FIRST SECTION
PARTIAL DECISION
AS TO THE ADMISSIBILITY OF
Application no. 21753/02
by Nenad TOMAŠIĆ
against Croatia
The European Court of Human Rights (First Section), sitting on 11 December 2003 as a Chamber composed of
MrC.L. Rozakis, President,
MrsF. Tulkens,
MrsN. Vajić,
MrE. Levits,
MrsS. Botoucharova,
MrA. Kovler,
MrsE. Steiner, judges,
and Mr S. Nielsen, Deputy Section Registrar,
Having regard to the above application lodged on 18 May 2002,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Nenad Tomašić, is a Croatian citizen, who was born in 1950 and lives in Bjelovar, Croatia.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. Proceedings concerning the applicant’s claim for damages for his destroyed house
On 26 February 1992 the applicant’s summer house in Velika Pisanica, Croatia, was destroyed by a mine laid by unknown perpetrators.
On 24 February 1995 the applicant and his wife instituted civil proceedings before the Zagreb Municipal Court (Općinski sud u Zagrebu), seeking damages from the Republic of Croatia. They based their claim on Section 180 of the Civil Obligations Act.
On 17 January 1996 the Croatian Parliament introduced an amendment to the Civil Obligations Act which provided that all proceedings concerning actions for damages 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.
On 23 February 1996 the Zagreb Municipal Court stayed the proceedings.
On 14 July 2003 the Croatian Parliament enacted the Act on Liability for Damage Resulting from Terrorist Acts and Public Demonstrations (Zakon o odgovornosti za štetu nastalu uslijed terorističkih akata i javnih demonstracija).
2. Proceedings concerning stealing of the applicant’s property
The applicant alleges that on 21 September 1991 members of the Croatian Army broke into his house in Bjelovar, Croatia and stole his possessions.
A few days later the Police found the perpetrators, seized a stolen gun from them and returned it to the applicant. Other stolen possessions were not found.
The criminal proceedings against the perpetrators are still pending before the Bjelovar County Court (Županijski sud u Bjelovaru).
3. Interrogation of the applicant by the Police
In March 1992 the applicant was taken by the Police to the premises of the Bjelovarsko-Bilogorska Police Department for interrogation. He was beaten there during the interrogation. The next day the applicant was interrogated again. The applicant alleges that after a lengthy interrogation the policemen realised that the he was not the person they were looking for.
The applicant claims that he has not instituted any proceedings due to the war and his financial situation.
4. Seizure of the applicant’s weapons
On 12 June 1992 the Ministry of Interior, Bjelovar Police Department (Ministarstvo unutarnjih poslova, Policijska uprava Bjelovar) seized some of the applicant’s weapons, i.e. a pistol, a tube, a combined hunting gun and a non grooved hunting gun. On 27 September 1993 the applicant asked that his weapons be returned to him. On 22 December 1993 the Ministry of Interior, Bjelovarsko-Bilogorska Police Department (Ministarstvo unutarnjih poslova, Policijska uprava Bjelovarsko-bilogorska) informed the applicant that the weapons had been seized for the purposes of the Homeland War and that they had been lost.
By decision of 1 February 1994 the Ministry of Interior, the Bjelovarsko-Bilogorska Police Department seized the applicant’s grooved hunting gun. The applicant appealed to the Ministry of Interior against that decision.
On 15 April 1994 the Ministry of Interior maintained its decision of 1 February 1994.
Pursuant to a decision of 20 June 1994 of the Ministry of Interior, the Bjelovarsko-Bilogorska Police Department seized another combined hunting gun, belongings to the applicant.
The applicant instituted proceedings before the Administrative Court requesting an annulment of the Ministry of Interior’s decision of 15 April 1994. On 16 February 1995 the Administrative Court granted his claim.
Pursuant to a decision of 18 September 1995 the Ministry of Interior, the Bjelovarsko-Bilogorska Police Department requested the applicant to undergo a medical examination in order to establish his capability of possessing weapons.
The medical examination performed on 10 October 1995 showed that the applicant was capable of possessing weapons.
Pursuant to a decision of 4 June 1997 the Ministry of Interior, the Bjelovarsko-Bilogorska Police Department decided not only to seize other guns belongings to the applicant, i.e. a combined gun and a grooved gun, but also to deny approval for supply and possession of a hunting pistol to the applicant. On 11 June 1997 the aforementioned weapons were seized from the applicant.
It appears that the applicant appealed against that decision but that it was upheld by the Ministry of Interior. It also appears that on 2 December 1997 the applicant instituted proceedings before the Administrative Court and that subsequently he withdrew his claim.
