FIRST SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 4938/02
by Borka DORONTIĆ
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 15 October 2001,
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, Ms Borka Dorontić, is a Croatian citizen who was born in 1956 and lives in Zadar. She is 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 applicant’s house in Starigrad, Croatia, that served as a weapons and ammunition storage for the Croatian police was burned down following an explosion caused by members of the Croatian police on 1 November 1991.
On 11 April 1994 the applicant filed a civil claim for compensation of damages before the Zadar Municipal Court (Općinski sud u Zadru) against the Republic of Croatia and the Ministry of Interior (Ministarstvo unutarnjih poslova Republike Hrvatske).
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 10 March 2000 the Zadar Municipal court stayed the proceedings pursuant to the above legislation.
The applicant’s subsequent appeal was dismissed by the Zadar County Court (Županijski sud u Zadru) on 17 May 2001.
The applicant then filed a request for revision with the Supreme Court (Vrhovni sud Republike Hrvatske) which was dismissed on 30 January 2002.
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 applicant complained under Article 6 § 1 of the Convention that Parliament’s enactment of the 1999 legislation had interfered with her right of access to a court.
THE LAW
The applicant maintained that Parliament’s enactment of the 1999 legislation interfered with her right of access to a 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 applicant had failed to exhaust domestic remedies because she had not submitted a constitutional claim challenging the legislation in question.
The applicant 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.
In the applicant’s opinion she had no domestic remedy to exhaust in respect of her complaint that she was deprived of her right of access to a court.
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 applicant’s 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 applicant did enjoy access to a court because she had instituted civil proceedings for damages before the Zadar Municipal Court. The fact that the court had stayed the proceedings pursuant to the 1999 legislation did not affect the applicant’s right of access to a court because the proceedings were stayed only temporarily. When in July 2003 new legislation was enacted the applicant again enjoyed access to a court.
The applicant contended that the prolonged period for which she had been unable to have her civil claim decided before the domestic courts violated her 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