SOC v. CROATIA

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CONSEIL

DE L’EUROPE

COUNCIL

OF EUROPE

COUR EUROPÉENNE DES DROITS DE L’HOMME

EUROPEAN COURT OF HUMAN RIGHTS

FOURTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

and

Application no. 47863/99 by Draško ŠOĆ against Croatia

The European Court of Human Rights (Fourth Section), sitting on 29 June 2000 as a

Chamber composed of

Mr G. Ress,

President

,

Mr A. Pastor Ridruejo,

Mr L. Caflisch,

Mr J. Makarczyk,

Mr I. Cabral Barreto,

Mrs N. Vajić,

Mr M. Pellonpää,

judges

,

Mr V. Berger,

Section Registrar

,

Having regard to the above application introduced on 15 January 1999 and registered on 3 May 1999,

Having deliberated, decides as follows:

47863/99 - 2 -

THE FACTS

The applicant claims to be a stateless person. He was born in 1954 and lives in Zagreb

(Croatia).

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

The applicant was born in Montenegro and lived there until 1983, when he moved to

Dubrovnik in Croatia, then part of the Socialist Federal Republic of Yugoslavia. After the dissolution of Yugoslavia in 1991, he continued to live in Croatia, which became an independent state.

1.

Various criminal proceedings and searches against the applicant

The applicant claims that in the period from 1991 to 1996 he was subjected to systematic torture and other forms of ill-treatment by numerous illegal arrests and investigations, physical abuse, unlawful detentions and searches of his home and office by police officers in Dubrovnik and Zagreb.

2.

Proceedings related to requests for travel documents

On 27 January 1993 the applicant lodged a request with the Dubrovnik Police

Department seeking a travel document for foreigners (

putna isprava za stranca)

. He never received any reply.

On 25 February and 21 April 1994 the applicant repeatedly requested from the Zagreb

Police Department a travel document for foreigners. He has not received any reply.

3.

Proceedings concerning refusal of a residence permit in Croatia

On 31 October 1996 the applicant’s residence permit in Croatia was cancelled on grounds of national security and he was ordered to leave the territory of Croatia. The applicant appealed that decision, and, after his appeal was rejected, instituted administrative court proceedings. On 21 January 1999 the Administrative Court ruled against the applicant.

On 31 May 1999 the applicant lodged a constitutional claim, which is still pending.

4.

Proceedings related to requests for Croatian citizenship

In 1993 and 1994 the applicant lodged several requests for Croatian citizenship, which were all denied. All those proceedings ended prior to the entry into force of the

Convention in respect of Croatia.

On 20 March 1996 the applicant lodged his latest request for Croatian citizenship which was again refused. On 27 January 1997 he lodged a constitutional complaint which is still pending.

- 3 - 47863/99

5.

Proceedings concerning the applicant’s membership in the Croatian Bar Association

The applicant started his practice as an attorney in Croatia in 1988. On 5 April 1995 a decision was issued by the Croatian Bar Association to strike the applicant out of the list of the attorneys licensed to practice law in Croatia, because he was not a Croatian citizen. The applicant appealed that decision, and after his appeal was rejected, lodged a complaint with the Supreme Court, which dismissed it on 5 January 1999.

On 29 June 1999 the applicant lodged a constitutional complaint which is still pending.

6. a)

Criminal proceedings instituted by the applicant

On 30 October 1994 the applicant submitted a crime report alleging larceny with the

Zagreb State Attorney Office against M. R. b) On 27 February 1997 the applicant submitted a crime report alleging fraud with the

Dubrovnik State Attorney Office against P. D. and D. D. On 15 September 1998 the State

Attorney Office dismissed that motion. On 21 September 1998 the applicant submitted a request for investigation with the Dubrovnik County Court Investigation Centre. c) On 17 March 1997 the applicant brought private charges alleging defamation with the

Zagreb Municipal Court against A. J. J. d) On 17 March 1997 the applicant submitted a crime report with the Zagreb State

Attorney Office alleging violent behaviour against an unknown perpetrator. e) On 9 July 1997 the applicant submitted a crime report for prosecution alleging aggravated larceny with the Dubrovnik State Attorney Office against unknown perpetrators. f) On 9 July 1997 the applicant submitted a crime report alleging infringement of the inviolability of a person’s home with the Dubrovnik State Attorney Office against an unknown perpetrator. g) On 20 April 1998 the applicant brought two private charges alleging defamation with the Zagreb Municipal Court against B. T., the editor in chief of a Croatian newspaper and T.

B., a journalist of the same newspaper. h) On 20 April 1997 the applicant brought another private charge alleging defamation with the Zagreb Municipal Court against D. N.

