CASE
OF BLEČIĆ v.
(Application
no. 59532/00)
JUDGMENT
8 March
2006
This
judgment is final but it may be subject to editorial revision.
In the case of Blečić v.
The European Court of
Human Rights, sitting as a Grand Chamber composed of:
Mr L. Wildhaber, President,
Mr C.L. Rozakis,
Mr J.-P. Costa,
Sir Nicolas Bratza,
Mr B.M. Zupančič,
Mr L. Caflisch,
Mr L. Loucaides,
Mr I. Cabral Barreto,
Mr C. Bîrsan,
Mrs N. Vajić,
Mr J. Hedigan,
Mr M. Ugrekhelidze,
Mrs A. Mularoni,
Mr S. Pavlovschi,
Mr L. Garlicki,
Mrs R. Jaeger,
Mr David Thór Björgvinsson, judges,
and Mr T.L. Early, Deputy Grand Chamber Registrar,
Having deliberated in
private on 14 September 2005 and on 1 February 2006,
Delivers the following
judgment, which was adopted on the last-mentioned date:
PROCEDURE
1. The case
originated in an application (no. 59532/00) against the
2. The
applicant, who had been granted legal aid, was represented by the International
Committee for Human Rights (ICHR), an association based in
3. The
applicant alleged, in particular, that her rights to respect for her home and
to peaceful enjoyment of her possessions had been violated on account of the
termination of her specially protected tenancy. She relied on Article 8 of the
Convention and Article 1 of Protocol No. 1 to the Convention.
4. The
application was allocated to the First Section of the Court (Rule 52 § 1
of the Rules of Court). Within that Section, the Chamber that would consider
the case (Article 27 § 1 of the Convention) was constituted as provided in Rule
26 § 1.
5. On 30
January 2003 the above complaints were declared admissible by a Chamber of that
Section, composed of the following judges: Mr C. L. Rozakis, Mrs F. Tulkens, Mr P. Lorenzen, Mrs N. Vajić, Mr E. Levits, Mr V. Zagrebelsky and Mrs E. Steiner
and also of Mr S. Nielsen, then Deputy
Section Registrar.
6. On 29 July
2004 a Chamber of the Section composed of the following judges: Mr C. L. Rozakis, Mr P. Lorenzen, Mr G. Bonello, Mrs F. Tulkens, Mrs N. Vajić, Mrs S. Botoucharova and
Mrs E. Steiner and also of Mr S. Quesada, Deputy Section Registrar, held
unanimously that there had been no violation of either Article 8 of the
Convention or Article 1 of Protocol No. 1 to the Convention.
7. On 27
October 2004 the applicant requested that the case be referred to the Grand
Chamber, in accordance with Article 43 of the Convention and Rule 73 of the
Rules of Court. The panel of the Grand Chamber accepted this request on 15
December 2004.
8. The
composition of the Grand Chamber was determined according to the provisions of
Article 27 §§ 2 and 3 of the Convention and Rule 24 of the Rules of Court.
9. Both the
applicant and the Government filed written observations on the admissibility
and merits of the application.
10. Third-party
comments on the merits were received from the International Centre for the Legal Protection of Human
Rights (“Interights”), which had been granted leave by the
President to intervene in the written procedure (Article 36 § 2 of the
Convention and Rule 44 § 2). The parties replied to those comments
(Rule 44 § 5). On 26 April 2005 the Organisation
for Security and Cooperation in Europe (“the OSCE”), which had been granted
leave to intervene in the written procedure before the Chamber, informed the
Court that it had nothing further to add to the comments it had already
submitted to the Chamber.
11. A hearing
took place in public in the
There appeared before
the Court:
(a) for the
Government
Ms Š. Stažnik, Agent,
Lord Lester of Herne Hill Q.C., Counsel,
Mr D. Maričić,
Co-Agent,
Ms Z. Hrvoj Šipek,
Deputy to the Principal State Attorney,
Adviser;
(b) for the
applicant
Mr F.J.L. Diaz, Advocate,
Mr P. Troop, Barrister-at-law,
Mr T. Vukičević,
Advocate, Counsel,
Mr M. Moratti, Adviser.
The Court heard
addresses by Ms Stažnik, Lord Lester of
THE FACTS
I. THE
CIRCUMSTANCES OF THE CASE
12. The
applicant was born in 1926 and currently lives in
13. In 1953
the applicant, together with her husband, acquired a specially protected
tenancy (stanarsko pravo)
of a flat in Zadar. After her husband’s death in 1989
the applicant became the sole holder of the specially protected tenancy.
14. On
19 June 1991 the Specially Protected Tenancies (
15. On 26
July 1991 the applicant went to visit her daughter who lived in
16. However,
by the end of August 1991 armed conflict had escalated in Dalmatia,
resulting in severe travel difficulties in that area, including the town of
17. The
applicant submitted that in October 1991 the Croatian authorities had stopped
paying her widow’s war pension and that the payments had resumed in April 1994.
The Government submitted that the applicant’s pension had been paid by the
Yugoslav Military Pension Fund in
18. According
to the applicant, she also lost the right to medical insurance. The Government
maintained that her medical insurance had never been stopped or interrupted.
19. In these
circumstances, the applicant decided to remain in
20. In
November 1991 a certain M.F., with his wife and two children, broke into and
occupied the applicant’s flat in Zadar. The applicant
claimed that M.F. had been assisted by an official of the municipality who had
provided him with a list of empty flats in Zadar,
including hers.
21. On 12
February 1992 the Zadar Municipality (Općina Zadar)
brought a civil action against the applicant before the Zadar
Municipal Court (Općinski sud u Zadru) for termination
of her specially protected tenancy on the ground that she had been absent from
the flat for more than six months without justified reason, contrary to section
99 of the Housing Act.
22. In her
submissions to the domestic court, the applicant explained that she had been
forced to stay with her daughter in
23. On 9
October 1992 the Zadar Municipal Court terminated the
applicant’s specially protected tenancy. The court found that the applicant had
left Zadar on 26 July 1991 and had not returned until
15 May 1992. It stated that during the relevant period the citizens
of Zadar had not been ordered to evacuate the town on
account of the escalation of the armed conflict and that each citizen had had
the choice to leave the town or to stay. On that basis the court found that the
war in
24. The court
did not accept the applicant’s explanation that she had fallen ill during her
stay in
25. The
applicant’s further explanation that she had stopped receiving her pension in
October 1991 and thus had been left without any means of subsistence was not
accepted by the court as a justified reason for not returning to Zadar. It took the view that the applicant’s daughter could
have sent her money. Therefore, the court concluded that the applicant’s
reasons for not having lived in the flat were not justified.
26. Following
an appeal by the applicant, the judgment was quashed by the
The County Court found
that the court of first instance had not given due consideration to the
applicant’s personal circumstances, namely her age and poor health and the fact
that she had lost her pension and lived alone in Zadar.
Furthermore, the applicant’s decision to prolong her stay in Rome should have
been carefully assessed against the background of the circumstances at the
material time, namely that Zadar had been exposed to
daily shelling and had not had a regular supply of water or electricity, and
that third parties had occupied the applicant’s flat.
The case was remitted to
the first-instance court.
27. In the
resumed proceedings, on 18 January 1994 the Zadar
Municipal Court again ruled in favour of the
municipality and terminated the applicant’s specially protected tenancy. It
observed that she had been absent from the flat for over six months without
justified reason and repeated in substance the findings of the judgment of 9
October 1992.
28. The
applicant appealed. On 19 October 1994 the County Court reversed the
first-instance judgment and dismissed the municipality’s claim. It found that
the escalation of the war and the applicant’s personal circumstances justified
her absence from the flat.
