FIRST SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 26886/02 by Stojan URUKALO and Verica NEMET against Croatia

The European Court of Human Rights (First Section), sitting on 8 January 2004 as a Chamber composed of:

Mr C.L. Rozakis , President , Mrs F. Tulkens , Mrs N. Vajić , Mr E. Levits , Mr A. Kovler , Mr V. Zagrebelsky ,

Mrs E. Steiner, judges , and Mr S. Nielsen , Deputy Section Registrar ,

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

Having deliberated, decides as follows:

THE FACTS

The applicants, Mr Stojan Urukalo and Ms Verica Nemet, are Croatian citizens, who were born in 1933 and 1953 and respectively and live in Virovitica, Croatia.

A. The circumstances of the case

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

During the military action “Storm” undertaken by the Croatian Army in August 1995, the applicants’ house in Karin Gornji , Croatia was destroyed.

On 5 October 1998 the applicants filed a civil action with the Obrovac Municipal Court ( Općinski sud u Obrovcu ) against the Republic of Croatia seeking damages for their destroyed property. They based their claim on Section 180 of the Civil Obligations Act ( Zakon o obveznim odnosima ).

On 6 November 1999 Parliament introduced an amendment to the Civil Obligations Act which provided that all proceedings against the Republic of Croatia concerning actions for damages resulting from acts of members of the Croatian army and police when acting in their official capacity during the homeland war in Croatia were to be stayed.

On 25 November 1999 the Obrovac Municipal Court rejected the applicants’ claim.

The applicants appealed against the first instance judgment.

On 8 March 2000 the Zadar County Court ( Županijski sud u Zadru ) as the appellate court remitted the case to the Obrovac Municipal Court instructing it to stay the proceedings pursuant to the above legislation.

On 23 March 2000 the Obrovac Municipal Court stayed the proceedings.

On 14 July 2003 Parliament passed the Act on 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).

B. Relevant domestic law

Section 184 (a) of the 1999 Act on Amending the Civil Obligations Act ( Zakon o dopunama Zakonu o obveznim odnosima , Official Gazette no. 112/1999) provides that all proceedings instituted against 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 in Croatia from 7 August 1990 to 30 June 1996 are to be stayed.

The Act also imposed an obligation on the Government to submit to Parliament special legislation, regulating the responsibility for such damage, within six months at the latest from the Act’s entry into force.

The relevant parts of the Act on 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 now regulate circumstances in which the Republic of Croatia is liable for damage caused by members of the army and the police during the homeland war.

COMPLAINTS

1. The applicants firstly complain that Parliament’s enactment of the 1999 legislation interfered 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 about their inability to obtain compensation for their destroyed property.

THE LAW

1. The applicants firstly complaint that they were prevented form having their civil claim decided on merits by domestic courts due to the amendment to the Civil Obligations Act from 1999. They rely on 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.

The applicants also complain that their inability to obtain damages for their destroyed property violates their rights under 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 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.

The Court notes that although the legislative interference took place after the Convention entered into force in respect of Croatia it was so closely related to the events that gave rise to the applicant’s claim that divorcing the two 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 and Multiplex v. Croatia ( dec .), no. 58112/00, 26 September 2002). [EG1] [EG2]

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 [Note3] their right of access to a court;

Declares the remainder of the application inadmissible.

Søren Nielsen Christos R OZAKIS              Deputy Registrar President

[EG1] 1 If Grand Chamber case, add "[GC]" after "( dec .)".

[EG2] 1 If the decision is to be published but the volume number is not known add an ellipsis (e.g. ECHR 2002-...). If the decision is not being published or you do not know if it is to be published replace the ECHR reference by the date of the decision.

[Note3] Summarise the complaints without necessarily citing the invoked Convention Articles.