7.

Various civil proceedings

a) On 30 June 1990 the applicant brought an action for payment with the Dubrovnik

Municipal Court (

Općinski sud u Dubrovniku

), against S. C., which was dismissed on 23

February 1995.

On 19 April 1995 the applicant appealed the first instance decision and on 7 July 1995 the Dubrovnik County Court (

Županijski sud u Dubrovniku

) set aside the first instance

47863/99 - 4 judgment and remitted the case for retrial to the Municipal Court, which has not yet reached a decision. b) On 19 March 1993 the applicant brought an action for disturbance of peaceful possession of his property with the Dubrovnik Municipal Court against H. J. On 7 December

1994 the court found that the applicant had withdrawn his claim. c) On 23 March 1993 the applicant together with another plaintiff R. R. brought an action for eviction with the Dubrovnik Municipal Court against the defendant H. J. On 19

May 1994 that court ruled in the plaintiffs’ favour.

On 1 July 1994 the defendant appealed the first instance decision and on 12 August

1994 the Dubrovnik County Court as the appellate court upheld the Municipal Court’s decision.

On 29 September 1994 the defendant lodged a request for revision, which has not yet been decided.

On 17 August 1998 the applicant lodged a request for judicial enforcement of the

Municipal Court’s decision. d) The applicant brought an action for payment with the Dubrovnik Municipal Court against M. Ž. On 30 June 1993 that court dismissed the applicant’s claim. On 12 October

1993 the Dubrovnik County Court as the appellate court dismissed the applicant’s appeal. e) On 17 December 1993 the applicant brought two actions, one for recognition of his property rights and the other for acquisition without lawful grounds, with the Dubrovnik

Municipal Court, against R. R. The defendant died on 27 October 1999. The court has not reached any decision in those cases. f) On 23 February 1994 the applicant brought an action for payment with the Dubrovnik

Municipal Court against R. R. On 15 July 1994 that court stated that the applicant was considered as having withdrawn his claims. On 24 August 1994, the appellate court, upon the applicant’s appeal, upheld the first instance decision. g) The applicant brought an action for payment with the Zagreb Municipal Court against

Lj. Š. On 17 May 1994 that court rendered a judgment against the applicant due to his failure to appear at the first hearing for trial. The applicant appealed that decision and on 28 October

1997 the Zagreb County Court as the appellate court set aside the first instance decision and remitted the case for retrial. Since then, the proceedings are pending before the court of first instance. h) On 30 October 1994 the applicant brought an action for unjustified enrichment with the Dubrovnik Municipal Court against M. R. On 21 December 1995 that court dismissed the applicant’s claim, and on 11 January 1995 the applicant appealed. On 22 March 1995 the appellate court upheld the first instance decision. i) On 14 December 1994 the applicant brought an action for payment with the Rovinj

Municipal Court against “Mirna Rovinj”. On 5 December 1997 the first instance court ruled

- 5 - 47863/99 in the applicant’s favour, but on 6 May 1998 the Pula County Court as the appellate court, judging upon the defendant’s appeal, reversed the first instance judgment.

On 7 June 1998 the applicant lodged a request for revision with the Supreme Court, and the proceedings are still pending. j) The applicant brought an action for payment with the Zagreb Municipal Court against

D. M. On 25 September 1996 the court declared that the action was withdrawn. k) On 27 February 1997 the applicant brought an action for recognition of his property rights with the Dubrovnik Municipal Court against the defendants P. D. and D. D. On 1

March the applicant lodged a request for securing evidence in those proceedings. On 2 June

1998 the court accepted that request, but has not reached any decision upon the applicant’s initial claim. l) On 17 March 1997 the applicant brought an action for payment with the Samobor

Municipal Court (

Općinski sud u Samoboru

) against K. M. On 25 November the applicant sought exemption of the trial court judge presiding in that case. On 2 December 1997 the president of that court rejected the applicant’s request. The court has not yet reached any decision on the merits. m) On 17 March 1997 the applicant brought an action for payment with the Zagreb

Municipal Court against A. J. J. The proceedings are still pending before that court. n) On 20 April 1998 the applicant brought an action for damages with the Zagreb

Municipal Court against “Večernji list”, a newspaper from Zagreb. The proceedings are still pending. o) On 5 June 1998 the applicant brought an action for repayment of a loan with the

Zagreb Municipal Court (

Općinski sud u Zagrebu

) against R. Š. On the same day the applicant introduced with the same court a request for interim measures. The proceedings are still pending. p) The applicant brought an action for payment with the Dubrovnik Municipal Court against “Zanatska zadruga Dubrovnik”. On 9 June 1998 the court of first instance declared that the action was withdrawn. On 25 June 1996 the applicant appealed that decision, and on

7 July 1998 the same court dimissed the applicant’s appeal as being out of time.

B. Relevant domestic law

Article 48 of the Bar Act of 1994 (

Zakon o odvjetništvu

) provides that one of the preconditions to became a member of the Bar is Croatian citizenship.

