FIRST SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 70446/01 by Jovan and Milka JORGIĆ against Croatia

The European Court of Human Rights (First Section), sitting on 16 May 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 23 March 2001,

Having deliberated, decides as follows:

THE FACTS

The applicants, Mr Jovan Jorgić and Ms Milka Jorgić , are Croatian citizens, who were born in 1937 and 1939, respectively, and live in Krušedol , Serbia.

A. The circumstances of the case

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

The applicants had a specially protected tenancy on a flat in Petrinja , Croatia, where they lived. They allege that their lives and security were endangered and that the first applicant was several times stopped and searched by the police. For these reasons, they left Croatia sometime in 1992.

They left behind the flat and their possessions in the flat as well as a summer house they owned in the village of Lončarica . The applicants allege that in August 1995 several persons dressed in the Croatian Army uniforms loaded their possessions from the flat in a truck and drove it in an unknown direction.

Proceedings concerning the applicants’ specially protected tenancy

On an unspecified date the Croatian authorities instituted proceedings with the Virovitica Municipal Court ( Općinski sud u Virovitici ) seeking termination of the applicants’ specially protected tenancy on the flat in Petrinja . Since the applicants’ address was unknown the court appointed a legal representative for them ( staratelj za poseban slučaj ). The claim was granted on 12 June 1995.

On 17 October 1997 the applicants filed an application for the re-opening of the proceedings ( prijedlog za ponavljanje postupka ) with the Virovitica Municipal Court.

On 1 September 2000 the court dismissed the applicants’ application.

The applicants’ appeal was rejected by the Bjelovar County Court ( Županijski sud u Bjelovaru ) on 7 December 2000.

On 7 March 2001 the applicants filed an application with the Public Prosecutor’s Office seeking that request for the protection of legality ( zahtjev za zaštitu zakonitosti ) be lodged. This is an extraordinary remedy to be dealt with by the Supreme Court ( Vrhovni sud Republike Hrvatske ), in civil or criminal proceedings, that may be filed only by the Public Prosecutor. The application was dismissed by the Public Prosecutor on 29 March 2001.

Proceedings concerning the applicants’ civil actions for damages

On 17 October 1997 the applicants filed an action with the Virovitica Municipal Court seeking damages from the Republic of Croatia for their possessions taken away from the flat in Petrinja .

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 pending the enactment of new legislation on the subject. So far the Croatian authorities have not enacted any new legislation regulating that matter.

On 1 September 2000 the proceedings were stayed.

The subsequent applicants’ appeal was rejected by the Bjelovar County Court.

On 17 October 1997 the applicants filed another action seeking damages from the Republic of Croatia for their destroyed summer house in Lončarica , with the Grubišno Polje Municipal Court ( Općinski sud u Grubišnom Polju ).

On 31 May 2000 the proceedings were stayed pursuant to the 1999 legislation.

The first applicant then filed a constitutional complaint in respect of both sets of the proceedings. On 19 September 2001 the complaint was declared inadmissible because it was not filed against final decisions.

B. Relevant domestic law

The Act on Changes of the Civil Obligations Act ( Zakon o dopunama Zakonu o obveznim odnosima , Official Gazette no. 112/1999) introduced new provision providing that all proceedings relating to damages caused by the members of the Croatian army and police, when acting in their official capacity during the war in Croatia, were 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 applicants firstly complain under Articles 2 and 3 of the Convention that their lives and security were endangered while they lived in Croatia and that the first applicant was several times stopped and searched by the police.

2. In respect of the proceedings concerning the termination of their specially protected tenancy the applicants complain under Article 1 of Protocol No. 1 that their right to property was violated.

3. In respect of the proceedings concerning their actions for damages the applicants complain in substance that they are deprived of the right of access to a court in respect of their actions for damages.

THE LAW

1. The applicants firstly complain that before they left Croatia in 1992, their lives and security had been endangered and that the first applicant had been several times stopped and searched by the police. They rely on Articles 2 and 3 of the Convention.

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

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.

2. In respect of the proceedings concerning the applicants’ specially protected tenancy the applicants complain that their right to property was violated. They rely on Article 1 of Protocol No. 1.

The Court notes that the final decision terminating the first applicant’s specially protected tenancy was given by the Virovitica Municipal Court on 12 June 1995.

In this respect, the Court further notes that the application to re-open the proceedings is not a remedy within the meaning of Article 35 § 1 of the Convention which would bring the above proceedings within the Court’s competence ratione temporis (see Rudan v. Croatia , (dec.), no. 45943/99, 13 September 2001, unreported).

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. In respect of the proceedings whereby the applicants sought damages from the Republic of Croatia for their possessions and their destroyed property, pending before the Virovitica and the Grubišno Polje Municipal Courts, respectively, the applicants complain, without invoking any specific provision of the Convention, that they were prevented from having access to the courts in so far as the domestic courts stayed the proceedings concerning their actions for damages. The Court will examine the applicants’ complaint under Article 6 § 1 of the Convention, which, in so far as relevant reads as follows:

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

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 § 3 (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 applicants’ complaint that Parliament’s enactment of the 1999 legislation interfered with their right of access to court within the meaning of Article 6 § 1 of the Convention;

Declares inadmissible the remainder of the application.

Søren Nielsen Christos R OZAKIS              Deputy Registrar President