FIRST SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 15739/04 by Mirjana VRBOS against Croatia

The European Court of Human Rights (First Section), sitting on 9 November 2006 as a Chamber composed of:

Mr C.L. Rozakis , President , Mr L. Loucaides , Mrs F. Tulkens , Mrs N. Vajić , Mr A. Kovler , Mrs E. Steiner , Mr K. Hajiyev , judges , and Mr S. Nielsen , Section Registrar ,

Having regard to the above application lodged on 16 March 2004,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mrs Mirjana Vrbos , is a Croatian national who was born in 1956 and lives in Germany . She is represented before the Court by Mrs T. Burja č enko Grubi š a , a lawyer practising in Zagreb .

A. The circumstances of the case

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

The applicant ’ s two houses in Suhopolje , Croatia , were blown up by unknown perpetrators on 7 January 1992.

1. Civil proceedings

On 14 July 1994 the applicant brought a civil action against the State in the Virovitica Municipal Court ( Općinski sud u Virovitici ) seeking damages. She relied on section 180 of the Civil Obligations Act.

On 3 February 1996 the Amendment to the Civil Obligations Act entered into force. It provided that all proceedings concerning actions for damages resulting from terrorist acts or acts of violence were to be stayed pending the enactment of new legislation on the subject.

The Municipal Court stayed the proceedings on 14 February 1996 pursuant to the above legislation.

On 31 July 2003 the Act on Liability for Damage Resulting from Terrorist Acts and Public Demonstrations (the “2003 Liability Act”) entered into force. It provided, inter alia , that all proceedings stayed pursuant to the 1996 Amendment were to be resumed.

Pursuant to the 2003 Liability Act , on 12 January 2004 the Municipal Court decided to resume the proceedings.

However, on 30 December 2003 the Municipal Court declared the applicant ’ s action inadmissible for lack of jurisdiction.

The applicant appealed on 23 January 2004 against that decision, but on 13 May 2004 the Virovitica County Court ( Županijski sud u Virovitici ) dismissed the appeal.

The applicant then on 24 June 2004 filed a request for revision which was dismissed by the Supreme Court on 3 November 2004. The Supreme Court held that after the entry into force of the 2003 Liability Act the State was no longer liable in tort for the destruction of property caused by terrorist acts and that any such claims should be dismissed on the merits rather than declared inadmissible. However, the Supreme Court found that that was not a reason for it to quash the impugned decision.

2. Proceedings before the Constitutional Court

a. Length of proceedings

Meanwhile, on 28 April 2002 the applicant lodged a constitutional complaint about the length of proceedings under section 63 of the Constitutional Court Act. On 7 July 2004 the Constitutional Court accepted the applicant ’ s complaint and found violations of the applicant ’ s constitutional rights to a hearing within a reasonable time and to access to a court. It awarded the applicant compensation in the amount of 4,400 Croatian kunas (HRK).

b. Complaint in respect of the 2003 Liability Act

On 11 March 2005 the applicant filed another constitutional complaint, against the Supreme Courts ’ decision of 3 November 2004. In her constitutional complaint the applicant argued that the new legislation and/or its application to her case by the domestic courts had breached the Convention. In doing so, she relied on the Court ’ s case-law and argued that there was a violation of Article 1 of Protocol No. 1 and Article 6 § of the Convention.

3. Administrative proceedings

On an unspecified date the applicant applied fo r reconstruction assistance. On 12 October 1998 the competent first-instance administrative authority dismissed the application. The decision was upheld by the appellate body on 19 September 2001 and by the Administrative Court ( Upravni sud Republike Hrvatske ) on 8 May 2003. It was found that under the Reconstruction Act such assistance could be granted only in order to repair the war damage, while the destruction of the applicant ’ s property was not war-related.

