FIRST SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 58112/00 by MULTIPLEX against Croatia

The European Court of Human Rights ( First Section) , sitting on 26 September 2002 as a Chamber composed of

Mr C.L. Rozakis , President , Mrs F. Tulkens , Mr G. Bonello , Mr P. Lorenzen , Mrs N. Vajić , Mrs S. Botoucharova , Mrs E. Steiner, judges , and Mr E. Fribergh , Section Registrar ,

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

Having regard to the partial decision of 18 October 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, Multiplex, is a company registered in Banja Luka , Republic of Bosnia and Herzegovina. It is represented before the Court by Mr Zoran Butorac , a lawyer practising in Banja Luka . The respondent Government are represented by their Agent Ms Lidija Lukina Krajaković .

A. The circumstances of the case

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

The applicant company is owned by Mr Smail Smailagić who lived in Banja Luka , which is situated on the territory of the present day Republika Srpska , a part of Bosnia and Herzegovina, until 15 May 1992 when he fled to Croatia and went to live in Porat-Červar .

On 13 August 1992 the Croatian Military Police confiscated a vehicle belonging to the applicant company.

According to the Government the vehicle was confiscated at the request of the Military authorities from Bosnia and Herzegovina which asked the Croatian Ministry of Defence to confer to them the company applicant’s vehicle because it was mobilised for military purposes. The vehicle was conferred to the Bosnian authorities on 19 August 1993 and ever since has been in their possession.

According to the applicant the vehicle was confiscated by the Croatian authorities and conferred to the para -military Croatian Army in the so-called Herzeg-Bosna , an illegal entity of Bosnia created by the Croatian minority. The applicant company repeatedly requested the Croatian Defence Council ( Hrvatsko vijeće obrane ) to return the vehicle, but to no avail.

On 11 October 1993 the applicant company filed a civil claim for damages in the amount of 15,600 German Marks (DEM) against the Republic of Croatia, with the Zagreb County Commercial Court ( Okružni privredni sud u Zagrebu ). It appears that the case was subsequently transferred to the Zagreb Municipal Court ( Općinski sud u Zagrebu ).

On 15 May 1995 the Republic of Croatia filed its reply denying the plaintiff’s claim. It requested the court to stay the proceedings until the end of war in Croatia. It stated further that the vehicle had been confiscated only temporarily for needs of the army and would be returned to the applicant company after the war.

At the hearing on 14 September 1995 the applicant company specified the claim for damages seeking 58,000 Croatian Kunas (HRK).

On 12 March 1998 the applicant company requested the Ministry of Justice to speed up the proceedings.

On 13 July 1998 the court decided that an expertise be carry out in order to establish the value of the vehicle in question. The applicant company was invited to pay an advance for the costs of the expertise.

On 31 August 1998 the case-file was assigned to an expert who submitted his opinion on 5 October 1998.

It appears that the defendant asked the court to stay the proceedings claiming that it was uncertain whether the applicant company still existed because the excerpt from the Banja Luka Court registry on the applicant company’s legal status was quite old.

On 4 May 1999 the court invited the company’s representative to submit a new excerpt from the relevant registry.

The applicant company’s legal representative informed the court that he no longer represented the applicant.

On 5 July 1999 the applicant company requested the court to schedule a hearing.

On 19 July 1999 the applicant company’s representative submitted an uncertified excerpt from the Banja Luka Court’s registry dating from 1990.

On 25 August 1999 the court invited the applicant to submit a new excerpt, not older than six months, showing that Mr Smailagić was entitled to represent the applicant company.

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

On 10 December 1999 the court stayed the proceedings pursuant to the above change in law.

On 29 December 1999 the applicant company appealed against the above decision claiming that the Zagreb Municipal Court erred in its application of the law as the vehicle in question was not taken by any member of the Croatian army or police acting in an official capacity but exclusively for the purposes of the Croatian Defence Council, a military formation of Bosnia and Herzegovina, operating in that country.

It appears that on 15 November 2000 a party in some other proceedings concerning the same matter filed a constitutional claim challenging the above legislation. However, the Constitutional Court has not yet adopted any decision.

On 8 May 2001 the Zagreb County Court ( Županijski sud u Zagrebu ) upheld the Zagreb Municipal Court decision of 10 December 1999.