29. On 10
April 1995 the
30. On 15
February 1996 the Supreme Court allowed the appeal, reversed the County Court’s
judgment and upheld the judgment of the Municipal Court. It found that the
reasons submitted by the applicant for her absence from the flat were not
justified. The relevant part of the Supreme Court’s judgment read as follows:
“During the aggression
against
Contrary to the
appellate court, this court, assessing in that context the defendant’s decision
not to return to Zadar during the aggression but to
stay in Italy, considers the non-use of the flat unjustified. The factual
findings made in the case reveal that, in view of her state of health and the
available travel connections, the defendant was able to come to Zadar; her health would not have deteriorated because of
her stay in Zadar; and she could have taken care of
herself. The assumption that she would have had to make a considerable mental
and physical effort in order to provide for her basic living needs (all the
citizens of Zadar who remained in the town, from the
youngest to the oldest, were exposed to the same living conditions) does not
justify her failure to return to Zadar and,
accordingly, does not constitute a justified reason for the non-use of the
flat.”
31. On 8
November 1996 the applicant lodged a constitutional complaint with the
32. On 5
November 1997 the Convention entered into force in respect of
33. On 8
November 1999 the
II. RELEVANT
DOMESTIC LAW AND PRACTICE
A. The
Constitution
34. The
relevant provisions of the 1990 Croatian Constitution (Ustav
Republike Hrvatske,
Official Gazette nos. 56/1990 and 135/1997), as in force at the material time,
read as follows:
Article 16
“Rights and freedoms may
be restricted only by law to protect the rights and freedoms of others, the
legal order, public morals or health.”
Article 34
“1. The home is
inviolable.”
Article 48
“1. The right to
property is guaranteed.
2. Property implies
duties. Holders of the title to property and property users shall have a duty
to contribute to the general welfare.”
Article 90
“3. Only certain
provisions of a statute may have retroactive effects.”
Article 134
“International
agreements concluded and ratified in accordance with the Constitution and made
public shall be part of the Republic’s internal legal order and shall be
[hierarchically] superior to the [domestic] statutes.”
B. The
Constitutional Court Act
35. The
relevant part of the Constitutional Act on the Constitutional Court (Ustavni zakon o Ustavnom sudu Republike
Hrvatske, Official Gazette no. 99/1999), as in
force at the material time, provided that individuals or legal entities could
lodge a constitutional complaint with the Constitutional Court if they
considered that a judicial or administrative decision, or a decision of a legal
entity invested with public authority, had violated their human rights or
fundamental freedoms guaranteed by the Constitution (Section 59). A
constitutional complaint, in principle, did not suspend the implementation of
the impugned decision (Section 63). If the
C. The Act
incorporating the Convention
36. The Act
on Ratification of the Convention for the Protection of Human Rights and
Fundamental Freedoms and Protocols Nos. 1, 4, 6, 7 and 11 to the Convention (Zakon o potvrđivanju
Konvencije za zaštitu ljudskih prava i temeljnih
sloboda i Protokola br. 1, 4, 6, 7 i 11 uz Konvenciju
za zaštitu ljudskih prava i temeljnih sloboda,
Official Gazette – International Agreements, no. 18/1997) entered into force on
5 November 1997. It incorporated the Convention as an international treaty into
the Croatian legal system.
D. The
Housing Act
1. Relevant
provisions
37. The
Housing Act (Zakon o stambenim
odnosima, Official Gazette nos. 51/1985, 42/1986,
22/1992 and 70/1993), as in force at the material time, provided that a holder
of a specially protected tenancy (“the tenant”) had a right to permanent use of
the flat for living purposes, to sub-let part of it to someone else and to
participate in the administration of the building in which the flat was
located. The Act also provided that, in agreement with the provider of the
flat, the tenant could exchange it for another flat and, exceptionally, use
part of it for business purposes.
38. Section 67
provided that cohabitees of the tenant could acquire
the tenancy after the tenant’s death.
39. Section
99 read as follows:
“1. A specially
protected tenancy may be terminated if the tenant [...] ceases to occupy the
flat for an uninterrupted period exceeding six months.
2. A specially protected
tenancy shall not be terminated under the provisions of paragraph 1 of this
section in respect of a person who does not use the flat on account of
undergoing medical treatment, performance of military service or other
justified reasons.”
40. Under
section 105(1) the provider of the flat had to bring a civil action in order to
terminate the specially protected tenancy. The tenancy was terminated as soon
as the court’s judgment, upholding the claim of the provider of the flat,
became res judicata
(see, inter alia, the Supreme Court’s decision
no. Rev-1009/1993-2 of 15 June 1994).
2. The
case-law of the Supreme Court
41. In decisions nos. Rev-3839/93-2 of 19 January 1994,
Rev-2276/00-2 of 21 November 2000 and Rev-590/03-2 of 17 December 2003, the
Supreme Court interpreted section 99(1) of the Housing Act as follows:
“War events per se,
without any particular reasons rendering use of the flat impossible, do not
constitute a justified reason for not using it.”
42. In a series of decisions (for example, in cases nos. Rev-152/1994-2 of 23 February 1994, Rev-1780/1996-2 of 10 March
1999, Rev-1606/00-2 of 1 October 2003, Rev-998/03-2 of 4 December 2003 and
Rev-590/03-2 of 17 December 2003), starting with decision no. Rev-155/1994-2
of 16 February 1994, the Supreme Court interpreted another aspect of
section 99(1) of the Housing Act as follows:
“The fact that a flat
that is not being used by its tenant is illegally occupied by a third person
does not, per se, make the non-use [of the flat by the tenant]
justified. In other words, if the tenant fails to take the appropriate steps to
regain possession of the flat within the statutory time-limits set forth in
section 99(1) of the Housing Act..., then the [illegal occupation of the flat
by a third person] is not an obstacle to the termination of the specially
protected tenancy.”
E. The
Specially Protected Tenancies (
43. The
Specially Protected Tenancies (
F. The Civil
Procedure Act
44. The Civil
Procedure Act (Zakon o parničnom
postupku, Official Gazette nos. 53/1991 and
91/1992), as in force at the material time, provided that an appeal on points
of law (revizija) lay to the Supreme Court
against second-instance judgments.
In cases where a
first-instance judgment had been reversed by the second-instance judgment but
the Supreme Court reversed the latter and upheld the former, the first-instance
judgment became res judicata
when the Supreme Court delivered its decision.
III. RELEVANT
INTERNATIONAL LAW AND PRACTICE
A. The
45. Article
28 of the Vienna Convention on the Law of Treaties of 23 May 1969 (“the
Vienna Convention”) provides:
Non-retroactivity of
treaties
“Unless a different
intention appears from the treaty or is otherwise established, its provisions
do not bind a party in relation to any act or fact which took place or any
situation which ceased to exist before the date of the entry into force of the
treaty with respect to that party.”
B. The
Permanent Court of International Justice
46. The
Permanent Court of International Justice (“the PCIJ”) has dealt with the issue
of its jurisdiction ratione temporis in several cases. In the case of Phosphates
in Morocco (Preliminary Objections) between
“The French Government
bases its objection on the following passage in its declaration: ‘...in any
disputes which may arise after the ratification of the present declaration with
regard to situations or facts subsequent to this ratification’. (p. 22)
...
[The Court’s compulsory
jurisdiction] only exists within the limits within which it has been accepted.
