FOURTH SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 48778/99 
by Vojin and Ana KUTIĆ 
against Croatia

The European Court of Human Rights (Fourth Section), sitting on 4 Оctober 2001 as a Chamber composed of

Mr G. Ress, President
 Mr A. Pastor Ridruejo
 Mr L. Caflisch
 Mr I. Cabral Barreto,

Mr V. Butkevych 
 Mrs N. Vajić
 Mr M. Pellonpää, judges
and Mr V. Berger, Section Registrar,

Having regard to the above application introduced on 15 February 1999 and registered on 14 June 1999,

Having regard to the Chamber’s partial decision of 11 July 2000,

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 FACTS

The applicants, Vojin and Ana Kutić, are Croatian citizens, born in 1939 and 1942, respectively and living in Bjelovar (Croatia). They are represented before the Court by Mr  Anto Nobilo, a lawyer practising in Zagreb. The respondent Government are represented by their Agent Ms Lidija Lukina-Karajković.

A.  The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

1.  Proceedings instituted on 29 November 1994

On 26 December 1991 the applicants’ house in Martinec village (Croatia) was destroyed as the result of an explosion.

On 29 November 1994 the applicants filed an action for damages against the Republic of Croatia, with the Zagreb Municipal Court.

A hearing was held on 2 May 1995.

According to the applicants, on 12 May 1995 they asked the court to request the Bjelovar Police Department to submit their report concerning the events that had led to destruction of the applicants’ property. On 19 May 1995 the court requested the report.

On 17 January 1996 the Croatian parliament introduced a change of the Civil Procedure Act which provided that all proceedings concerning actions for damages resulting from terrorist acts were to be stayed pending the enactment of new legislation on the subject and that before the enactment of such new legislation damages for terrorist acts may not be sought. So far the Croatian authorities have not enacted any new legislation regulating the matter.

The applicant submits that in 1996 a party in some other proceedings concerning the same matter filed a constitutional claim challenging the above legislation. The Constitutional Court has not yet, however, adopted any decision.

On 24 April 1998 the Zagreb Municipal Court adopted a decision to stay the proceedings in accordance with the above legislation. No appeal was lodged against this decision.

2.  Proceedings instituted on 14 December 1994

On 13 November 1994 the applicants’ garage as well as the adjacent storage room and a meat-curing shed in Bjelovar were destroyed, also as a result of an explosion.

On 14 December 1994 the applicants lodged an action for damages against the Republic of Croatia, with the Zagreb Municipal Court.

A hearing was held on 8 May 1995. The court requested the Bjelovar Police Department to submit their report concerning the events that had led to the destruction of the applicants’ property.

On 19 July 2000 the court adopted a decision to stay the proceedings. No appeal was lodged against that decision.

B.  Relevant domestic law

Section 59 (4) of the Constitutional Act on the Constitutional Court (entered into force on 24 September 1999 - hereinafter “the Constitutional Court Act” - Ustavni zakon o Ustavnom sudu) read as follows:

“The Constitutional Court may, exceptionally, examine a constitutional complaint prior to exhaustion of other available remedies, if it is satisfied that a contested act, or failure to act within a reasonable time, grossly violates a party’s constitutional rights and freedoms and that, if it does not act a party will risk serious and irreparable consequences.”

The relevant part of Section 180 of the Civil Obligations Act reads as follows:

“(1) Responsibility for damages caused by death, bodily injury or by abstraction or destruction of another person’s property, when it results from violent acts or terror or from public demonstrations or manifestations, lies with the authority whose officials were, according to the laws in effect, under a duty to prevent such damages.”

The relevant parts of the Act on Changes of the Civil Obligations Act read as follows:

Section 1

“Section 180 of the Civil Obligations Act (the Official Gazette No. 53/91, 73/91 and 3/94) is to be repealed.”

Section 2

“Proceedings for damages instituted pursuant to Section 180 of the Civil Obligations Act are to be stayed.

Proceedings from § 1 of this section will be continued after enactment of a special legislation that will regulate responsibility for damages resulting from the terrorist acts.”

The relevant part of Section 212 of the Civil Procedure Act provides as follows:

“Proceedings are to be stayed:

...

6) when it is prescribed for by another Statute.”

COMPLAINTS

1.  The applicants complain under Article 6 § 1 of the Convention that two sets of civil proceedings for payment of damages have not been concluded within a reasonable time.

2.  They complain further that they were deprived of access to a court as the Zagreb Municipal Court have stayed the proceedings concerning their request for damages for destroyed property.

