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FIRST
SECTION
CASE OF POPARA v. CROATIA
(Applications
no. 11072/03)
JUDGMENT
STRASBOURG
15
March 2007
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 Popara v. Croatia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Mr C.L. Rozakis, President,
Mr L.
Loucaides,
Mrs N. Vajić,
Mr K. Hajiyev,
Mr D.
Spielmann,
Mr S.E. Jebens,
Mr G. Malinverni, judges,
and
Mr S. Nielsen, Section Registrar,
Having
deliberated in private on 20 February 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 11072/03) 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 two Croatian nationals, Mrs Marija Popara and
Mrs Zeljka Popara (“the applicants”), on 15 March 2003
- The
applicants were represented by Mr M. Mihočević, a lawyer
practising in Zagreb. The Croatian Government (“the
Government”) were represented by their Agent, Ms Štefica
StaZnik.
- On
8 December 2004 the Court decided to communicate the complaint
concerning the applicants' right of access to a court to the
Government. Under the provisions of Article 29 § 3 of the
Convention, it decided to examine the merits of the applications at
the same time as their admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicants were born in 1976 and 1979 respectively and live in
Karlovac.
- In
1991 business premises owned by D.P., the applicants' late father,
were blown up by unknown perpetrators. Some time later, his car was
also damaged beyond repair by an explosive device.
- D.P.
instituted civil proceedings before the Zagreb Municipal Court
(Općinski sud u Zagrebu) in 1994, seeking compensation
from the State. He relied on section 180 of the Civil Obligations Act
(Zakon o obveznim odnosima).
- On
17 January 1996 Parliament introduced an amendment to the Civil
Obligations Act, which provided that all proceedings concerning
actions for damages resulting from terrorist acts were to be stayed
pending the enactment of new legislation. The new legislation was to
be enacted within six months.
- Pursuant
to the above legislation, the Zagreb Municipal Court stayed D.P.'s
proceedings on 5 February 1998. On his appeal, on 31 August 1999 the
Zagreb County Court (Zupanijski sud u Zagrebu) quashed that
decision and remitted the case.
- D.P.
died on 25 February 2000.
- The
Municipal Court again issued a decision staying the proceedings on 16
July 2001.
- The
applicants and their late mother, acting as D.P.'s heirs, filed a
constitutional complaint with the Constitutional Court (Ustavni
sud Republike Hrvatske) on 7 May 2002, complaining about the
length of the proceedings and the lack of access to a court. They
relied on section 63 of the 2002 Constitutional Court Act and Article
29 § 1 of the Constitution.
- On
28 April 2004 the Constitutional Court accepted the applicants'
complaint, ordered the Zagreb Municipal Court to bring the
proceedings to an end within six months and awarded each of the
complainants the amount of 4,400 Croatian kunas (HRK) wich is
approximately euros (EUR) 600.
- The
proceedings before the Zagreb Municipal Court were resumed on 18 May
2004 when it declared the applicants' action inadmissible finding
that it no longer had jurisdiction in the matter. The decision was
quashed by the Zagreb County Court on 30 December 2004.
- The
proceedings are currently pending before the Zagreb Municipal Court.
II. RELEVANT DOMESTIC LAW
- The
relevant part of the Civil Obligations Act (Zakon o obveznim
odnosima, Official Gazette, nos. 53/91, 73/91, 3/94, 7/96 and
112/99) provided as follows:
Section 180(1)
“Liability for loss caused by death or bodily
injury or by damage or destruction of another's property, when it
results from acts of violence or terrorist acts or from public
demonstrations or manifestations, lies with the ... authority whose
officers were under a duty, according to the laws in force, to
prevent such loss.”
- The
relevant part of the Act Amending the Civil Obligations Act (Zakon
o izmjeni Zakona o obveznim odnosima, Official Gazette no. 7/1996
– “the 1996 Amendment”) reads as follows:
Section 1
“Section 180 of the Civil Obligations Act (the
Official Gazette nos. 53/91, 73/91 and 3/94) shall be repealed.”