In this case, the terms on which the objection ratione
temporis submitted by the French Government is
founded, are perfectly clear: the only situations or facts falling under the
compulsory jurisdiction are those which are subsequent to the ratification and
with regard to which the dispute arose, that is to say, those which must be
considered as being the source of the dispute. (p. 23)
...
...The situations and
the facts which form the subject of the limitation ratione
temporis have to be considered from the point of
view both of their date in relation to the date of ratification and of their
connection with the birth of the dispute. Situations or facts subsequent to the
ratification could serve to found the Court’s compulsory jurisdiction only if it
was with regard to them that the dispute arose. (p. 24)
...
[The] decision of the
Mines Department, owing to its date, falls outside the Court’s jurisdiction.
The Italian Government has sought to avert this consequence by arguing ... that
the decision of 1925 constituted only an uncompleted violation of international
law; that this violation only became definitive as a result of certain acts
subsequent to the crucial date and of the final refusal to remedy in any way
the situation created in 1925, and that these acts gave rise to the dispute
between the two Governments. (p. 27)
...
The Court cannot regard
the denial of justice alleged by the Italian Government as a factor giving rise
to the present dispute. In its Application, the Italian Government has represented
the decision of the Department of Mines as an unlawful international act ...
That being so, it is in this decision that we should look for the violation of
international law – a definitive act which would, by itself, directly involve
international responsibility. This act being attributable to the State and
described as contrary to the treaty right of another State, international
responsibility would be established immediately as between the two States. In
these circumstances the alleged denial of justice ... merely results in
allowing the unlawful act to subsist. It exercises no influence either on the
accomplishment of the act or on the responsibility ensuing from it. (p. 28)
...
... [T]he complaint of a
denial of justice cannot be separated from the criticism which the Italian
Government directs against the decision of the Department of Mines of January
8th, 1925, for the Court could not regard the denial of justice as established
unless it had first satisfied itself as to the existence of the rights of the
private citizens alleged to have been refused judicial protection. But the
Court could not reach such a conclusion without calling in question the
decision of the Department of Mines of 1925. It follows that an examination of
the justice of this complaint could not be undertaken without extending the
Court’s jurisdiction to a fact which, by reason of its date, is not subject
thereto.
In conclusion, the Court
finds that the dispute submitted to it by the Italian Government ... did not
arise with regard to situations or facts subsequent to the ratification of the
acceptance by
C. The
International Court of Justice
47. The
issue of temporal jurisdiction arose also in a number of cases before the
International Court of Justice (“the ICJ”). In the case concerning Certain
Property (Liechtenstein v. Germany), Preliminary Objections,
Liechtenstein maintained that certain decisions by German courts delivered in
the period between 1995 and 1998 declaring inadmissible the action of Prince
Hans-Adam II of Liechtenstein for restitution of a painting, which had been
confiscated by Czechoslovakia on 21 June 1945 under “the Beneš Decrees”, were in breach of international law. In
these inadmissibility decisions the German courts invoked the Convention on the
Settlement of Matters Arising out of the War and the Occupation, signed in
1952, as amended in 1954, which had entered into force on 5 May 1955 (“the
Settlement Convention”). In order to found the jurisdiction of the ICJ,
“47. The Court will
now consider whether the present dispute has its source or real cause in the
facts or situations which occurred in the 1990s in Germany and, particularly,
in the decisions by the German courts in the Pieter van Laer Painting case, or whether its source or real cause
is the Beneš Decrees under which the painting was
confiscated and the Settlement Convention which the German courts invoked as
ground for declaring themselves without jurisdiction to hear that case.
48. The Court
observes that it is not contested that the present dispute was triggered by the
decisions of the German courts in the aforementioned case. This
conclusion does not, however, dispose of the question the Court is called upon
to decide, for under Article 27 (a) of the European Convention
for the Peaceful Settlement of Disputes, the critical issue is not the date
when the dispute arose, but the date of the facts or situations in relation to
which the dispute arose.
...
51. ...The
Court ... finds that the decisions of the German courts in the Pieter van Laer Painting case cannot be separated from the
Settlement Convention and the Beneš Decrees, and that
these decisions cannot consequently be considered as the source or real cause
of the dispute between
52. The Court
concludes that, although these proceedings were instituted by Liechtenstein as
a result of decisions by German courts regarding a painting by Pieter van Laer, these events have their source in specific measures
taken by Czechoslovakia in 1945, which led to the confiscation of property
owned by some Liechtenstein nationals, including Prince Franz Josef II of
Liechtenstein, as well as in the special régime created by the Settlement
Convention. The decisions of the German courts in the 1990s dismissing
the claim filed by Prince Hans-Adam II of
D. The
International Law Commission’s Draft Articles on Responsibility of States for
Internationally Wrongful Acts
48. The
relevant provisions of the Draft Articles on Responsibility of States for
Internationally Wrongful Acts, as adopted by the International Law Commission
on 9 August 2001 (for the text of the Draft Articles and Commentary, see Report
of the International Law Commission on the Work of its Fifty-third Session, Official
Records of the General Assembly, Fifty-sixth Session, Supplement
No. 10 (A/56/10), chap.IV.E.1 and chap.IV.E.2, pp. 46 and 133-145) read as
follows:
Article 13
International obligation in force for a State
“An act of a State does
not constitute a breach of an international obligation unless the State is
bound by the obligation in question at the time the act occurs.”
Article 14
Extension in time of the breach of an international obligation
“1. The breach of
an international obligation by an act of a State not having a continuing
character occurs at the moment when the act is performed, even if its effects
continue.
2. The breach
of an international obligation by an act of a State having a continuing
character extends over the entire period during which the act continues and
remains not in conformity with the international obligation.
3. The breach of an
international obligation requiring a State to prevent a given event occurs when
the event occurs and extends over the entire period during which the event
continues and remains not in conformity with that obligation.”
IV. DECLARATIONS
of
49. On 5
November 1997, when depositing the instrument of ratification of the Convention
with the Secretary General of the Council of Europe, the Croatian Minister of
Foreign Affairs made the following declarations (contained in the instrument of
ratification):
“The Republic of Croatia
recognizes for an indefinite period of time, in accordance with Article 25 of
the Convention for the Protection of Human Rights and Fundamental Freedoms,
Article 6 of Protocol No. 4 and Article 7 of Protocol No. 7, the
competence of the European Commission of Human Rights to deal with petitions
addressed to the Secretary General of the Council of Europe by any person,
non-governmental organization or group of individuals claiming to be the victim
of a violation of the rights set forth in the Convention and its Protocols,
where the facts of the alleged violation of these rights occur after the
Convention and its Protocols have come into force in respect of the Republic of
Croatia.
The Republic of Croatia
recognizes for an indefinite period of time, in accordance with Article 46
of the Convention for the Protection of Human Rights and Fundamental Freedoms,
Article 6 of Protocol No. 4 and Article 7 of Protocol No. 7, as compulsory
ipso facto and without special agreement the jurisdiction of the
European Court of Human Rights in all matters concerning the interpretation and
application of the Convention and its Protocols and relating to facts occurring
after the Convention and its Protocols have come into force in respect of the
Republic of Croatia.”
THE LAW
THE GOVERNMENT’S
PRELIMINARY OBJECTIONS
50. The
Government raised two preliminary objections, based respectively on the Court’s
lack of jurisdiction ratione temporis to entertain the application and the
applicant’s failure to exhaust domestic remedies.
Jurisdiction ratione temporis
1. The
Government’s submissions
51. The
Government submitted that, according to the established case-law of the Convention
institutions (see B.A. v. Turkey, no. 15505/89, Commission decision of
12 March 1990, unreported, and K. v. Turkey, no. 14206/88,
Commission decision of 11 July 1989, Decisions and Reports 62, pp.