B. Rele vant domestic law and practice

1. The Constitution

The relevant provisions of the 1990 Croatian Constitution ( Ustav Republike Hrvatske , Official Gazette nos. 56/1990, 135/97, 113/2000 and 28/2001) read as follows:

Article 29 § 1

“ 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.”

Article 48

“1. The right to property is guaranteed.

2. Property implies duties. Holders of the title to property and property users shall have a duty to contribute to the general welfare.”

Article 89

“4. Statutes and other legislative acts of state or public authorities shall not have a retroactive effect.

5. O nly certain provisions of a statute may have retroactive effects for especially justified reasons .

Article 140

“International agreements concluded and ratified in accordance with the Constitution and made public shall be part of the Republic ’ s internal legal order and shall have precedence over the [domestic] statutes....”

2. The Constitutional Court Act

The relevant part 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:

Section 63

“(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.”

3. The Courts Act

The relevant part of the Courts Act ( Zakon o sudovima , Official Gazette no. 3/1994, 100/96, 131/97, 129/2000, 17/2004, and 141/2004 ) , as in force at the material time, provided as follows :

Section 5

“ 1. The courts adjudicate cases on the basis of the Constitution and statutes.

2. The courts adjudicate cases also on the basis of the international agreements which are the part of the [internal] legal order of the Republic of Croatia .

...”

4. The Civil Obligations Act and the 1996 Amendment

The relevant part of the Civil Obligations Act ( Zakon o obveznim odnosima , Official Gazette, nos. 53/91, 73/91, 3/94, 7/96 and 112/ 99) provided as follows:

Section 180(1)

“Liability for loss caused by death or bodily injury or by damage or destruction of another ’ s property, when it results from acts of violence or terror ist acts 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 part of the Act Amending the Civil Obligations Act ( Zakon o izmjeni Zakona o obveznim odnosima , Official Gazette no. 7/1996 – “the 1996 Amendment”) provided 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 resumed after the enactment of special legislation governing liability for damage resulting from terrorist acts.”

5. The Civil Procedure Act

The relevant part of the Civil Procedure Act ( Zakon o parničnom postupku , Official Gazette n os. 53/91, 91/92, 58/93, 112/99, 88/01 and 117/03 ) provides:

Section 212

“Proceedings shall be stayed:

...

(6) where another statute so prescribes.”

Section 154 provides that the losing party shall compensate the litigation costs of the winning party.

6. The 2003 Liability Act

(a) Relevant provisions

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) provides, inter alia , that the State is to com pensate damage resulting from bodily injuries, impairment of health or death. All compensation for damage to property is to be sought under the Reconstruction Act. Section 10 provides that all proceedings stayed pursuant to the 19 96 Amendment are to be resumed.

7. The Reconstruction Act

The relevant part of the Reconstruction Act ( Zakon o obnovi , Official Gazette nos. 24/96, 54/96, 87/96 and 57/00) provides, inter alia , that the State shall grant a reconstruction assistance to the owners of property (flats and houses only) which has been damaged during the war. The assistance is subject to conditions such as the degree of damage to the property, residence in the property at the date of the beginning of the hostilities, and a statement that the owner will return to the house or flat after its reconstruction. The application is to be submitted to the competent administrative authorities.

COMPLAINTS

1. The applicant complains under Articles 6 § 1 of the Convention that Parliament ’ s enactments of the 1996 Amendment and the 2003 Liability Act violated her right of access to a court. She also complains about the length of the proceedings.

2. The applicant also complains under Article 6 § 1 and Article 13 of the Convention and Article 1 of Protocol No. 1 that the 2003 Liability Act violated her right to a fair hearing and the right to peaceful enjoyment of her possessions and that she has no effective remedy in respect of these violations.