Section 2
“Proceedings for damages instituted under section
180 of the Civil Obligations Act shall be stayed.
The proceedings referred to in sub-section 1 of this
section shall be resumed after the enactment of special legislation
governing liability for damage resulting from terrorist acts.”
- The
relevant part of the Civil Procedure Act (Zakon o parničnom
postupku, Official Gazette nos. 53/91, 91/92, 58/93, 112/99,
88/01 and 117/03) provides:
Section 212
“Proceedings shall be stayed:
...
(6) where another statute so prescribes.”
- The
relevant part of the Reconstruction Act (Zakon o obnovi,
Official Gazette nos. 24/96, 54/96, 87/96 and 57/00) provides, inter
alia, that the State shall grant, under certain conditions,
reconstruction assistance to owners of property (flats and family
houses only) which has been damaged during the war. The request is to
be submitted to the competent ministry.
- The
Act on Liability for Damage Resulting from Terrorist Acts and Public
Demonstrations (Zakon o odgovornosti za štetu nastalu
uslijed terorističkih akata i javnih demonstracija, Official
Gazette no. 117/2003 – “the 2003 Liability Act”)
provides, inter alia, that the State is to compensate only
damage resulting from bodily injuries, impairment of health or death.
All compensation for damage to property is to be sought under the
Reconstruction Act. Section 10 provides that all proceedings stayed
pursuant to the 1996 Amendment are to be resumed.
- Article
29 § 1 of the Constitution (Ustav Republike
Hrvatske, Official Gazette no. 41/2001 of 7 May 2001) reads as
follows:
“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.”
- The
relevant part of the Constitutional Act on the Constitutional Court
(Ustavni zakon o Ustavnom sudu Republike Hrvatske, Official
Gazette no. 49/2002 of 3 May 2002 – “the Constitutional
Court Act”) reads as follows:
Section 63
“(1) The Constitutional Court shall examine a
constitutional complaint whether or not all legal remedies have been
exhausted if the competent court 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 competent court 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.”
Section
23 provides that, in proceedings before the Constitutional Court,
each participant shall pay its own costs unless the court decides
otherwise. The term “costs of proceedings” does not
include the court fees since no such fees are payable in the
proceedings before the Constitutional Court. Under the case-law of
the Constitutional Court the issue of the recovery of the costs of
proceedings is to be decided by that court if a participant makes a
request to that end. For example, in case no. U-III-1384/2000 of
30 November 2000 the Constitutional Court denied the
complainant's request for recovery of costs since the constitutional
complaint had been dismissed.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicants complained that Parliament's enactment of the 1996
Amendment violated their right of access to a court as provided in
Article 6 § 1 of the Convention, which reads as
follows:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a ... hearing ... by [a] ...
tribunal...”
A. Admissibility
1. The parties' arguments
- The
Government submitted that the applicants could no longer claim to be
victims within the meaning of Article 34 of the Convention since on
31 July 2003 the Liability Act entered into force, which
provided that the proceedings stayed under the 1996 Amendment were to
be resumed. Moreover, the Constitutional Court had accepted the
applicants' constitutional complaint, found a violation of their
constitutional right of access to a court, and awarded them
compensation. The violation complained of had, therefore, been
remedied before the domestic authorities and the applicants had lost
their victim status.
- The
applicants submitted that, in spite of the Constitutional Court's
decision of 28 April 2004, they were still “victims”
within the meaning of Article 34 of the Convention. They argued
that the amount of compensation was insufficient and significantly
lower than amounts awarded by the Court in similar cases (see
Kutić v. Croatia, no. 48778/99, § 39, ECHR 2002-II).
2. The Court's assessment
- The
Court recalls that in the Tomašić case (see
Tomašić v. Croatia, no. 21753/02, §§
26-36, 19 October 2006), the amount of awarded compensation, i.e.
approximately 15% of what it generally awards in similar Croatian
cases, was found to be manifestly unreasonable in the circumstances
of that case. The applicants having received the same amount in the
present case, the Court observes that it does not differ in any
way from the Tomašić case and finds no reason to
depart from its conclusion therein. Accordingly, the applicants can
still claim to be “victims” of a breach of their right of
access to a court, and the Government's objection must therefore be
dismissed.