307-308), the Court did not have jurisdiction ratione
temporis in cases where a decision given by the
domestic courts after the Convention’s entry into force related to events
occurring before that date.
52. Furthermore,
according to the case-law of the International Court of Justice (“the ICJ”), it
was not the date on which the dispute arose that was important for establishing
jurisdiction ratione temporis
but the date on which the facts or situations that led to the dispute occurred
(see Certain Property (Liechtenstein v. Germany), Preliminary
Objections, cited above, paragraphs 48-49 and 52).
53. The
present case could not be distinguished from the Jovanović
v. Croatia case ((dec.), no. 59109/00, ECHR
2002-III). In its admissibility decision the Chamber had erred when emphasising the difference between the instantaneous
character of the dismissal decision in Jovanović
and the proceedings for the termination of a specially protected tenancy in the
present case. It had overlooked the fact that the proceedings against the
applicant had been instituted because she had ceased to occupy her flat for an
uninterrupted period exceeding six months. That situation had begun when the
applicant left the flat in July 1991 and had continued until February 1992,
when the
Moreover, in both cases
the constitutional complaint had been lodged before but had been dismissed by
the
54. In any
event, the applicant’s tenancy had been terminated when the Supreme Court gave
its judgment, which was before the critical date. It had been an instantaneous
act which had not given rise to a continuing situation. The subsequent
2. The
applicant’s submissions
55. The
applicant argued that the facts which occurred between July 1991 and February
1992 were by no means decisive for establishing the Court’s temporal
jurisdiction since they only enabled the State to exercise its power to seek
termination of her tenancy through court proceedings. She had lost her home in
the proceedings brought by the State to terminate her tenancy rather than by reason
of an instantaneous act such as the dismissal from employment in the Jovanović case. That aim had not been
achieved until the final outcome of the proceedings in late 1999. The directly
decisive decision was therefore the decision of the
56. After the
entry into force of the Convention in respect of the State concerned, all acts
and omissions had to conform to the Convention, even where they were merely
extensions of an already existing situation. While it was true that the Court
could examine only facts post-dating ratification, it could have regard to
prior facts inasmuch as they could be relevant for the understanding of those
occurring after that date.
57. The
applicant claimed that the Government’s reference to the ICJ’s
decision was irrelevant because the case-law of the Court was significantly
different from that of the ICJ owing to the special nature of the Convention.
The Court, unlike the ICJ, recognised continuing
violations.
58. In any
event, the termination of the applicant’s tenancy had resulted in a continuing
situation since she had been prevented at all times from returning to her home.
3. The
Chamber’s decision
59. In its
final decision on admissibility the Chamber examined of its own motion its
temporal jurisdiction. It found that the applicant’s specially protected
tenancy had not been terminated by the fact that she had left the flat, but by
virtue of the subsequent decisions of the domestic courts. In this respect the
present case differed significantly from the Jovanović
case, where the events complained of (the decision dismissing the applicant
from work) had represented a single instantaneous act, and the subsequent
proceedings had been instituted by the applicant in order to challenge that
act.
60. Furthermore,
in the proceedings before the domestic courts the applicant’s specially
protected tenancy had not been terminated by a single decision. Rather, it had
been the subject of an entire set of proceedings before the domestic courts.
61. The
Chamber acknowledged that the greater part of the proceedings had taken place
prior to the entry into force of the Convention in respect of
62. Therefore,
the Chamber held that the present application fell within the Court’s
competence ratione temporis.
4. The
Court’s assessment
(a) Whether
the Court is competent at this stage of the proceedings to deal with the
Government’s ratione temporis
objection
63. The Court
notes that no plea of inadmissibility concerning lack of jurisdiction ratione temporis
was made by the Government at the admissibility stage. Nevertheless, the
Chamber decided in its final decision on admissibility to examine its temporal
jurisdiction of its own motion, holding that the issue called for
consideration. The Government raised their ratione
temporis objection for the first time in their
observations before the Grand Chamber. The applicant, for her part, did not ask
the Court to dismiss the Government’s preliminary objection in application of
Rule 55 of the Rules of Court, according to which “any plea of inadmissibility
must, in so far as its character and the circumstances permit, be raised by the
respondent Contracting Party in its written or oral observations on the
admissibility of the application”.
64. The
question therefore arises whether the Government are estopped from raising their preliminary objection at this
stage of the proceedings.
65. The Court
recalls that the Grand Chamber is not precluded from deciding questions
concerning the admissibility of an application under Article 35 § 4 of the
Convention, since that provision enables the Court to dismiss applications it
considers inadmissible “at any stage of the proceedings”. Thus, even at the
merits stage the Court may re-consider a decision to declare an application
admissible if it concludes that it should have been declared inadmissible for
one of the reasons given in the first three paragraphs of Article 35 of the
Convention (see, inter alia, Azinas v. Cyprus [GC],
no. 56679/00, § 32, ECHR 2004-III, and Odičvre
v. France [GC], no. 42326/98, § 22, ECHR 2003-III).
66. In the
instant case the Court finds that, notwithstanding the requirements of
Rule 55 of its Rules, which in any event must be interpreted in a manner
compatible with the Convention, in particular Article 32 thereof, the
Government cannot be considered to be precluded from raising the issue of
temporal jurisdiction before the Grand Chamber.
67. Firstly,
incompatibility ratione temporis
is a matter which goes to the Court’s jurisdiction rather than a question of
admissibility in the narrow sense of that term. Since the scope of the Court’s
jurisdiction is determined by the Convention itself, in particular by Article
32, and not by the parties’ submissions in a particular case, the mere absence
of a plea of incompatibility cannot extend that jurisdiction. To hold the
contrary would mean that where a respondent State waived its right to plead or
omitted to plead incompatibility, the Court would have to rule on the merits of
a complaint against that State concerning a right not guaranteed by the
Convention or on a Convention right not yet binding on it, for example by
virtue of a valid reservation clause (incompatibility ratione
materiae) or because it has not yet ratified an
additional Protocol (incompatibility ratione
personae).
The same has to be true
for the Court’s temporal jurisdiction, since the non-retroactivity principle
(see paragraph 45 above) operates to limit ratione
temporis the application of the jurisdictional,
and not only substantive, provisions of the Convention.
Accordingly, the Court,
in line with the position taken by the Commission on this point (see Nielsen
v. Denmark, no. 343/57, Commission decision of 2 September 1959,
Yearbook 2, p. 454), has to satisfy itself that it has jurisdiction in any case
brought before it, and is therefore obliged to examine the question of its jurisdiction
at every stage of the proceedings.
68. Secondly,
the Court has already held that it is not open to it to set aside the
application of another admissibility criterion, namely the six-month rule,
solely because a government has not made a preliminary objection to that effect
(see Walker v. the United Kingdom (dec.),
no. 34979/97, ECHR 2000-I). In reaching that conclusion it explained that
the six-month rule, in reflecting the wish of the Contracting Parties to
prevent past decisions being called into question after an indefinite lapse of
time, served the interests not only of the respondent Government but also of
legal certainty as a value in itself. It added that the rule marked out the
temporal limits of supervision carried out by the organs of the Convention and signalled to both individuals and State authorities the
period beyond which such supervision was no longer possible (see
69. Thirdly,
despite the Government’s failure to raise the relevant objection earlier, and
without prejudice to the above-mentioned considerations, the Chamber examined
its competence ratione temporis
of its own motion and the parties addressed the question in their observations
before the Grand Chamber. Accordingly, the issue of temporal jurisdiction is a
live issue that must be examined.
