FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 2343/03 by Pavao MAJDAND ŽIĆ and Others against Croatia

The European Court of Human Rights (First Section), sitting on 1 February 2007 as a Chamber composed of:

Mr C.L. Rozakis , President , Mr L. Loucaides , Mrs N. Vajić , Mr K. Hajiyev , Mr D. Spielmann , Mr S.E. Jebens , Mr G. Malinverni, judges , and Mr S. Nielsen , Section Registrar ,

Having regard to the above application lodged on 4 December 2002,

Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together.

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 applicants are 41 individuals, whose names, nationalities, residences and years of birth are listed in the attached annex. They are represented before the Court by Mr D. Gjurašin, a lawyer practicing in Zagreb . The Croatian Government (“the Government”) were represented by their Agent, M s Lidija Lukina-Karajković and later on by Ms Štefica Stažnik.

A. The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

On 1 January 1993 at a New Year ’ s party in Zrinski Topolovac , Croatia , a certain V.P., a member of the Croatian Army, shot ten people to death and wounded seven others upon which he committed suicide.

On 27 December 1995 each of the applicants instituted civil proceedings before the Zagreb Municipal Court ( Općinski sud u Zagrebu ) against the State seeking pecuniary and non-pecuniary damages sustained on account of the bodily injury of death of a close relative. They based their claim on Section 180 of the Civil Obligations Act ( Zakon o obveznim odnosima ). The proceedings were subsequently joined.

On 4 December 1997 the Zagreb Municipal Court issued an interim judgment ( međupresuda ) whereby it found that the State held liability for the damages sustained by the applicants in half, the other half being V.P. ’ s personal liability.

Both parties appealed against the judgment.

On 6 November 1999 the Amendments to the Civil Obligations Act (“the 1999 Amendments”) entered into force. The amended legislation provided that all proceedings instituted against the State for damage caused by members of the Croatian Army and police in the performance of their official duties during the Homeland War in Croatia be stayed.

On 15 May 2000 the Zagreb Municipal Court stayed the proceedings pursuant to the above legislation.

On 7 January 2003 the applicants filed a constitutional complaint concerning the length of the proceedings.

On 31 July 2003 new legislation on the liability of the State for damage caused by members of the Croatian Army and police in the performance of their official duties during the Homeland War (“the 2003 Liability Act”) entered into force.

On 31 December 2003 the Zagreb Municipal Court resumed the proceedings and the case-file was forwarded to the Zagreb County Court ( Županijski sud u Zagrebu ), being the appellate court. On 15 February 2005 this court quashed the interim judgment of 4 December 1997 and remitted the case to the Zagreb Municipal Court.

The Municipal Court held a hearing on 20 October 2005.

On 19 September 2005 the Constitutional Court ( Ustavni sud Republike Hrvatske ) found that the applicants ’ right to a determination of their civil claim within a reasonable time and their right of access to a court had been violated and awarded each applicant 15,600 Croatian Kunas (HRK) as just satisfaction. Furthermore, it ordered the Zagreb Municipal Court to adopt its decision in the shortest time possible but no later than six months from the publication of the Constitutional Court ’ s decision in the Official Gazette.

On 29 November 2005 the Zagreb Municipal Court pronounced judgment rejecting the applicants ’ claim.

On 1 March 2006 the applicants appealed against the first instance judgment. The proceedings are currently pending before the Zagreb County Court.

B. Relevant domestic law

Section 184 (a) of the Amendments to the Civil Obligations Act ( Zakon o dopunama Zakona o obveznim odnosima , Official Gazette no. 112/1999 of 29 October 1999) provided that all proceedings instituted against the State for damage caused by members of the Croatian Army and police in the performance of their official duties during the Homeland War in Croatia from 7 August 1990 to 30 June 1996 were to be stayed. The 1999 Amendments also imposed an obligation on the Government to submit special legislation to Parliament regulating liability for such damage within six months of the Act entering into force.

The Act on the liability of the Republic of Croatia for damage caused by members of the Croatian army and police when acting in their official capacity during the Homeland war ( Zakon o odgovornosti Republike Hrvatske za štetu uzrokovanu od pripadnika hrvatskih oružanih i redarstvenih snaga tijekom Domovinskog rata , Official Gazette no. 117/2003 of 23 July 2003) regulates the conditions under which the State is liable to pay compensation for damage caused by members of the army and the police during the Homeland War. It also provides that all proceedings stayed pursuant to the 1999 Amendments are to be resumed.

The relevant part of section 63 of the Constitutional Act on the Constitutional Court ( Ustavni zakon o Ustavnom sudu Republike Hrvatske , Official Gazette no. 49/2002 of 3 May 2002 – “the Constitutional Court Act”) reads as follows:

“(1) The Constitutional Court shall examine a constitutional complaint whether or not all legal remedies have been exhausted if the court with jurisdiction fails to decide a claim concerning the applicant ’ s rights and obligations or a criminal charge against him or her within a reasonable time ...

(2) If a constitutional complaint ... under paragraph 1 of this section is upheld, the Constitutional Court shall set a time-limit within which the court with jurisdiction must decide the case on the merits...

(3) In a decision issued under paragraph 2 of this section, the Constitutional Court shall assess appropriate compensation for the applicant for the violation of his or her constitutional rights ... The compensation shall be paid out of the State budget within three months from the date a request for payment is lodged.”

Article 29 § 1 of the Constitution ( Ustav Republike Hrvatske , Official Gazette no. 41/2001 of 7 May 2001) reads as follows:

“ In the determination of his rights and obligations or of any criminal charge against him, everyone is entitled to a fair hearing within a reasonable time by an independent and impartial court established by law.”

