FIRST SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 21752/02 by Nevenka and Milorad MIHAJLOVIĆ against Croatia

The European Court of Human Rights (First Section) , sitting on 18 September 2003 as a Chamber composed of

Mr C.L. Rozakis , President , Mr P. Lorenzen , Mr G. Bonello , Mrs N. Vajić , Mrs S. Botoucharova , Mr V. Zagrebelsky , Mrs E. Steiner, judges , and Mr S. N IELSEN , Deputy Section Registrar ,

Having regard to the above application lodged on 19 April 2002,

Having deliberated, decides as follows:

THE FACTS

The applicants, Ms Nevenka Mihajlović and Mr Milorad Mihajlović, are Croatian citizens, who were born in 1932 and 1958 respectively and live in Hrgovljani, Croatia. They are represented before the Court by Ms Tatjana Burjačenko Grubiša, a lawyer practising in Zagreb.

A. The circumstances of the case

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

On 12 February 1992 the applicants' house in Hrgovljani, Croatia was destroyed by a mine laid by an unknown perpetrator.

The responsibility for damages resulting from terrorist acts was at that time 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 9 February 1995 the applicants instituted civil proceedings before the Zagreb Municipal Court ( Općinski sud u Zagrebu ), seeking damages from the Republic of Croatia on the basis of Section 180 of the Civil Obligations Act.

On 17 January 1996 the Croatian 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.

On 5 February 1996 the court stayed the proceedings pursuant to the above legislation.

On 14 July 2003 the Croatian Parliament introduced the Act on Liability for Damage Resulting from Terrorist Acts and Public Demonstrations ( Zakon o odgovornosti za štetu nastalu uslijed teroristi čkih 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 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 can be sought pursuant to the Reconstruction Act.

The relevant parts of the Reconstruction Act ( Zakon o obnovi , Official 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 under Article 6 § 1 and Article 13 of the Convention that the enactment of the 1996 legislation violated their right of access to a court and their right to an effective remedy.

2. The applicants also complain under Article 1 of Protocol No. 1 claiming that their property was destroyed and that they have not obtained any compensation.

THE LAW

1. The applicants complain that the 1996 legislation prevented the domestic courts from proceeding with their claim for damages and thus violated their right of access to a court and their right to an effective remedy. They rely on Article 6 § 1 and Article 13 of the Convention, the relevant parts of which read as follows:

Article 6 § 1

“In the determination of his civil rights and obligations ..., 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.”

The Court considers that it cannot, on the basis of the case file, determine the admissibility of this part of the application 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 also complain that their property rights are violated because their property was destroyed and they have not obtained any compensation, contrary to Article 1 of Protocol No. 1.

The Court notes that the events complained of took place in February 1992, while the Convention entered into force in respect of Croatia on 5 November 1997.

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' complaints that they have been deprived of their right of access to a court and/or their right to an effective remedy;

Declares the remainder of the application inadmissible.

Søren Nielsen Christos Rozakis              Deputy Registrar President