On 11 January 1999 the applicant asked the Ministry of Interior, Bjelovarsko-Bilogorska Police Department that all his seized weapons be returned to him. It appears that part, but not all, of the seized weapons was returned to the applicant.
5. The applicant’s membership of a hunting club
The applicant was a member of the Hunting Society “Bilo” (Lovačko društvo “Bilo”) from Velika Pisanica. On 5 September 1992 the Presidency of the Hunting Society “Bilo” (Predsjedništvo lovačkog društva “Bilo”) expelled the applicant.
Following the applicant’s appeal, on 19 October 1992 the Assembly of the Hunting Society “Bilo” (Skupština lovačkog društva “Bilo”) upheld the decision of 5 September 1992.
The applicant instituted proceedings before the Administrative Court (Upravni sud Republike Hrvatske) requesting an annulment of the decision of 5 September 1992. On 5 October 1994 his claim was rejected on formal grounds.
Finally the applicant filed a constitutional complaint against the Administrative Court’s decision alleging that his constitutional right to an appeal was violated. On 22 April 1998 the Constitutional Court (Ustavni sud Republike Hrvatske) dismissed the complaint.
On 25 February 2000 the applicant requested renewal of his membership in the Hunting Society “Bilo”. On 30 July 2001 his request was rejected.
6. Killing of the applicant’s dog
On 12 May 1995 the applicant’s dog was killed by an unknown person. The examination made by a veterinarian showed that the dog was killed by an air gun. The applicant alleges that after that event, he and his family were exposed to threatening anonymous telephone calls.
The applicant has not instituted any proceedings.
7. The applicant’s dismissal from work
The applicant was employed in the company “Croatian Roads” (Hrvatske ceste). In 1992 the applicant was transferred to, in his opinion, an unsuitable and low-paid post within the company.
On 25 March 1998 the applicant was dismissed. The applicant has not, however, instituted any proceedings before the domestic courts in this respect.
8. Interrogation of the applicant’s children by the Police
On 17 July 1998 the Police took, without warrant, the applicant’s daughter and son to the premises of the Bjelovarsko-Bilogorska Police Department for interrogation. The applicant alleges that his children were beaten and ill-treated in the police station pending the interrogation. The applicant daughter’s golden ring was seized.
On 1 February 2001 policemen returned the ring.
The applicant’s children have allegedly not instituted any proceedings due to the war and their financial situation.
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.”
The Act on Liability for Damage Resulting from Terrorist Acts and Public Demonstrations (Zakon o odgovornosti za štetu nastalu uslijed terorističkih akata i javnih demonstracija, Official Gazette no. 117/2003, of 23 July 2003) provides, inter alia, that the Republic of Croatia is to compensate damages resulting in bodily injuries, impairment of health or death. All material damages could be sought pursuant to the Reconstruction Act.
The relevant parts of the Reconstruction Act (Zakon o obnovi, Official Gazette nos. 24/1996, 54/1996, 87/1996 and 57/2000) provide, inter alia, 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).
COMPLAINTS
1. In respect of the proceedings concerning the applicant’s claim for damages for his destroyed house which the applicant instituted in 1995 and which were stayed on 23 February 1996, the applicant complains that his rights under Articles 1, 6 § 1, 13, 41 and 47 of the Convention, Article 1 of Protocol No. 1 and Article 3 of Protocol No. 7 have been violated without specifying this further.
2. Without further substantiation the applicant complains furthermore, that the circumstances referred to in the facts above under parts 2-8 disclose violations of Articles 1, 2, 3, 5, 6, 13, 14, 41 and 47 of the Convention, Article 1 of Protocol No. 1 and Articles 3 and 4 of Protocol No. 7 to the Convention.
THE LAW
1. The applicant firstly complained in respect of the proceedings concerning the claim for damages for his destroyed house, with reference to a number of Convention Articles, of the fact that due to the legislative intervention his civil claims pending before the Zagreb Municipal Court cannot be determined. The Court has examined this part of the application under Article 6 § 1 and Article 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 Court considers that it cannot, on the basis of the case file, determine the admissibility of this part of the application and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of thereof to the respondent Government.
2. As regards the remainder of the complaints made, in the light of all the material in its possession, and in so far as the matters complained of 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 is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4.
For these reasons, the Court unanimously
Decides to adjourn the examination of the applicant’s complaints concerning his right of access to a court and/or to an effective remedy
Declares the remainder of the application inadmissible.
Søren NielsenChristos ROZAKIS
Deputy RegistrarPresident
Full & Egal Universal Law Academy