FIRST SECTION
PARTIAL DECISION
AS TO THE ADMISSIBILITY OF
Application no. 19880/02
by Zoran IVKOVIĆ and Others
against Croatia
The European Court of Human Rights (First Section), sitting on 18 September 2003 as a Chamber composed of
MrC.L. Rozakis, President,
MrP. Lorenzen,
MrG. Bonello,
MrsN. Vajić,
MrsS. Botoucharova,
MrV. Zagrebelsky,
MrsE. Steiner, judges,
and Mr S. NIELSEN, Deputy Section Registrar,
Having regard to the above application lodged on 22 April 2002,
Having deliberated, decides as follows:
THE FACTS
The applicants, Mr Zoran Ivković, Ms Ružica Ivković and Mr Đoko Ivković are Croatian citizens who live in Ogulin, Croatia. They are represented before the Court by Ms Tatjana Burjačenko Grubiša, a lawyer practising in Zagreb.
A. The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
On 22 August 1991 the first applicant's coffee bar in Ogulin, Croatia was destroyed by a mine laid down by unknown perpetrators.
The responsibility for damages resulting from terrorist acts was at that time regulated by Section 180 of the Civil Obligations Act (Zakon o obveznim odnosima) providing that the responsibility lay with the authority whose officers were under duty to prevent such damages.
On 17 January 1996 the first applicant instituted civil proceedings before the Zagreb Municipal Court (Općinski sud u Zagrebu), seeking damages from the Republic of Croatia on the basis of Section 180 of the Civil Obligations Act.
At the moment of the explosion of the first applicant's coffee bar, the second and the third applicant were in their flat situated on the first floor, above the coffee bar. They have not instituted any kind of proceedings so far.
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.
It appears that the court stayed the proceedings pursuant to the above legislation.
On 14 July 2003 the Croatian Parliament enacted the Act on the Liability for Damage Resulting from Terrorist Acts and Public Demonstrations (Zakon o odgovornosti za štetu nastalu uslijed terorističkih akata i javnih demonstracija, Official Gazette of 23 July 2003, no. 17/2003).
B. Relevant domestic law
The relevant part of the Civil Obligations Act 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 provides, inter alia, that the Republic of Croatia is to compensate damages resulting in bodily injuries, impairment of health or death. All material damages can 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. The applicants complain under Article 6 § 1 and Article 13 of the Convention that the enactment of the 1996 legislation violated their right of access to a court and thus prevented the second and the third applicant from instituting any proceedings. They further complain that the enactment of the 1996 legislation violated their right to an effective remedy.
2. The applicants also complain under Article 1 of Protocol No. 1 claiming that their property was destroyed and that they have not obtained compensation so far.
THE LAW
1. The first applicant complains that the 1996 legislation prevented the domestic courts from proceeding with his claim for damages and thus violated his right of access to a court and/or his right to an effective remedy. The second and the third applicants complain that the enactment of the 1996 legislation violated their right of access to a court as they were prevented from instituting any proceedings. They also complain that they had no effective remedy.
They rely on 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.”
As to the first applicant, 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 this part of the application to the respondent Government.
As to the second and the third applicants, the Court notes that they never instituted any proceedings for compensation of the damage caused by the destruction of their property, although they had such a possibility until 1996, when the legislative changes ordered that all proceedings concerning claims for compensation for damages resulting from terrorist acts were to be stayed. Furthermore, these applicants have not submitted any evidence which could lead to the conclusion that they were in a way prevented from instituting such proceedings.
It follows that their complaint under Article 6 § 1 of the Convention is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention (Ostojić v. Croatia (dec.), no.16837/99, 26 September 2002).
As to the second and the third applicants' complaint under Article 13 of the Convention, the Court notes that the applicants were able to file a civil suit for damages, but they failed to do so.
It follows that this complaint is again manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
2. The applicants also complain under Article 1 of Protocol No. 1 claiming that their property was destroyed and that they have not obtained compensation so far.
The Court notes that the events complained of took place in August 1991, while the Convention entered into force in respect of Croatia on 5 November 1997.
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 first applicant's complaints that he has been deprived of his right of access to a court and/or his right to an effective remedy;
Declares the remainder of the application inadmissible.
Søren NIELSENChristos ROZAKIS
Deputy RegistrarPresident
Full & Egal Universal Law Academy