CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 27 août 2009

.s800EAC49 { font-size:12pt } .s523616E0 { margin-top:0pt; margin-bottom:12pt; text-align:center; font-size:14pt } .sBB9EE52A { font-family:Arial } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sB9D5CABB { width:28.35pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .s967D43C6 { margin-top:36pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s7EE1C8F0 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s9D48DD53 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s34D46E87 { margin-top:12pt; margin-bottom:6pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sF9B3189B { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify } .s4B8D41EE { font-family:Arial; font-size:10pt } .s8AB83B9 { width:147.82pt; display:inline-block } .sC702907E { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s88A92475 { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sDD165512 { margin-top:12pt; margin-left:14.2pt; margin-bottom:0pt; text-align:justify } .s7CB9076 { margin-top:36pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid } .s507451D6 { width:4.53pt; display:inline-block } .s4A0CEAF8 { width:194.77pt; display:inline-block } .s7602FED2 { width:18.21pt; display:inline-block } .sC1AC44A4 { width:228.11pt; display:inline-block } FIRST SECTION DECISION AS TO THE ADMISSIBILITY OF Application no. 49019/06 by Mate RADAN and Jerko RADAN against Croatia The European Court of Human Rights (First Section), sitting on 27   August 2009 as a Chamber composed of:   Christos Rozakis, President,   Nina Vajić,   Khanlar Hajiyev,   Dean Spielmann,   Sverre Erik Jebens,   Giorgio Malinverni,   George Nicolaou, judges, and Søren Nielsen, Section Registrar , Having regard to the above application lodged on 30 October 2006, Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants, Having deliberated, decides as follows: THE FACTS The second applicant, Mr Jerko Radan, was born in 1935 and died on 16   February 2008. He was a Croatian national. The first applicant, Mr Mate Radan, is a Croatian national who was born in 1934 and lives in Split. He is the second applicant’s brother and his sole heir. Before the Court both applicants were represented by Mr   T.   Vukičević, a lawyer practising in Split. The Croatian Government (“the Government”) were represented by their Agent, Mrs Š. Stažnik. A.     The circumstances of the case The facts of the case, as submitted by the parties, may be summarised as follows. On 10 July 1978 the Split Commission on Property Affairs ( Komisija za imovinsko-pravne poslove Skupštine Općine Split ) expropriated a part of a plot of land owned by the applicants and their mother, measuring 120   square metres, situated in Split, with the intention of building a tunnel. A decision on expropriation did not however fix the amount of compensation to be paid to the owners. The issue of compensation, in the absence of an agreement between the parties, was to be determined by a competent municipal court, in this case the Split Municipal Court ( Općinski sud u Splitu ). At a hearing held before the Split Municipal Court on 15 January 1980 the first applicant claimed that in reality a further part of their plot of land measuring 109 square metres had been implicated in the construction of the tunnel and associated facilities: this was larger than the part referred to in the decision on expropriation. He requested that an amended decision on expropriation be issued in respect of this additional plot and sought compensation in that respect. During an on-site inspection on 23 May 1980 carried out by the Municipal Court, a court-appointed expert confirmed the first applicant’s assertion. The Split Municipal Court then requested the competent administrative body of the Split Municipality to issue a supplementary decision on expropriation concerning the plot of 109 square metres which had already been de facto expropriated from the owners with the aim of constructing a tunnel. According to the relevant practice at the time, it was required that the Split Municipality Office for the Construction lodge a request for additional expropriation of the remaining 109 square metres with the Split Municipality Department for Property Affairs ( Odjel za imovinko-pravne poslove Općine Split ). On 10 May 1985 the Split City Construction Office ( Zavod za izgradnju grada Splita ) replied to the Split Municipal Court that on 15 April 1983 Split Commission on Property Affairs had refused their request for a supplementary decision on expropriation on the ground that the required supporting documents, namely the revised city construction plans, had not been submitted. The Government claimed that the above-mentioned Office for Construction had been ready to reach an agreement with the owners as regards the compensation for the additionally expropriated 109   square metres. However, they submitted no evidence to support this assertion. On 16 November 1992 the Split Municipal Court fixed the compensation for the plot of 120 square metres. In the operative part of this decision it did not address the owners’ request concerning the compensation in respect of the further 109 square metres. In the reasoning the Municipal Court stated that it had no jurisdiction to fix the compensation for further 109 square metres because, although it had not been disputed that