FIRST SECTION

CASE OF DRA ŽIĆ v. CROATIA

( Application no. 11044/03 )

JUDGMENT

STRASBOURG

6 October 2005

FINAL

06/01/2006

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Dra žić v. Croatia ,

The European Court of Human Rights ( First Section ), sitting as a Chamber composed of:

Mr C.L. Rozakis , President , Mr P. Lorenzen , Mrs N. Vajić , Mrs S. Botoucharova , Mr A. Kovler , Mrs E. Steiner , Mr K. Hajiyev, judges , and Mr S. Quesada , Deputy Section Registrar ,

Having deliberated in private on 15 September 2005 ,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1 . The case originated in an application (no. 11044/03) against the Republic of Croatia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by three Croatian nationals, Ms Draga Dra žić, Mr Dalibor Dražić and Mr Dejan Dražić (“the applicants”), on 2 January 2003 .

2 . The applicants were represented by Mr M. Markiš , a lawyer practising in Rijeka . The Croatian Government (“the Government”) were represented by their Agent s, Ms L. Lukina-Karajković and subsequently Ms Š. Stažnik .

3 . On 7 July 2004 the Court decided to communicate the application to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

4 . The applicants were born in 1958, 1978 and 1980, respectively , and live in Rijeka .

5 . On 7 August 1995 the first applicant ’ s husband - the second and third applicant ’ s father - was killed by an unidentified member of the Croatian Army, during a military operation.

6 . On 4 June 1998 the applicants instituted civil proceedings in the Rijeka Municipal Court ( Op ć inski sud u Rijeci ) seeking damages from the State . They b ased their claim on s ection 180 of the Civil Obligations Act .

7 . On 6 November 1999 Parliament introduced amendment s to the Civil Obligations Act (“the 1999 Amendments”). The amended legislation provided that all proceedings for damages against the State for the acts of members of the Croatian Army and the police in the perform ance of their official duties during the Homeland War in Croatia were to be stayed.

8 . On 14 November 200 1 the Rijeka Municipal Court stayed the proceedings pursuant to the above legislation. The applicants ’ appeal against th at decision was dismissed by the Rijeka County Court ( Županijski sud u Rijeci ) on 25 September 2002 .

9 . O n 14 July 2003 Parliament passed new legislation on the liability of the State for damage caused by members of the Croatian Army and police in the perform ance of their official duties during the Homeland War ( “the 2003 Liability Act”).

10 . On 13 October 2004 the applicants ’ proceedings resumed .

II. RELEVANT DOMESTIC LAW AND PRACTICE

11 . Section 184 (a) of the 1999 Amendments ( Zakon o dopunama Zakona o obveznim odnosima , Official Gazette no. 112/1999 ) provides that all proceedings instituted against the State for damage caused by members of the Croatian Army and police in the perform ance of their official duties during the Homeland War in Croatia from 7 August 1990 to 30 June 1996 are to be stayed.

12 . The 1999 Amendments also imposed an obligation on the Government to submit special legislation to Parliament regulating liability for such damage within six months of the Act entering into force.

13 . The 2003 Liability Act ( Zakon o odgovornosti Republike Hrvatske za štetu uzrokovanu od pripadnika hrvatskih oružanih i redarstvenih snaga tijekom Domovinskog rata , Official Gazette no. 117/ 20 03 ) regulates the conditions under which the State is liable to pay compensat ion for damage caused by members of the army and the police during the Homeland War. It also provides that all proceedings stayed pursuant to the 1999 Amendments are to be resumed.

14 . The relevant part of section 63 of the Constitutional Act on the Constitutional Court ( Ustavni zakon o Ustavnom sudu Republike Hrvatske , Officia l Gazette no. 49/2002, “ the Constitutional Court Act ” ) reads as follows:

“(1) The Constitutional Court shall examine a constitutional complaint whether or not all legal remedies have been exhausted if the court with jurisdiction fails to decide a claim concerning the applicant ’ s rights and obligations or a criminal charge against him or her within a reasonable time ...

(2) If a constitutional complaint ... under paragraph 1 of this section is upheld , the Constitutional Court shall set a time-limit within which the court with jurisdiction must decide the case on the merits...

(3) In a decision issued under paragraph 2 of this section , the Constitutional Court shall assess appropriate compensation for the applicant for the violation of his or her constitutional rights ... The compensation shall be paid out of the State budget within three months from the date a request for payment is lodged .”

15 . Article 29 § 1 of the Constitution ( Ustav Republike Hrvatske , Official Gazette no. 41/ 20 01) reads as follows:

“1. In the determination of his rights and obligations or of any criminal charge against him, everyone is entitled to a fair hearing within a reasonable time by an independent and impartial court established by law.”

