FIRST SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 10438/02
by Marija and Slaven BULAT
against Croatia
The European Court of Human Rights (First Section), sitting on 11 December 2003 as a Chamber composed of:
MrC.L. Rozakis, President,
MrP. Lorenzen,
MrG. Bonello,
MrsF. Tulkens,
MrsN. Vajić,
MrsE. Steiner,
MrK. Hajiyev, judges,
and Mr S. NIELSEN, Deputy Section Registrar,
Having regard to the above application lodged on 31 October 2001,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having deliberated, decides as follows:
THE FACTS
The applicants, Ms Marija Bulat and Mr Slaven Bulat, are Croatian citizens who were born in 1960 and 1982 respectively and live in Osijek, Croatia. They are represented before the Court by Ms Branka Paprić, a lawyer practising in Osijek. The respondent Government are represented by their Agent Ms Lidija Lukina-Karajković.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
The first applicant is the second applicant’s mother.
On 20 November 1991 F.M., a member of the Croatian army severely wounded the second applicant and killed his father V.B.
On 19 February 1996 the applicants instituted civil proceedings before the Osijek Municipal Court (Općinski sud u Osijeku), seeking damages from the Republic of Croatia.
On 6 November 1999 Parliament introduced an amendment to the Civil Obligations Act (Zakon o obveznim odnosima) which provided that all proceedings concerning actions for damages resulting from acts of members of the Croatian army and police when acting in their official capacity during the Homeland War in Croatia were to be stayed pending the enactment of new legislation on the subject.
On 13 November 2000 the Osijek Municipal Court stayed the proceedings.
On 14 July 2003 Parliament passed the Act on liability of the Republic of Croatia for damage caused by members of the Croatian army and police when acting in their official capacity during the homeland war (Zakon o odgovornosti Republike Hrvatske za štetu uzrokovanu od pripadnika hrvatskih oružanih i redarstvenih snaga tijekom Domovinskog rata, Official Gazette no. 117/2003 of 23 July 2003).
B. Relevant domestic law
Section 184 (a) of the 1999 Act on Amending the Civil Obligations Act (Zakon o dopunama Zakonu o obveznim odnosima, Official Gazette no. 112/1999) provides that all proceedings instituted against the Republic of Croatia for damage caused by members of the Croatian army and police when acting in their official capacity during the homeland war in Croatia from 7 August 1990 to 30 June 1996 are to be stayed.
The Act also imposed an obligation on the Government to submit to Parliament special legislation, regulating the responsibility for such damage, within six months at the latest from the Act’s entry into force.
The relevant parts of the Act on liability of the Republic of Croatia for damage caused by members of the Croatian army and police when acting in their official capacity during the homeland war now regulate circumstances in which the Republic of Croatia is liable for damage caused by members of the army and the police during the homeland war.
COMPLAINT
The applicants maintained that Parliament’s enactment of the 1999 legislation interfered with their right of access to court within the meaning of Article 6 § 1 of the Convention.
THE LAW
The applicants maintained that Parliament’s enactment of the 1999 legislation interfered with their right of access to court within the meaning of Article 6 § 1 of the Convention the relevant part of which reads as follows:
“1. In the determination of his civil rights and obligations ... everyone is entitled to a fair and public hearing within a reasonable time [a] ... tribunal established by law.
a. The Government firstly maintained that the applicants had failed to exhaust domestic remedies because they had not submitted a constitutional claim challenging the legislation in question.
The applicants argued that several other persons in the same position did file a constitutional complaint challenging the legislation in question and that the Constitutional Court had not decided on these complaints.
The Court recalls that in similar circumstances it has held in the Aćimović case that a constitutional complaint challenging the legislation in question did not represent a remedy to be exhausted (see Aćimović v. Croatia, (dec.), no. 61237/00, 7 November 2002). The Court sees no reason to depart from this decision in the present case.
It follows that the applicants’ complaint cannot be rejected for failure to exhaust domestic remedies.
b. 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 applicants did enjoy access to a court because they had instituted civil proceedings for damages before the Osijek Municipal Court. The fact that the court had stayed the proceedings pursuant to the 1999 legislation did not affect the applicants’ right of access to a court because the proceedings were stayed only temporarily. When in July 2003 new legislation was enacted the applicants again enjoyed access to a court.
The applicants contended that the prolonged period for which they had been unable to have their civil claim decided before the domestic courts violated their 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
Deputy RegistrarPresident
Full & Egal Universal Law Academy