(b) Limitations
on the Court’s temporal jurisdiction
70. The Court
recalls that, in accordance with the general rules of international law (see
paragraph 45 above), the provisions of the Convention do not bind a Contracting
Party in relation to any act or fact which took place or any situation which
ceased to exist before the date of the entry into force of the Convention with
respect to that Party (see, for example, Kadiķis
v. Latvia (dec.), no. 47634/99, 29 June
2000).
71. It
further notes that, in its declarations made under former Articles 25 and 46 of
the Convention (see paragraph 49 above),
“Where a High
Contracting Party had made a declaration recognising
the competence of the Commission or the jurisdiction of the Court under former
Article 25 or 46 of the Convention with respect to matters arising after
or based on facts occurring subsequent to any such declaration, this limitation
shall remain valid for the jurisdiction of the Court under this Protocol.”
72. Accordingly,
the Court is not competent to examine applications against
(c) The
Court’s case-law
73. In Stamoulakatos v. Greece (no. 1)
(judgment of 26 October 1993, Series A no. 271), the applicant complained
about his various convictions in absentia by Greek courts prior to the
date of Greece’s acceptance of the right of individual petition under former
Article 25 of the Convention. However, he had lodged appeals against these
convictions, which were subsequently dismissed, after that date. The Court held
that, although those appeals had been lodged after the relevant date, they were
closely bound up with the proceedings that had led to his conviction. Divorcing
these appeals from the events which gave rise to them would be tantamount to
rendering
74. In Kadiķis v. Latvia (cited above) the
applicant requested the Central Electoral Commission to allow him to sign a
petition without having a seal affixed on his passport since the existence of
the seal would reveal his political opinions and his sympathy for a particular
political party. Construing the ensuing silence of the Central Electoral
Commission as an implicit decision rejecting his request, the applicant brought
an action in court against that decision. These facts occurred before the date
of ratification, while the proceedings following the applicant’s action and
ending with a final decision dismissing his claim occurred after that date.
In Jovanović
v. Croatia (cited above) the applicant was dismissed from work because of
his alleged participation in a “referendum” for Serbian autonomy in
The Court considered the
implicit decision of the Electoral Commission in Kadiķis
and the applicant’s dismissal in Jovanović
as instantaneous acts which had not given rise to a continuing situation of a
violation of the Convention. It held that divorcing the domestic courts’
judgments delivered after ratification from the events which had given rise to
the court proceedings would amount to giving retroactive effect to the
Convention, which would be contrary to general principles of international law.
It accordingly declared these applications incompatible with the Convention ratione temporis.
The Court followed the
same approach in Litovchenko v. Russia
(dec.), no. 69580/01, 18 April 2002, Kikots and Kikota v.
Latvia (dec.), no. 54715/00, 6 June 2002 and
Veeber v.
75. In Moldovan
and Others and Rostas and Others v. Romania ((dec.), nos. 41138/98 and 64320/01 (joined), 13 March 2001)
the applicants complained inter alia, under
Article 2 of the Convention, that the Romanian authorities had failed to
conduct an effective investigation into the killings of their relatives, which
had taken place before ratification. The Court held that the alleged obligation
to conduct an effective investigation was derived from the aforementioned
killings whose compatibility with the Convention could not be examined. It
therefore declared that complaint incompatible with the Convention ratione temporis.
76. In Zana v. Turkey (judgment of 25 November 1997,
Reports of Judgments and Decisions 1997-VII) the applicant complained inter
alia, under Article 10 of the Convention, about
his conviction on 26 March 1991 on account of a statement he had made to
journalists in August 1987.
(d) The
appropriate test
77. It
follows from the above case-law that the Court’s temporal jurisdiction is to be
determined in relation to the facts constitutive of the alleged interference.
The subsequent failure of remedies aimed at redressing that interference cannot
bring it within the Court’s temporal jurisdiction.
78. An
applicant who considers that a State has violated his rights guaranteed under
the Convention is usually expected to resort first to the means of redress
available to him under domestic law. If domestic remedies prove unsuccessful and
the applicant subsequently applies to the Court, a possible violation of his
rights under the Convention will not be caused by the refusal to remedy the
interference, but by the interference itself, it being understood that this may
be in the form of a court judgment.
79. Therefore,
in cases where the interference pre-dates ratification while the refusal to
remedy it post-dates ratification, to retain the date of the latter act in
determining the Court’s temporal jurisdiction would result in the Convention
being binding for that State in relation to a fact that had taken place before
the Convention entered into force in respect of that State. However, this would
be contrary to the general rule of non-retroactivity of treaties (see
paragraphs 45 and 70 above).
80. Moreover,
affording a remedy usually presupposes a finding that the interference was
unlawful under the law in force when the interference occurred (tempus regit actum). Therefore, any
attempt to remedy, on the basis of the Convention, an interference that had
ended before the Convention came into force, would necessarily lead to its
retroactive application.
81. In
conclusion, while it is true that from the ratification date onwards all of the
State’s acts and omissions must conform to the Convention (see Yağcı and Sargın
v. Turkey, judgment of 8 June 1995, Series A no. 319-A, p. 16, § 40), the
Convention imposes no specific obligation on the Contracting States to provide
redress for wrongs or damage caused prior to that date (see Kopecký v. Slovakia [GC], no. 44912/98, § 38,
ECHR 2004-IX). Any other approach would undermine both the principle of
non-retroactivity in the law of treaties and the fundamental distinction
between violation and reparation that underlies the law of State responsibility.
82. In order
to establish the Court’s temporal jurisdiction it is therefore essential to
identify, in each specific case, the exact time of the alleged interference. In
doing so the Court must take into account both the facts of which the applicant
complains and the scope of the Convention right alleged to have been violated.
(e) Application
of the test to the present case
83. The
applicant complained that, by terminating her specially protected tenancy, the
State violated her rights to respect for her home and peaceful enjoyment of her
possessions. This being so, the Court accepts that the termination of her
tenancy was the fact constitutive of the alleged interference. It remains to be
determined when the termination occurred.
84. The Court
observes that for a tenancy to be terminated under Croatian law,
there had to be a court judgment upholding the claim of the provider of the
flat to that end. The tenancy was terminated from the date on which such a
judgment became res judicata
(see paragraph 40 above). In the present case, that judgment was given on 18
January 1994 by the Zadar Municipal Court. However,
since it was subsequently reversed by the Zadar
County Court’s judgment of 19 October 1994, it became res
judicata on 15 February 1996 when the
Supreme Court, by its own judgment, reversed the County Court’s judgment.
Therefore, it was at that moment – neither before nor afterwards – that the
applicant lost her tenancy.
85. It
follows that the alleged interference with the applicant’s rights lies in the
Supreme Court’s judgment of 15 February 1996. The subsequent
86. As to the
applicant’s argument that the termination of her tenancy resulted in a
continuing situation (see paragraph 58 above), the Court recalls that the
deprivation of an individual’s home or property is in principle an
instantaneous act and does not produce a continuing situation of “deprivation”
of these rights (see, inter alia, Malhous v. the Czech Republic (dec.), no. 33071/96, ECHR 2000-XII, and, mutatis
mutandis, Ostojić v. Croatia (dec.), no. 16837/02, ECHR 2002-IX). Therefore, the
termination of the applicant’s tenancy did not create a continuing situation.
