FIRST SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 60533/00 by Tomaž KASTELIC against Croatia

The European Court of Human Rights (First Section), sitting on 7 November 2002 as a Chamber composed of

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

Having regard to the above application lodged on 16 March 2000,

Having regard to the partial decision of 22 November 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 Tomaž Kastelic , is a Slovenian national, who was born in 1950 and lives in Ljubljana , Slovenia. He is represented before the Court by Mr Brane Gorše , a lawyer practising in Ljubljana . The respondent Government are represented by 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 24 April 1992 the applicant’s restaurant and adjacent house in Novigrad (Croatia) were destroyed as the result of an explosion.

On 29 November 1994 the applicant filed an action for compensation with the Buje Municipal Court ( Općinski sud u Bujama ), against the Republic of Croatia.

On 1 June 1995 the court pronounced judgment awarding the applicant 1,911,000.24 Croatian Kunas (HRK) in compensation together with interests and costs. No appeal against the judgment was lodged within the time-limit prescribed by law.

On 17 January 1996 the Croatian parliament introduced a change of the Civil Obligations Act which provided that all proceedings concerning actions for compensation for damage 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 compensation for damage resulting from terrorist acts may not be sought. So far the Croatian authorities have not enacted any new legislation regulating the matter.

On 11 March 1996 the Republic of Croatia appealed against the judgment of 1 June 1995 asking the court to stay the proceedings pursuant to the above changes in law.

On 14 October 1996 the Pula County Court ( Županijski sud u Puli ) quashed the first instance judgment and remitted the case for re-trial. It found that the first instance court had not adequately assessed whether the applicant’s property was destroyed by an act which might be deemed as a terrorist act.

On 9 February 1998 the Buje Municipal Court decided to stay the proceedings in accordance with the above legislation.

On 3 March 1998 the applicant appealed against that decision. He claimed that the 1996 Act was applied retroactively in his case.

On 4 May 1998 the Pula County Court upheld the first instance decision.

On 20 June 1998 the applicant filed a constitutional complaint challenging the constitutionality of the lower courts decisions to stay the proceedings. He invoked Sections 3, 14 and 90 of the Constitution. He also asked the Constitutional Court to institute proceedings in order to examine the constitutionality of the Act on Changes of the Civil Obligations Act.

On 17 January 2000 the Constitutional Court declared the applicant’s complaint inadmissible. It found that the applicant filed a constitutional complaint against the County Court’s decision of 4 May 1998 which upheld the Buje Municipal Court’s decision to stay the proceedings concerning the applicant’s claim for compensation. However, according to the Constitutional Act on the Constitutional Court an applicant may file a constitutional complaint only against a final decision concerning any proceedings. The court found that the contested decision was not final since it represented a mere procedural decision and since the proceedings were still pending. It did not give any reply to the applicant’s request to institute proceedings in order to examine the constitutionality of the contested laws.

B. Relevant domestic law

The relevant provisions of the 1991 Constitutional Act on the Constitutional Court read as follows:

Section 15

“Every person has a right to institute proceedings challenging the constitutionality of the laws...”

Section 23 § 2

“Each person whose rights have been violated by a decision based on the legislation declared unconstitutional or unlawful may ask the body that took the decision to vary it...”

Section 28 § 1

“Every person, who considers that any of his constitutional right has been violated by a decision of judicial or administrative body or any other body invested with public authority, may lodge a constitutional complaint with the Constitutional Court.”

Section 30

“By a decision adopting a constitutional complaint the Constitutional Court quashes the contested decision and remits a case for re-trial.”

The relevant parts of the Civil Procedure Act read as follows:

Right to Appeal

Section 358 (1)

“A party may file an appeal against a first instance judgment within fifteen days from the day the copy of the judgment is served, unless this Act prescribes some other term...”

The relevant part of Section 180 of the Civil Obligations Act reads as follows:

“(1) Responsibility for damage caused by death, bodily injury or by abstraction or destruction of another person’s property, when it results from violent acts or terror or from public demonstrations or manifestations, lies with the authority whose officials were, according to the laws in effect, under a duty to prevent such damage.”

The relevant parts of the Act on Changes of the Civil Obligations Act read as follows:

Section 1

“Section 180 of the Civil Obligations Act (the Official Gazette No. 53/91, 73/91 and 3/94) is to be repealed.”

Section 2

“Proceedings where a party seeks compensation for damage pursuant to Section 180 of the Civil Obligations Act are to be stayed.

Proceedings from § 1 of this section will be continued after enactment of a special legislation that will regulate responsibility for damages resulting from terrorist acts.”

The relevant part of Section 212 of the Civil Procedure Act provides as follows:

“Proceedings are to be stayed:

...

6) when it is prescribed for by another Statute.”