COMPLAINT

The applicants complained under Article 6 § 1 of the Convention of the length of the proceedings, maintaining that, in substance, the enactment of the 1999 Amendments amounted to a violation of their right of access to a court.

THE LAW

The applicants complained in substance that the enactment of the 1999 Amendments and the prolonged stay of the proceedings resulting thereof had violated their right to a trial within a reasonable time. They relied on Articles 6 § 1 of the Convention, the relevant part of which reads as follows:

“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”

The Government initially argued that the applicants had not exhausted domestic remedies because their constitutional complaint was pending. They argued subsequently that the applicants could no longer claim to be victims of the claimed violation.

In reply the applicants submitted a copy of the Constitutional Court ’ s decision finding a violation of their right to a trial within reasonable time, but objected to the amount of the just satisfaction awarded.

The Court notes that the proceedings before the Constitutional Court have now come to an end for which reason the Government ’ s objection of the exhaustion of domestic remedies no longer arises. However, having regard to the outcome of these proceedings, the Court will firstly examine whether the applicants may still claim to be victims within the meaning of Article 34 of the Convention. In this regard the Court recalls that, by virtue of Article 1 of the Convention, the primary responsibility for implementing and enforcing the guaranteed rights and freedoms is laid on the national authorities. The machinery of complaint to the Court is thus subsidiary to national systems safeguarding human rights (see Kudla v. Poland [GC], no. 30210/96, § 152, ECHR 2000-XI).

However, decision or measure favourable to the applicant is not in principle sufficient to deprive him of his status of a “victim” unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention (see, as the most recent authority, Cocchiarella v. Italy [GC], no. 64886/01, § 71, to be published in ECHR 2006).

In the present case, the applicants ’ complaint, concerning in essence their right of access to a court, was examined by the Constitutional Court which adjudicated on it in its decision of 19 September 2005. Making an assessment on an equitable basis, it provided for redress of a compensatory nature by awarding each applicant just satisfaction in respect of non-pecuniary damage in the amount of HRK 15,600. It also ordered the Municipal Court to decide the applicant ’ s case within six months.

The Court observes that the Constitutional Court , following the case-law of the Court, acknowledged that there had been a violation of the applicants ’ constitutional right to a trial within reasonable time and their right of access to a court. The Court considers that such acknowledgment satisfies in substance the first condition laid down in the Court ’ s case law.

The applicants ’ status of victims then depends on whether the redress afforded was adequate and sufficient having regard to just satisfaction as provided for under Article 41 of the Convention (see, mutatis mutandis , Dubjaková v. Slovakia (dec.), no. 67299/01, 19 October 2004).

In this connection, the Court recalls that in the length-of-proceedings cases one of the characteristics of sufficient redress which may remove a litigant ’ s victim status relates to the amount awarded. The amount depends, in particular, on the characteristics and effectiveness of the remedy. Thus, the States which, like Croatia, have opted for a remedy designed both to expedite proceedings and afford compensation is free to award amounts which – while being lower than those awarded by the Court – are not unreasonable (see Co c chiarella v. Italy [GC], cited above, §§ 96, 97 ). This is so not only because such a remedy is closer and more accessible to an applicant than an application to the Court, but also because it is faster and is processed in the applicant ’ s own language. It thus offers advantages that need to be taken into consideration.

In the Court ’ s view, these principles apply mutatis mutandis to the alleged violations of the right of access to a court in the circumstances similar to those of the present case.

The Court notes that in the present case Parliament enacted the legislation envisaged in the 1999 Amendment – the 2003 Liability Act – which now regulates all issues concerning damages caused by members of the Croatian Army and police in the performance of their official duties during the Homeland War. The new legislation also put an end to the impugned legal situation providing that all proceedings stayed pursuant to the 1999 Amendment were to be resumed.

The Court also observes that, apart from awarding compensation to the applicants, in its decision the Constitutional Court also ordered the Municipal Court to expedite the proceedings. Pursuant to the new legislation, the Municipal Court delivered a judgment in the applicants ’ case within the time-limit set by the Constitutional Court .

Turning to the actual sum awarded to the applicants by the Constitutional Court , the Court notes that the compensation granted in the present case is lower compared with the sums awarded by the Court in similar cases (see, for example, Multiplex v. Croatia , no . 58112/00, 10 July 2003 and Aćimović v. Croatia , no. 61237/00, ECHR 2003-XI). It would emphasise, in this respect, the importance of a reasonable amount of just satisfaction being awarded in the domestic system for the remedy in question to be considered as effective under the Convention. Whether the amount awarded may be regarded as reasonable, however, falls to be assessed in the light of all the circumstances of the case. These include not merely the duration of the proceedings in the specific case but the value of the award judged in the light of the standard of living in the State concerned, and the fact that under the national system compensation will in general be awarded and paid more promptly than would be the case if the matter fell to be decided by the Court under Article 41 of the Convention.

In the light of the material in the file and having regard to the particular circumstances of the case, the Court considers that the sum awarded to the applicants can be considered sufficient and therefore appropriate redress for the violation suffered (see Cataldo v. Italy (dec.), no. 45656/99, 3 June 2004, Širancová v. Slovakia (dec.), no. 62216/00 , 7 September 2004 and Kalajžić v. Croatia (dec.), no. 15382/04, 28 September 2006 ).

The Court thus considers that the Constitutional Court ’ s decision was consistent with the Court ’ s case-law.

The Court therefore concludes that the applicants can no longer claim to be “victims” within the meaning of Article 34 of the Convention of the alleged violation of their right of access to a court.

It follows that the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. Therefore, the Court decides to discontinue the application of Article 29 § 3 of the Convention .

For these reasons, the Court unanimously

Declares the application inadmissible.

Søren Nielsen Christos Rozakis Registrar President