FIRST SECTION
PARTIAL DECISION
AS TO THE ADMISSIBILITY OF
Application no. 76668/01
by Boris BEČ
against Croatia
The European Court of Human Rights (First Section), sitting on 13 February 2003 as a Chamber composed of
MrC.L. Rozakis, President,
MrsF. Tulkens,
MrP. Lorenzen,
MrsN. Vajić,
MrE. Levits,
MrA. Kovler,
MrV. Zagrebelsky, judges,
and Mr S. NIELSEN, Deputy Section Registrar,
Having regard to the above application lodged on 18 October 2001,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Boris Beč, is a Croatian citizen, who was born in 1966 and lives in Zagreb. He is represented before the Court by Ms Ines Bilandžić Arbutina, a lawyer practising in Garešnica, Croatia.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 14 March 1993 a house in Popovac, Croatia, which belonged to M.B. was mined by unknown perpetrators.
M.B. instituted civil proceedings before the Garešnica Municipal Court (Općinski sud u Garešnici), seeking damages from the Republic of Croatia.
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 8 February 1996 the court stayed the proceedings.
On 16 February 1996 the applicant acquired M.B.’s property and thus became her legal successor in the proceedings before the Garešnica Municipal Court.
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“Section 180 of the Civil Obligations Act (the Official Gazette nos. 53/91, 73/91 and 3/94) shall be repealed.”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
The applicant maintains that Parliament’s enactment of the 1996 legislation prevented him from obtaining compensation for the destroyed property.
He complain further that the destruction of the property in question interfered with his right to peaceful enjoyment of jis possession contrary to Article 1 of Protocol No. 1.
THE LAW
1. The applicant claims that he is prevented from obtaining compensation for the destroyed property, thus, in essence, complaining about lack of access to court in respect of his civil claim for damages. Such a complaint falls to be examined under Article 6 § 1 of the Convention, the relevant parts of which read as follows:
“1. In the determination of his civil rights and obligations ... everyone is entitled to a fair and public hearing ...by [a] ... tribunal established by law.
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 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.
2. The applicant further complains that he was deprived of his right to peaceful possession of his property because the property that he acquired had been destroyed. He relies on Article 1 of Protocol No. 1 which reads as follows:
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
The Court firstly has to ascertain whether, and to what extent, it is competent ratione temporis to deal with the application. It reiterates that in accordance with the generally recognised rules of international law, the Convention only governs, for each Contracting Party, facts subsequent to its entry into force with regard to that Party (see, for example, X. v. Portugal, application no. 9453/81, Commission decision of 13 December 1982, Decisions and Reports (DR) 31 pp. 204, 208 and Kadikis v. Latvia (dec.), no. 47634/99, 29 June 2000).
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.” Accordingly, the Court is not competent to examine the present application in so far as it refers to facts occurring before the date of the ratification of the Convention. Finding to the contrary would amount to giving retroactive effect to the Convention which would be contrary to general principles of international law. At the same time it would render Croatia’s declaration recognising the Court’s competence to receive individual applications nugatory (see Kadikis v. Latvia, cited above, and the Stamulakatos v. Greece judgment of 30 September 1993, Series A no. 271, p. 14, § 33).
The Court considers that the act of destruction of the property in question was an instantaneous act, which does not give rise to any possible continuous situation of a violation of the Convention.
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 complaint concerning the lack of access to court;
Declares inadmissible the remainder of the application.
Søren NIELSENChristos ROZAKIS
Deputy RegistrarPresident
Full & Egal Universal Law Academy