this additional plot had also been de facto expropriated, it was not included in the decision on expropriation. The Municipal Court in the proceedings at issue was empowered to fix compensation only in respect of the property explicitly mentioned in the decision on expropriation adopted by the Split Commission on Property Affairs on 10 July 1978. In their ensuing appeal the first applicant contested both the amount of the compensation fixed and the failure of the Municipal Court to decide on his request concerning the additional 109 square metres. On 22 January 1993 the Split County Court ( Župnijski sud u Splitu ) quashed the first-instance decision on the grounds that the compensation for the 120 square metres, encompassed by the decision on expropriation, had not been fixed in accordance with the relevant criteria. As regards the applicant’s claim in respect of the additional 109 square metres, the County Court pointed that: “... the first-instance court correctly fixed the compensation for the plot implicated in the decision on expropriation and not for the larger plot because the jurisdiction of a court in non-contentious proceedings when fixing compensation [for expropriation] is limited to the decision on expropriation; since the expropriation of a larger plot falls within the sphere of damages, as correctly deemed by the first-instance court, or such a difference, if it exists,... should be remedied by a new decision on expropriation.” The case was remitted to the Split Municipal Court for retrial. On 23   May 1994 the Municipal Court forwarded the case to the competent administrative body, pursuant to the new procedural rules concerning the expropriation matters. In a decision of the Split County Office for Property Affairs ( Ured za imovinsko-pravne poslove u splitko-dalmatinskoj županiji ) of 28 May 2001 compensation for the expropriated property was fixed at 291,502.07   Croatian kunas (HRK). In his appeal the first applicant argued, inter alia , that in reality a part of the plot of land measuring 109 square metres had been subject to the construction of the tunnel and associated facilities: this was larger than the part referred to in the decision on expropriation. In support of his arguments the first applicant submitted an expert opinion and a map of the whole plot. On 17 November 2003 the Ministry of Justice, State Administration and Local Self-Government ( Ministarstvo prvosuđa, uprave i lokalne samouprave , “the Ministry”), acting as the appellate body, dismissed the first applicant’s appeal on the ground that he would have to institute separate civil proceedings claiming damages for the remaining part of the property, which had not been subject to the decision on expropriation. The first applicant then lodged a claim with the Split County Court ( Županijski sud u Splitu ) under Section 42 § 1 of the Expropriation Act, seeking compensation for the remaining part of his de facto expropriated property. On 23 May 2005 the County Court dismissed the claim on the same ground as the Ministry. A subsequent constitutional complaint by the first applicant was dismissed by the Constitutional Court on 21 June 2006. The relevant part of the Constitutional Court’s decision reads as follows: “7. The applicant also alleges a violation of Article 48 of the Constitution which protects property. At the constitutional level the Constitutional Court protects the above right in that it prevents the State bodies from restricting or depriving [someone] of that right, save where such a restriction or deprivation is based in law. ... The Constitutional Court also has control over a judicial or other decision when it finds that the impugned decision has adopted an unacceptable or erroneous legal view from the standpoint of the protection of human rights and fundamental freedoms guaranteed in the Constitution. In the present case the Constitutional Court finds that the competent courts’ judgments are based in law and that the applicant’s right under Article 48 of the Constitution has not been violated. 8. The applicant also complains that his constitutional right guaranteed under Article 50 paragraph 1 of the Constitution has been violated: ‘It is possible to restrict or deprive [someone] of his or her property by law and in the interest of the Republic of Croatia. [In that case] compensation in the amount of the market value of the property taken shall be paid.’ Since the competent County Court established that the expropriation proceedings had been conducted pursuant to the Expropriation Act and that the substantive and procedural laws had been adequately applied as well as that the compensation to be paid to the applicant for the expropriated property had been fixed at the market value, the above-mentioned constitutional right has not been violated.” B.     