COMPLAINTS

The applicant complains under Article 6 § 1 of the Convention that in respect to the various proceedings that he initiated before the Croatian authorities, he was deprived of a fair hearing by an independent tribunal. He also complains that a number of civil proceedings he brought were not heard within a “reasonable time”.

47863/99 - 6 -

He further, in respect to those proceedings, complains under Article 13 of the

Convention that he has no effective remedy at his disposal for speeding up the proceedings.

Finally, he complains under Article 14 of the Convention that his requests and actions have been ignored by the Croatian authorities due to his national origin and religion.

THE LAW

A. The applicant complains under Article 6 § 1 of the Convention the relevant part of which reads as follows:

“1. In the determination of his civil 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 tribunal ...”

He also complains, in relation to all the proceedings referred to below, that he has been discriminated against, in violation of Article 14 of the Convention.

1.

With respect to the applicant’s claims concerning the various criminal proceedings and searches against the applicant, the Court notes that the applicant complains about events that took place from 1991 to 1996, while the Convention entered into force in respect of

Croatia on 5 November 1997. It follows that those claims are incompatible

ratione temporis

with the provisions of the Convention and are, therefore, inadmissible under Article 35 § 3 and must be rejected pursuant to Article 35 § 4.

2.

With respect to the applicant’s claim concerning his repeated requests to the Croatian authorities to obtain a travel document for foreigners, the Court recalls that the “right” to a passport is not a “civil right” within the meaning of Article 6 § 1 of the Convention (see,

mutatis mutandis

, no. 19583/92, Dec. 20.2.95, D.R. 80-A, pp. 38, 45). Accordingly, Article 6 of the Convention does not apply. However, the Court deems it necessary to examine this part of the application under Article 2 of Protocol no. 4, which guarantees the right to freedom of movement. It considers that it cannot, on the basis of the case file, determine the admissibility of the applicant’s complaint relating to the refusal of the Croatian authorities to provide him with a travel document for foreigners and that it is, therefore, necessary, in accordance with Rule 54 § 3 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

3.

With respect to the applicant’s complaint concerning the decision of the Croatian authorities to terminate his residence permit and deport him

,

the Court notes that the proceedings are pending before the Constitutional Court. Even assuming that Article 6 of the

Convention is applicable to proceedings relating to expulsion or termination of residence permits, this part of the application is therefore premature and must be rejected pursuant to

Article 35 § 4 of the Convention.

4.

With respect to the applicant’s complaints regarding the refusal of the Croatian authorities to grant him Croatian citizenship, the Court recalls that Article 6 § 1 of the

Convention does not apply to proceedings regulating a person’s citizenship, as such proceedings do not involve either “determination of his civil rights and obligations or of any criminal charge against him” within the meaning of Article 6 § 1 of the Convention.

- 7 - 47863/99

Consequently, this provision does not apply to these proceedings (see No. 13325/87, Dec. 18.

5.1977, D.R. 59 pp. 256, 257).

5. With respect to the applicant’s complaint concerning his exclusion from the Croatian

Bar Association, the Court notes that the procedure is pending before the Constitutional

Court. It follows that this part of the application is premature and must be rejected pursuant to

Article 35 § 4.

6. With respect to the various criminal proceedings instituted by the applicant against third persons, the Court recalls that the right to have someone criminally prosecuted is not guaranteed by the Convention and that Article 6 does not apply to criminal proceedings instituted by the applicant against third persons.

7. With respect to the following civil proceedings: i. - instituted on 19 March 1993 with the Dubrovnik Municipal Court for disturbance of the applicant’s possession of property against H. J. and terminated on 7 December 1994 (see the Facts, 7. b);

- instituted with the Dubrovnik Municipal Court for payment against M. Ž. and terminated on 12 October 1993 (see the Facts, 7. d);

- instituted on 23 February 1994 with the Dubrovnik Municipal Court for payment against R. R. and terminated on 24. August 1994 (see the Facts, 7. f);

- instituted on 30 October 1994 with the Dubrovnik Municipal Court for unjustified enrichment against M. R. and terminated on 11 January 1995 (see the Facts 7. h); and