87. The only
remaining issue to be examined is whether the
88. In the
light of the conclusion that the interference occurred prior to the critical
date (see paragraphs 84-85 above), the applicant’s constitutional complaint
should be regarded as the exercise of an available domestic remedy. It cannot be
argued that the
89. As
already noted (see paragraph 80 above), affording a remedy usually presupposes
a finding that the impugned decision was unlawful under the law as it stood
when the case was decided by a lower court. For the Court, proceedings
concerning a constitutional complaint to the
90. Under the
general rule of international law expressed in Article 28 of the Vienna
Convention, treaty provisions do not apply retroactively unless the parties
have expressly agreed otherwise. That is true in particular of a treaty such as
the Convention, which comprises more than mere reciprocal engagements between
the Contracting States. It directly creates rights for private individuals
within their jurisdiction (see, inter alia, Ireland v. the United Kingdom, judgment of
18 January 1978, Series A no. 25, pp. 90-91, § 239). Therefore the
above rule on non-retroactivity of treaties is relevant not only for the Court
itself but also, first and foremost, for the domestic courts when they are
called upon to apply the Convention. The Court, on account of its subsidiary
role in safeguarding human rights, must be careful not to reach a result
tantamount to compelling the domestic authorities to apply the Convention
retroactively.
91. In this
connection, the Court notes that the
(f) Conclusion
92. Since the
fact constitutive of interference giving rise to the present application is the
Supreme Court’s judgment of 15 February 1996, and not the Constitutional
Court’s decision of 8 November 1999, an examination of the merits of this
application could not be undertaken without extending the Court’s jurisdiction
to a fact which, by reason of its date, is not subject thereto. To do so would
be contrary to the general rules of international law. It follows that the
application is incompatible ratione temporis with the provisions of the Convention within
the meaning of Article 35 § 3.
93. In view
of this conclusion, it is not necessary for the Court to examine the
Government’s further objection based on the applicant’s failure to exhaust
domestic remedies.
FOR THESE REASONS, THE
COURT
Holds, by eleven votes to
six, that it is unable to take cognisance of
the merits of the case.
Done in English and in
French, and delivered at a public hearing in the Human Rights Building,
Luzius Wildhaber
President
T.L.
Early
Deputy to the Registrar
In accordance with
Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the
following separate opinions are annexed to the present judgment:
– dissenting
opinion of Mr Loucaides
joined by Mr Rozakis, Mr Zupančič, Mr Cabral Barreto, Mr Pavlovschi and Mr David Thňr Björgvinssson;
– dissenting
opinion of Mr Zupančič
joined by Mr Cabral Barreto;
– dissenting opinion of Mr Cabral Barreto.
L.W.
T.L.E.
DISSENTING OPINION OF
JUDGE LOUCAIDES
JOINED BY JUDGES ROZAKIS, ZUPANČIČ,
CABRAL BARRETO, PAVLOVSCHI AND DAVID THŇR BJÖRGVINSSON
I disagree with the
majority’s view that the Court has no jurisdiction to examine the present
application as it is incompatible ratione temporis. I believe that in this particular case the
interference with the applicant’s right to respect for her home and to the
peaceful enjoyment of her possessions became complete with the decision of the
Constitutional Court dated 8 November 1999, that is to say, after Croatia recognised the competence of the Convention organs to deal
with individual petitions based on facts occurring after the Convention and its
Protocols came into force in respect of Croatia.
Under the domestic law a
specially protected tenancy could only be terminated by a civil action by the
provider of the flat ending up in a judgment upholding the claim. A judgment
becomes res judicata
i.e. a final, unappealable judgment, when it is
legally irreversible under the domestic law1. This
result in the present case was brought about by the above decision of the
Therefore, we are not
dealing here with an interference with a right under the Convention which had a
legal effect independently of any ensuing judicial proceedings issued with the
exclusive object of remedying the interference. In the present case the
interference was the result of a series of judicial proceedings ending with the
decision of the
It is basically for this
reason that the present case is distinguishable from those set out in
paragraphs 73-76 of the judgment where the interference was complete and
effective before any judicial proceedings were issued. In those cases the
interference was an autonomous event distinct from judicial proceedings that
were subsequently issued with the sole objective of securing an order setting
aside the original decision or act constitutive of the interference. Such a
distinction cannot be made in the present case. The judicial proceedings in
this case consisted of different stages of one and the same civil action which
ended in a requirement for the termination of the applicant’s tenancy and the
consequent interference complained of.
According to the
majority the alleged interference was caused by the judgment of the Supreme
Court of 15 February 1996: “a definitive act which was by itself
capable of violating the applicant’s rights”. The majority rightly attaches
decisive importance to the “definitive” nature of the judgment upholding the
claim of the provider of the flat as an essential condition for the
establishment of the relevant interference with the applicant’s rights. But the
judgment of the Supreme Court was not in a legal sense “definitive”. It was
only conditionally definitive because under the domestic law it could be
reversed under the constitutional complaint procedure. The
“However, since it was
subsequently reversed by the Zadar County Court’s
judgment of 19 October 1994, it became res judicata on 15 February 1996 when the
Supreme Court, by its own judgment, reversed the County Court’s judgment.
Therefore, it was at that moment – neither before nor afterwards – that the
applicant lost her tenancy.
It follows
that the alleged interference with the applicant’s rights lies in the Supreme
Court’s judgment of 15 February 1996. The subsequent
According to this
passage, the majority finds that a “definitive” judgment is necessary to
constitute an interference with the applicant’s rights and concludes that this
“definitive” judgment must be the Supreme Court’s judgment of 15 February 1996.
However it is difficult to understand why they characterise
this judgment as “definitive” or “res judicata” in spite of the fact that it could be set
aside by the
It is true that right up
to the level of the
In so far as the
majority emphasised that the Constitutional Court’s
decision “only resulted in allowing the interference allegedly caused by that
judgment [the Supreme Court’s judgement]... to
subsist”, thereby implying that the Constitutional Court’s decision was
irrelevant to the question under consideration because it did not reverse the
Supreme Court’s judgment, I believe that the approach is wrong. What really
matters is that the Supreme Court’s judgment was not “definitive” before
In the light of the above, I find that the
conclusion of the Chamber regarding the temporal jurisdiction of the Court was
correct.
DISSENTING OPINION OF
JUDGE ZUPANČIČ JOINED BY
JUDGE CABRAL BARRETO
I completely agree with
what Judge Loucaides spells out in his comprehensive
dissenting opinion. Here, I would merely like to expound on one implausible
aspect of the majority opinion, which in my opinion deserves special attention.
The substance of the
majority opinion, the ruling, is to be found in paragraph 85, which reads:
“85. It follows that the
alleged interference with the applicant’s rights lies in the Supreme Court’s
judgment of 15 February 1996. The subsequent
I wonder what this
crucial construct – on which the whole judgment is based – is supposed to mean.
Might the implication be that the
If so, why is it then
that presumably irrelevant omissions of this kind are
a domestic remedy that this Court has repeatedly required to be exhausted
before it would deal with the case? In German cases, for example, before we
deal with them we insist that the constitutional complaint be filed and that
the
Shall we from now on
count the six-month limit from the “real” interference of the lower instance
decision, or from the moment when the
Constitutional court
will have unreceptively, by its mere omission to correct it, “allowed the
interference to subsist”?
Admittedly, the ratio
legis for the requirement of preliminary
exhaustion of domestic remedies is different from the ratio legis for the temporal limitation of the Convention’s
impact. The intent of the former is that the
In terms of formal logic,
however, the key paragraph 85 of the majority judgment seems to be built upon
the distinction between a necessary condition and a cause. To
reiterate the majority’s conclusion, I think it would be fair to say that they
hold that the
Unfortunately, this
distinction is as specious as it is misleading.