- The
Court further notes that this complaint is not manifestly ill-founded
within the meaning of Article 35 § 3 of the Convention. It also
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
- The
Court has frequently found violations of the applicants' right of
access to a court under Article 6 § 1 of the Convention in cases
raising issues similar to the one in the present case (see Kutić
v. Croatia, no. 48778/99, ECHR 2002 - II and Multiplex v.
Croatia, no. 58112/00, 10 July 2003).
- Having
examined all the material submitted to it, the Court considers that
the Government have not put forward any fact or argument capable of
persuading it to reach a different conclusion in the present case.
There
has accordingly been a breach of Article 6 § 1.
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
- The
applicants also complained that they had no 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.”
- Having
regard to the finding relating to Article 6 § 1 (see
paragraph 28 above), the Court considers that it is not necessary to
examine the complaint under Article 13 since its requirements are
less strict than, and are here absorbed by, those of Article 6 §
1 (see, for example, DraZić v. Croatia, no.
11044/03, § 43, 6 October 2005).
III. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1
- The
applicants also complained that their property rights had been
violated by destruction of their father's premises. They relied on
Article 1 of Protocol No. 1 to the Convention 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
Court firstly has to ascertain whether, and to what extent, it is
competent ratione temporis to deal with this complaint. 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, 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. Finding to the contrary 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).
- The Court considers that the act of destruction of the
applicants' late father's property was an instantaneous act, which
does not give rise to any possible continuous situation of a
violation of the Convention. Furthermore, as to the proceedings
concerning the applicants' claim for damages, in so far as they do
fall within the Court's competence ratione temporis, the
applicants did not make any separate complaints under Article 1 of
Protocol No. 1 (see Kresović v. Croatia, (dec.), no.
75545/01, 9 July 2002).
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.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- 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
- The
applicants claimed HRK 2,093,493 in respect of pecuniary damage and
EUR 30,000 in respect of non-pecuniary damage.
- The
Government deemed the amounts claimed by the applicants excessive.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim.
- As
to the non-pecuniary damage sought, the Court reiterates that where
an applicant had resorted to an available domestic remedy and thereby
obtained a finding of a violation and was awarded compensation, but
can nevertheless still claim to be a “victim”, the amount
to be awarded under Article 41 may be less than the amounts the Court
was awarding in similar cases. In that case an applicant must be
awarded the difference between the amount obtained from the
Constitutional Court and an amount that would not have been regarded
as manifestly unreasonable compared with the amounts awarded by the
Court (see, mutatis mutandis, Cocchiarella v. Italy
[GC], cited above, §§ 139-140).
- The
Court recalls that each applicant was awarded EUR 600 by the
Constitutional Court. Having regard to the circumstances of the
present case, the characteristics of the constitutional complaint as
well as the fact that, notwithstanding this domestic remedy, the
Court has found a violation, it considers, ruling on an equitable
basis, that the applicants should be awarded jointly EUR 2,400 in
respect of non-pecuniary damage, plus any tax that may be chargeable
on that amount.
B. Costs and expenses
- The
applicants did not make any claims for costs and expenses within the
time-limit fixed. Therefore, the Court is not able to award the
applicants any sum on that account.
C. Default interest
- 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 UNANIMOUSLY
- Declares the complaint concerning the
applicants' right of access to a court admissible and the remainder
of the applications inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicants jointly, within three
months from the date on which the judgment becomes final in
accordance with Article 44 § 2 of the Convention,
EUR 2,400 (two thousand and four hundred euros) in respect of
non-pecuniary damage, plus any tax that may be chargeable;
(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;
- Dismisses the remainder of the applicants' claim
for just satisfaction.
Done in English, and notified in writing on 15 March 2007, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President