FIRST SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 33866/02 by Stevan and Nadežda ŠVAGONJA against Croatia

The European Court of Human Rights (First Section), sitting on 22 January 2004 as a Chamber composed of:

Mr C.L. Rozakis , President , Mr P. Lorenzen , Mr G. Bonello , Mrs F. Tulkens , Mrs N. Vajić , Mrs E. Steiner , Mr K. Hajiyev , judges , and Mr S. Nielsen , Section Registrar ,

Having regard to the above application lodged on 9 July 2002,

Having deliberated, decides as follows:

THE FACTS

The applicants, Mr Stevan Švagonja and Ms Nadežda Švagonja, are Croatian citizens, who were born in 1923 and 1934 resepctively and live in Bjelovar.

A. The circumstances of the case

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

On 29 August 1992 the applicants’ house in Višnjevac , Croatia was destroyed by a mine laid down by unknown perpetrator.

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. The new legislation was to be enacted within a period of six months.

On 19 April 1999 the applicants filed a civil action with the Bjelovar Municipal Court ( Općinski sud u Bjelovaru ) against the Republic of Croatia seeking damages for their destroyed property. They based their claim on the repealed Section 180 of the Civil Obligations Act.

On 28 May 1999 the court stayed the proceedings pursuant to the 1996 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 only 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 firstly complain that they were prevented from having their civil claim decided on the merits due to the 1996 legislation.

2. They further complain under Article 1 of Protocol No. 1 about the destruction of their house.

THE LAW

1. The applicants firstly complain that they were prevented from having their civil claim decided on merits by domestic courts due to the amendment to the Civil Obligations Act from 1996. The complaint is to be examined under Article 6 § 1 of the Convention the relevant parts of which read as follows:

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

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 complain that the destruction of their house violated their right to peaceful enjoyment of their possessions contrary to 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 notes that the event complained of took place on 29 August 1992 while the Convention entered into force in respect of Croatia on 5 November 1997.

It follows that this complaint 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 [Note1] their right of access to a court;

Declares the remainder of the application inadmissible.

Søren Nielsen Christos R OZAKIS              Section Registrar President

[Note1] Summarise the complaints without necessarily citing the invoked Convention Articles.