COMPLAINTS

1. The applicant makes several complaints under Article 6 § 1 of the Convention. Firstly, he argues that he was deprived of his right to a fair trial in the civil proceedings concerning his request for compensation for his destoyed property in so far as the Pula County Court quashed the first instance judgment awarding him compensation, although the appeal filed by the Republic of Croatia was lodged outside the prescribed time-limit. Furthermore, the Buje Municipal Court applied retroactively the Act on Changes of the Civil Procedure Act.

Secondly, the applicant complains about the length of the proceedings concerning his request for compensation for the destroyed property.

Thirdly, he 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 and his right to an effective remedy within the meaning of Article 13 of the Convention.

2. The applicant complains under Article 1 of Protocol No. 1 taken alone and in conjunction with Article 13 of the Convention, that his right to property is violated in so far as he could not obtain any compensation for his destroyed property and that he has no effective remedy in this respect.

THE LAW

1. The applicant complains that he was deprived of fair trial in the proceedings before the domestic courts because the Act on Changes of the Civil Procedure Act was applied retroactively to his case due to the fact that the Republic of Croatia as a defendant in the proceedings filed their appeal against the first instance judgment awarding the applicant’s claim for compensation of damages for his destroyed property outside the prescribed time limit.

He also complains about the length of these proceedings and that he has been deprived of his right of access to court because the 1996 legislation prevented the courts to decide his claim on the merits.

The applicant 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 ... hearing within a reasonable time by [a] ... tribunal ...

a) The Government argue that the applicant failed to exhaust domestic remedies because he has not submitted a constitutional claim challenging the 1996 legislation. They admit 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. However, the Constitutional Court is still examining these claims and therefore, the same issues are still pending before the domestic courts.

The applicant replies that he has exhausted all available remedies. He argues that in the proceedings concerning a constitutional claim challenging the constitutionality of the 1996 law he would not be able to have his compensation claim decided.

The Court finds that the question of whether the requirement of the exhaustion of domestic remedies has been satisfied in the present case raises issues which are so closely related to the possible violation of the applicant’s right of access to court as well as to the issue of the existence of an effective remedy under Article 13 of the Convention that these issues should be examined together. Accordingly, the Court considers that the final determination of the issue concerning the exhaustion of domestic remedies should be joined to the merits and reserved for later consideration.

b) As to the question of fairness of the proceedings at issue, the Government submit that the proceedings before the first instance court were concluded on 1 June 1995. However, the judgment was sent to the parties by mail on 29 February 1996. The judgment was served on the defendant on 1 March 1996 and on the applicant’s representative on 6 March 1996. The Republic of Croatia filed an appeal against the judgment on 11 March 1996, which was not outside the prescribed time limit.

Furthermore, the Act on changes of the Civil Obligations Act was not retroactively applied in the applicant’ s case because the appeal of the Republic of Croatia was filed within the prescribed time limit and therefore, the first instance judgment had not become final.

The applicant disagrees with the Government.

As to the length of the proceedings, the Government argue that the case involves complex legal and factual issues.

As to the behaviour of the domestic authorities the Government submit that they conducted the proceedings with due diligence.

The applicant insists that the domestic authorities have not shown due diligence in the conduct of the proceedings at issue. He points out that it took nine months before the first instance court drafted the judgment, while the time limit prescribed by law is thirty days.

As to the issue of access to court, the Government maintain that the applicant had access to a court in respect of his claims for compensation of damage since he was able to institute civil proceedings. In the course of these proceedings the first instance judgment was adopted and the defendant’s appeal was examined by an appellate court. It is true that after the enactment of the changes in the Civil Obligation Act the Buje Municipal Court stayed the proceedings. However, that decision is only temporary until the enactment of new legislation regulating the responsibility for damages caused by terrorist acts.

In their further arguments the Government rely on the Court’s case-law and state that the right to court is not absolute, but may be a subject to limitations. In the present case, the very character of the limitation was not to prevent the persons in the applicant’s position from their right of access to court, but only temporarily postpone the final resolution of such disputes. The measure applied had not impaired the applicant’s right of access because the first instance judgment was not quashed by the appellate court due to the new legislation, but because the appellate court found that the first instance court had wrongly assessed the facts.

The applicant argues that the fact that the domestic authorities prevented his claim to be decided on the basis of former Section 180 of the Civil Obligations Act interferes with his right of access to court.

The Court considers, in the light of the parties’ submissions, that these complaints raise 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 part of the application 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.

2. The applicant further complains that his inability to obtain compensation from the Republic of Croatia for his destroyed property violates his right to property and that he has no effective remedy for the protection of his property rights. He relies on Article 1 of Protocol No. 1. taken alone and in conjunction with Article 13 of the Convention, which read as follows:

“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.”