16 . On 24 March 2004 the Constitutional Court gave decision no. U-III-829/2004 in the case of Mr N., who had filed a constitutional complaint under section 63 of the Constitutional Court Act alleging a breach of Article 29 § 1 of the Constitution. He complained about the length of the proceedings and of lack of access to a court because his action in the domestic courts had been stayed by statute for a n extended period. In its decision, the Constitutional Court held that there had been a violation of the constitutional rights to a trial within a reasonable time and to access to a court . It ordered the court concerned to give a decision in Mr N. ’ s case within one year and awarded him compensation.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

17 . The applicants complained that t he y had not had access to a court because the Rijeka Municipal Court had stayed the ir proceedings pu rsuant to the 1999 Amendments . They relied on Article 6 § 1 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... hearing within a reasonable time ... by [a] ... tribunal...”

A. Admissibility

1. The applicant s ’ victim status

18 . The Government claimed that the applicant s could no longer claim to be victim s within the meaning of Article 34 of the Convention since on 14 July 2003 Parliament enacted the 2003 Liability Act wh ich provided that the proceedings stayed under the 1999 Amendments were to be resumed.

19 . The applicant s disagreed with the Government .

20 . The Court considers that an applicant ’ s status as a victim may depend on compensation being awarded at domestic level on the basis of the facts about which he or she complains before the Court (see Andersen v. Denmark , no. 12860/87, and Frederiksen and Others v. Denmark , no. 12719/87, Commission decisions of 3 May 1988; Normann v. Denmark (dec.), no. 44704/98, 14 June 2001; and Jensen and Rasmussen v. Denmark (dec.), no. 52620/99, 20 March 2003) and on whether the domestic authorities have acknowledged, either expressly or in substance, the breach of the Convention. Only when those two conditions are satisfied does the subsidiary nature of the protective mechanism of the Convention preclude examination of an application (see Eckle v. Germany , judgment of 15 July 1982, Series A no. 51, p. 32, §§ 69 et seq ., and Jensen v. Denmark (dec.), no. 48470/99, ECHR 2001-X).

21 . The Court observes that the fact that the applicants were deprived of access to a court in the period between November 1999 and July 2003 was not disputed by the parties. However, t h e alleged violation was not recognised by any decision of domestic courts, nor w ere the applicants awarded any compensation for it .

22 . In such circumstances , t he applicant s may claim to be victim s of a violation of the rights guaranteed by the Convention (see, for example, Lulić and Becker v. Croatia , no. 22857/02 , § 34 , 24 March 2005 ) .

23 . Accordingly, the Government ’ s objection must be dismiss ed.

2. Exhaustion of domestic remedies

24 . The Government further invited the Court to reject the application on the ground that the applicant s had failed to exhaust domestic remedies as required under Article 35 § 1 of the Convention.

25 . They produced a copy of the decision of the Constitutional Court of 24 March 2004 where it was held that there had been a violation of the right of access to a court in a similar case. In the Government ’ s opinion, the change in the Constitutional Court ’ s case-law created a new domestic remedy for alleged violations of the right of access to a court.

26 . The Government pointed out that the proceedings in the applicants ’ case were still pending and that consequently t he y could have lodge d a constitutional complaint in line with the new case-law. Since the latter permitted the Constitutional Court not only to award compensation but also to set a time-limit for the competent court to decide the case, the Government contended that such a complaint was an effective remedy and that the Court should make an exception to the general rule of exhaustion of domestic remedies , according to which an applicant is required to exhaust only the remedies available at the moment of the introduction of an application with the Court .

27 . The applicant s contested that view. They maintained that they lodged their application with the Court before the change in the jurisprudence of the Constitutional Court .

28 . The Court recalls that, in light of the new case-law referred to by the Government, a complaint to the Constitutional Court was to be regarded as an effective domestic remedy for issues of access to court, which needs to be exhausted before addressing the Court in all applications lodged subsequent to the first decision establishing such new practice (see Pikić v. Croatia , no. 16552/02, § 29 , 18 January 2005 ). However, the Court also ruled that there existed no special circumstances which would justify the departure from the general non-exhaustion rule in respect of applications introduced prior to the occurrence of the new case-law (see Pikić , cited above, § 32). The Court sees no reason to depart from this conclusion.

29 . In the present case the application with the Court was lodged on 2 January 2003 , whereas the new domestic remedy became available only on 24 March 2004 .

30 . Accordingly, the Government ’ s objection must be dismissed.

3 . Conclusion

31 . The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

32 . The Government submitted that the applicant s had had access to a court in that they had instituted civil proceedings for damages in the Rijeka Municipal Court. The fact that the court had stayed the proceedings pursuant to the 1999 Amendments had not affect ed the applicants ’ right of access to a court because the proceedings were stayed only temporarily, pending the introduction of new legislation. By the enactment of the 2003 Liability Act the applicant s had been granted access to a court.