THE LAW

A. Alleged violations of Article 6 § 1 of the Convention on account of the lack of access to a court and the excessive length of the proceedings

The applicant submits that her right of access to a court provided in Article 6 § 1 of the Convention was violated, and also that the length of the proceedings was incompatible with th e “reasonable time” requirement of that Article, 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 Court recalls that it has held in similar cases that the applicants ’ complaints that they had been prevented from using any remedy in the proceedings concerning their actions for damages raised an issue of their right of access to a court under Article 6 § 1 of the Convention (see, for example, Kutić v. Croatia ( dec .), no. 48778/99, 11 July 2000). It also held that the applicants ’ length complaints were regarded as absorbed by complaints about lack of access to a court (see Kutić v. Croatia , no. 48778/99, § 34, ECHR 2002 ‑ II; and Multiplex v. Croatia , no. 58112/00, § 58, 10 July 2003 ). The Court sees no reason to depart from its view expressed in the above mentioned decision and judgments.

The Court further notes that the applicant complains about two violations of her right of access to a court.

1. Alleged lack of access to a court resulting from the 1996 Amendment

T he applicant submits that, in spite of the Constitutional Court ’ s decision of 7 July 2004, s he is still a “victim” within the meaning of Article 34 of the Convention. Sh e submits that the amount of compensation is insufficient and significantly lower than amounts awarded by the Court in similar cases (see Kutić v. Croatia , no. 48778/99, § 39, ECHR 2002 ‑ II).

T he Court considers that it c annot, on the basis of the case- file, determine the admissibility of this complaint 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.

2. Alleged lack of access to a court resulting from the 2003 Liability Act

The applicant also submits that the 2003 Liability Act violated her right to effective access to a court since according to its provisions, her action lacks any prospects of success and was declared inadmissible for lack of jurisdiction.

The Court firstly observes that the Virovitica Municipal Court declared the applicant ’ s action inadmissible for lack of jurisdiction and that the decision was upheld by the appellate and the Supreme Court. The later held that although an action in damages directed against the State, after the entry into force of the 2003 Liability Act, was to be dismissed on its merits, the mere fact that the claim was declared inadmissible was not a reason to quash the decision.

However, the applicant then filed a constitutional complaint which is still pending.

The Court therefore considers that the applicant would only be in a position to complain about the eventual impossibility of obtaining a decision on the merits of her claim, once all remedies have been exhausted and the proceedings have come to an end, prior to which the Court cannot speculate as to whether access to a court has been granted or denied.

In addition, the Court reiterates that the mere fact that an applicant ’ s action may have very limited prospects of success is not equivalent to depriving her of the right of access to a court (see, mutatis mutandis , X. v . the United Kingdom , no. 7443/76, Commission decision of 10 December 1976, Decisions and Reports (DR) 8, pp. 216, 217).

For these reasons, this complaint is premature. It is therefore inadmissible under Article 35 § 1 for non-exhaustion of domestic remedies and must be rejected pursuant to Article 35 § 4 of the Convention.

B. Alleged violations of Article 6 § 1 and Article 13 of the Convention and Article 1 of Protocol No. 1 thereto on account of the legislative interference

The applicant further complains that the entry into force of the 2003 Liability Act violated her right to peaceful enjoyment of possessions and rendered the proceedings unfair and that she had no effective remedy in respect of these violations. She relies on Article 6 § 1 and Article 13 of the Convention, Article 1 of Protocol No. 1 thereto and the Court ’ s case-law ( Pressos Compania Naviera S.A. and Others v. Belgium , judgment of 20 November 1995, Series A no. 332 ) .

Article 13 of the Convention reads as follows:

“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.”

Article 1 of Protocol No. 1 reads as follows:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

In particular, the applicant complains that the 2003 Liability Act violated her property rights since her civil claim for damages has been extinguished retroactively. Furthermore, in her view, the Act aims to influence the judicial determination of a dispute with a view to exoner ating the State from liability. The State ’ s intervention in a lawsuit affe cting it by means of retrospective legislation violates the principle of fair trial . Finally, the applicant submits that, because the Virovitica Municipal Court declared her claim inadmissible for its lack of jurisdiction, her appeal had to be concentrated exclusively on the issues of jurisdiction and she was thus prevented from having an effective remedy in respect of the merits of her claim.

