FIRST SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 77627/01
by Milosav KULJANIN
against Croatia
The European Court of Human Rights (First Section), sitting on 3 June 2004 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, Section Registrar,
Having regard to the above application lodged on 12 November 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, Mr Milosav Kuljanin, is a Croatian national who was born in 1945 and lives in Zagreb. The respondent Government were 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 and his former wife had a house in Barilović, Croatia. They built the house while married and were considered joint owners, although the applicant was the sole registered owner. On 11 June 1991 he allegedly gave the house as gift to his former wife but they did not report the conveyance to the land registry. He remained the sole registered proprietor.
In mid-1992 the house was mined by unknown perpetrators.
On 17 January 1995 the applicant obtained a divorce from his wife.
On 19 May 1995 his former wife instituted civil proceedings before the Zagreb Municipal Court (Općinski sud u Zagrebu) seeking damages from the Republic of Croatia for the destroyed house.
On 16 June 1995 the defendant submitted that the applicant was the registered owner of the house and that his former wife therefore had no locus standi in the proceedings.
On 28 July 1995 the applicant's former wife submitted that she had received the house as gift from him in 1991.
Pursuant to the Civil Obligations (Amendments) Act 1996 (Zakon o izmjeni Zakona o obveznim odnosima), the Zagreb Municipal Court stayed the proceedings on 13 May 1996.
Pursuant to the Damage from Terrorist Acts and Public Demonstrations Act 2003 (Zakon o odgovornosti za štetu nastalu uslijed terorističkih akata i javnih demonstracija), the proceedings resumed on 25 September 2003.
The applicant has submitted a document from which it appears that his former wife and he agreed to annul the above-mentioned contract to gift the house on 13 January 2004.
B. Relevant domestic law
The relevant part of the Civil Obligations Act (Zakon o obveznim odnosima, Official Gazette of the Republic of Croatia nos. 53/1991, 73/1991, 3/1994, 7/1996 and 112/1999) read 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 Civil Obligations (Amendments) Act 1996 (Zakon o izmjeni Zakona o obveznim odnosima, Official Gazette of the Republic of Croatia no. 7/1996, hereinafter “the 1996 Act”) read as follows:
Section 1
“Section 180 of the Civil Obligations Act ... 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, Official Gazette of the Republic of Croatia 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 from Terrorist Acts and Public Demonstrations Act 2003 (Zakon o odgovornosti za štetu nastalu uslijed terorističkih akata i javnih demonstracija, Official Gazette of the Republic of Croatia no. 117/2003) provides, inter alia, that the Republic of Croatia is to provide compensation in relation to damage resulting from bodily injury, impairment of health or a death. All compensation for damage to property is to be sought under the Reconstruction Act.
The relevant parts of the Reconstruction Act (Zakon o obnovi, Official Gazette of the Republic of Croatia nos. 24/1996, 54/1996, 87/1996 and 57/2000) provide 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 complains that the 1996 Act interfered with his right of access to a court in violation of Article 6 § 1 of the Convention.
THE LAW
The applicant complains that the 1996 Act prevented domestic courts from deciding his former wife's claim concerning the destruction of their house. He relies on 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 fair ... hearing ... by [a] ... tribunal...”
The Government submits that the applicant cannot claim to be the victim of a violation of the invoked provision as he is not a party to the domestic proceedings.
The applicant submitted, at the outset of the proceedings before the Court, that he had not gifted the house to his former wife and that they had always been the joint owners thereof. He claimed that his former wife's proceedings, accordingly, had an impact on his property rights and that he suffered as a result of the stay on her proceedings. Nevertheless, the applicant has subsequently submitted that a contract to gift the house indeed existed but that his former wife and he have recently decided to annul it.
The Court recalls that the general rule concerning the notion of victim is that the person bringing the application must be “the person directly affected by the act or omission which is in issue...” This general rule is, however, subject to variation in certain circumstances, such as a close relationship with an applicant in cases where the applicant may be said himself to have suffered injury as a result of the contested actions and where the direct victim is unable to bring a complaint himself (see Winer v. the United Kingdom, no. 10871/84, Commission decision of 10 July 1986, Decisions and Reports 48, p. 168).
The Court notes that the applicant has changed his submission to the Court concerning his continued interest in the house. If he gifted the house to his former wife, as he currently claims, he would have no interest whatsoever in her proceedings concerning that house. If he did not gift the house, as he claimed earlier, he would have a certain interest in the resolution of these proceedings. However, the Court notes that the applicant does not complain under Article 1 of Protocol No. 1 to the Convention that the 1996 Act violated his property rights but rather he complains under Article 6 § 1 of the Convention that this Act violated his right of access to a court. He could have intervened in his former wife's proceedings but he failed to do so. In either of the above-outlined circumstances, the Court finds that the applicant cannot claim to be the victim of a violation of the right of access to a court.
It follows that the application 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.
For these reasons, the Court unanimously
Declares the application inadmissible.
Søren NielsenChristos Rozakis
RegistrarPresident
Full & Egal Universal Law Academy