We know that single
determinative causes as such do not exist. Every event is a consequence of a
myriad of necessary conditions, i.e. the “caused” event in question would not
have occurred if any one of the sine qua non conditions had been
missing. In our everyday discourse we then pick up only one of these necessary
conditions as determinative for the outcome – and we call it a “cause.”
However, when causal nexus
is assessed in law, the label of “cause” is often selectively, if not always
arbitrarily, attached to a single necessary condition. The law usually chooses
the one necessary condition that critically depends on human conduct and the
presumptive free will controlling it. This makes sense inasmuch as
every legal sanction targets the free will of the actor and presumes to change
it. Often this kind of selective preference for the one critical necessary condition
– although this is clearly misleading – is then, as if it were the only
pre-condition of the event, called a “cause.”
This theory of “adequate
causation”2 –
especially in tort law – is simply a logically misleading disguise for a policy
of the legislator or a court intent on blaming and sanctioning the human factor
in the causal chain leading to the tort. Rather than speak of a “cause,” since
we are in fact dealing with sanctioning policy, it would be more
straightforward to say why the particular decision-maker has chosen to
focus the blame on that one specific and particular necessary condition (the
particular “human factor”).
In our case, it is clear
that the violation in question would not have occurred had it been corrected by
the
The majority do not say,
for example, that the
It is not transparent
because in the end we fail to learn why the one necessary condition of the
violation, i.e. the Supreme Court’s judgment of 15 February 1996, is
seen as constitutive of the violation (deserving of blame) – whereas the other
necessary condition, i.e. the Constitutional Court’s decision, is not.
The undisputed fact is that without the
For the sake of
argument, we can also imagine the reverse order of the events. The decision of
the Supreme Court could have been in favour of the
applicant – say on purely non-Conventional grounds – only for the
In the end I am,
therefore, constrained to come to the conclusion either that (1) the majority’s
position remains logically unintelligible, or that (2) this case has been
decided on an unconvincing technicality, or (3) both of the above.
This will become
apparent when Blečić v. Croatia
begins to serve as a precedent in future cases. Will the import of this
precedent be that the last decision of the national court, which does not
reverse the penultimate decision – but merely permits it to “subsist”
– may count as a required domestic remedy, but does not count as a real
decision bringing the case within the temporal limits of the Convention?
Apart from all that, I
am convinced that as far as the merits of the case are concerned this is not
the end of the matter. In the case file there are indications that there may be
thousands of similar cases. Sooner or later they will reach this Court.
DISSENTING OPINION OF
JUDGE CABRAL BARRETO
(Translation)
1. I regret
that I am unable to agree with the majority’s finding that, for lack of
jurisdiction ratione temporis,
the Court cannot examine the merits of the case.
On that point I join the
dissenting opinions of my colleagues Judges Zupančič
and Loucaides.
I wonder moreover what
will be regarded as the final domestic decision after this judgment for the
purpose of fixing the dies a quo for the six-month period in which
applicants must lodge an application and whether they will have to take their
case to a constitutional court in order to exhaust domestic remedies once a
supreme court’s decision has become res judicata.
I am very curious to see
how the case-law is going to develop on those questions.
2. As it
happens, the question which has induced me to produce this opinion is a
relatively minor one in the present case, but it could have unforeseeable
consequences for orderly judicial procedure before our Court: are the
Government estopped from raising for the first time
before the Grand Chamber a preliminary objection that the Court lacks
jurisdiction ratione temporis
(see paragraph 64 of the judgment)?
3. I would
first like to make it clear that I agree entirely with the majority when they
observe: “the Grand Chamber is not precluded from deciding questions concerning
the admissibility of an application under Article 35 § 4 of the Convention”
(see paragraph 65 of the judgment).
I would go even further:
in the present case, given that the Chamber had examined of its own motion its
jurisdiction ratione temporis,
the Grand Chamber was in a sense likewise obliged to look into the matter of
its own motion.
But it is one thing to
examine a question of one’s own motion and quite another to do so at the
request of the parties.
It seems to me that when
the Court rules on the admissibility or the merits of an application it
implicitly answers all related questions, whether that means the Court’s
jurisdiction to entertain the application or the specific questions it raises,
such as exhaustion of domestic remedies or compliance with the six-months rule.
In other words, in so
doing the Court is implicitly affirming that it has jurisdiction.
As paragraph 67 of the
judgment says, “the Court ... has to satisfy itself that it has jurisdiction in
any case brought before it, and is therefore obliged
to examine the question of
its jurisdiction at every stage of the proceedings”.
4. If that is
the case, what is the point of asking whether the Government were or were not estopped from raising the preliminary question of the
Court’s jurisdiction?
I believe that it is
possible to draw the following distinction in this connection:
if the Government are estopped, the
Court need not examine the question in depth, since it can affirm its
jurisdiction implicitly, as it does in all its judgments, through a declaration
of admissibility and a judgment on the merits;
if, on the other hand, the Government are not estopped and raise a preliminary objection, the Court is
required to consider their arguments in order to decide whether these should be
accepted or rejected.
That is where, in my
opinion, the interest of the question lies, and it is a question of decisive
importance not only for the orderly conduct of the Court’s business but also
for the scale of the Court’s workload, because while a decision that the
Government are estopped from raising an objection
does not call for very much intellectual effort or substantive reasoning, it is
quite significantly more difficult, in principle, to analyse
the arguments put forward by the Government in order to decide whether these
should be accepted or rejected.
Hence
the importance of the question.
5. For my
part, I consider that if the respondent Government wish
to raise a plea of inadmissibility, they must do so, unless prevented by
exceptional circumstances, in their written or oral observations on the
admissibility of the application.
That, I might mention
here, is what is explicitly provided in Rule 55 of the Rules of Court, which
would become a dead letter if the very broad interpretation adopted by the
majority were to prevail.
What is more, Rule 55
reflects the consistent practice of both the Commission and the Court.
6. The
Commission always unequivocally said that preliminary objections were to be
considered estopped unless raised before the decision
on admissibility.
The former Court
endorsed that line in its judgment in the De Wilde, Ooms
and Versyp case of 18 June 1971, Series A no. 12,
pp. 29-31, §§ 47-55. Paragraph 54 of the judgment reads as follows:
“54. It is in fact
usual practice in international and national courts that objections to
admissibility should as a general rule be raised in
limine litis. This, if
not always mandatory, is at least a requirement of the proper administration of
justice and of legal stability. The Court itself has specified in Rule 46,
paragraph 1, of its Rules, that “a preliminary objection must be filed by a
Party at the latest before the expiry of the time-limit fixed for the delivery
of the first pleading”.
Doubtless, proceedings
before the Court are not the same as those which took place before the
Commission and usually the parties are not even the same; but they concern the
same case and it results clearly from the general economy of the Convention
that objections to jurisdiction and admissibility must, in principle, be raised
first before the Commission to the extent that their character and the
circumstances permit (compare the Stögmüller judgment
of 10 November 1969, Series A, pp. 41-42, paragraph 8, and the Matznetter judgment of the same date, Series A, p. 32,
paragraph 6).
The new Court confirmed
those principles in its Freedom and Democracy Party (ÖZDEP) judgment,
ECHR 1999-VII, § 25:
“The Court notes that
the Government did not raise before the Commission the preliminary objection
they have now made under Article 34 of the Convention that ÖZDEP did not
have standing as a victim. Consequently, an estoppel
should arise against them (see, among other authorities, the Zana v. Turkey judgment of 25 November 1997, Reports
of Judgments and Decisions 1997-VII, p. 2546, § 44). In its report,
however, the Commission examined that issue of its own motion. If an estoppel was nonetheless held to arise against the Government,
they would be deprived of an opportunity to make representations on a point
that was considered by the Commission of its own motion and was the subject of
argument before the Court. That appears inconsistent with the principles of
adversarial procedure and equality of arms. Consequently, the Government must
be permitted to raise the objection concerned even though it was made out of
time.”
