BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
[New search]
[Contents list]
[Printable RTF version]
[Help]
FIRST
SECTION
CASE OF MILAŠINOVIĆ v. CROATIA
(Application
no. 41751/02)
JUDGMENT
STRASBOURG
24 May 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 Milašinović 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 3 May 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 41751/02) 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, Mrs Ana
Milašinović (“the applicant”), on 7 November
2002.
- 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
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
applicant was born in 1950 and lives in Karlovac.
- Following
her return from Germany in March 1992, the applicant found out that
three business premises in her ownership had been blown up by unknown
perpetrators.
A. Civil proceedings
- On
1 March 1995 the applicant instituted three separate sets of
proceedings against the State before the Zagreb Municipal Court
(Općinski sud u Zagrebu) seeking
damages. She 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
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. On 19 March 2004 it gave three decisions declaring the
applicant's actions inadmissible for lack of jurisdiction. On 26
March 2003 the applicant appealed against those decisions to the
Zagreb County Court (Zupanijski sud u Zagrebu).
- On
23 June and 22 October 2004 and 18 January 2005, respectively, the
County Court quashed the impugned decisions and remitted the cases to
the Municipal Court.
- In
the resumed proceedings, on 28 January and 25 May 2005, respectively,
the Municipal Court gave judgments dismissing the applicant's claims
in two of those proceedings. On 4 April and 20 June 2006 the Zagreb
County Court dismissed the applicant's appeals and upheld the
first-instance judgments. The applicant then appealed on points of
law (revizija) and the two cases are currently pending before
the Supreme Court (Vrhovni sud Republike Hrvatske).
- As
regards the third set of proceedings, on 23 May 2005 the Municipal
Court decided to stay them because the applicant's husband, who was a
co-plaintiff in that case, had died.
B. Proceedings before the Constitutional Court
- Meanwhile,
on 15 October 2002 the applicant lodged a constitutional complaint
under section 63 of the Constitutional Court Act complaining about
the length of the above three sets of civil proceedings and the lack
of access to a court. On 25 November 2004 the Constitutional
Court (Ustavni sud Republike Hrvatske) 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 her constitutional rights to a hearing within a reasonable time
and of access to a court. It awarded her 12,750 Croatian kunas (HRK)
in compensation, and ordered the Zagreb Municipal Court to give a
decision in the proceedings complained of 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 10 December 2004.
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. 53/91, 91/92, 58/93, 112/99,
88/01 and 117/03) provides:
Section 212
“Proceedings shall be stayed:
(1) when a party dies ...,
...
(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.
18.
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.
- 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 her 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
- The
Government submitted that the Constitutional Court had accepted the
applicant's constitutional complaint, found a violation of her
constitutional right of access to a court, and awarded her
compensation. That being so, the violation complained of had been
remedied before the domestic authorities and the applicant had lost
her victim status.
- The
applicant submitted that, in spite of the Constitutional Court's
decision of 25 November 2004, she was still a “victim”
within the meaning of Article 34 of the Convention. She argued
that the Constitutional Court had not responded to her complaint
regarding access to a court, but solely to her length complaint.
Moreover, 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), it found manifestly unreasonable the amount of
compensation, which was approximately 15 % of what the Court was
generally awarding in similar Croatian cases. While it is true that
the applicant in the present case received a somewhat higher amount,
the Court considers that her situation does not significantly differ
from that in 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 her 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 complained that Parliament's enactment of the 1996
Amendment also violated her 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 30 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 327,000 euros (EUR) in respect of pecuniary damage
and EUR 50,000 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 Tomašić v. Croatia, cited above, § 48).
- The
Court recalls that the applicant was awarded approximately EUR 1,730
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 1,000 in respect of non-pecuniary damage, plus any tax that may
be chargeable on that amount.
B. Costs and expenses
- The
applicant also claimed 30,500 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 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 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 1,000 (one thousand 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 24 May 2007, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
