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PASANEC v. CROATIA - 41567/02 [2007] ECHR 361 (3 May 2007)
URL: http://www.bailii.org/eu/cases/ECHR/2007/361.html
Cite as:
[2007] ECHR 361
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FIRST
SECTION
CASE OF PASANEC v. CROATIA
(Application
no. 41567/02)
JUDGMENT
STRASBOURG
3 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 Pasanec 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 A. Kovler,
Mr K.
Hajiyev,
Mr D. Spielmann,
Mr G. Malinverni, judges,
and
Mr S. Nielsen, Section Registrar,
Having
deliberated in private on 5 April 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 41567/02) 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 an Croatian national, Mrs Milka Pasanec (“the
applicant”), on 11 October 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 1960 and lives in Velika Gorica.
On
8 March 1991, while driving in a car as a passenger, the applicant
was shot and injured by unknown perpetrator.
On
24 March 1994 the applicant brought a civil action against the State
in the Zagreb Municipal Court (Općinski sud u Zagrebu)
seeking damages for the sustained injuries. She relied on section 180
of the Civil Obligations Act.
On
18 October 1994 the Municipal Court gave judgment accepting the
applicant's claim in part. The respondent appealed.
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
18 June 1996 the Zagreb County Court (Zupanijski
sud u Zagrebu) quashed the first-instance judgment and
remitted the case.
In
the resumed proceedings, on 18 September 1997 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 25 February 2004 the Municipal Court
resumed the proceedings. It held hearings on 20 June 2004 and 20
January 2005.
On
3 February 2005 the court pronounced its judgment accepting the
applicant's claim in part. Both parties appealed.
On
6 December 2005 the Zagreb County Court (Zupanijski
sud u Zagrebu) dismissed the appeals and upheld the
first-instance judgment.
Meanwhile,
on 23 April 2002 the applicant lodged a constitutional complaint with
the Constitutional Court (Ustavni sud Republike Hrvatske)
complaining about the length of the above proceedings. On 28 June
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 awarded her 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 20 July
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:
...
(6) where another statute so prescribes.”
19. 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.
20. 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 28 June 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. Since the 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 or her right of access to a
court. Accordingly, the Government's objection must 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 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 10,000 euros (EUR) in respect of non-pecuniary
damage.
The
Government deemed the amount claimed by the applicant excessive.
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 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 EUR 3,000 for the costs and expenses incurred
before the Court. However, she failed to submit itemised particulars
of her claim or any relevant supporting documents, although she was
invited to do so.
The
Government contested the claim.
The
Court observes that the applicant failed to comply with the
requirements set out in Rule 60 § 2 of the Rules of Court. In
these circumstances, it makes no award under this head (Rule 60 § 3).
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 in accordance with
Article 44 § 2 of the Convention, EUR 1,200 (one
thousand two hundred euros) in respect of non-pecuniary damage, to be
converted into the national currency of the respondent State at the
rate applicable at the date of settlement, 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 applicant's claim
for just satisfaction.
Done in English, and notified in writing on 3 May 2007, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
