AS TO THE ADMISSIBILITY OF
Application no. 9707/02
by Dragoslav ANDRIĆ
The European Court of Human Rights (First Section), sitting on 19 May 2005 as a Chamber composed of:
Mr C.L. Rozakis, President,
Mr P. Lorenzen,
Ms N. Vajić,
Mrs S. Botoucharova,
Mr A. Kovler,
Mrs E. Steiner,
Mr K. Hajiyev, judges,
and Mr S. Nielsen, Section Registrar,
Having regard to the above application lodged on 7 February 2002,
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 Dragoslav Andrić, is a Croatian national who was born in 1934 and lives in Križevci, Croatia. He is represented before the Court by Mr M. Mihočević, a lawyer practising in Zagreb. The respondent Government were represented by successive agents: Ms L. Lukina-Karajković, Agent, Mr D. Maričić, Co-Agent, and, subsequently, Ms Š. Stažnik, Agent.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
On 4 February 1992 the applicant's house in Bjelovar was blown up by unknown perpetrators.
On 29 January 1997 he instituted civil proceedings before the Zagreb Municipal Court (Općinski sud u Zagrebu) seeking damages from the State for his damaged property.
Pursuant to the Civil Obligations (Amendments) Act 1996 (Zakon o izmjeni Zakona o obveznim odnosima), the Zagreb Municipal Court stayed the proceedings on 16 September 1999.
On 26 November 2002 the applicant filed a constitutional complaint under section 63 of the Constitutional Court Act 1999 (Ustavni zakon o Ustavnom sudu Republike Hrvatske) complaining about the stay on his proceedings. It would appear that the proceedings before the Constitutional Court are still pending.
The proceedings before the Zagreb Municipal Court resumed on 25 November 2003 pursuant to the “Damage from Terrorist Acts and Public Demonstrations Act 2003” (Zakon o odgovornosti za štetu nastalu uslijed terorističkih akata i javnih demonstracija).
On 8 December 2003 the Zagreb Municipal Court decided that it lacked jurisdiction to hear the case and dismissed his claim accordingly. The applicant appealed to the Zagreb County Court (Županijski sud u Zagrebu) where the case is apparently still pending.
B. Relevant domestic law and practice
The relevant part of the Civil Obligations Act (Zakon o obveznim odnosima, Official Gazette nos. 53/1991, 73/1991, 3/1994, 7/1996 and 112/1999) read as follows:
“Liability 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.”
The Civil Obligations (Amendments) Act 1996 (Zakon o izmjeni Zakona o obveznim odnosima, Official Gazette no. 7/1996, hereinafter “the 1996 Act”) entered into force on 3 February 1996. The relevant part of that Act read as follows:
“Section 180 of the Civil Obligations Act ... 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 resume after the enactment of special legislation governing responsibility for damage resulting from terrorist acts.”
The relevant part of the Civil Procedure Act (Zakon o parničnom postupku, Official Gazette nos. 53/1991, 91/1992, 112/1999 and 117/2003) provides:
“Proceedings shall be stayed:
(6) where another statute so prescribes.”
The “Damage from Terrorist Acts and Public Demonstrations Act 2003” (Zakon o odgovornosti za štetu nastalu uslijed terorističkih akata i javnih demonstracija, Official Gazette 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 State is liable for damage resulting from terrorist acts and public demonstrations.
The relevant part of section 63 of the Constitutional Court Act 1999 (Ustavni zakon o Ustavnom sudu Republike Hrvatske, its consolidated text was published in the Official Gazette no. 49/2002) reads as follows:
“(1) The Constitutional Court shall examine a constitutional complaint whether or not all legal remedies have been exhausted if the court with jurisdiction 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 court with jurisdiction 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.”
On 24 March 2004 the Constitutional Court decided, in the case of R.N., that a stay on proceedings pursuant to the 1996 Act violated R.N.'s constitutional rights to a hearing within a reasonable time and access to court (case no. U-IIIA-829/2002). It ordered that the relevant first instance court decide the case within one year. R.N. was also awarded damages in the amount of 4,400 Croatian kunas (approximately 600 euros).
The applicant complained that his right of access to court guaranteed by Article 6 § 1 of the Convention and his right to an effective remedy guaranteed by Article 13 of the Convention were violated as a consequence of the 1996 Act.
The applicant complained because his proceedings were stayed pursuant to the 1996 Act. He invoked Articles 6 § 1 and 13 of the Convention, the relevant parts of which read as follows:
Article 6 § 1
“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”
“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.”
1. The Government maintained that the domestic authorities could be held responsible only for events which occurred after 5 November 1997, when the Convention entered into force in respect of Croatia.
The applicant argued that the impugned situation continued until 31 July 2003, when the 2003 Act entered into force.
The Court notes that the applicant's proceedings have been de facto stayed since their institution on 29 January 1997 as a consequence of the 1996 Act. Pursuant to that Act the Zagreb Municipal Court was not able to conduct the proceedings and they were formally stayed on 16 September 1999. The 2003 Act entered into force on 31 July 2003 providing for the resumption of the proceedings. It follows that the situation of which the applicant complained continued after the ratification of the Convention by Croatia on 5 November 1997. Accordingly, the Court does have competence ratione temporis to examine the application in so far as it concerns the stay on the applicant's proceedings after 5 November 1997, due account being taken of the length of time they had been stayed prior to ratification (see Kutić v. Croatia (dec.), no. 48778/99, 4 October 2001).
2. The Government also submitted that the application was premature because the complaint about the stay on the applicant's proceedings was pending before the Constitutional Court. In the Government's opinion, the above-described decision of the Constitutional Court of 24 March 2004 created a new domestic remedy for an alleged lack of access to court.
The applicant invited the Court to reject that objection.
The Court recalls that, in similar circumstances, it has held that the remedy in issue does not constitute a remedy to be exhausted in respect of applications lodged before 24 March 2004 (see, mutatis mutandis, Pikić v. Croatia, no. 16552/02, §§ 24-33, 18 January 2005). In such circumstances, the Court considers that the application cannot be rejected for failure to exhaust domestic remedies.
3. The Court concludes that the application raises questions of law which are sufficiently serious for its determination to depend on an examination of the merits, no other ground for declaring it inadmissible having been established.
For these reasons, the Court unanimously
Declares the application admissible, without prejudging the merits of the case.
Søren Nielsen Christos Rozakis
ANDRIĆ v. CROATIA DECISION
ANDRIĆ v. CROATIA DECISION