33 . The Government acknowledged that four years had elapsed between the successive enactment s of the 1999 Amendments and the 2003 Liability Act. However, they pointed out that th at period was substantially shorter than in the Kutić case, in which the Court found a violation of the applicants ’ right of access to a court (see Kutić v. Croatia , no. 48778/99, ECHR 2002-II).

34 . The applicant s contested th o se views. They maintained that by failing to adopt new legislation within the set time-limit, the State had prevented them from obtaining compensation for the death of their family member .

35 . The Court reiterates that Article 6 § 1 of the Convention embodies the “right to a court” of which the right of access, namely the right to institute proceedings before a court in civil matters, constitutes one aspect (see Golder v. the United Kingdom , judgment of 21 February 1975, Series A no. 18, pp. 13-18, §§ 28-36).

36 . However, this right is not absolute, but may be subject to limitations. These are permitted by implication since the right of access by its very nature calls for regulation by the State. In this respect, the Contracting States enjoy a certain margin of appreciation, although the final decision as to the observance of the Convention ’ s requirements rests with the Court. It must be satisfied that the limitations applied do not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired. Furthermore, a limitation will not be compatible with Article 6 § 1 if it does not pursue a legitimate aim and if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be achieved (see Stubbings and Others v. the United Kingdom , judgment of 22 October 1996, Reports 1996-IV, § 50).

37 . The Court further recalls that in the Kutić and Multiplex case s it found a violation of the applicants ’ right of access to a court, under Article 6 § 1 of the Convention, in that , as a result of legislat ive intervention , they had been denied the possibility of hav ing their claim determined by a court for a lengthy period of time (see Kutić v. Croatia , cited above, § 33; Multiplex v. Croatia , no. 58112/00, § 55 , 10 July 2003 ).

38 . In the instant case, the proceedings were stayed de facto since 6 November 1999 when the 1999 Amendments were enacted. As a result of th os e Amendments, the Rijeka Municipal Court was un able to proceed with the examin ation of the applicants ’ claim at least until July 2003 when new legislation was passed .

39 . The Court considers, in accordance with its case-law (see Multiplex v. Croatia , cited above; and Aćimović v. Croatia , no. 61237/00, ECHR 2003 ‑ XI ), that the fact that the applicants were prevented by legislation for a prolonged period from having their civil claim determined by the domestic courts constitutes a violation of Article 6 § 1 of the Convention.

II . ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

40 . The applicants also complained that they had n o effective remedy at their disposal as guaranteed by 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.”

41 . The Government contested that argument claiming that a complaint to the Constitutional Court under section 63 of the Constitutional Court Act constituted an effective remedy for the applicants ’ access-to-court complaint .

42 . The Court notes that this complaint is linked to the one examined above and must therefore likewise be declared admissible.

43 . Having regard to the finding relating to Article 6 § 1 (see paragraph 39 above), the Court considers that it is not necessary to examine whether, in this case, there has been a violation of Article 13 since its requirements are less strict than, and are here absorbed by , those of Article 6 § 1 (see, among other authorities, Osu v. Italy , no. 36534/97, § 43, 11 July 2002 ).

III. . APPLICATION OF ARTICLE 41 OF THE CONVENTION

44 . Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Damage

45 . The applicants claimed a total of 3 0,000 euros (EUR) in respect of non-pecuniary damage.

46 . The Government considered the claimed amount excessive.

47 . The Court notes the long period for which the applicants were prevented from having their civil claims determined and considers that some feelings of frustration and anxiety must have arisen which justify an award of non-pecuniary damage. Making its assessment on an equitable basis and having regard to the circumstances of the case, the Court awards the applicants jointly EUR 12,000, plus any tax that may be chargeable on that amount .

B. Costs and expenses

48 . The applicants did not make any claims in respect of costs or expenses. Consequently, no award is made under this head.

C. Default interest

49 . The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT UN ANIMOUSLY

1. Declares the application admissible ;

2. Holds that there has been a violation of Article 6 § 1 of the Convention;

3 . Holds that there is no need to examine the complaint under Article 13 of the Convention;

4 . Holds

(a) that the respondent State is to pay the applicants jointly , within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, the following amount which should be converted into Croatian kunas at the rate applicable at the date of settlement :

(i) EUR 12,000 ( twelve thousand euros) in respect of non-pecuniary damage;

( ii ) any tax that may be ch argeable on the above amount;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

5 . Dismisses the remainder of the applicants ’ claim for just satisfaction.

Done in English, and notified in writing on 6 October 2005 , pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

S antiago Quesada Christos Rozakis Deputy Registrar President