At the outset, the Court notes that these complaints overlap and therefore it is not necessary to examine them separately.

The Court reiterates that t he applicability of legislation to pending proceedings cannot in itself give rise to a problem under the Convention since the legislature is not, in theory, prevented fr om intervening in civil cases to alter the current legal position through a statute which is immediately applicable (see, mutatis mutandis , Draon v. France [GC], no. 1513/03, § 81 , 6 October 2005 ). However, the Court is especially mindful of the dangers inherent in the use of retrospective legislation. Respect for the rule of law and the notion of a fair hearing preclude any interference by the legislature – other than on compelling grounds of the general interest – with the administration of justice designed to influence the judicial determination of a dispute to which the State is a party, including where the effect is to make pending litigation unwinnable . Therefore any reasons adduced to justify such measures have to be treated with the greatest possible degree of circumspection (see, for example, Scordino v. Italy (no. 1) [GC], no. 36813/97, § 126 , to be published in ECHR 2006, and Aćimović v. Croatia , no. 61237/00, § 30 , ECHR 2003 ‑ XI ) . Since those measures usually affect the outcome of the proceedings, in assessing their compliance with the Convention, special attention is to be paid also to the effects they may have on the apportionment of the litigation costs.

The Court observes that the proceedings concerning the applicant ’ s claim for damages against the State arising from terrorist acts were affected by two legislative measures. Firstly, as a result of the 1996 Amendment, the applicant was prevented for some seven and a half years from having her civil claim decided by a court. Secondly, the Liability Act of 2003 enabled the competent court to proceed with the applicant ’ s case, but has set new rules of State liability for damage caused to her property. These rules apply to facts which had occurred before the Act was passed and which had given rise to civil proceedings that were pending at the time of its entry into force.

In the first place, the Court notes that the applicant ’ s proceedings are still pending before domestic courts. On the other hand, it would appear, given the decision of the Supreme Court, that the applicant ’ s action has very limited prospects of success. The question therefore arises whether the applicant has to await the final outcome of the proceedings in order to exhaust domestic remedies as required by Article 35 § 1 of the Convention.

The Court reiterates that the rule of exhaustion of domestic remedies normally requires that the complaints intended to be made subsequently at the international level should have been ventilated before domestic courts, at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law. The object of the rule on exhaustion of domestic remedies is to allow the national authorities (primarily the judicial authorities) to address the allegation made of violation of a Convention right and, where appropriate, to afford redress before that allegation is submitted to the Court. In so far as there exists at national level a remedy enabling the national courts to address, at least in substance, the argument of violation of the Convention right, it is that remedy which should be exhausted (see Azinas v. Cyprus [GC], no. 56679/00, § 38 , ECHR 2004 ‑ III ).

In this connection, the Court notes that the Convention forms an integral part of the Croatian legal system, where it takes precedence over every contrary statutory provision (Article 140 of the Constitution, see above under the Relevant domestic law) and is directly applicable (Section 5 of the Courts Act) . It further notes that in her complaint to the Constitutional Court , before which the proceedings are currently pending, the applicant relied directly on the Convention. The applicant therefore gave the domestic authorities the opportunity, which is intended to be afforded to a respondent Contracting State by Article 35 of the Convention, to examine and redress the Convention violations alleged against it (see Bogunović v. Croatia ( dec .), no. 18221/03, 11 July 2006) .

In these circumstances, the Court finds that this part of the application is premature. It is therefore inadmissible under Article 35 § 1 for non-exhaustion of domestic remedies and must be rejected pursuant to Article 35 § 4 of the Convention.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant ’ s complaint concerning access to a court in respect of the 1996 amendments to the Civil Obligations Act ;

Declares the remainder of the application inadmissible.

Søren Nielsen Christos Rozakis Registrar President