FIRST SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 78008/01 by Marica VARIĆAK 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 8 March 2001,

Having regard to the partial decision of 19 December 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 Marica Varićak is a Croatian citizen who was born in 1934 and lives in Belgrade, Serbia and Montenegro. She is represented before the Court by Ms Miroslava Manojlović Motušić, a lawyer practising in Zadar, Croatia. The respondent Governemnt 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.

The applicant was the owner of an apartment building in Zadar . During the night of 21 to 22 February 1992 the building was burglarised and then mined, resulting in its complete destruction.

The responsibility for damages resulting from terrorist acts was regulated by Section 180 of the Civil Obligations Act ( Zakon o obveznim odnosima ) providing that the responsibility lay with the authority whose officers were under duty to prevent such damages.

On 11 August 1994 the applicant filed an action for damages in the Zadar Municipal Court ( Općinski sud u Zadru ) against the Croatia Insurance Company ( Croatia osiguranje ), because the building was insured by that company and also against the Republic of Croatia on the basis of Section 180 of the Civil Obligations Act.

On 17 January 1996 Parliament introduced an amendment to the Civil Obligations Act 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 first hearing was held on 4 May 1999.

On 6 November 1999 Parliament introduced yet another amendment to the Civil Obligations Act which provided that all proceedings 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 pending the enactment of new legislation on the subject.

The next hearing scheduled for 25 July 2001 was adjourned at the defendant’s request.

The next two hearings were held on 12 November 2001 and 22 January 2002.

On 20 September 2002 the proceedings in respect of the Republic of Croatia were stayed by the Zadar Municipal Court, pursuant to the 1999 legislation.

The applicant appealed against that decision arguing that it had not been established that the damage was caused by any member of the Croatian army or police and that the 1999 legislation could not be applied to her case. The appeal is presently pending before the Zadar County Court ( Županijski sud u Zadru ).

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) and 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

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.”

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 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 compenesate 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 ).

The relevant parts of the 2003 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.

COMPLAINT

The applicant complained that she had no effective remedy in respect of her claim for damages because Section 180 of the Civil Obligations Act, which regulated the responsibility for damages resulting from terrorist acts, was repealed.

THE LAW

The applicant complained that she had no effective remedy in respect of her complaint for damages caused by terrorist acts because Section 180 of the Civil Obligations Act that regulated this matter was repealed. Such a complaint falls to be examined under Article 6 § 1 and Article 13 of the Convention, the relevant parts of which read as follows:

Article 6 § 1

“ In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”

Article 13

“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.”

1. The Government firstly contended that the applicant failed to exhaust domestic remedies because her appeal against the decision to stay the proceedings was not decided by the Zadar County Court. Furthermore, she had not filed a constitutional complaint challenging the constitutionality of the legislation in question.

The applicant argued that she had not appealed against the decision to stay the proceedings as such but only contested the Zadar Municipal Court’s application of the 1999 Act instead of the 1996 Act. Thus, the proceedings would be stayed in any event.

She maintained further that a constitutional complaint was not a remedy to be exhausted in this matter and that the Constitutional Court itself was empowered to initiate proceedings for assessment of the constitutionality of the legislation in question.

As to the fact that the proceedings before the appellate court are still pending, the Court notes that both Acts on Amending the Civil Obligations Act (from 1996 and 1999) ordered expressly that all proceedings concerning claims for compensation of damage resulting either from terrorist acts or the acts of members of the Croatian army and police, were to be stayed. The legislation did not leave any possibility that the courts continue with such proceedings. Furthermore, the applicant’s complaint concerns the fact that the proceedings were de facto stayed ever since the legislation was enacted and that the period of about four years before the new legislation was enacted on 14 July 2003 deprived her of her rights under Article 6 § 1 of the Convention. Therefore, the outcome of the appellate proceedings cannot influence the applicant’s situation.

As to the constitutional complaint, the Court notes that it has already found, in respect of both Acts on Amending the Civil Obligations Act, 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 and Aćimović v. Croatia , ( dec .), no. 61237/00, 7 November 2002). The Court sees no reason to depart from these decisions in the present case.

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

2. In the alternative, the Government noted that the applicant based her complaint on the assertion that the proceedings instituted by her before the Zadar Municipal Court were stayed pursuant to the Act on Amending the Civil Obligations Act from 1996. However, the Government pointed out that the proceedings in question were stayed pursuant to the Act on Amending the Civil Obligations Act from 1999 which made the applicant’s complaint ill-founded.

They argued further that they were not in a position to speculate on the outcome of the appellate proceedings and that they would be able to answer the applicant’s complaint only after the appellate court decided the question of the applicable law in the applicant’s case.

As to the Article 13 complaint, the Government argued that Article 13 did not apply to a situation where an application is directed against a law.  Furthermore they asserted that the application of Article 6 § 1 of the Convention concerning the applicant’s right of access to a court excluded the application of the applicant’s right to an effective remedy under Article 13 because there was no separate issue in that respect.

The applicant submitted that she had not access to a court ever since the enactment of any of the Acts on Amending the Civil obligations Act. She argued that it was not crucial whether the final decision of the appellate court would state that the proceedings were to be stayed pursuant to the Act from 1996 or pursuant to the Act from 1999 because the result would be the same in any event, i.e. the proceedings would be stayed.

As to the legislation from 2003 the applicant argued that she was not in a position to obtain damages for the entire value of her destroyed property.

The Court considers, in the light of the parties’ submissions, that the complaint 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 this complaint 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