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FIRST
SECTION
CASE OF NOVKOVIĆ v. CROATIA
(Application
no. 43437/02)
JUDGMENT
STRASBOURG
5
April 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 Novković 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 15 March 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 43437/02) 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, Mr Milan Novković and Mrs Ivanka
Novković (“the applicants”), on 25 October 2002.
- The
applicants were represented by Mr M. Mihočević, a lawyer
practising in Zagreb. The Croatian Government (“the
Government”) were represented by their Agents, first Mrs L.
Lukina-Karajković and subsequently Mrs Š. StaZnik.
- On
29 January 2004 the
Court decided to give notice of the application to the Government.
Applying Article 29 § 3 of the Convention, it decided to rule on
the admissibility and merits of the application at the same time.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicants were born in 1952 and 1951 respectively and live in
Karlovac.
- In
the period between 11 September 1991 and 13 April 1992 the
applicants' restaurant in Karlovac was blown up four times by unknown
perpetrators.
- On
11 April 1995 the applicants brought a civil action against the State
in the Zagreb Municipal Court (Općinski sud u Zagrebu)
seeking pecuniary and non-pecuniary damages. They relied on section
180 of the Civil Obligations Act.
- On
3 February 1996 the Amendment to the Civil Obligations Act (“the
1996 Amendment”) entered into force. It provided that all
proceedings concerning actions for damages resulting from terrorist
acts or acts of violence were to be stayed (prekid postupka)
pending the enactment of new legislation on the subject.
- On
25 June 2001 the Municipal Court stayed the proceedings pursuant to
the 1996 Amendment.
- On
31 July 2003 the Act on Liability for Damage Resulting from Terrorist
Acts and Public Demonstrations (“the 2003 Liability Act”)
entered into force.
- Pursuant
to the 2003 Liability Act, on 26 September 2003 the Municipal Court
resumed the proceedings.
- Meanwhile,
on 24 April 2002 the first applicant lodged a constitutional
complaint under section 63 of the Constitutional Court Act
complaining about the length of the above civil proceedings and the
lack of access to a court. On 26 October 2004 the Constitutional
Court (Ustavni sud Republike Hrvatske) accepted the first
applicant's complaint. Relying on the Court's case law (Kutić
v. Croatia, no. 48778/99, ECHR 2002 II), it found violations
of his constitutional rights to a hearing within a reasonable time
and of access to a court. It awarded him 4,400 Croatian kunas (HRK)
in compensation, and ordered the Zagreb Municipal Court to give a
decision in the case in the shortest time possible but no later than
a year following the publication of the decision in the Official
Gazette. The Constitutional Court's decision was published on
18 November 2004 and its correction on 6 January 2005.
- On
31 May 2004 the Municipal Court found that it no longer had
jurisdiction in respect of the applicants' claim for pecuniary
damages and thus declared that part of their action inadmissible. On
2 November 2004 the Zagreb County Court (Zupanijski
sud u Zagrebu) accepted the applicant's appeal, quashed
the first-instance decision and remitted the case.
- In
the resumed proceedings, the Zagreb Municipal Court scheduled a
hearing for 2 December 2004. Since no one appeared at that hearing on
the side of the plaintiffs, the court decided to temporarily suspend
the proceedings (mirovanje postupka). The applicants appealed
against that decision to the Zagreb County Court. On 11 October 2005
that court dismissed the appeal and upheld the first-instance
decision.
- On
7 March 2005 the applicants requested the continuation of the
proceedings. Their request was granted and a hearing was held on
19 January 2006. At that hearing the court invited the
applicants to specify their claim within 90 days. The applicants did
so on 15 April 2006.
- It
appears that the proceedings are still pending before the Municipal
Court.
II. RELEVANT DOMESTIC LAW
- The relevant part of the Civil Obligations Act (Zakon
o obveznim odnosima, Official Gazette, nos. 53/1991, 73/1991,
3/1994, 7/1996 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. 53/1991, 91/1992, 58/1993,
112/1999, 88/2001 and 117/2003) provides:
Section 212
“Proceedings shall be stayed:
...