Relevant domestic law The Expropriation Act from 1978 ( Zakon o eksproprijaciji, Official Gazette nos. 10/1978, 5/1980 and 30/1982) provided for a decision on expropriation to be adopted without fixing the compensation. That was to be fixed in separate proceedings following such a decision. The relevant part of this Act reads as follows: “Where [the parties] have not reached an agreement on the amount of compensation within a month after the decision on expropriation had become final, a competent administrative body shall forward the decision on expropriation and the corresponding documents to the municipal court having jurisdiction in the area where the expropriated property is situated in order for that court to fix compensation. ...” By the Expropriation Act of 1994 ( Zakon o izvlaštenju , Official Gazette nos.   9/94, 35/94, 112/00 and 114/01) jurisdiction to fix compensation in the first instance has been transferred to the administrative bodies. The relevant part of this Act provides as follows: Section 42 § 1 enables an action to be brought before the competent county court against a second-instance administrative decision on expropriation. Section 42(e) § 3 requires that the county court, when dealing with an action brought under Section 42(a) § 3, examines the case on the basis of the facts presented in such an action and of the submissions of the administrative body which issued the impugned decision. The relevant provisions of the Obligations Act ( Zakon o obveznim odnosima , Official Gazette nos. 53/1991, 73/1991, 3/1994, 7/1996, 112/1999, 88/2001 and 35/2005) provide: Section 186 “An obligation to compensate for damages becomes due at the moment when the damage occurs.” Section 371 “Claims become statutorily barred in five years, unless a different time-limit is prescribed by law.” Section 376 “Claims for compensation for damages become statutorily barred three years from the day the injured party learns about the damage and the person who caused it. In any case such a claim becomes statutorily barred five years after the damage occurs. ...” Section 1045 “Whoever has caused damage to the other shall compensate for it where it is not proven that the damage has been caused by no fault of the perpetrator. ...” Section 1111 “(1) When assets of one person become assets of the other, and such a transition has no basis in a legal act, a decision of a court or other competent authority or in law, the one who acquires (such assets) shall give them back, and where that is not possible he or she shall compensate for the value acquired . ...” Section 33 § 1 of the Act on Ownership and Other Rights In Rem ( Zakon o vlasništvu i drugim stvarnim pravima , Official Gazette nos. 91/1996, 73/2000 and 114/2001) reads: “In the interest of the Republic of Croatia, the right of ownership may be taken (complete expropriation) or limited by establishing a right for the befit of another in respect of the owner’s property (incomplete expropriation) in which case the owner has the right to compensation according to the laws on expropriation.” COMPLAINT   The applicants complained under Article 1 of Protocol No. 1 that in the expropriation proceedings no account had been taken of the fact that in reality a larger part of their property had been used for the construction of a tunnel than the part referred to in the decision of expropriation. THE LAW A.     Legal consequences of the second applicant’s death In a letter to the Court of 8 July 2008 the applicants’ representative informed the Court that the second applicant had died on 16 February 2008. He submitted a death certificate and informed the Court that the first applicant wished to pursue the application on his own behalf. Thus the Court considers that the first applicant may be regarded as intending to pursue the application on his own behalf only. Furthermore, in accordance with Article 37 § 1 in fine , the Court finds no special circumstances regarding respect for human rights as defined in the Convention and its Protocols which require the continued examination of the application in respect of the second applicant. In view of the above, it is appropriate to continue the examination of the application only in so far as submitted by the first applicant and to strike it out in so far as it concerns the second applicant. B.     Alleged violation of Article 1 of Protocol No. 1 to the Convention The applicant complained that in the expropriation proceedings no account had been taken of the fact that in reality a larger part of his property had been used for the construction of a tunnel that the part referred to in the decision of expropriation. He relied on Article 1 of Protocol No. 1, which reads as follows: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” The Government disputed the admissibility of this complaint on two grounds: they argued that the application was incompatible ratione temporis with the provisions of the Convention and that the applicant had failed to exhaust domestic remedies. The arguments of the parties The Government submitted that the deprivation of property was an instantaneous act and did not produce a continuing situation. They further pointed out that the Split County Court in its decision of 22 January 1993, quashing the first-instance decision fixing the amount of compensation to be paid to the applicant, actually upheld the part concerning the applicant’s request for compensation in respect of the additional 109 square metres and that therefore this question had already been finally determined in 1993. All of these facts having occurred prior to Croatia’s ratification of the Convention, namely 5 November 1997, the Court is not competent ratione temporis to entertain the present application. The Government argued further that the applicant had failed to exhaust domestic remedies because he had not brought a civil action seeking damages for the additional 109 square metres