FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 71614/01 by Milan CRNOJEVIĆ against Croatia

The European Court of Human Rights (First Section), sitting on 29 April 2003 as a Chamber composed of

Mr C.L. Rozakis , President , Mr G. Bonello , Mr P. Lorenzen , 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 15 February 2001,

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, Mr Milan Crnojević , is a Croatian citizen, who was born in 1921 and lives in Zagreb . He is represented before the Court by Ms Jadranka Sloković Glumac , 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 6 September 1991 the applicant’s house in Starigrad , Croatia was mined by unknown perpetrators.

On 7 September 1994 the applicant instituted civil proceedings with the Zagreb Municipal Court, seeking damages from the Republic of Croatia.

On 16 November 1995 the Zagreb Municipal Court adopted judgment granting the applicant’s claim in part.

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. So far the Croatian authorities have not enacted any new legislation regulating the matter.

On an unspecified date the defendant filed an appeal against the first instance judgment and on 8 March 1997 the case-file was forwarded to the Zagreb County Court ( Županijski sud u Zagrebu ) as the appellate court.

On 13 January 1997 the case-file was returned to the Zagreb Municipal Court with the instruction to stay the proceedings pursuant to the above legislation.

On 3 September 1997 the Zagreb Municipal Court stayed the proceedings.

B. Relevant domestic law

The relevant part of the Civil Obligations Act ( Zakon o obveznim odnosima ) 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.”

COMPLAINT

The applicant maintains that Parliament’s enactment of the 1996 legislation interferes with his right of access to court within the meaning of Article 6 § 1 of the Convention.

THE LAW

1. The applicant complains that the 1996 legislation prevented him from having his case decided on the merits and thus deprived him of his right of access to court. He relies 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 by an independent and impartial tribunal established by law.”

a. The Government maintain that the domestic authorities may be held responsible only for the events which occurred after 5 November 1997 when the Convention entered into force in respect of Croatia.

The applicant argues that his lack of access to court has continued after 5 November 1997.

The Court recalls that it is competent to examine complaints concerning events occurring before the entry into force of a declaration accepting the right of individual petition, to the extent that these events created a continuing situation still existing after the date in question (see, mutatis mutandis , A.A.G. v. Portugal , no. 29813/96, Commission decision of 8 September, Decisions and Reports 90, pp. 121, 126).

The Court notes that the proceedings concerning the applicant’s claim for damages were stayed on 3 September 1997 and that the Convention entered into force in respect of Croatia on 5 November 1997. While it is true that the decision to stay the proceedings occurred prior to the entry into force of the Convention, the effect of that decision has been that the proceedings have continued to be pending since they have never been terminated. Furthermore, domestic courts have, ever since, been prevented from proceeding with the applicant’s claim for damages. Therefore, there is the necessary continuity in the applicant’s situation for the Court to have its competence ratione temporis established (see, mutatis mutandis , Phocas v. France , judgment of 23 April 1996, Reports of Judgments and Decisions 1996-II, p. 541, § 49).

In these circumstances the Court does not find that it is prevented ratione temporis from examining the complaints made and accordingly dismisses the Government’s objection in this respect.

b. The Government submit that the applicant failed to exhaust domestic remedies because he has not submitted a constitutional claim challenging the legislation in question.

The applicant argues that a constitutional complaint challenging the constitutionality of certain legislation is not a remedy to be exhausted. Furthermore, in proceedings concerning a constitutional claim challenging the constitutionality of the 1996 law he would not be able to have his compensation claim decided. In addition, several other persons in the same position as the applicant’s have already filed such a claim but the Constitutional Court has not yet adopted any decision.

The Court observes that the rule of exhaustion of domestic remedies contained in Article 35 § 1 of the Convention requires that normal recourse should be had by an applicant to remedies which are available and sufficient to afford redress in respect of the breaches alleged (see, among other authorities, Akdivar and Others v. Turkey , judgment of 16 September 1996, Reports 1996-IV, p. 1210, § 65). The existence of the remedies in question must be sufficiently certain not only in theory but in practice, failing which they will lack the requisite accessibility and effectiveness (ibid.).

It recalls that in the area of the exhaustion of domestic remedies there is a distribution of the burden of proof. It is incumbent on the Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one available in theory and practice at the relevant time, that is to say, that it was accessible, was one which was capable of providing redress in respect of the applicant’s complaints and offered reasonable prospects of success. However, once this burden has been satisfied it falls to the applicant to establish that the remedy advanced by the Government was in fact exhausted or was for some reason inadequate and ineffective in the particular circumstances of the case or that there existed special circumstances absolving him or her from the requirement (ibid., p. 1211, § 68).

In addition, the application of the rule must make due allowance for the fact that it is being applied in the context of machinery for the protection of human rights that the Contracting Parties have agreed to set up (ibid., § 69). Accordingly, the Court has recognised that Article 35 § 1 (formerly Article 26) must be applied with some degree of flexibility and without excessive formalism (see, for example, Cardot v. France , judgment of 19 March 1991, Series A no. 200, p. 18, § 34). It has further recognised that the rule of exhaustion is neither absolute nor capable of being applied automatically; in reviewing whether it has been observed it is essential to have regard to the particular circumstances of each individual case (see, for example, Van Oosterwijk v. Belgium , judgment of 6 November 1980, Series A no. 40, p. 18, § 35). This means amongst other things that it must take realistic account not only of the existence of formal remedies in the legal system of the Contracting Party concerned but also of the general legal and political context in which they operate as well as the personal circumstances of the applicants (see the Akdivar judgment cited above, p. 1211, § 69).

The Court notes that the Government have already admitted that a number of other persons in the applicant’s position have submitted such a claim and that the outcome of the constitutional proceedings regarding such claims would equally affect the applicant (see Kastelic v. Croatia (dec.) no. 60533/00, 7 November 2002, unreported). However, the Constitutional Court is still examining these claims and therefore, the same issues are still pending before the domestic courts.

The Court considers that the decision of the Constitutional Court, which would rule on the constitutionality of legislation is not a means by which a possible violation of the applicant’s right of access to court would be addressed. If the Constitutional Court accepts the applicant’s claim and finds the challenged legislation unconstitutional a likely consequence of such a decision would be enactment of different legislation by Parliament, but the fact that the proceedings concerning the applicant’s claim for damages have been stayed for a prolonged period of time will remain unchanged.

In these circumstances, the Court considers that the applicant’s complaints cannot be rejected for failure to exhaust domestic remedies.

c. In the alternative the Government invite the Court to conclude that the application does not disclose any appearance of a violation of Article 6 § 1 of the Convention. In this connection they submit that the applicant does enjoy access to court because he instituted civil proceedings for damages before the Zagreb Municipal Court. The fact that the court stayed proceedings pursuant to the 1996 legislation does not affect the applicant’s right of access to court because the proceedings are stayed only temporarily until the enactment of new regulation on the war-related damage.

In their further arguments the Government rely on the Court’s case-law and state that in principle the legislature is not precluded in civil matters from adopting new retrospective provisions to regulate rights arising under existing laws.

The applicant argues that, although the 1996 Act obliged the Government to enact new legislation, regulating liability for damage resulting from the terrorist acts, at the latest within six months from the entry into force of that Act, no such legislation has been enacted so far and that there are no indications that it will be.

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 application admissible, without prejudging the merits of the case.

Søren N IELSEN Christos Rozakis              Deputy Registrar President