THE LAW

1.  The applicants complain that the civil proceedings before the Zagreb Municipal Court, instituted on 29 November and 14 December 1994, respectively, have not been concluded within a reasonable time within the meaning of Article 6 § 1 of the Convention, the relevant parts of which read as follows:

“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”

a)  The Government submit that the part of the application relating to events that took place prior to 5 November 1997, when the Convention entered into force in respect of Croatia, is outside the Court’s competence ratione temporis.

In this connection, 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”. It follows that the period to be taken into consideration by the Court starts on 5 November 1997.

However, in order to determine the reasonableness of the length of time in question the Court will have regard to the state of the case on that date (see, among other authorities, the Podbielski v. Poland judgment of 30 October 1998, Reports 1998-VIII, § 31).

b)  The Government further invite the Court to declare the application inadmissible on the ground that the applicants failed to exhaust domestic remedies. In this respect they allege that the applicants failed to lodge a constitutional complaint pursuant to Article 59 § 4 of the newly revised Constitutional Court Act as to the length of proceedings. That Act exceptionally allows the Constitutional Court to examine a constitutional complaint before exhaustion of other available remedies in cases where it is evident that there is a serious risk that the party’s constitutional rights and freedoms may be violated and that serious and irreparable consequences may arise from the failure of the relevant authorities to reach a decision.

The Government submit that the applicants also failed to appeal against the decisions to stay the proceedings.

The applicants contend that in the circumstances of the present case they are not obliged to comply with the rule of exhaustion of domestic remedies pursuant to Article 35 § 1 of the Convention as the remedies in their cases would not have been effective.

The Court recalls that on 26 July 2001 in the case of Horvat v. Croatia it found that the complaint pursuant to Section 59 (4) of the 1999 Constitutional Court Act was not an effective remedy in respect of the length of the proceedings in Croatia (see Horvat v. Croatia, no. 51585/99, §§ 34-48, 26 July 2001, unpublished). The Court sees no reason to depart form its view expressed thereof.

As to the appeal against the decisions to stay the proceedings, such an appeal is clearly not envisaged as a remedy in respect of the length of civil proceedings.

It follows that the Government’s preliminary objection as to the exhaustion of domestic remedies has to be rejected.

c)  In the alternative the Government invite the Court to conclude that the application does not disclose any appearance of a violation of Article 6 of the Convention. They submit that the subject matter of the applicants’ cases did not call for particular urgency in deciding them. They refer to the Court’s case-law arguing that the cases that do call for special urgency are those that relate to family law matters or to payment of damages to the victims of traffic accidents, those that involve the interests of a great number of persons and the so-called “dismissal cases”.

With respect to the behaviour of domestic authorities, the Government point out that in civil proceedings the courts are limited in their activity as they may not take procedural steps on their own initiative but mostly according to the requests of the parties. They contend further that the workload at the civil department of the Zagreb Municipal Court is huge and each judge is assigned some one thousand cases.

The applicants contend that the cases did not involve either factual or legal complexity as it was undisputed that their property was destroyed as a result of terrorist acts. As to the behaviour of domestic authorities, they point out to the inactivity of the court dealing with their cases.

The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which should depend on an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

2.  The applicants complain further, without invoking any specific provision of the Convention, that they were prevented from accessing the courts in so far as the Zagreb Municipal Court stayed the proceedings concerning their actions for damages. The Court will examine the applicants’ complaint under Article 6 § 1 of the Convention.

The Government submit that the applicants had access to a court in respect of their claims for damages since they were able to institute civil proceedings. After the enactment of the changes in the Civil Obligation Act the Zagreb Municipal Court stayed the proceedings. However, that decision is only temporary until the enactment of new legislation regulating the responsibility for damages caused by terrorist acts. In addition, the applicants are able to file a constitutional claim challenging the present legislation regulating the issue in question.

The applicants contend that the appeal against the decisions to stay the proceedings would not have had any effect to their situation, as the appellate court could not change the law that prescribed the stay of all proceedings concerning the requests for damages resulting from terrorist acts. Neither would a constitutional claim challenging the legislation that altered the Civil Obligations Act have remedied the applicants’ situation. In this connection, they submit that a party in some other proceedings concerning the same issue filed such a claim in 1996, but the Constitutional Court has not yet adopted any decision in this respect.

The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which should depend on an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

For these reasons, the Court unanimously

Declares the remainder of the application admissible.

Vincent Berger Georg Ress 
 Registrar President

KUTIĆ v. CROATIA DECISION


KUTIĆ v. CROATIA DECISION