to her complaint regarding access to a court, but solely to her length complaint. Moreover, 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), it found manifestly unreasonable the amount of compensation, which was approximately 15 % of what the Court was generally awarding in similar Croatian cases. While it is true that the applicant in the present case received a somewhat higher amount, the Court considers that her situation does not significantly differ from that in the Tomašić case and finds no reason to depart from its conclusion therein. Accordingly, the applicant can still claim to be a “victim” of a breach of her 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, cited above, 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 applicant complained that Parliament's enactment of the 1996 Amendment also violated her right to an effective remedy 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.  The Government contested that argument.

31.  The Court notes that this complaint is linked to the one examined above and must therefore likewise be declared admissible.

32.  Having regard to the finding relating to Article 6 § 1 (see paragraph 30 above), the Court considers that it is not necessary to examine whether, in this case, there has also been a violation of 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.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

33.  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

34.  The applicant claimed 327,000 euros (EUR) in respect of pecuniary damage and EUR 50,000 in respect of non-pecuniary damage.

35.  The Government deemed the amounts claimed by the applicant excessive.

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

37.  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 Tomašić v. Croatia, cited above, § 48).

38.  The Court recalls that the applicant was awarded approximately EUR 1,730 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 applicant should be awarded EUR 1,000 in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount.

B.  Costs and expenses

39.  The applicant also claimed 30,500 Croatian kunas (HRK) for the costs and expenses incurred before the Court.

40.  The Government contested the claim.

41.  According to the Court's case-law, an applicant is entitled to reimbursement of his costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case, regard being had to the information in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 1,500 for the proceedings before the Court, plus any tax that may be chargeable on that amount.

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 application admissible;

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

3.  Holds that there is no need to examine the complaint under Article 13 of the Convention;

4.  Holds

(a)  that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, the following amounts which are to be converted into the national currency of the respondent State at a rate applicable at the date of settlement:

(i)   EUR 1,000 (one thousand euros) in respect of non-pecuniary damage;

(ii)  EUR 1,500 (one thousand five hundred euros) in respect of costs and expenses;

(iii) any tax that may be chargeable on the above amounts;

(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 24 May 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Søren Nielsen Christos Rozakis 
 Registrar President


MILAŠINOVIĆ v. CROATIA JUDGMENT


MILAŠINOVIĆ v. CROATIA JUDGMENT