which had not been encompassed by the decision on expropriation of 10 July 1978. The applicant maintained that there was a continuing interference with his property rights because he had never been compensated for the remaining 109 square metres. The questions pertaining to the compensation were subject to the entire proceedings before the national courts until the final decision of the Constitutional Court. The applicant contested the argument about the exhaustion of domestic remedies and contended that all issues relevant to the expropriation at issue had to be resolved in the expropriation proceedings. The Court’s assessment The Court does not have to address all admissibility issues raised by the Government since the application is in any event inadmissible for the following reasons. The Court reiterates that under Article 35 § 1 of the Convention it may only deal with a matter after all domestic remedies have been exhausted. In other words, any applicant must have provided the domestic courts with the opportunity of preventing or putting right the violations alleged against them (see Cardot v. France , 19 March 1991, § 36, Series   A no.   200). That rule is based on the assumption, reflected in Article 13 of the Convention – with which it has close affinity – that there is an effective remedy available in the domestic system in respect of the alleged breach (see, for example, Selmouni v. France [GC],   no. 25803/94, § 74, ECHR 1999-V). The only remedies which Article 35 of the Convention requires to be exhausted are those that relate to the breaches alleged and that are at the same time available and sufficient. The existence of such remedies must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness; it falls to the respondent State to establish that these various conditions are satisfied (see, among many other authorities, Vernillo v. France , 20 February 1991, § 27, Series   A no.   198). The Court notes that the present case concerns expropriation proceedings in which a part of the applicant’s estate was subject to expropriation. The decision on expropriation of 10 July 1978 encompassed only a plot measuring 120 square metres and in a further decision of 28 May 2001 the amount of compensation was fixed in respect of that plot. The Court notes, however, that an additional plot measuring 109 square metres was also used for the construction of the tunnel, a fact not disputed between the parties. This additional plot was not encompassed by a decision on expropriation. Therefore, according to the relevant provisions of domestic law, it could not be subject to the proceedings for determination of the amount of compensation. In this connection the Court notes that in a decision of 16 November 1992 the Split Municipal Court stated that it had no jurisdiction to fix the compensation for the further 109 square metres because, although it had not been disputed that this additional plot had also been used for the construction of the tunnel, it was not included in the administrative decision on expropriation. The appellate court in its decision of 22 January 1993 confirmed that the jurisdiction of a court in non-contentious proceedings when fixing compensation for expropriation was limited to the decision on expropriation and that in respect of the remaining plot, the applicant had to seek damages. The same reasoning was repeated in a decision of 17 November 2003 issued by the Ministry of Justice, State Administration and Local Self-Government and a decision of the Split County Court of 23 May 2005. The Court notes that the national law provides several possible grounds for the applicant to seek compensation for the plot of 109 square metres which was not encompassed by the initial decision to expropriate. Firstly, section 1045 of the Civil Obligations Act gives the applicant the right to claim all damages caused to him by the expropriation of the additional 109   square metres. Furthermore, section 1111 of the same Act enables the applicant to seek compensation for the value of the property the State has taken from him without any legal basis. Finally, and most importantly, under section 33 of the Act on Ownership and Other Rights in rem the applicant has the right to seek compensation from the State for his expropriated property. However, he was not able to seek such compensation in the expropriation proceedings at issue since these proceedings were limited to fixing compensation in respect of the plot encompassed by the initial decision on expropriation. Instead of insisting that his claim for compensation in respect of the additional 109 square metres be fixed in these proceedings, the applicant had to bring a separate civil action against the State. In this connection the Court notes that the applicant was advised throughout the proceedings about the correct legal path to be taken in respect of his compensation claim for the additional plot of 109 square metres but he failed to pursue it. It follows that the application must be rejected under Article   35 §§   1 and   4 of the Convention for non-exhaustion of domestic remedies. For these reasons, the Court unanimously Decides to strike out the application in so far as it concerns the second applicant; Declares the application inadmissible in so far as it concerns the first applicant.   Søren Nielsen   Christos Rozakis   Registrar   President