FIRST SECTION

CASE OF CRNOJEVIĆ v. CROATIA

(Application no. 71614/01)

JUDGMENT

STRASBOURG

21 October 2004

FINAL

30/03/2005

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 Crnojević v. Croatia,

The European Court of Human Rights (First Section), sitting as a Chamber composed of:

Mr C.L. Rozakis, President
 Mr P. Lorenzen
 Mr G. Bonello
 Mrs F. Tulkens
 Mrs N. Vajić
 Mrs E. Steiner, 
 Mr K. Hajiyev, judges
and Mr S. Quesada, Deputy Section Registrar,

Having deliberated in private on 30 September 2004,

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

PROCEDURE

1.  The case originated in an application (no. 71614/01) 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, Milan Crnojević (“the applicant”), on 15 February 2001.

2.  The applicant was represented by Ms J. Sloković Glumac, a lawyer practising in Zagreb. The Croatian Government (“the Government”) were represented by their Agent, Ms L. Lukina-Karajković.

3.  The applicant alleged that the enactment of the Civil Obligations (Amendments) Act 1996 violated his right of access to court guaranteed by Article 6 § 1 of the Convention.

4.  The application was allocated to the Fourth Section of the Court (Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1.

5.  On 1 November 2001 the Court changed the composition of its Sections (Rule 25 § 1). This case was assigned to the newly composed First Section (Rule 52 § 1). On 18 April 2002 a Chamber of that Section decided to give notice of the application to the Government.

6.  By a decision of 29 April 2003, the Court declared the application admissible.

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

7.  The applicant was born in 1921 and lives in Zagreb.

8.  On 6 September 1991 his summer house in Starigrad, Croatia, was blown up by unknown perpetrators.

9.  On 7 September 1994 he instituted civil proceedings before the Zagreb Municipal Court (Općinski sud u Zagrebu) seeking damages from the Republic of Croatia for his damaged property.

10.  On 16 November 1995 the Zagreb Municipal Court gave judgment partly allowing the applicant’s claim.

11.  On an uncertain date the defendant appealed against the first instance judgment.

12.  Pursuant to the Civil Obligations (Amendments) Act 1996 (Zakon o izmjeni Zakona o obveznim odnosima), the Zagreb Municipal Court stayed the proceedings on 3 September 1997.

13.  On 31 July 2003 the “Damage from Terrorist Acts and Public Demonstrations Act 2003” (Zakon o odgovornosti za štetu nastalu uslijed terorističkih akata i javnih demonstracija) entered into force. It provides that proceedings which were stayed pursuant to the Civil Obligations (Amendments) Act 1996 will resume. However, it is uncertain if and when the applicant’s proceedings before the Zagreb Municipal Court have resumed.

II.  RELEVANT DOMESTIC LAW

14.  The relevant part of the Civil Obligations Act (Zakon o obveznim odnosima, Official Gazette of the Republic of Croatia nos. 53/1991, 73/1991, 3/1994, 7/1996 and 112/1999) read as follows:

Section 180(1)

“Responsibility for loss caused by death or bodily injury or by damage or destruction of another’s property, when it results from violent acts 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.”

15.  The Civil Obligations (Amendments) Act 1996 (Zakon o izmjeni Zakona o obveznim odnosima, Official Gazette of the Republic of Croatia no. 7/1996, hereinafter “the 1996 Act”) entered into force on 3 February 1996. The relevant parts of that Act read as follows:

Section 1

“Section 180 of the Civil Obligations Act ... 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 resume after the enactment of special legislation governing responsibility for damage resulting from terrorist acts.”

16.  The relevant part of the Civil Procedure Act (Zakon o parničnom postupku, Official Gazette of the Republic of Croatia nos. 53/1991, 91/1992, 112/1999 and 117/2003) provides:

Section 212

“Proceedings shall be stayed:

...

(6) where another statute so prescribes.”

17.  The “Damage from Terrorist Acts and Public Demonstrations Act 2003” (Zakon o odgovornosti za štetu nastalu uslijed terorističkih akata i javnih demonstracija, Official Gazette of the Republic of Croatia no. 117/2003, hereinafter “the 2003 Act”) entered into force on 31 July 2003. It provides that proceedings which were stayed pursuant to the 1996 Act will resume and defines circumstances in which the Republic of Croatia is liable for damage resulting from terrorist acts and public demonstrations.

THE LAW

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

18.  The applicant complained that the enactment of the 1996 Act violated her right of access to court guaranteed by Article 6 § 1 of the Convention, which reads as follows:

Article 6 § 1

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

19.  The Government invited the Court to conclude that the application did not disclose any appearance of a violation of Article 6 § 1 of the Convention. In this connection, they submitted that the applicant had enjoyed access to court as he had instituted civil proceedings before the Zagreb Municipal Court. The fact that the court had temporarily stayed the proceedings pursuant to the 1996 Act did not affect his right of access to a court. The 2003 Act now afforded him access to court.

