CEDH · CASELAW;CLIN;ENG — 11 juillet 2006

.s3ABFC313 { font-size:10pt } .sEB86A30B { margin-top:0pt; margin-bottom:14pt; page-break-after:avoid } .sBB9EE52A { font-family:Arial } .sA241FE93 { margin-top:0pt; margin-bottom:18pt; text-align:justify; page-break-after:avoid; border-bottom:0.75pt solid #000000; padding-bottom:1pt } .s2EF62ED2 { margin-top:0pt; margin-bottom:0pt; font-size:12pt } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s29100277 { font-family:Arial; font-weight:bold } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s8F2B0B1B { margin-top:12pt; margin-bottom:12pt; page-break-after:avoid; font-size:12pt } .s9FF10068 { margin-top:0pt; margin-bottom:12pt } .sA36B60A1 { font-family:Arial; font-style:italic } .s5F48796F { margin-top:12pt; margin-bottom:0pt; text-align:justify } .s5CB9E8AB { margin-top:12pt; margin-bottom:0pt; text-align:justify; border-bottom:1pt solid #000000; padding-bottom:1pt } .sDF790F1E { margin-top:12pt; margin-bottom:0pt; text-align:center } .s7ED160F0 { text-decoration:none } .s3DC36BA9 { font-family:Arial; text-decoration:underline; color:#0069d6 } Information Note on the Court’s case-law No. 88 July-August 2006 Gavella v. Croatia (dec.) - 33244/02 Decision 11.7.2006 [Section I] Article 1 of Protocol No. 1 Article 1 para. 1 of Protocol No. 1 Deprivation of property Judgment of the Constitutional Court depriving the applicant of a right of pre-emption over nationalised flats: inadmissible   Article 6 Civil proceedings Article 6-1 Fair hearing Applicant’s inability to appear in person before the Constitutional Court   in collective proceedings: inadmissible   Under the Act on Restitution of and Compensation for Property taken during the Yugoslav Communist Regime (“the Denationalisation Act”), which entered into force in 1997, nationalised flats in respect of which third persons had acquired specially protected tenancies were not to be restored to their former owners. The tenants had a right to purchase the flats on favourable terms from a special compensation fund, while the former owners or their heirs had the right to financial compensation in respect of the properties in question. In addition, if a tenant who had bought a flat in this way decided to dispose of it subsequently, the former owner had a right of pre‑emption over the property, which had to be offered to him at the same price at which it had been purchased from the compensation fund. In 2001 the applicant, as his mother’s sole heir, was granted entitlement to compensation in respect of 27 flats located in buildings that had been nationalised. Previously, in 1999, the Constitutional Court, following applications brought by a group of MPs and by various individuals, had delivered a judgment in which it held that certain provisions of the Denationalisation Act were unconstitutional, in particular the provision on pre‑emption rights for former owners. Consequently, the applicant lost any entitlement to pre-emption in respect of the nationalised buildings which had belonged to his family. The amendments to the Denationalisation Act repealing the provisions found by the Constitutional Court to be unconstitutional entered into force on 5 July 2002. On 19 August 2002 the applicant challenged the constitutionality of the amendments before the Constitutional Court, which has not yet given a ruling. Inadmissible under Article 1 of Protocol No. 1: The applicant’s pre-emption rights in respect of the flats were “claims” rather than “existing possessions”. Under the Denationalisation Act, pre-emption rights had been granted to individuals in two phases. First, the individual’s status as former owner of a nationalised property had to be recognised, which by law gave him a right of pre-emption in the event of a sale. The applicant’s status as former owner was recognised in 2001. As for the second phase, the decision to sell was at the sole discretion of the former tenants (and current owners), who might equally well choose not to sell. The sale of the flats was therefore an event which, although possible, was not certain to arise. In the present case, there was nothing to suggest that some of the owners of the flats in question had decided to sell their property prior to the alleged interference, that is, before July 2002. Accordingly, the applicant had never had a currently enforceable claim against the owners. As to the applicant’s argument that his pre-emption rights were entered in the land register, the Court was unable to attach particular importance to that fact, given that the legal effects of the annotation envisaged by the Denationalisation Act were not clearly defined. The applicant did not therefore have “possessions” within the meaning of Article 1 of Protocol No. 1, as his prospects of benefiting from his right of pre‑emption were dependent on a condition which it was not in his power to bring into being. Accordingly, the applicant, at the time of the alleged interference, could not have had a “legitimate expectation” that his claims would be realised: incompatibleratione materiae . Inadmissible under Article 6(1): With regard to the applicant’s complaint that the proceedings before the Constitutional Court had been unfair it was true that, given the particular features of the abstract constitutional review proceedings before the Constitutional Court, the applicant had been effectively barred from appearing in person before that court. However, the Court had already held that in proceedings involving a large number of individuals, notably those conducted before constitutional courts following a challenge to legislation, it was not always required or even possible for every individual concerned to be heard before the court. The Court saw no reason to depart from that conclusion in the present case: manifestly ill-founded . Inadmissible under Article 13: Article 13 related exclusively to those cases in which the applicant alleged, on arguable grounds, that one or more of his rights or freedoms set forth in the Convention has been violated. As the Court had found that it was not competent ratione materiae to examine the applicant’s complaint under Article 1 of Protocol No. 1, his complaint under Article 13 was also incompatible with the Convention ratione materiae .   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes