AS TO THE ADMISSIBILITY OF
Application no. 59138/00
by Jovan MOMČILOVIĆ
The European Court of Human Rights (First Section), sitting on 29 August 2002 as a Chamber composed of
Mr C.L. Rozakis, President,
Mr G. Bonello,
Mr P. Lorenzen,
Mrs N. Vajić,
Mrs S. Botoucharova,
Mr V. Zagrebelsky,
Mrs E. Steiner, judges,
and Mr E. Fribergh, Section Registrar,
Having regard to the above application lodged on 30 May 2000,
Having regard to the partial decision of 27 September 2001,
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 Jovan Momčilović, is a Croatian citizen, who was born in 1935 and lives in Belgrade. He is represented before the Court by Mr Marko Baletić, a lawyer practising in Belgrade. 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.
The applicant was born on the territory of present day Croatia. He lived in Split, in the county of Dalmatia. In July 1991 he and his wife went to Tuzla (on the territory of the former Socialist Republic of Bosnia and Herzegovina - at the time a part of the Socialist Federal Republic of Yugoslavia) to visit their daughter. During that visit the armed conflict escalated in broader parts of Dalmatia. Subsequently the war spread to other parts of Croatia and Bosnia and Herzegovina. The applicant and his wife moved to Belgrade.
In March 1999 the applicant filed an application for his return to Croatia, pursuant to the “Procedure for the Individual Return of Persons Who Have Left Croatia (hereinafter the “Procedure for the Individual Return”), with the Croatian Embassy in Belgrade. The Procedure for the Individual Return regulates the return to Croatia of persons who are Croatian citizens but do not have Croatian identification documents. As the applicant left the territory of present day Croatia in July 1991, shortly before the independence of Croatia, Croatian documents such as passport or identity card have never been issued to him. In the above application the applicant stated that he was a Croatian citizen as he had been born on the territory of present day Croatia and had lived there until 1991.
According to the Government the applicant filed his application on 29 March 1999 at the time when Belgrade was exposed to daily bombing. Because of that and for security reasons, parts of the archives of the Consular Department of the Croatian Embassy in Belgrade were moved to the Embassy’s headquarters. The remaining parts of the archives were moved to the premises of the Ministry of Foreign Affairs in Zagreb.
The Government admit that the applicant’s application was registered but they state that it was not found in the archives of the Consular Department. In the Government’s opinion the case-file has probably been lost in the course of the removal of the archives.
According to the applicant he filed his application on 13 March 1999 and not on 29 March 1999. He states that on 24 March 1999 the NATO attack on Belgrade started and the Croatian Embassy closed so he could not have filed his application after that date.
No decision has been issued concerning that application.
On 15 January 2001 the applicant again filed the same request with the Croatian Embassy in Belgrade through the Helsinki Committee for Human Rights in Serbia.
The applicant alleges that on 21 February 2001 he entered Croatia and registered his residence in Plaški where he sought and obtained an identity card and a passport.
On 14 March 2001 the Ministry of Interior informed the Embassy in Belgrade that the applicant was a Croatian citizen.
On 23 March 2001 the Helsinki Committee informed the applicant that he might file an application for a travel document to return to Croatia.
According to the Government, the applicant has not filed such an application with the Croatian Embassy in Belgrade.
B. Relevant domestic law
The relevant provisions of the Administrative Disputes Act (Zakon o upravnim sporovima - Official Gazette 53/1991) provides as follows.
Section 26 enables a party who lodged a request with an administrative body to institute administrative proceedings before the Administrative Court (administrative dispute) in the following situations:
1. If the appellate body does not issue a decision upon the applicant’s appeal within 60 days the applicant may repeat his request, and if the appellate body declines to issue a decision within an additional period of seven days the applicant may lodge a claim with the Administrative Court...
2. When a first instance administrative body does not issue a decision and there is no right to an appeal the applicant may directly lodge a request with the Administrative Court.
3. If a first instance administrative body does not issue a decision upon the applicant’s request within sixty days in matters where a right to an appeal exists, the applicant may lodge his request to the appellate administrative body. Against the decision of that body the applicant may institute administrative proceedings, and if that body has not issued a decision there is also a right to institute administrative proceedings under the conditions set out in paragraph 1.
The relevant parts of the “Procedure for the Individual Return of Persons Who Have Left Croatia” (Postupak za individualni povratak osoba koje su napustile Republiku Hrvatsku, Official Gazette no. 92/1998) provide as follows:
“Persons having Croatian citizenship have the right to return to Croatia.
1. An application for return shall be filed orally or in writing with the Consular Department of an embassy or a general consulate of Croatia in a State where a person seeking return is living.
5. Where an application for return is based on a document not proving Croatian citizenship of the applicant, but may serve to obtain Croatian citizenship a diplomatic mission shall immediately forward the application, together with the enclosed documentation, to the Ministry of Interior which conducts the proceedings for obtaining Croatian citizenship.
