FOURTH SECTION
PARTIAL DECISION
AS TO THE ADMISSIBILITY OF
Application no. 58112/00
by “Multiplex” and Smail SMAILAGIĆ
against Croatia
The European Court of Human Rights (Fourth Section), sitting on 18 October 2001 as a Chamber composed of
MrG. Ress, President,
MrA. Pastor Ridruejo,
MrI. Cabral Barreto,
MrsN. Vajić,
MrJ. Hedigan,
MrM. Pellonpää,
MrsS. Botoucharova, judges,
and Mr V. Berger, Section Registrar,
Having regard to the above application introduced on 16 March 2000 and registered on 15 June 2000,
Having deliberated, decides as follows:
THE FACTS
The first applicant is a company represented by its director and sole owner Mr Smail Smailagić, the second applicant, who is both a citizen of Croatia and of Bosnia and Herzegovina, born in 1931 and living in Červar-Porat (Croatia).
A. The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
Until 15 May 1992, the second applicant lived in Banja Luka, situated on the territory of the present day Republika Srpska, a part of Bosnia and Herzegovina, when he fled to Croatia and went to live in Červar-Porat.
On 13 August 1992 the Croatian Military Police confiscated a vehicle belonging to the first applicant, “Multiplex”, a company owned by the second applicant. The second applicant repeatedly requested the Croatian Army to return the vehicle, but to no avail.
On 11 October 1993 the company “Multiplex”, represented by the second applicant, filed a civil claim for damages in the amount of 15,600 German Marks (DEM) against the Republic of Croatia, with the Zagreb County Commercial Court (Okružni privredni sud u Zagrebu). It appears that the case was subsequently transferred to the Zagreb Municipal Court (Općinski sud u Zagrebu).
On 15 May 1995 the Republic of Croatia filed its reply denying the plaintiff’s claim. It requested the court to stay the proceedings until the cease of war in Croatia. It stated further that the vehicle had been confiscated only temporarily for needs of the army and would be returned to the applicant company after the war.
At the hearing on 14 September 1995 the second applicant specified the claim for damages claim seeking 58,000 Croatian Kunas (HRK).
On 12 March 1998 the company “Multiplex” requested the Ministry of Justice to speed up the proceedings.
On 6 November 1999 the Croatian parliament introduced a change of the Civil Obligations Act which provided that all proceedings concerning actions for damages resulting from acts of members of the Croatian army or police when acting in their official capacity during the war in Croatia were to be stayed pending the enactment of new legislation on the subject. So far the Croatian authorities have not enacted any new legislation regulating that matter.
On 10 December 1999 the court decided to stay the proceedings pursuant to the above change in law.
On 29 December 1999 the company “Multiplex” appealed against the above decision claiming that the Zagreb Municipal Court erred in its application of the law as the vehicle in question was not taken by any member of the Croatian army or police acting in an official capacity but exclusively for the purposes of the Croatian Defence Council (Hrvatsko vijeće obrane) which was operating in Bosnia and Herzegovina.
It appears that on 15 November 2000 a party in some other proceedings concerning the same matter filed a constitutional claim challenging the above legislation. The Constitutional Court has not yet, however, adopted any decision.
On 8 May 2001 the Zagreb County Court (Županijski sud u Zagrebu) upheld the Zagreb Municipal Court decision of 10 December 1999.
On 16 June 2001 the company “Multiplex” filed a request for revision with the Zagreb Municipal Court, repeating its arguments from the earlier appeal. On 28 June 2001 the Zagreb Municipal Court rejected the above request as inadmissible. It found that the Civil Procedure Act (Zakon o parničnom postupku) allows a party to file a request for revision only against a final decision of an appellate court while the decision of the Zagreb County Court did not represent a final decision in that case.
On 21 July 2001 the applicant company appealed against the Municipal Court’s decision.
It appears that these proceedings are presently pending before the Zagreb County Court as the appellate court.
B. Relevant domestic law
Section 184 (a) of the Act on Changes of 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 damages caused by the members of the Croatian army or police when acting in their official capacity during the war in Croatia from 7 August 1990 to 30 June 1996 are to be stayed. The proceedings will be continued after enactment of a special legislation that will regulate responsibility for damages caused by the above persons.
COMPLAINTS
1. The second applicant invokes Articles 8, 9, 14 and 17 of the Convention, without further specifying his complaints in this respect.
2. He complains further under Article 8 of the Convention and Article 3 § 1 of Protocol No. 4 that in 1992 he was forced to leave his home in Banja Luka.
3. The applicant company complains, in substance, about the length of the civil proceedings concerning its request for damages for the vehicle owned by the company.
4. The applicant company complains also under Article 1 of Protocol No. 1, that its right to property is violated in so far as the vehicle belonging to it has been confiscated without any compensation.
5. Finally, the applicant company maintains that Parliament’s enactment of the 1999 legislation interferes with its right of access to court within the meaning of Article 6 § 1 of the Convention and its right to an effective remedy within the meaning of Article 13 of the Convention.
THE LAW
1. The second applicant invokes Articles 8, 9, 14 and 17 of the Convention, without specifying his claims or submitting any explanation for his allegations.
In the light of all the material in its possession, and in so far as the matters are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must be rejected, in accordance with Article 35 § 4 of the Convention.
2. The second applicant complains further that he was forced to leave his home in Banja Luka, Bosnia and Herzegovina. He invokes Article 8 of the Convention and Article 3 § 1 of Protocol No. 4.
The Court observes that this part of the application is directed against Bosnia and Herzegovina, which is not a Contracting Party to the Convention.
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.
3. The applicant company complains, in substance, that the length of the proceedings concerning its request for damages has exceeded a reasonable time and that domestic authorities have violated its right to property contrary to Article 1 of Protocol No. 1 since they confiscated a vehicle owned by the applicant company and have not provided it with any compensation and that Parliament’s enactment of the 1999 legislation interfered with its right of access to court within the meaning of Article 6 § 1 of the Convention and its right to an effective remedy within the meaning of Article 13 of the Convention.
The Court considers that it cannot, on the basis of the case file, determine the admissibility of these complaints 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.
For these reasons, the Court unanimously
Decides to adjourn the examination of the first applicant’s complaint that the length of the proceedings concerning its request for damages has been excessive, its complaint under Article 1 of Protocol No. 1 that its vehicle was confiscated without any compensation and that Parliament’s enactment of the 1999 legislation interfered with its right of access to court within the meaning of Article 6 § 1 of the Convention and its right to an effective remedy within the meaning of Article 13 of the Convention;
Declares inadmissible the remainder of the application.
Vincent BergerGeorg Ress
RegistrarPresident
Full & Egal Universal Law Academy