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FIRST
SECTION
DECISION
Application no.
53004/08
Jozefina LEZAJA
against Croatia
The
European Court of Human Rights (First Section), sitting on
17 April 2012 as a Chamber composed of:
Anatoly
Kovler,
President,
Nina
Vajić,
Elisabeth
Steiner,
Mirjana
Lazarova Trajkovska,
Julia
Laffranque,
Linos-Alexandre
Sicilianos,
Erik
Møse,
judges,
and André Wampach,
Deputy
Section Registrar,
Having
regard to the above application lodged on 25 September 2008,
Having
regard to the observations submitted by the respondent Government and
the observations in reply submitted by the applicant,
Having
deliberated, decides as follows:
THE FACTS
- The
applicant, Ms Jozefina LeZaja, is an Croatian national, who was born
in 1937 and lives in Semeljci. She is represented before the Court by
Ms J. Novak, a lawyer practising in Zagreb.
- The
Croatian Government (“the Government”) are represented by
their Agent, Ms Š. StaZnik.
The circumstances of the case
- The
facts of the case, as submitted by the parties, may be summarised as
follows.
- During
the night of 16-17 September 1992 the applicant’s summer house
in Zadar was blown up by an unknown perpetrator.
- On
3 February 1996 the Amendment to the Obligations Act (Zakon o
izmjeni Zakona o obveznim odnosima, Official Gazette no. 7/1996
of 26 January 1996 - “the 1996 Amendment”) entered
into force. It repealed section 180 of the Obligations Act - which
provided that the State was liable for damage resulting from “acts
of violence or terrorist acts” - and stayed all proceedings
instituted on the basis of that provision, pending enactment of new
legislation.
- On
14 March 2001 the applicant and her husband brought a civil action
against the State in the Zadar Municipal Court (Općinski sud
u Zadru) seeking 742,000 Croatian kunas (HRK) as compensation for
pecuniary damage sustained as a result of the destruction of their
house, with the accrued statutory default interest.
- On
5 November 2001 the Municipal Court gave judgment dismissing the
claim of the applicant and her husband and ordered them to reimburse
the State the costs of the proceedings in the amount of HRK 7,720. It
held that after section 180 of the Obligations Act had been repealed
there was no longer a legal basis for the State to be held liable for
damage resulting from terrorist acts.
- The
applicant submits that she paid the costs of the proceedings to the
State, as ordered by the Municipal Court. The Government submitted
that the applicant had never paid the costs at issue.
- On
3 December 2001 the applicant and her husband appealed to the Zadar
County Court (Zupanijski sud u Zadru) against that judgment,
arguing that the Municipal Court had wrongly applied the relevant
substantive law and erred in their assessment of the facts of the
case. They did not forward any arguments as to the costs of the
proceedings.
- In
2003 the applicant’s husband died.
- On
31 July 2003 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 of the Republic of Croatia no. 117/2003) of 23 July
2003 – “the Liability Act 2003”) entered into
force. It provided that the State was liable in tort for damage
caused by death, bodily injury or impairment of health resulting from
terrorist acts, whilst damage to property was to be compensated
through reconstruction assistance, obtainable before the competent
administrative authorities, under the Reconstruction Act. The Act
also provided that all proceedings stayed on the basis of the 1996
Amendment were to be resumed in accordance with its provisions.
- On
9 June 2005 the Zadar County Court dismissed the appeal by the
applicant and her husband and upheld the first-instance judgment.
- On
29 July 2005 the applicant lodged an appeal on points of law with the
Supreme Court. She argued that the lower courts had erred in the
application of both procedural and substantive law when they had
dismissed her compensation claim. She did not forward any arguments
concerning the costs of the proceedings.
- On
24 January 2006 the Supreme Court dismissed the appeal.
- On
2 July 2007 the applicant lodged a constitutional complaint against
the Supreme Court’s judgment, alleging, inter alia,
violations of her constitutional rights to equality, equality before
the law and ownership. Again, she did not forward any arguments
concerning the cost of the proceedings.
- On
24 June 2008 the Constitutional Court (Ustavni sud Republike
Hrvatske) dismissed the applicant’s constitutional
complaint and served its decision on her representative on 17 July
2008.
