FIRST SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 12867/02 by Josip GABUD against Croatia

The European Court of Human Rights (First Section) , sitting on 28 November 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 6 March 2002,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Josip Gabud, is a Croatian citizen, who was born in 1966 and lives in Donja Stubica, Croatia. He is represented before the Court by Mr Bruno Spiz, 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 19 June 1996 the applicant filed a civil claim in the Zagreb Municipal Court ( Općinski sud u Zagrebu ) seeking non-pecuniary damages that he suffered in a traffic accident. The accident was allegedly caused by a member of the Croatian Army who was driving a military truck The proceedings were instituted against the Republic of Croatia on the basis of statutory liability for damages caused by members of the State’s Army and, at the same time, against the Croatia Insurance, an insurance company from Zagreb , on the basis of an insurance contract.

On 19 January 1998 the court gave a judgment awarding the applicant’s claim.

On 16 and 19 February 1998 the Croatia Insurance and the Republic of Croatia, respectively, appealed against the judgment.

The case was forwarded to the Zagreb County Court ( Županijski sud u Zagrebu ) as the appellate court.

On 6 November 1999 Parliament introduced a change of the Civil Obligations Act which provided that all proceedings against the Republic of Croatia concerning actions for damages resulting from acts of members of the Croatian army or police when acting in their official capacity during the Homeland War in Croatia were to be stayed.

Pursuant to the above Act, on 6 November 2000 the Zagreb County Court stayed the part of the proceedings concerning the applicant’s claim against of the Republic of Croatia.

The part of the proceedings concerning the applicant’s claim for damages from the Croatia Insurance has not been affected by the above legislative intervention and these proceedings are pending before the appellate court upon the defendant’s appeal.

B. Relevant domestic law

Section 184 (a) of the Act on Changes of 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 damages caused by the members of the Croatian army or 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 Act also imposes an obligation on the Government to submit to Parliament special legislation, regulating the responsibility for such damages, at the latest within six months from the entry into force of the Act.

COMPLAINTS

1. The applicant complains under Article 6 § 1 of the Convention about lack of access to court in respect of the proceedings against the Republic of Croatia and about the length of the part of proceedings concerning his civil claim against the Croatia Insurance.

2. He also complains that he has no effective remedy in respect of the length of proceedings, contrary to Article 13 of the Convention.

THE LAW

1. The applicant makes two separate complaints under Article 6 § 1 of the Convention. Firstly he complains that he has been deprived of his right of access to court in the part of the proceedings concerning his claim against the Republic of Croatia due to the enactment of 1999 legislation which prevented him from having his civil claim for damages decided.

Secondly, he complains about the length of the part of the proceedings concerning his civil claim against the Croatia Insurance which are presently pending before the appellate court.

The relevant parts of Article 6 § 1 read as follows:

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

a. As to the applicant’s complaint about the lack of his right of access to court in respect of the part of proceedings concerning his claim against the Republic of Croatia, 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.

b. As to the applicant’s complaint about the length of proceedings concerning his civil claim against the Croatia Insurance, the Court notes that this part of the proceedings has not been affected by the 1999 legislative intervention and that these proceedings are presently pending before the appellate court awaiting a decision upon the defendant’s appeal against the first instance judgment of 19 January 1998.

The Court has examined whether the applicant has 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 was 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 applicant further complains that in respect of his complaint about the length of the proceedings he has no effective remedy as required under Article 13 of the Convention, which reads as follows:

“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.”

As explained above, the Court finds that the newly introduced Section 63 of the 2002 Constitutional Act on the Constitutional Court does provide the applicant with an effective remedy in respect of the length of the proceedings.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant’s complaint concerning his right of access to court;

Declares the remainder of the application inadmissible.

Søren N IELSEN Christos R OZAKIS              Deputy Registrar President