FIRST SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 3742/02 by Ljubica BAČIĆ against Croatia

The European Court of Human Rights (First Section), sitting on 11 December 2003 as a Chamber composed of:

Mr C.L. Rozakis , President , Mr P. Lorenzen , Mr G. Bonello , Mrs F. Tulkens , Mrs N. Vajić , Mr E. Levits , Mrs S. Botoucharova , judges ,

and Mr S . N IELSEN , Deputy Section Registrar ,

Having regard to the above application lodged on 22 December 2001,

Having regard to the partial decision of 17 October 2002,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Ms Ljubica Bačić, is a Croatian citizen who was born in 1931 and lives in Split. She is represented before the Court by Mr Anto Nobilo, a lawyer practising in Zagreb. The respondent Government are represented by their Agent Ms Lidija Lukina-Karajković.

A. The circumstances of the case

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

On 23 December 1991 the applicant’s house in Špišić Bukovica , Croatia, was burglared and mined.

On 31 October 1994 the applicant lodged an action for compensation of damages, in connection with the destruction of her house, against the Republic of Croatia with the Virovitica Municipal Court ( Općinski sud u Virovitici ).

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

On 7 February 1996 the 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 akat 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 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 ).

COMPLAINT

The applicant complained under Article 6 § 1 of the Convention that she had been deprived of her right of access to court because the changes of the Civil Obligations Act had prevented domestic courts from deciding her claim for damages on the merits.

THE LAW

The applicant complained under Article 6 § 1 of the Convention that she had no access to court in respect of her civil claim for damages because the proceedings instituted by her had been stayed pursuant to the 1996 legislation. She 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 [a] ... tribunal established by law.

a. The Government firstly maintained that the applicant had failed to exhaust domestic remedies because she had not submitted a constitutional claim challenging the legislation in question.

The applicant maintained that the proceedings challenging certain legislation before the Constitutional Court were considered as being instituted only if the Constitutional Court, after a preliminary examination of the complaint, decided to admit it. Thus, although she could lodge a complaint directly with the Constitutional Court, the formal institution of proceedings depended on the latter’s discretion. Furthermore, several other persons in the same position as the applicant had filed a constitutional complaint challenging the legislation in question but the Constitutional Court had not decided any of these complaints.

In the applicant’s opinion she had no domestic remedy to exhaust in respect of her complaint that she was deprived of her right of access to a court.

The Court recalls that in similar circumstances it has held in the Crnojević case that a constitutional complaint challenging the legislation in question did not represent a remedy to be exhausted (see Crnojević v. Croatia , (dec.), no. 71614/01, 29 April 2003). The Court sees no reason to depart from this decision in the present case.

It follows that the applicant’s complaint cannot be rejected for failure to exhaust domestic remedies.

b. In the alternative the Government invited the Court to conclude that the application did not disclose any appearance of a violation of Article 6 § 1 of the Convention. In this connection they submitted that the applicant did enjoy access to a court because she had instituted civil proceedings for damages before the Virovitica Municipal Court. The fact that the court had stayed the proceedings pursuant to the 1996 legislation did not affect the applicant’s right of access to a court because the proceedings were stayed only temporarily. When in July 2003 new legislation was enacted the applicant again enjoyed access to a court.

The applicant contended that the prolonged period for which she had been unable to have her civil claim decided before the domestic courts violated her right of access to a court. She relied on the Kutić judgment (see Kutić v. Croatia , no. 48778/99, ECHR 2002-II).

The Court considers, in the light of the parties’ submissions, that the application raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

For these reasons, the Court unanimously

Declares the remainder of the application admissible, without prejudging the merits of the case.

Søren N IELSEN Christos Rozakis              Deputy Registrar President