FIRST SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 15308/02
by Josip BUBAŠ
against Croatia
The European Court of Human Rights (First Section), sitting on 29 January 2004 as a Chamber composed of:
MrC.L. Rozakis, President,
MrP. Lorenzen,
MrG. Bonello,
MrsF. TULKENS,
MrsN. Vajić,
MrE. LEVITS,
MrsS. Botoucharova, judges,
andMrS. NIELSEN, Section Registrar,
Having regard to the above application lodged on 19 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 FACTS
The applicant, Mr Josip Bubaš, is a Croatian citizen who was born in 1924 and lives in Vinkovci. He is represented before the Court by Mr Anto Nobilo, a lawyer practising in Zagreb. The respondent Government are represented by their Agent, Ms Lidija Lukina-Karjaković.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
On 12 April 1993 the applicant’s house in Lički Novi, Croatia was mined by unknown perpetrators.
On 11 April 1995 the applicant instituted civil proceedings before the Zagreb Municipal Court (Općinski sud u Zagrebu), seeking damages from the Republic of Croatia.
On 17 January 1996 Parliament introduced an amendment to the Civil Obligations Act (Zakon o obveznim odnosima) 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.
On 5 October 1999 the Zagreb Municipal Court stayed the proceedings.
On 14 July 2003 Parliament passed the Act on Liability for Damage Resulting from Terrorist Acts and Public Demonstrations (Zakon o odgovornosti za štetu nastalu uslijed terorističkih akata i javnih demonstracija, Official Gazette no. 117/2003 of 23 July 2003).
B. Relevant domestic law
The relevant part of the Civil Obligations Act 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 (Zakon o parničnom postupku) provides:
Section 212
“Proceedings shall be stayed:
...
(6) where another statute so prescribes.”
The 2003 Act on Liability for Damage Resulting from Terrorist Acts and Public Demonstrations provides, inter alia, that the Republic of Croatia is to compensate only damages resulting in bodily injuries, impairment of health or death. All material damages could be sought pursuant to the Reconstruction Act.
The relevant parts of the Reconstruction Act (Zakon o obnovi, Offcial Gazette nos. 24/1996, 54/1996, 87/1996 and 57/2000) provide, inter alia, that the means for reconstruction are to be granted to persons whose property was destroyed in the war. The request is to be submitted to the Ministry for Public Works, Reconstruction and Construction (Ministarstvo za javne radove, obnovu i graditeljstvo).
COMPLAINT
The applicant complained that Parliament’s enactment of the 1996 legislation interferes with his right of access to a court and his right to an effective remedy within the meaning of Article 6 § 1 and Article 13 of the Convention.
THE LAW
The applicant maintained that he was deprived of his right of access to a court and his right to an effective remedy because the changes of the Civil Obligations Act from 1996 had prevented him from having his claim for compensation decided by the domestic courts. He relied on Article 6 § 1 and Article 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...”
Article 13
“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.”
a. The Government firstly maintained that the applicant had failed to exhaust domestic remedies because he had not submitted a constitutional claim challenging the legislation in question.
The applicant maintained that other persons in the same position had filed such a claim but that the Constitutional Court did not decide on such claims.
The Court recalls that in similar circumstances it has held in the Crnojević case that a constitutional complaint challenging the legislation in question did not represent a remedy to be exhausted (see Crnojević v. Croatia, (dec.), no. 71614/01, 29 April 2003). The Court sees no reason to depart from this decision in the present case.
It follows that the applicant’s complaint cannot be rejected for failure to exhaust domestic remedies.
b. The Government further maintained that they bear no responsibilities for the events that had taken place prior to 5 November 1997 when the Convention entered into force in respect of Croatia.
The applicant stressed that he had been deprived of his right of access to a court also after the Convention had entered into force in respect of Croatia.
The Court notes that the proceedings in question, concerning the applicant’s civil claim for damages against the respondent State, were de facto stayed on 17 January 1996 although the Zagreb Municipal Court formally took its decision to stay the proceedings on 5 October 1999.
The Court further notes that the applicant complained that he was deprived of his right of access to a court at least until the enactment of the new legislation on 14 July 2003. It follows that the situation complained of continued even after the ratification of the Convention on the part of Croatia, i.e. on 5 November 1997, and that the Court does have competence ratione temporis to examine the applicant’s complaints.
c. In the alternative 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 did enjoy access to a court because he had instituted civil proceedings for damages before the Zagreb Municipal Court. The fact that the court had stayed proceedings pursuant to the 1996 legislation did not affect the applicant’s right of access to a court because the proceedings were stayed only temporarily. When in July 2003 the new legislation was enacted the applicant again enjoyed access to a court.
The applicant contended that the prolonged period for which he had been unable to have his civil claim decided before the domestic courts violated his right of access to a court. He relied on the Kutić judgment (see Kutić v. Croatia, no. 48778/99, ECHR 2002-II).
As to the Article 13 complaint, the Government argued that Article 13 did not apply to a situation where an application is directed against a law. Furthermore they asserted that the application of Article 6 § 1 of the Convention concerning the applicant’s right of access to a court excluded the application of the applicant’s right to an effective remedy under Article 13 because there was no separate issue in that respect.
The applicant maintained that he had no effective remedy in the domestic legal system to enforce his right of access to a court.
The Court considers, in the light of the parties’ submissions, that the application raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.
For these reasons, the Court unanimously
Declares the application admissible, without prejudging the merits of the case.
Søren NIELSENChristos Rozakis
RegistrarPresident
Full & Egal Universal Law Academy