FIRST SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 12833/02
by Ivica GREGURINČIĆ
against Croatia
The European Court of Human Rights (First Section), sitting on 1 September 2005 as a Chamber composed of:
MrC.L. Rozakis, President,
MrL. Loucaides,
MrsF. Tulkens,
MrP. Lorenzen,
MsN. Vajić,
MrsS. Botoucharova,
MrA. Kovler, judges,
and Mr S. Nielsen, Section Registrar,
Having regard to the above application lodged on 4 March 2002,
Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together,
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 Ivica Gregurinčić, is a Croatian national who was born in 1967 and lives in Petrinja, Croatia. He is represented before the Court by Mr B. Spiz, a lawyer practising in Zagreb. The respondent Government were represented by successive Agents: Ms L. Lukina-Karajković and Ms Š. Stažnik.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
On 18 August 1995 a member of the Croatian Army allegedly damaged the applicant’s car.
On 3 October 1995 the applicant instituted civil proceedings before the Zagreb Municipal Court (Općinski sud u Zagrebu) seeking damages from the State.
The court held hearings on 15 April 1996, 2 April 1998 and on 8 December 1998.
On 6 November 1999 the Civil Obligations (Amendments) Act 1999 (Zakon o dopunama Zakona o obveznim odnosima) entered into force. It provided that proceedings for damage caused by members of the army and the police from 17 August 1990 to 30 June 1996 would be stayed.
The court held hearings thereafter: on 18 March 2002, 11 March 2003, 2 March 2004 and on 10 December 2004. It would appear that the proceedings in issue are still pending.
B. Relevant domestic law
The Civil Obligations (Amendments) Act 1999 (Zakon o dopunama Zakona o obveznim odnosima, Official Gazette no. 112/1999, hereinafter “the 1999 Act”) entered into force on 6 November 1999. It provided, inter alia, that proceedings instituted against the State for damage caused by members of the army and the police during the war were to be stayed until the matter has been regulated by special legislation. The Act also imposed an obligation on the Government to submit to the Parliament such special legislation no later than 6 May 2000.
The relevant part of the Civil Procedure Act (Zakon o parničnom postupku, Official Gazette nos. 53/1991, 91/1992, 112/1999 and 117/2003) provides:
Section 212
“Proceedings shall be stayed:
...
(6) where another statute so prescribes.”
The “Damage Caused by Members of the Croatian Army and Police during the Homeland War Act 2003” (Zakon o odgovornosti Republike Hrvatske za štetu uzrokovanu od pripadnika Hrvatskih oružanih i redarstvenih snaga tijekom Domovinskog rata, Official Gazette no. 117/2003, hereinafter “the 2003 Act”) entered into force on 31 July 2003. It provides that proceedings which were stayed pursuant to the 1999 Act will resume and defines circumstances in which the State is liable for damage caused by members of the army and the police during the war.
The relevant part of section 63 of the Constitutional Court Act 1999 (Ustavni zakon o Ustavnom sudu Republike Hrvatske, its consolidated text was published in the Official Gazette no. 49/2002), as amended on 15 March 2002, reads as follows:
“(1) The Constitutional Court shall examine a constitutional complaint whether or not all legal remedies have been exhausted if the court with jurisdiction fails to decide a claim concerning the applicant’s rights and obligations or a criminal charge against him or her within a reasonable time ...
(2) If a constitutional complaint ... under paragraph 1 of this section is upheld, the Constitutional Court shall set a time-limit within which the court with jurisdiction must decide the case on the merits...
(3) In a decision issued under paragraph 2 of this section, the Constitutional Court shall assess appropriate compensation for the applicant for the violation of his or her constitutional rights ... The compensation shall be paid out of the State budget within three months from the date a request for payment is lodged.”
COMPLAINTS
1. The applicant complained that his right of access to court guaranteed by Article 6 § 1 of the Convention and his right to an effective remedy guaranteed by Article 13 of the Convention were violated as a consequence of the 1999 Act.
2. He further complained under Article 6 § 1 of the Convention about the length of the civil proceedings in issue.
THE LAW
1. The applicant complained that the 1999 Act deprived him of access to court and of an effective remedy in respect of his claim for damages because it provided for the stay on proceedings for damage caused by members of the army and the police during the war (such as his proceedings). He invoked Articles 6 § 1 and 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.”
The Government invited the Court to reject this complaint because the Zagreb Municipal Court continued with the deliberations in the present case regardless of the 1999 Act. The applicant maintained that, while it was true that his proceedings were never formally stayed, they were unreasonably long.
The Court recalls its previous judgments in which it held that long periods for which those applicants were prevented from having their civil claims determined as a consequence of the 1999 Act constituted a violation of Article 6 § 1 of the Convention (see, for example, Multiplex v. Croatia, no. 58112/00, § 55, 10 July 2003, Aćimović v. Croatia, no. 61237/00, § 42, ECHR 2003‑XI, and Pikić v. Croatia, no. 16552/02, § 42, 18 January 2005). In all those cases, however, relevant domestic courts stayed the applicants’ proceedings pursuant to the 1999 Act.
The Court notes that it has not been disputed that the competent court held hearings in 2002 and 2003 (regardless of the 1999 Act) and that those proceedings are still pending. Moreover, no stay on the proceedings is possible since the entry into force of the 2003 Act given that it repealed the 1999 Act by implication. The applicant cannot therefore claim to be a victim of a violation of the Convention by the application of a stay that did not, and cannot, take place.
It follows that this complaint is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.
2. The applicant also complained about the length of the civil proceedings in issue. He invoked Article 6 § 1 of the Convention, the relevant part of which reads as follows:
Article 6 § 1
“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”
The Court recalls that in the Nogolica case (see Nogolica v. Croatia (dec.), no. 77784/01, ECHR 2002‑VIII), which also concerned length of proceedings, it decided that a complaint under section 63 of the Constitutional Court Act 1999 (as amended on 15 March 2002) constituted a remedy to be exhausted although the application with this Court had been filed before the introduction of that remedy.
The applicant not having commenced such proceedings, this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for a failure to exhaust that domestic remedy.
For these reasons, the Court unanimously
Decides to discontinue the application of Article 29 § 3 of the Convention and to declare the application inadmissible.
Søren NielsenChristos Rozakis
RegistrarPresident
Full & Egal Universal Law Academy