On 16 June 2001 the applicant company filed a request for revision with the Zagreb Municipal Court, repeating its arguments from the earlier appeal. On 28 June 2001 the Zagreb Municipal Court rejected the above request as inadmissible. It found that the Civil Procedure Act ( Zakon o parničnom postupku ) allows a party to file a request for revision only against a final decision of an appellate court while the decision of the Zagreb County Court did not represent a final decision in that case.

On 21 July 2001 the applicant company appealed against the Municipal Court’s decision.

On 2 October the Zagreb County Court dismissed the 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 imposed 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 present Act.

COMPLAINTS

1. The applicant company complains under Article 6 § 1 of the Convention about the length of the civil proceedings concerning its request for damages for the vehicle owned by the company and also maintains that Parliament’s enactment of the 1999 legislation interferes with its right of access to court.

2. The applicant company complains also under Article 1 of Protocol No. 1, that its right to property is violated in so far as the vehicle belonging to it has been confiscated without any compensation.

THE LAW

1. The applicant complains that the proceedings concerning its claim for damages have not been concluded within reasonable time and that the legislation from 1999 prevented it from having the case decided on the merits and thus deprived it of its right of access to court. It relies on Article 6 § 1 of the Convention, the relevant parts 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.”

As to the issue of the length of proceedings the Government claim that until 1999 when the proceedings were stayed the applicant significantly contributed to the length of proceedings because he had paid the court fees only a year and a half after he had submitted his claim. Furthermore, the applicant company’s director did not submit relevant documentation about the company’s legal status. To the contrary, the domestic authorities had shown due diligence in conducting the case since hearings were held at regular intervals.

As to the issue of access to court, the Government submit that the applicant company does enjoy access to court because it instituted civil proceedings for damages before the Zagreb Municipal Court. The fact that the court stayed proceedings pursuant to the 1999 legislation does not affect the applicant company’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.

As to the instant case, the Government argue further that the question of war-related damage involves very complex legal issues including the State’s liability for war damage. The existing laws in Croatia were not adequate to resolve that issue and therefore the 1999 legislation obliged the courts to stay all proceedings concerning the war-related damage until new regulation on that matter. The very character of that measure was not to prevent the persons in the applicant company’s position from their right of access to court, but only temporarily postpone the final resolution of such disputes.

The applicant company disagrees with the Government and stresses that the domestic authorities were entirely inactive in the proceedings. As to its right of access to court it claims that it was just formal because there is no possibility for the applicant company to have its civil claim decided on the merits.

The Court considers, in the light of the parties’ submissions, that the 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 its vehicle has been confiscated by the Croatian authorities without any compensation, contrary to Article 1 of Protocol No. 1, which reads 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.”

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 confiscation of property is, according to the well-established case-law, an instantaneous act which does not entail any continuous situation.

The Government also object to the Court’s competence ratione personae arguing that the applicant company’s vehicle was confiscated by the Croatian Army members only at the request of the military authorities from Bosnia and Herzegovina. The vehicle was immediately conferred to the authorities of Bosnia and Herzegovina and used exclusively by the armed formations there. Thus, the Croatian authorities cannot be held responsible for the confiscation of the applicant company’s vehicle.

The applicant company argues that the vehicle was not conferred to the regular army of Bosnia and Herzegovina but to para -military formations in Herzeg -Bosnia and that the Croatian authorities are entirely responsible for the confiscation of the vehicle.

The Government further submit that the applicant failed to exhaust domestic remedies because he has not submitted a constitutional claim challenging the constitutionality of the 1999 legislation.

The applicant company submits that the assessment of the constitutionality of the challenged legislation is irrelevant for the proceedings concerning its civil claim.

In the alternative the Government invite the Court to conclude that this part of the application is manifestly ill-founded. They argue that the applicant’s vehicle was mobilised for the needs of the military authorities in Bosnia and Herzegovina. However, even if the vehicle were mobilised for the needs of the Croatian army, such an interference would be prescribed by law and justified by the needs of public interest in wartime.

The applicant company disagrees with the Government.

The Court does not find it necessary to examine all the objections 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 vehicle was confiscated in 1993, before Croatia ratified the Convention. The Court agrees with the Government that this was an instantaneous act of deprivation of property 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 (see Kadikis v. Latvia , cited above, and the Stamulakatos v. Greece judgment of 30 September 1993, Series A no. 271, p. 14, § 33).

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.

For these reasons, the Court unanimously

Declares admissible, without prejudging the merits, the applicant’s complaints concerning the length of the proceedings and its right of access to court;

Declares inadmissible the remainder of the application.

Erik Fribergh Christos R OZAKIS Registrar President