“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 Government firstly object that this part of the application is incompatible ratione temporis with the Court’s competence. They submit that the Convention entered into force in respect of Croatia on 5 November 1997, while the events that the applicant complains of took place in 1993. They contend that the destruction of property is, according to the well-established case-law, an instantaneous act which does not entail any continuous situation.

The applicant disagrees with the Government.

In the alternative the Government invite the Court to conclude that this part of the application is manifestly ill-founded. They admit that the applicant was owner of the property destroyed by unknown perpetrators. However, the possessions that the applicant is claiming to be deprived of is his claim for compensation before the domestic courts. The Government argue that such claims may be regarded as possession for the purposes of Article 1 of Protocol No. 1 only if they have the force of final decisions and are deemed to be enforceable.

The Government submit that the appellate court quashed the first instance judgment because it was not convinced by the Buje Municipal Court’s finding that the applicant’s house was destroyed by a terrorist act. Thus, it is uncertain whether the applicant at all may claim any damages from the Republic of Croatia.

Even if the Court concludes that the applicant’s right does represent possession in the meaning of Article 1 of Protocol No. 1, the Government stress that the factor of uncertainty of the applicant’s claim before the domestic courts distinguishes the present case from the case of Immobiliare Saffi (see the Immobiliare Saffi v. Italy judgment of 28 July 1999, Reports of Judgments and Decisions 1999-V ) , which corroborates the Government’s view that the present case is inadmissible

As to the question of the proportionality of the measure implemented, the Government emphasise that it shall be assessed in the specific situation of the state of war in Croatia. In that context the crucial issue is what shall be deemed as terrorist acts which entail State responsibility. The existing laws in Croatia and the legal theory did not resolve that issue and therefore the 1996 legislation obliged the courts to stay all proceedings concerning the war-related damage until new regulation of that matter.

Furthermore, the measure in question do not put a disproportionate individual burden on the applicant because in the period from 1991 until 1995 many homes in Croatia were destroyed as a consequence of war. The applicant’s position in this respect does not differ form other persons who suffered similar losses.

As to the availability of an effective remedy, the Government maintain that the applicant was able to lodge a constitutional claim challenging the constitutionality of the Act on Changes of the Civil Obligations Act and that that is an effective remedy for the protection of the applicant’s rights in this case.

The applicant argues that his claim cannot be regarded as uncertain. He maintains that there have been no justification for not accepting his claim.

He further claims that the war in Croatia has never been officially proclaimed and that the only reason for the violation of his rights is unwillingness of the Croatian authorities to adequately compensate persons in his position.

The applicant also submits that he did challenge the constitutionality of the 1996 legislation but that the Constitutional Court has not decided his claim. However, in his opinion, these proceedings are irrelevant for the present application because he can not have his compensation claim decided in the proceedings before the Constitutional Court.

The Court does not find it necessary to examine all the issues raised by the Government because the application is in any event inadmissible for the following reasons.

The Court firstly has to ascertain whether, and to what extent, it is competent ratione temporis to deal with the application. It reiterates that in accordance with the generally recognised rules of international law, the Convention only governs, for each Contracting Party, facts subsequent to its entry into force with regard to that Party (see, for example, X. v. Portugal, application no. 9453/81, Commission decision of 13 December 1982, Decisions and Reports (DR) 31 pp. 204, 208 and Kadikis v. Latvia (dec.), no. 47634/99, 29 June 2000).

The Court recalls that Croatia recognised the competence of the Court to receive applications “from any person, non-governmental organisation or group of individuals claiming to be a victim of a violation by Croatia of the rights recognised in the Convention through any act, decision or event occurring after 5 November 1997.” Accordingly, the Court is not competent to examine the present application in so far as it refers to facts occurring before the date of the ratification of the Convention.

The Court notes that the applicant’s property was destroyed in 1992, before Croatia ratified the Convention. The Court agrees with the Government that this was an instantaneous act which did not create any continuous situation.

The Court notes further that although the legislative interference took place after the Convention entered into force in respect of Croatia it was so closely related to the events that gave rise to the applicant’s claim that divorcing the two would amount to giving retroactive effect to the Convention which would be contrary to general principles of international law. At the same time it would render Croatia’s declaration recognising the Court’s competence to receive individual applications nugatory (the Stamulakatos v. Greece judgment of 30 September 1993, Series A no. 271, p. 14, § 33 and Multiplex v. Croatia , (dec.), no. 58112/00, 26 September 2002, unreported).

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

Declares admissible, without prejudging the merits, the applicant’s complaints concerning his right of access to court;

Declares the remainder of the application inadmissible.

Søren Nielsen Christos R OZAKIS              Deputy Registrar President