FIRST SECTION
PARTIAL DECISION
AS TO THE ADMISSIBILITY OF
Application no. 75545/01
by Đuro KRESOVIĆ
against Croatia
The European Court of Human Rights (First Section), sitting on 9 July 2002 as a Chamber composed of
MrC.L. Rozakis, President,
MrsF. Tulkens,
MrP. Lorenzen,
MrsN. Vajić,
MrE. Levits,
MrA. Kovler,
MrV. Zagrebelsky, judges,
and Mr E. Fribergh, Section Registrar,
Having regard to the above application lodged on 28 May 2001,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Đuro Kresović, is a Croatian citizen, who was born in 1937 and lives in Kistanje, Croatia.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 9 March 1992 the applicant’s house in Sveti Petar, Croatia, was destroyed, following an explosion.
On 17 January 1996 the Croatian Parliament introduced an amendment to the Civil Obligations Act which provided that all proceedings concerning actions for damage 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.
The Act also imposed an obligation on the Government to submit to Parliament special legislation, regulating the responsibility for such damages, at the latest within six months from the entry into force of the present Act. So far the Croatian authorities have not enacted any new legislation regulating the matter.
On 3 June 1999 applicant lodged an action for damages against the Republic of Croatia with the Biograd Municipal Court (Općinski sud u Biogradu).
On 4 December 2000 the court stayed the proceedings pursuant to the above legislation.
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“Section 180 of the Civil Obligations Act (the Official Gazette nos. 53/91, 73/91 and 3/94) shall be repealed.”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
1. The applicant complains under Article 6 § 1 of the Convention that he has been deprived of his right of access to court because the changes of the Civil Obligations Act prevented domestic courts from deciding his claim for damages on the merits and he also complains about the length of the proceedings.
2. The applicant also complains that the destruction of his house deprived him of his right to peaceful possession of his property contrary to Article 1 of Protocol No. 1.
THE LAW
1. The applicant complains under Article 6 § 1 of the Convention that he has no access to court in respect of his civil claim for damages because the proceedings instituted by him were stayed pursuant to the 1996 legislation. He also complains about the length of these proceedings.
The relevant parts of Article 6 § 1 of the Convention read 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.
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 § 3 (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 his house was 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 contray 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 applicant’s house was an instantaneous act, which does not give rise to any possible continuous situation of a violation of the Convention. Furthermore, as to the proceedings concerning the applicant’s claim for damages, in so far as they do fall within the Court’s competence ratione temporis, the applicant does not make any separate complaints under Article 1 of Protocol No. 1.
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 applicants’ complaint concerning the lack of access to court and the length of proceedings;
Declares inadmissible the remainder of the application.
Erik FriberghChristos ROZAKIS
RegistrarPresident
Full & Egal Universal Law Academy