20.  The applicant argued that his right of access to court was violated as he was prevented from pursuing his case in Croatia during the period prior to the entry into force of the 2003 Act.

21.  The Court recalls that Article 6 § 1 of the Convention embodies the “right to a court” of which the right of access, namely the right to institute proceedings before a court in civil matters, constitutes one aspect.

22.  However, this right is not absolute, but may be subject to limitations. These are permitted by implication since the right of access by its very nature calls for regulation by the State. In this respect, the Contracting States enjoy a certain margin of appreciation, although the final decision as to the observance of the Convention’s requirements rests with the Court. It must be satisfied that the limitations applied do not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired. Furthermore, a limitation will not be compatible with Article 6 § 1 if it does not pursue a legitimate aim and if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be achieved (see Stubbings and Others v. the United Kingdom, judgment of 22 October 1996, Reports of Judgments and Decisions 1996-IV, § 50).

23.  In the present case, the Court notes that the applicant’s proceedings against the Republic of Croatia were de facto stayed on 3 February 1996, when the 1996 Act entered into force. Pursuant to that Act the Zagreb Municipal Court was not able to continue with the proceedings. The 2003 Act entered into force on 31 July 2003 providing for the resumption of the proceedings. The applicant was therefore prevented for more than seven years, more than five of which after the ratification of the Convention by Croatia, from having his claim decided by domestic courts as a result of the 1996 Act.

24.  The Court finds, in accordance with its case-law (see, inter alia, Kutić v. Croatia, no. 48778/99, § 33, ECHR 2002-II, and Multiplex v. Croatia, no. 58112/00, § 55, 10 July 2003), that the long period for which the applicant was prevented from having his civil claim determined by domestic courts as a consequence of a legislative measure constitutes a violation of Article 6 § 1 of the Convention.

II.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

25.  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

26.  In respect of pecuniary damage, the applicant claimed the value of his damaged house and movable property and the loss of income due to the destruction of his house in the sum of 5,305,026.61 Croatian kunas (HRK) (approximately 716,480 euros (EUR)). He further claimed EUR 90,000 in respect of non-pecuniary damage.

27.  The Government considered the claimed amounts unfounded and, in any case, excessive.

28.  The Court recalls that the violation found relates solely to the applicant’s access to court and not to the destruction of his house. Consequently, no causal link has been established between the violation found and his claim for pecuniary damage. In particular, it is not for the Court to speculate what the outcome of the proceedings would be if they were in conformity with the requirements of Article 6 § 1 of the Convention (see, inter alia, Göçer v. the Netherlands, no. 51392/99, § 37, 3 October 2002). No award of pecuniary damage is therefore made.

29.  On the other hand, the Court notes the long period for which the applicant was prevented from having his civil claims determined and considers that some feelings of frustration and anxiety must have arisen which justify an award of non-pecuniary damage. Making its assessment on an equitable basis and having regard to the circumstances of the case, the Court awards the applicant EUR 4,000, plus any tax that may be chargeable (see, Multiplex cited above, § 63, Kastelic v. Croatia, no. 60533/00, § 41, 10 July 2003, and Aćimović v. Croatia, no. 61237/00, § 46, ECHR 2003-XI).

B.  Costs and expenses

30.  The applicant claimed HRK 60,308.80 (approximately EUR 8,145) for the costs and expenses incurred before the domestic courts. He further claimed HRK 105,200 (approximately EUR 14,235) for the costs and expenses incurred before the Court.

31.  The Government considered the claimed amounts excessive.

32.  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 does not consider that the applicant has demonstrated that he has incurred, before the domestic courts, any extra costs and expenses because of the stay on his proceedings (see Kastelic cited above, § 44).

33.  As to the legal costs and expenses incurred before it, the Court notes that the applicant was legally represented. Making its own assessment, the Court considers it reasonable to award the applicant EUR 2,000, plus any tax that may be chargeable (see Kastelic cited above, § 44).

C.  Default interest

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

2.  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 should be converted into Croatian kunas at the rate applicable at the date of settlement:

(i)  EUR 4,000 (four thousand euros) in respect of non-pecuniary damage;

(ii)  EUR 2,000 (two thousand euros) in respect of costs and expenses; and

(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;

3.  Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 21 October 2004, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Santiago Quesada Christos Rozakis 
 Deputy Registrar President


CRNOJEVIĆ v. CROATIA JUDGMENT


CRNOJEVIĆ v. CROATIA JUDGMENT