COMPLAINTS
- The
applicant complained under Article 6 § 1 of the Convention about
the lack of fairness of the civil proceedings at issue; about their
length; and also that she had had no access to court in the period
between 14 March 2001 and 31 July 2003.
- The
applicant also invoked Article 13 of the Convention.
- The
applicant further complained under Article 14 that she had been
discriminated against on the basis of her place of residence.
- Lastly,
she complained under Article 1 of Protocol No. 1 to the Convention
that the State had extinguished her existing claim for compensation
of damage resulting from terrorist acts by legislation (the 2003
Liability Act) which had entered into force after the damage had
occurred.
THE LAW
A. Alleged violation of Article 6 § 1 of the
Convention on account of the lack of fairness of the civil
proceedings at issue
- The
applicant complained that the proceedings in question had been unfair
in that she had to reimburse the costs of the proceedings to the
State although, in her view, she had only lost the case owing to the
enactment of new legislation. She relied on Article 6 § 1 of the
Convention, the relevant part of which reads:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal...”
- The
Government argued that the applicant had not exhausted all available
remedies because she had not raised the issue of payment of the costs
of the proceedings at issue in her appeals before the national
courts. They further contended that the applicant had never actually
paid the costs at issue.
- As
to the exhaustion issue, the applicant argued that in her appeal
against the first-instance judgment, her further appal on points of
law as well as in her constitutional complaint she had challenged the
impugned judgment as a whole, including the decision on the costs.
- The
Court confirms at the outset that decisions concerning the costs of
proceedings do fall within the ambit of Article 6 of the Convention
(see Robins v. the United Kingdom, 23 September 1997, §§
28 and 29, Reports of Judgments and Decisions 1997 V; and
Nikolay Matveyev v. Russia, no. 10418/04, §
31, 25 November 2010).
- As
to the exhaustion of domestic remedies, the Court reiterates that the
purpose of Article 35 is to afford the Contracting States the
opportunity of preventing or putting right the violations alleged
against them before those allegations are submitted to the Court
(see, for example, Hentrich v. France, 22 September
1994, § 33, Series A no. 296-A, and Remli v. France,
23 April 1996, § 33, Reports 1996-II). Thus, the
complaint submitted to the Court must first have been made to the
appropriate national courts, at least in substance, in accordance
with the formal requirements of domestic law and within the
prescribed time-limits. To hold otherwise would be to duplicate the
domestic process with proceedings before the Court, which would
hardly be compatible with the subsidiary character of the Convention
(see Gavril Yosifov v. Bulgaria, no. 74012/01, § 42,
6 November 2008).
- As
to the present case the Court notes that the applicant did not in any
of the remedies used before the national courts, namely her appeal
against the first instance judgment, a further appeal on points of
law with the Supreme Court and in her constitutional complaint, put
forward any arguments concerning the costs of the proceedings at
issue.
- In
these circumstances the Court considers that this complaint must be
rejected under Article 35 §§ 1 and 4 of the
Convention for non exhaustion of domestic remedies.
B. Other alleged violations of the Convention
- The
applicant also complained under Article 6 § 1 of the Convention
about the length of the civil proceedings at issue and that she had
no access to court in the period between 14 March 2001 and 31 July
2003. She further invoked Article 13 of the Convention without
further substantiation. She also complained under Article 14 of the
Convention that she was discriminated against on the basis of her
place of residence. Lastly, she complained under Article 1 of
Protocol No. 1 that the entry into force of the 2003 Liability Act
had violated her right to peaceful enjoyment of possessions as it had
retroactively extinguished her civil claims for damages.
- In
the light of all the material in its possession, and in so far as the
matters complained of are within its competence (see in particular
Milašinović v. Croatia (dec.), no. 26659/08, 1
July 2010), the Court considers that this part of the application
does not disclose any appearance of a violation of the Convention. It
follows that it is inadmissible under Article 35 § 3(a) as
manifestly ill-founded and must be rejected pursuant to Article 35 §
4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
André Wampach Anatoly Kovler
Deputy Registrar President
