FIRST SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 18221/03 by Milan BOGUNOVIĆ against Croatia

The European Court of Human Rights (First Section), sitting on 11 July 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 13 May 2003 ,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Milan Bogunović, is a Croatian national who was born in 1947 and lives in Zrenjanin , Serbia . He is represented before the Court by Mr M. Mihočević, 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 was the owner of a special vehicle for apiculture.

On 2 March 1993 the applicant ’ s vehicle, including 98 bee-hives, was blown up by unknown perpetrators.

1. Civil proceedings

On 31 March 1995 the applicant brought a civil action against the State in the Zagreb Municipal Court ( Općinski sud u Zagrebu ) seeking damages. He 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.

On 8 July 1996 the Municipal Court stayed the proceedings pursuant to the above legislation.

On 31 July 2003 the Act on Liability for Damage Resulting from Terrorist Acts and Public Demonstrations 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.

On 20 October 2004 the Municipal Court declared the applicant ’ s action inadmissible for lack of jurisdiction and ordered him to pay the State the litigation costs in the amount of 2,640 Croatian kunas (HRK).

On 23 November 2004 the applicant appealed to the Zagreb County Court ( Županijski sud u Zagrebu ) against that decision, including the award of the litigation costs. It appears that the case is currently pending before that court.

In his appeal the applicant argued that the new legislation and/or its application to his case by the first-instance court had breached the Convention. In doing so, he emphasised the precedence of the Convention over domestic statutes, as provided in Article 140 of the Constitution, and repeated, in substance, the same arguments he is raising before the Court.

2. Proceedings before the Constitutional Court

Meanwhile, on 20 May 2002 the applicant lodged a constitutional complaint about the length of proceedings under section 63 of the Constitutional Court Act. On 28 June 2004 the Constitutional Court accepted the applicant ’ s complaint. Relying on the Court ’ s case-law ( Kutić v. Croatia , no. 48778/99 , ECHR 2002 ‑ II ), it found violations of the applicant ’ s constitutional rights to a hearing within a reasonable time and to access to a court. It ordered the Zagreb Municipal Court to give a decision in the applicant ’ s case within a year and awarded him compensation in the amount of 4,400 Croatian kunas (HRK).

3. Administrative proceedings

Following the enactment of the 2003 Liability Act, the applicant applied fo r reconstruction assistance. On 20 September 2004 the competent first-instance administrative authority dismissed his application. It found that under the Reconstruction Act such assistance could be granted only in order to repair the damage to residential property.

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 terrorist 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 – “the 2003 Liability Act”) 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.

(b) The case-law of the Supreme Court

In a number of cases 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 the terrorist acts and that any such claims should be dismissed on the merits rather than declared inadmissible (see judgments and decisions nos. Rev-276/04-2 of 8 April 2004, Rev-860/04-2 of 3 November 2004, Rev-905/04-2 of 4 November 2004, Rev-596/04-2 of 2 March 2005, Rev-155/05-2 of 16 March 2005, Rev-617/04-2 of 21 April 2005, Rev 358/05-2 of 18 May 2005, Rev-45/05-2 of 19 May 2005, Rev-928/04-2 of 12 July 2005, and Rev-920/04-2 of 3 November 2005).

In particular, in its judgments nos. Rev-1007/03-2 of 3 December 2003 and Rev-733/04-2 of 8 September 2004 , the Supreme Court held that the State was not liable for the damage ensuing from the destruction of the plaintiffs ’ cars that had been blown up by unknown perpetrators.

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 and 13 of the Convention that Parliament ’ s enactments of the 1996 Amendment and the 2003 Liability Act violated his right of access to a court and/or his right to an effective remedy. He also complains about the length of the proceedings.

2. The applicant also complains under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 that the 2003 Liability Act violated his right to a fair hearing and the right to peaceful enjoyment of his possessions.

THE LAW

A. Alleged violations of Article 6 § 1 and 13 of the Convention on account of the lack of access to a court and the excessive length of the proceedings

The applicant submits that his 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...”

He also complains that he did not have an effective remedy for the protection of his rights, contrary to Article 13 of the Convention, which 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.”

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 his 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 28 June 2004 (see above under “The Facts, 2. The proceedings before the Constitutional Court ”) , he is still a “victim” within the meaning of Article 34 of the Convention. He submits that the constitutional complaint is not an effective remedy for alleged violations of the right of access to a court. In particular, the Constitutional Court did not respond to his complaint regarding access to a court, but solely to his length complaint. Furthermore, 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). It is irrelevant that the Constitutional Court ordered the Municipal Court to decide on his case, as his action was eventually decla red inadmissible pursuant to newly enacted legislation.

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 his right to effective access to a court since according to its provisions, his action (see above under “The Facts, 1. Civil proceedings”) lacks any prospects of success and was declared inadmissible for lack of jurisdiction by the first-instance court.

The Court firstly observes that the Zagreb Municipal Court declared the applicant ’ s action inadmissible for lack of jurisdiction and that the applicant appealed against that decision. It notes, on the other hand, that under the case-law of the Supreme Court (see above under Relevant domestic law and practice), an action in damages directed against the State is, after the entry into force of the 2003 Liability Act, to be decided on its merits.

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 his 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 him or 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 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 his right to peaceful enjoyment of possessions and rendered the proceedings unfair. He relies on Article 6 § 1 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 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 his property rights since his civil claim for damages has been extinguished retroactively. Furthermore, in his 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 equality of arms. Finally, the applicant submits that, because the 2003 legislation made his case devoid of any prospects of success, his action was declared inadmissible and he had to pay the litigation costs even though at the time when the action had been introduced it would have been successful.

At the outset, the Court notes that these two 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 his 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 his property by terrorist acts. 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 case-law of the Supreme Court (see above under Relevant domestic law), 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 his appeal to the County Court, before which the proceedings are currently pending, the applicant relied directly on the Convention. This is a novel argument which the Croatian courts so far have not had to address in similar cases. 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. In case of unfavourable outcome, the applicant would be able to lodge a constitutional complaint giving a further possibility to domestic authorities, namely the Constitutional Court , to remedy the alleged violations.

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 ;

Declares the remainder of the application inadmissible.

Søren Nielsen Christos Rozakis Registrar President