FIRST SECTION
PARTIAL DECISION
AS TO THE ADMISSIBILITY OF
Application no. 9761/02
by Nikola BADOVINAC
against Croatia
The European Court of Human Rights (First Section), sitting on 7 November 2002 as a Chamber composed of
MrC.L. Rozakis, President,
MrsF. Tulkens,
MrG. Bonello,
MrP. Lorenzen,
MrsN. Vajić,
MrE. Levits,
MrV. Zagrebelsky, judges,
and Mr S. Nielsen, Deputy Section Registrar,
Having regard to the above application lodged on 12 February 2002,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Nikola Badovinac, is a Croatian citizen, who was born in 1932 and lives in Split. He is represented before the Court by Mr Jadran Franceschi, a lawyer practising in Split.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 2 February 1992 the applicant’s house in Kaštel Novi, Croatia, was mined by unknown perpetrators.
On 9 January 1995 the applicant instituted civil proceedings before the Split Municipal Court (Općinski sud u Splitu), seeking compensation from the Republic of Croatia for his destroyed property.
On 17 January 1996 the Croatian Parliament introduced an amendment to the Civil Obligations 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 could not be sought. So far the Croatian authorities have not enacted any new legislation regulating the matter.
On 15 September 1998 the Split Municipal Court stayed the proceedings.
B. Relevant domestic law
The relevant part of the Civil Obligations Act (Zakon o obveznim odnosima) reads 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.”
The relevant parts of the Act Amending the Civil Obligations Act (Zakon o izmjenama i dopunama Zakona o obveznim odnosima – Official Gazette no. 7/1996) read 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“Section 180 of the Civil Obligations Act (the Official Gazette nos. 53/91, 73/91 and 3/94) shall be repealed.”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 continued after the enactment of special legislation governing responsibility for damage resulting from terrorist acts.”
The relevant part of the Civil Procedure Act provides:
Section 212
“Proceedings shall be stayed:
...
(6) where another statute so prescribes.”
COMPLAINTS
1. The applicant maintains that Parliament’s enactment of the 1996 legislation interferes with his right of access to court and/or his right to an effective remedy within the meaning of Article 6 § 1 and Article 13 of the Convention.
2. He further complains under Article 8 of the Convention taken alone and in conjunction with Article 14 of the Convention claiming that the act of destruction of his house deprived him of his right of respect for his home and that he belongs to a small category of persons whose property was destroyed.
THE LAW
1. The applicant complains that he is deprived of his right of access to court and/or his right to an effective remedy because the changes of the Civil Obligations Act from 1996 prevented him from having his claim for compensation decided by the domestic courts. He relies on Article 6 § 1 and Article 13 of the Convention, the relevant part of which reads as follows:
“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.”
The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 3 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.
2. The applicant also complains that he has been deprived of his right of respect for his home because his house was mined and that he belongs to a small category of persons whose property was destroyed. He relies on Articles 8 and 14 of the Convention.
The Court notes that the event complained of took place on 2 February 1992 while the Convention entered into force in respect of Croatia on 5 November 1997.
It follows that this part of the application is incompatible ratione temporis with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.
For these reasons, the Court unanimously
Decides to adjourn the examination of the applicant’s complaints that he has been deprived of his right of access to court and/or his right to an effective remedy;
Declares the remainder of the application inadmissible.
Søren NielsenChristos ROZAKIS
Deputy RegistrarPresident
Full & Egal Universal Law Academy