- instituted with the Zagreb municipal Court for payment against D. M. and terminated on 25 September 1996 (see the Facts, 7. j), the Court notes that those proceedings had terminated prior to 5 November 1997, the date of the entry into force of the Convention in respect of Croatia. It follows that those claims are incompatible

ratione temporis

with the provisions of the Convention and are, therefore, inadmissible under Article 35 § 3 and must be rejected pursuant to Article 35 § 4. ii. With respect to the proceedings instituted with the Dubrovnik Municipal Court against “Zanatska zadruga Dubrovnik” (see the Facts, 7. p), the Court observes that the applicant did not lodge a request for revision or a constitutional complaint against the appellate court’s decision of 7 July 1998, and has, therefore, failed to exhaust domestic remedies. It follows that these claims are inadmissible according to Article 35 § 1 of the

Convention and must be rejected pursuant to Article 35 § 4. iii. With respect to the applicant’s claims under Article 6 § 1 of the Convention concerning the fairness of the trial and impartiality of the domestic courts, the Court notes that the applicant failed to substantiate those claims in any respect. It follows that those claims are manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4.

47863/99 - 8 iv.

With respect to the applicant’s claims regarding the length of the civil proceedings instituted on 20 April 1998 with the Zagreb Municipal Court for damages against “Večernji list” (see the Facts, 7. n), and the proceedings instituted on 5 June 1998 with the same court for repayment of a loan against R. Š. (see the Facts, 7. o), the Court considers the period to be taken into account not excessive within the meaning of Article 6 of the Convention. It follows that those complaints are manifestly ill-founded within the meaning of Article 35 § 3 of the

Convention and must be rejected pursuant to Article 34 § 4.

With regard to the applicant’s complaint that he has been subjected to discrimination contrary to Article 14 by the Croatian authorities in all the proceedings mentioned above under points 1 to 7, the Court considers that, insofar as it is competent to deal with this complaint, the applicant has not substantiated it in any way. This part of the application is therefore manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4.

B. The applicant further complains in respect of the following civil proceedings:

- instituted on 30 June 1990 with the Dubrovnik Municipal Court for payment against

S. C., and still pending before the court of first instance (see the Facts 7. a);

- instituted on 23 March 1993 with the Dubrovnik Municipal Court for eviction against H. J. and pending before the Supreme Court since 29 September 1994 (see the Facts,

7.c);

- instituted on 17 December 1993 with the Dubrovnik Municipal Court for recognition of the applicant’s property rights and acquisition without lawful grounds against R. R. and still pending before the court of first instance (see the Facts, 7. e);

- instituted with the Zagreb Municipal Court for payment against LJ. Š., in respect of which that court reached a decision on 17 May 1994, which was set aside by the appellate court’s decision of 28 October 1997 and the case remitted for trial, since then pending before the court of first instance (see the Facts 7. g);

- instituted on 14 December 1994 with the Rovinj Municipal Court for payment against “Mirna Rovinj” and now pending before the Supreme Court (see the Facts, 7. i);

- instituted on 27 February 1997 with the Dubrovnik Municipal Court for payment against P. D. and D. D. and still pending before the court of first instance (see the Facts 7. k);

- instituted on 17 March 1997 with the Samobor Municipal Court for payment against

K. M. and still pending before the court of first instance (see the Facts, 7. l); and

- instituted on 17 March 1997 with the Zagreb Municipal Court for payment against

A. J. J. and still pending before the court of first instance (see the Facts 7. m), under Article 6 § 1 of the Convention that the length of those proceedings has been excessive, under Article 13 of the Convention that he had no remedy for speeding up of the proceedings and under Article 14 of the Convention that the Croatian authorities ignored his claims due to his non-Croatian national origin and his religion.

- 9 - 47863/99

The Court considers that it cannot, on the basis of the file, determine the admissibility of the applicant’s claims under Articles 6 § 1, 13 and 14 of the Convention regarding the length of the civil proceedings, right to an effective remedy in that respect and the right not to be discriminated against, and that it is, therefore, necessary, in accordance with

Rule 54 § 3 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

For these reasons, the Court, unanimously,

DECIDES TO ADJOURN

the examination of the applicant’s complaints that the length of the civil proceedings exceeded a reasonable time within the meaning of

Article 6 § 1 of the Convention, that he had no effective remedy within the meaning of Article 13 of the Convention in respect of those proceedings, that he was discriminated against on the basis of his national origin and his religion within the meaning of Article 14 of the Convention and that, due to the failure of the Croatian authorities to issue him a travel document for foreigners, there has been a violation of his right to free movement within the meaning of Article 2 of Protocol no. 4;

DECLARES INADMISSIBLE

the remainder of the application.

Vincent Berger

Registrar

Georg Ress

President

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