FIRST SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 12873/02 by Pavo TOMAŠEVIĆ 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 , Mr G. Bonello , Mr P. Lorenzen , Mrs N. Vajić , Mrs S. Botoucharova , Mr V. Zagrebelsky , Mrs E. Steiner , judges , and Mr S. Nielsen , Deputy Section Registrar ,

Having regard to the above application lodged on 11 March 2002,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Pavo Tomašević, is a Croatian citizen, who was born in 1927 and lives in Zagreb. He is 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 applicant , may be summarised as follows.

On 20 April 1992 the applicant’s summer house in Orahovica , Croatia was mined by unknown perpetrators.

On 16 August 1994 the applicant filed an action with the Orahovica Municipal Court ( Općinski sud u Orahovici ) seeking compensation for his destroyed property form the Republic of Croatia and claiming that destruction of his property represented a terrorist act.

On 16 November 1995 the first instance court rejected the applicant’s claim finding that the destruction of the applicant’s property had not been a terrorist act but a regular criminal offence committed by an unknown person.

The applicant appealed against the judgment.

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 18 July 1996 the Bjelovar County Court ( Županijski sud u Bjelovaru ) stayed the proceedings pursuant to the above legislation.

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.”

COMPLAINTS

1. The applicant maintains that Parliament’s enactment of the 1996 legislation interferes with his right of access to court and/or his right to an effective remedy within the meaning of Article 6 § 1 and Article 13 of the Convention.

2. He further complains under Article 1 of Protocol No. 1 that his inability to obtain compensation for his destroyed property violates his property rights.

THE LAW

1. The applicant complains that he is deprived of his right of access to court and/or his right to an effective remedy because the changes of the Civil Obligations Act from 1996 prevented him from having his claim for compensation decided by the domestic courts. He relies on Article 6 § 1 and Article 13 of the Convention, the relevant part of which reads as follows:

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”

“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 complaint 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 applicant also complains that he has been deprived of his property rights contrary to Article 1 of Protocol No 1.

The Court notes that the events complained of took place prior to 5 November 1997 when the Convention entered into force in respect of Croatia.

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 applicant’s complaints that he has been deprived of his right of access to court and/or his right to an effective remedy;

Declares the remainder of the application inadmissible.

Søren N IELSEN Christos R OZAKIS              Deputy Registrar President