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FIRST
SECTION
CASE OF RADIVOJ NOVAKOVIĆ v. CROATIA
(Application
no. 43446/02)
JUDGMENT
STRASBOURG
12
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 Radivoj Novaković v. Croatia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Mr L. Loucaides, President,
Mrs N.
Vajić,
Mr A. Kovler,
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 22 March 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 43446/02) 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 a Croatian national, Mr Radivoj
Novaković (“the applicant”), on 11 October 2002.
2. The
applicant was 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
19 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
applicant was born in 1938 and lives in Zagreb.
- On
30 May 1992 the applicant's house in Velika Črešnjevica,
was blown up by unknown perpetrators.
- On
22 February 1995 the applicant brought a civil action against the
State in the Zagreb Municipal Court (Općinski sud u Zagrebu)
seeking damages. He 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 pending the enactment of
new legislation on the subject.
- On
15 March 1996 the Zagreb 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, the Municipal Court resumed the
proceedings.
- Meanwhile,
on 17 April 2002 the applicant lodged a constitutional complaint
about the length of proceedings under section 63 of the
Constitutional Court Act. On 24 March 2004 the Constitutional Court
accepted the applicant's complaint. Relying on the Court's case law
(Kutić v. Croatia, no. 48778/99, ECHR 2002 II), it
found violations of the applicant's constitutional rights to a
hearing within a reasonable time and of access to a court. It ordered
the Zagreb Municipal Court to give a decision in the applicant's case
within a year and awarded him compensation in the amount of 4,400
Croatian kunas (HRK).
- On
12 May 2004 the Zagreb Municipal Court declared the applicant's
action inadmissible finding that it no longer had jurisdiction in the
matter.
- The
applicant appealed against the judgment to the Zagreb County Court
(Zupanijski sud u Zagrebu). It would
appear that the proceedings are currently pending before that 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.”
17. 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
applicant complained that Parliament's enactment of the 1996
Amendment violated his 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
- The
Government submitted that the applicant could no longer claim to be a
victim 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
applicant's 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.
- The
applicant submitted that, in spite of the Constitutional Court's
decision of 24 March 2004, he was still a “victim” within
the meaning of Article 34 of the Convention. He 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).
- 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. The applicant having
received the same amount in the present case, the Court observes that
his situation does not differ in any way from the Tomašić
case and finds no reason to depart from its conclusion therein.
Accordingly, the applicant can still claim to be a “victim”
of a breach of his 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, 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
applicant also complained that Parliament's enactment of the 1996
Amendment also violated his 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 26 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
applicant claimed EUR 29,859.44 in respect of pecuniary damage and
EUR 30,000 in respect of non-pecuniary damage.
- The
Government deemed the amounts claimed by the applicant 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 the 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 applicant should be awarded EUR 1,200 in respect of
non-pecuniary damage, plus any tax that may be chargeable on that
amount.
B. Costs and expenses
- The
applicant also claimed HRK 24,436.60 for the costs and expenses
incurred the Court.
- The
Government contested that 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 sum of EUR 1,500 for costs and expenses, 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 applicant,
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 1,200 (one thousand two 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 applicant's claim
for just satisfaction.
Done in English, and notified in writing on 12 April 2007, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Loukis Loucaides
Registrar President