If I have correctly
interpreted that judgment, there is estoppel unless
the Chamber has examined of its own motion the question which forms the basis
of the preliminary objection concerned.
In accordance with that
interpretation, the principles of adversarial procedure and equality of arms
require the Government to be allowed to present argument on the question for the
first time before the Grand Chamber.
The Court reaffirmed the
above line of case-law in its Dikme judgment
of 11 July 2000, ECHR 2000-VII, §§ 44 and 45:
“44. The
Court notes at the outset that it has jurisdiction to take cognisance
of preliminary pleas of this kind if and in so far as the respondent State has
already raised them before the Commission to the extent that their nature and
the circumstances permitted; if that condition is not satisfied, the Government
are estopped from raising the matter before the Court
(see, among many other authorities, the De Wilde, Ooms
and Versyp judgment of 18 June 1971, Series A no.
12, pp. 29-31, §§ 47-55, and the Ciulla
v. Italy judgment of 22 February 1989, Series A no. 148, p. 14, § 28). In
the instant case that condition is clearly not satisfied in respect of any of
the Government’s pleas of inadmissibility under Article 35 of the Convention
(see paragraphs 42 and 43 above).
The Court observes that
the Government were twice granted an extension of the
time allowed for submitting observations on the application’s admissibility.
However, they had not commented on the matter by the time the Commission
adopted its admissibility decision on 17 October 1994.
45. Admittedly,
the reason prompting an objection to admissibility sometimes comes to light
after the decision accepting the application: for example, a reversal of
domestic case-law may disclose the existence of a hitherto unknown remedy or an
applicant may formulate a new complaint whose admissibility the Government have
not yet had the opportunity of contesting (see, among other authorities, the Artico v. Italy judgment of 13 May 1980,
Series A no. 37, pp. 13-14, § 27). Similarly, the concern to observe the
principles of adversarial procedure and equality of arms may make it necessary
to permit the Government to raise an objection out of time, for example where
the Commission examines of its own motion a preliminary issue that was not
raised before it by the respondent State (see Freedom and Democracy Party
(ÖZDEP) v. Turkey [GC], no. 23885/94, § 25, ECHR 1999-VIII).
However, since the
instant case does not fall within that category, the Government are estopped from raising the
objections in question.”
In this case-law of the
Court, attention should however be drawn to this or that particularity relating
to certain conditions of admissibility, especially those concerning the
exhaustion of domestic remedies and compliance with the six-months rule.
Compliance with the six-months rule is one of the conditions of admissibility
which the Court is required to examine even where the respondent Government
have said nothing about it.
In its
“... the
[six-months] rule, in reflecting the wish of the Contracting Parties to prevent
past decisions being called into question, after an indefinite lapse of time,
serves the interests not only of the respondent Government but also of legal
certainty as a value in itself. It marks out the temporal limits of supervision
carried out by the organs of the Convention and signals to both individuals and
State authorities the period beyond which such supervision is no longer
possible (see X v. France, application no. 9587/81,
Commission decision of 13 December 1982, DR 29, pp. 239-40, §§ 13 and 16; and K.
v. Ireland, application no. 10416/83, Commission decision of 17 May 1984,
DR 38, p. 160, § 6).
It is therefore not open
to the Court to set aside the application of the six-months
rule solely because a Government have not made a preliminary objection based on
it.”
On the other hand, where
the Government have not pleaded non-exhaustion of domestic remedies at the
admissibility stage they are estopped from doing so
later; they are deemed to have waived the right to raise the question (see,
among other authorities, Nikolova v.
Bulgaria, judgment of 25 March 1999, ECHR 1999-II, § 44).
In conclusion, I would
like to repeat what the Court said in Odičvre
v. France, ECHR 2003-III, § 22, and Azinas
v. Cyprus, ECHR 2004-III:
“[E]ven
at the merits stage and subject to Rule 55 of the Rules of Court,
the Court may reconsider a decision to declare an application admissible where
it concludes that it should have been declared inadmissible for one of the
reasons given in the first three paragraphs of Article 35 of the Convention”
(my emphasis).
7. From the
foregoing I draw two conclusions:
(a) where
the Chamber has looked into this matter of its own motion, the principles of adversarial
procedure and equality of arms require parties to be given the opportunity to
raise the question of the Grand Chamber’s jurisdiction ratione
temporis;
(b) in
all other cases, the respondent Government are estopped
by virtue of Rule 55 of the Rules of Court from pleading at the merits stage a
failure to comply with conditions of admissibility which they omitted to raise
at the admissibility stage.
But perhaps that is what
the majority meant to say when they spoke, in paragraph 69 of the judgment, of
a “live issue that must be examined”.
I wait with interest to
see whether practice will confirm that that is so.
1 See, inter alia, Nikitin v.
Russia, no. 50178/99, § 37, 15 December 2004: “... a decision is final ‘if,
according to the traditional expression, it has acquired the force of res judicata. This
is the case when it is irrevocable, that is to say when no further ordinary
remedies are available or when the parties have exhausted such remedies or have
permitted the time-limit to expire without availing themselves of them’”.; and
U.S judgment in Faison v. Hudson, 243 Va. 413, 419, 417 S.E.2d 302,
305 (1992): “[A] judgment is not final for the purposes of res
judicata … when it is being appealed or when the time
limits fixed for perfecting the appeal have not expired.”
2 Cf. Francis Bacon “In jure non remota causa, sed proxima,
spectatur.” (“In law the near case
is looked to, not the remote one.” [Bac. Max. Reg. 1.]
3 It is logically
irrelevant on what normative grounds the
4 Other higher
courts, too, when affirming their own lower courts’ decisions sometimes permit
their “alleged violations to subsist.” The jurisdictional difference between
Constitutional and ordinary higher courts is that the former will let the
decision stand unless it collides with the Constitution. In double track
jurisdictions the frame of legal reference is different for the Constitutional
Courts, i.e. it will sometimes let the lower decision stand even if patently
illegal or illogical, because constitutional tests only refer to the
Constitution (and constitutional rights enshrined these) and are different from
the usual tests of legality and logic. In our case this could mean that
“allowing the lower decision to subsist” did not confer on it either legality
or logic. It would simply mean that the Supreme Court’s decision did not
infringe the constitutional rights of Mrs. Blečić.
The majority, however,
do not submit such an argument. If it did, it would be open to the obvious
counter-argument that the rights deriving from a Constitution and the rights
deriving from the Convention mostly overlap. For this reason, for example, the
admissible constitutional complaint represents the last and the best test of
violation before the case comes to the European Court of Human Rights in
5 Again, it would be
logically irrelevant for our purposes on what normative grounds the
BLEČIĆ
v.
BLEČIĆ
v.
BLEČIĆ
v.
BLEČIĆ
v.
BLEČIĆ
v.
BLEČIĆ
v.
BLEČIĆ
v.
JOINED BY JUDGE CABRAL BARRETTO
BLEČIĆ
v.
JOINED BY JUDGE CABRAL BARRETTO
BLEČIĆ
v.
BLEČIĆ
v.
BLEČIĆ
v.
OF JUDGE CABRAL BARRETTO
BLEČIĆ
v.
OF JUDGE CABRAL BARRETTO