FIRST SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 78008/01 by Marica and Željko VARIĆAK against Croatia

The European Court of Human Rights (First Section), sitting on 19 December 2002 as a Chamber composed of

Mr C.L. Rozakis , President , Mrs F. Tulkens , Mr P. Lorenzen , Mrs N. Vajić , Mr E. Levits , Mr A. Kovler , Mr V. Zagrebelsky , judges , and Mr S. N IELSEN , Deputy Section Registrar ,

Having regard to the above application lodged on 8 March 2001,

Having deliberated, decides as follows:

THE FACTS

The applicants, Ms Marica and Mr Željko Varićak, are Croatian citizens, who were born in 1934 and 1955 respectively and live in Belgrade, Yugoslavia. They are represented before the Court by Ms Miroslava Manojlović Motušić, a lawyer practising in Zadar, Croatia.

A. The circumstances of the case

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

1. Proceedings concerning the first applicant’s property

The first 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 first 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 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.

The first hearing was held on 4 May 1999.

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 1996 legislation.

The first applicant appealed against that decision. The appeal is presently pending before the Zadar County Court ( Županijski sud u Zadru ).

The proceedings in respect of the Croatia Insurance are pending before the court of first instance.

2. Proceedings for the annulment of the sale contracts

In 1990 the applicants bought a flat in Zadar from I.I. However, their ownership was not entered into the land registry.

In 1994 M.A. broke into the flat. On 28. February 1995. I.I. sold the same flat once more, this time to M.A. M.A. was entered in the Zadar Municipal Court Land Registry as the owner of the flat.

Subsequently M.A. sold the flat to M.R.

On 9 October 1997 the applicants filed a civil action for the annulment of the sale contracts between I.I. and M.A. and between M.A. and M.R.

The proceedings are pending before the court of first instance.

B. Relevant domestic law

The relevant parts of Section 63 of the Constitutional Act on the Constitutional Court (entered into force on 15 March 2002, published in the Official Gazette no. 49 of 3 May 2002 - hereinafter “the 2002 Constitutional Act on the Constitutional Court” - Ustavni zakon o Ustavnom sudu Republike Hrvatske ) read as follows:

(1) The Constitutional Court shall examine a constitutional complaint even before all legal remedies have been exhausted in cases when a competent court has not decided within a reasonable time a claim concerning the applicant’s rights and obligations or a criminal charge against him ...

(2) If the constitutional complaint ... under paragraph 1 of this Section is accepted, the Constitutional Court shall determine a time-limit within which a competent court shall decide the case on the merits...

(3) In a decision under paragraph 2 of this Article , the Constitutional Court shall fix appropriate compensation for the applicant in respect of the violation found concerning his constitutional rights ... The compensation shall be paid from the State budget within a term of three months from the date when the party lodged a request for its payment.

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.”

COMPLAINTS

1. The first applicant complains about the length of civil proceedings for damages which she instituted against the Croatia Insurance Company. The first and the second applicants together complain about the length of proceedings concerning their action for the annulment of the sale contracts. They rely on Article 6 § 1 of the Convention.

2. The first applicant complains under Article 1 of Protocol No. 1 taken alone and in conjunction with Article 14 of the Convention that her property was destroyed and that now instead of an apartment building she owns only a piece of land and that she was discriminated against on the basis of her Serbian origin because the property destroyed by terrorist acts mostly belonged to persons of Serbian origin or former Yugoslav People’s Army officers or Croats who disagreed with such practices.

3. She complains further that she has 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 form terrorist acts, was repealed.

THE LAW

1. The first applicant complains about the length of civil proceedings that she instituted against the Croatia Insurance Company. The first and the second applicants together complain about the length of civil proceedings instituted for the annulment of the sale contracts in respect of their flat in Zadar. 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 ... hearing within a reasonable time by [a] ... tribunal...”

The Court has first examined whether the applicants have complied with the rule of exhaustion of domestic remedies as required under Article 35 § 1 of the Convention. Recalling its decisions in the Slaviček and Nogolica cases where it found that there exists an effective remedy in respect of the length of proceedings in Croatia, the Court sees no reason to depart in the present case from its view expressed in the above-mentioned cases (see Slaviček v. Croatia (dec.), no. 20862/02, 4 July 2002, ECHR - 2002... and Nogolica v. Croatia (dec.), no. 77784/01, 5 September 2002, ECHR - 2002...).

It follows that this complaint must be rejected under Article 3 5 §§ 1 et 4 of the Convention for non-exhaustion of domestic remedies.

2. The first applicant further complains that her right to property was violated because her apartment building was destroyed and that the act of destruction of her property represented a discrimination because the property destroyed by terrorist acts mostly belonged to persons of Serbian origin or former Yugoslav People’s Army officers or Croats who disagreed with such practices. She invokes Article 1 of Protocol No. 1 and Article 14 of the Convention 1 which read as follows:

Article 1 of Protocol No. 1

“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.”

Article 14

“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

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

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.

3. The first applicant further complains that she has no effective remedy in respect of her complaint for damages caused by terrorist act 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.”

The Court considers that it cannot, on the basis of the case file, determine the admissibility of these complaints 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.

For these reasons, the Court unanimously

Decides to adjourn the examination of the first applicant’s complaints that she has been deprived of her right of access to court and/or her right to an effective remedy;

Declares inadmissible the remainder of the application.

Søren N IELSEN Christos R OZAKIS              Deputy Registrar President