When the Ministry of Interior has established that the application is well founded it shall issue a decision grating the applicant’s request within two months when possible or at the latest three months. This decision shall be immediately forwarded to the diplomatic mission where the application was filed. The mission shall issue a travel document for returning to Croatia to the applicant.
The applicant complains under Article 3 § 2 of Protocol No. 4 to the Convention that, due to the fact that he has not been issued any documents to enter Croatia, his right to enter the territory of his country has been violated.
The applicant complains further under Article 8 of the Convention that his right to respect for his family life was violated because according to the Procedure for the Individual Return an application for the return may be filed only by an individual person and not by a family as a whole.
He also complains under Article 14 of the Convention that he has been discriminated against on the basis of his Serbian origin.
1. The applicant complains that the Croatian authorities have prevented him from entering Croatia, although he is a Croatian citizen. He alleges a violation of Article 3 § 2 of Protocol No. 4 to the Convention which reads as follows:
“2. No one shall be deprived of the right to enter the territory of the state of which he is a national.”
The Government firstly claim that the applicant has failed to exhaust domestic remedies. They submit that the request for the return to Croatia is to be filed with a Croatian diplomatic mission. This mission sends the case file to the Ministry of Interior which is obliged to determine within two or, exceptionally, three months whether the applicant is a Croatian citizen. If the Ministry finds out that the applicant has already been registered as a Croatian citizen it informs the diplomatic mission where the application was filed. The mission then invites the applicant to file an application for a travel document to return to Croatia.
However, if the Ministry of Interior does not issue a decision within the prescribed time-limit, the applicant may, according to the Administrative Disputes Act, since there is no right to an appeal in such matters, institute administrative proceedings directly before the Administrative Court.
The Government argue that in the present case although he could have instituted administrative proceedings, the applicant failed to do so. Therefore, he has prevented the domestic authorities from rectifying any possible violations of his rights.
The applicant contends that there is no domestic remedy to be exhausted in respect of the Procedure for the Individual Return to Croatia. Furthermore, since he was prevented from entering Croatia he could not have filed any application before the Croatian authorities.
As regards the merits of the application the Government submit that the facts of the case reveal that the applicant is a Croatian citizen which was established by the Ministry of Interior. After that, the applicant was informed that he could file an application for a travel document to return to Croatia, but he has never done so.
Since the applicant meanwhile, in February 2001 entered Croatia and obtained his identity documents, including a passport, he has not been prevented from entering Croatia. For these reasons, the Government invite the Court to declare this part of the application manifestly ill-founded.
The applicant claims that on 21 February 2001 he entered Croatia without identification documents. He argues that he entered Croatia more than two years after he had submitted his first request with the Croatian Embassy in Belgrade. Once he was in Croatia he was not able to register in Split, where he had lived before he had left Croatia, because his specially protected tenancy on a flat in Split had been terminated. Instead, he had to register his residence in Plaški where he was born. Thus, he was prevented from freely choosing his place of residence.
The Court does not find it necessary to determine whether the applicant has fulfilled the condition of exhaustion of domestic remedies because the application is in any event inadmissible for the following reasons.
The Court notes that the applicant has in fact been able to enter Croatia, although he had no Croatian documents. The Court notes further that, although he claims that such an act was illegal, the applicant has never been prosecuted for that act. Furthermore, once in Croatia he obtained Croatian identity documents, including a passport without any further delay. The Court considers that in these circumstances he can not claim to be a victim of his right to enter the territory of his own country.
As to the applicant’s complaint that he was not able to register his residence in Split, the Court considers that the applicant has not submitted any documents which would indicate any violation of his Convention rights.
It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
2. The applicant complains that his right to respect for his family life was violated because according to the Procedure for the Individual Return an application for the return may be filed only by an individual person and not by a family as a whole. He relies on Article 8 of the Convention that reads as follows:
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
The Court considers that, having regard to the facts of the case, there is no appearance of a violation of Article 8 of the Convention.
It follows that this complaint must be rejected under Article 35 §§ 1 et 4 of the Convention for non-exhaustion of domestic remedies.
3. The applicant also complains that the Procedure for the Individual Return is applicable only to persons of Serbian origin and that it violates his right not to be discriminated against under Article 14 of the Convention in conjunction with Article 3 of Protocol No. 4. Article 14 of the Convention reads as follows:
“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.”
The Court notes that the Procedure for the Individual Return applies to all persons who left Croatia and who, although being Croatian citizens, do not have Croatian identity documents and want to return to Croatia.
Therefore, the Court finds no indication of any discrimination contrary to Article 14 of the Convention.
It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. The Court finds no indication of any discrimination contrary to Article 14 of the Convention.
For these reasons, the Court unanimously
Declares the remainder of the application inadmissible.
Erik Fribergh Christos
MOMČILOVIĆ v. CROATIA DECISION
MOMČILOVIĆ v. CROATIA DECISION