(6) where another statute so prescribes.”
19. 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.
20. 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.”
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...”
- The
Government contested that argument.
A. Admissibility
1. The parties' arguments
- As
regards the first applicant, the Government submitted that the
Constitutional Court had accepted his constitutional complaint, found
a violation of his constitutional right of access to a court, and
awarded him compensation. The violation complained of had, therefore,
been remedied before the domestic authorities and the applicant had
lost his victim status.
- As
regards the second applicant, the Government argued that she had
never lodged a constitutional complaint and therefore had failed to
exhaust domestic remedies as required under Article 35 § 1
of the Convention.
- The
applicants replied that the constitutional complaint was not an
effective remedy for alleged violations of the right of access to a
court. In particular, the Constitutional Court had not responded to
the first applicant's complaint regarding access to a court, but
solely to his length complaint. Furthermore, 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). For these reasons, the
first applicant was still a “victim” within the meaning
of Article 34 of the Convention of the alleged violation, and
the second applicant had not had to lodge a constitutional complaint
in order to exhaust domestic remedies.
2. The Court's assessment
- As
regards the first applicant's victim status, the Court recalls that
in the Tomašić case (see Tomašić v.
Croatia, no. 21753/02, §§ 26-36, 19 October
2006), it found manifestly unreasonable the amount of compensation,
which was approximately 15 % of what the Court was generally
awarding in similar Croatian cases. Since the first applicant
received the same amount in the present case, the Court finds no
reason to depart from its conclusion reached in the Tomašić
case that in such circumstances an applicant can still claim to be a
“victim” of a breach of his right of access to a court.
Accordingly, the Government's first objection must be dismissed.
- As
regards the alleged failure of the second applicant to exhaust
domestic remedies, the Court recalls that in similar circumstances it
held that a constitutional complaint did not constitute a remedy to
be exhausted in respect of applications alleging violations of the
right of access to a court lodged before 24 March 2004 (see, notably,
Pikić v. Croatia, no. 16552/02, §§
24-33, 18 January 2005). The present application was lodged on
25 October 2002. Thus, the Government's second objection must
also 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, cited above, 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 complained that Parliament's enactment of the 1996
Amendment also violated their right to an effective remedy 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.”
- The
Government contested that argument.
- The
Court notes that this complaint is linked to the one examined above
and must therefore likewise be declared admissible.
- Having
regard to the finding relating to Article 6 § 1 (see
paragraph 32 above), the Court considers that it is not
necessary to examine whether, in this case, there has also been a
violation of 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. 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 298,818.98 euros (EUR) in respect of pecuniary
damage and EUR 20,000 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 Tomašić v. Croatia, cited above,
§ 48).
- The
Court recalls that the first applicant was awarded approximately
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 also claimed 86,367 Croatian kunas (HRK) for the costs and
expenses incurred before the Court.
- The
Government contested the claim.
- According
to the Court's case-law, an applicant is entitled to reimbursement of
his costs and expenses only in so far as it has been shown that these
have been actually and necessarily incurred and were reasonable as to
quantum. In the present case, regard being had to the information in
its possession and the above criteria, the Court considers it
reasonable to award the applicants jointly the sum of EUR 1,500 for
the proceedings before the Court, plus any tax that may be chargeable
on that amount.
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 application admissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds that there is no need to examine the
complaint under Article 13 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 according to Article 44 § 2 of the
Convention, the following amounts which are to be converted
into the national currency of the respondent State at a rate
applicable at the date of settlement:
(i)
EUR 2,400 (two thousand four hundred euros) in respect of
non-pecuniary damage;
(ii) EUR
1,500 (one thousand five hundred euros) in respect of costs and
expenses;
(iii) any
tax that may be chargeable on the above amounts;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts 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 5 April 2007, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
