Fourth Section

- 1 -48485/99 FOURTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 48485/99 by Nikola, Milka and Zlatko MLADENIĆ against Croatia

The European Court of Human Rights (Fourth Section), sitting on 7 September 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, and Mr V. Berger, Section Registrar,

Having regard to the above application introduced on 12 March 1999 and registered on 1 June 1999,

Having deliberated, decides as follows: 48485/99 - 2 - THE FACTS

The applicants are Croatian citizens, born in 1934, 1935 and 1963, respectively, and living in Kukuljanovo (Croatia).

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

The first applicant served in the Yugoslav People’s Army. During the armed conflict between the Yugoslav People’s Army and Croatia in 1991 he served as a major-general and as from July 1991 as a vice-commander of the Split Military-Admiralty Sector. The second applicant is his wife and the third applicant is their son.

On 24 October 1992 the first applicant was placed on detention on remand and on 21 December 1992 indicted for war crimes.

On 14 September 1993 he was convicted by the Split County Court for war crimes against the civilian population and sentenced to twelve years imprisonment.

The first applicant appealed against that decision and on 7 September 1994 the Supreme Court of Croatia reduced his sentence to ten years imprisonment.

On 13 June 1995 the first applicant, who was then serving his sentence in the Lepoglava prison, lodged a constitutional complaint against the Supreme Court’s decision of 7 September 1994. The receipt of the applicant’s constitutional complaint was confirmed by an acknowledgement of receipt of 15 June 1995.

On 24 September 1995 and 27 January 1997 the first applicant asked the Constitutional Court to speed up the proceedings pending before that court. His letters were sent from the Lepoglava prison where he was serving his sentence, and the address at the Lepoglava prison was indicated on them.

By a decree of the President of Croatia of 28 May 1997, the first applicant was amnestied from serving the rest of his sentence and released from prison.

On 21 October 1998 the first applicant again asked the Constitutional Court to speed up the proceedings concerning his constitutional complaint, for the first time indicating his address in Kukljanovo, Croatia.

On 28 September 1998 the Constitutional Court terminated the proceedings relating to the applicant’s constitutional complaint. In its decision it stated that the applicant had failed to enclose the contested decisions and that the letters subsequently sent to the applicant were returned to the Court stating that the applicant did not live at the address indicated on the letters. Subsequently the Court placed the letter to the applicant at its public board, and after the applicant had failed to furnish the court with additional documents, the Court deemed that he had withdrawn his complaint.

In addition to his constitutional complaint, on 2 April 1995 the first applicant also requested the State Attorney to lodge a “request for the protection of legality” (zahtjev za zaštitu zakonitosti), an extraordinary remedy against judgments in criminal and civil proceedings, that may only be lodged by that body, and not by the parties themselves. On 12 August 1997 the Sate Attorney refused the applicant’s request. - 3 -48485/99

Due to the first applicant’s conviction for war crimes, the Ministry of Defence lodged an action with the Rijeka Municipal Court, seeking that the specially protected tenancy be terminated in respect of the first and second applicants and that they be evicted from their flat. On 15 February 1995 the Rijeka Municipal Court ruled against the applicants. They appealed against that decision and on 2 August 1995 the Rijeka County Court as the appellate court upheld the first instance decision.

COMPLAINTS

1. Regarding the criminal proceedings and the conviction of the first applicant for war crimes, the applicants make the following complaints: a) Concerning the conviction of the first applicant for war crimes all three applicants complain under Article 6 §§ 1, 2 and 3 of the Convention about the fairness of the criminal proceedings.

Concerning the treatment during his arrest, his detention on remand and the serving of his prison sentence in the Lepoglava prison, the first applicant complains under Articles 3, 4 § 2 and Article 5 §§ 2 and 3 of the Convention.

He also complains under Article 8 of the Convention that his conviction for crimes he alleges that he did not commit and his placement in prison violated his right for respect of his family life.

Concerning his request directed to the State Attorney to lodge a “request for the protection of legality”, the first applicant complains under Articles 6 and 13 of the Convention. b) Concerning the Constitutional Court’s decision to terminate the proceedings regarding his constitutional claim the first applicant complains under Article 13 of the Convention that he was deprived of an effective remedy.

2. Concerning the termination of the specially protected tenancy of the first and second applicants, all three applicants complain under Article 8 of the Convention, and the second and third applicants further complain under Articles 3, 6 § 1 and 14 of the Convention and Article 1 of Protocol No. 1.

THE LAW

1. Concerning the criminal proceedings against the first applicant all three applicants make several complaints. a) Regarding the criminal conviction of the first applicant all three applicants raise complaints under Article 6 § 1, 2 and 3 and Article 8 of the Convention.

Furthermore, the first applicant complains under Articles 3, 4 § 2 and Article 5 §§ 2 and 3 of the Convention in respect of the treatment during his arrest, his detention on remand and the serving of his prison sentence. 48485/99 - 4 -

He also complains under Articles 6 and 13 of the Convention about the State Attorney’s refusal to lodge a “request for the protection of legality” as an extraordinary judicial remedy.

The Court notes that the final decision in respect of the first applicant’s criminal conviction was given on 7 September 1994 by the Supreme Court of Croatia and that the State Attorney refused his request on 12 August 1997. The Court also notes that he was released from prison on 28 May 1997. The Court further notes that the Convention entered into force in respect of Croatia on 5 November 1997.

It follows that this part of the application is incompatible ratione temporis with the provisions of the Convention and must be rejected pursuant to Article 35 § 4. b) Regarding the first applicant’s complaint under Article 13 of the Convention that he was deprived of an effective remedy before the Constitutional Court, as it terminated the proceedings concerning his claim, the Court considers that it may raise an issue of the right of access to a court under Article 6 § 1 of the Convention.

The Court considers that it cannot, on the basis of the file, determine the admissibility of the first applicant’s complaint under Article 6 § 1 of the Convention regarding his right of access to a court 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.

2. Regarding the proceedings concerning the termination of the first and second applicant’s protected tenancy, all three applicants make complaints under Article 8 of the Convention, and the second and third applicants also complain under Articles 3, 6 § 1 and 14 of the Convention and Article 1 of Protocol No. 1.

The Court notes that the final decision concerning those proceedings was given on 2 August 1995 by the Rijeka County Court, while the Convention entered into force in respect of Croatia on 5 November 1997.

It follows that this part of the application is incompatible ratione temporis with the provisions of the Convention, and therefore, must be rejected pursuant to Article 35 § 4.

For these reasons, the Court, unanimously,

DECIDES TO ADJOURN the examination of the first applicant’s complaint that he was deprived of the right of access to a court within the meaning of Article 6 § 1 of the Convention;

DECLARES INADMISSIBLE the remainder of the application. - 5 -48485/99

Vincent Berger Georg RESS Registrar President