FIRST SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 33250/02 by Dragoljub and Barbara BIJELIĆ against Croatia

The European Court of Human Rights (First Section), sitting on 12 February 2004 as a Chamber composed of:

Mr P. Lorenzen , President , Mr G. Bonello , Mrs F. Tulkens , Mrs N. Vajić , Mr E. Levits , Mrs S. Botoucharova , Mr A. Kovler , judges , and Mr S. Nielsen , Section Registrar ,

Having regard to the above application lodged on 22 July 2002,

Having deliberated, decides as follows:

THE FACTS

The applicants, Mr Dragoljub Bijelić and Ms Barbara Bijelić, are Croatian citizens, who were born in 1933 and 1942 espectively and live in Karlovac. They are represented before the Court by Mr N. Mamula, a lawyer practising in Karlovac.

A. The circumstances of the case

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

In the night between 25 to 26 February 1993 the applicants’ house in Turanj , Croatia was destroyed by a mine laid by unknown perpetrators.

On 17 January 1996 Parliament introduced an amendment to the Civil Obligations Act ( Zakon o obveznim odnosima ) 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 15 December 2000 the applicants filed an action with the Karlovac Municipal Court ( Općinski sud u Karlovcu ) seeking damages for their destroyed house form the Republic of Croatia.

On 19 March 2002 the Karlovac Municipal Court stayed the proceedings pursuant to the above legislation.

On 14 July 2003 Parliament passed 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).

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 ( Zakon o parničnom postupku ) provides:

Section 212

“Proceedings shall be stayed:

...

(6) where another statute so prescribes.”

The 2003 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 could be sought pursuant to the Reconstruction Act.

The relevant parts of the Reconstruction Act ( Zakon o obnovi , Offcial 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 that the Parliament’s enactment of the 1996 legislation interferes with their right of access to a court within the meaning of Article 6 § 1 of the Convention.

2. The applicants also complain under Article 1 of Protocol No. 1 that the destruction of their house violated their right to peaceful enjoyment of their possessions.

THE LAW

1. The applicants firstly complained that they were deprived of their right of access to a court because the Parliament’s enactment of the 1996 legislation imposed that all proceedings concerning the claims for damages from the Republic of Croatia be stayed. They relied on Article 6 § 1 of the Convention, the relevant parts of which read as follows:

“1. In the determination of his civil rights and obligations ...everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”

The Court considers that it cannot, 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. The applicants further complained that they were deprived of their right to peaceful possession of their property because their house was destroyed. They relied on Article 1 of Protocol No. 1 which 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.”

The Court firstly has to ascertain whether, and to what extent, it is competent ratione temporis to deal with the application. It reiterates that in accordance with the generally recognised rules of international law, the Convention only governs, for each Contracting Party, facts subsequent to its entry into force with regard to that Party (see, for example, X. v. Portugal, application no. 9453/81, Commission decision of 13 December 1982, Decisions and Reports (DR) 31 pp. 204, 208 and Kadikis v. Latvia ( dec .), no. 47634/99, 29 June 2000).

The Court recalls that Croatia recognised the competence of the Court to receive applications “from any person, non-governmental organisation or group of individuals claiming to be a victim of a violation by Croatia of the rights recognised in the Convention through any act, decision or event occurring after 5 November 1997.” Accordingly, the Court is not competent to examine the present application in so far as it refers to facts occurring before the date of the ratification of the Convention. Finding to the contrary would amount to giving retroactive effect to the Convention which would be contrary to general principles of international law. At the same time it would render Croatia’s declaration recognising the Court’s competence to receive individual applications nugatory (see Kadikis v. Latvia , cited above, and the Stamulakatos v. Greece judgment of 30 September 1993, Series A no. 271, p. 14, § 33).

The Court considers that the act of destruction of the applicants’ house was an instantaneous act, which does not give rise to any possible continuous situation of a violation of the Convention. Furthermore, as to the proceedings concerning the applicants’ claim for damages, in so far as they do fall within the Court’s competence ratione temporis , the applicants did not make any separate complaints under Article 1 of Protocol No. 1 (see Kresović v. Croatia , ( dec .), no. 75545/01, 9 July 2002).

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 applicants’ complaint concerning the lack of access to a court;

Declares inadmissible the remainder of the application.

Søren Nielsen Peer Lorenzen              Registrar              President