(Application no. 9056/02)
21 December 2006
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Radanović v. Croatia,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
Mr C.L. Rozakis, President,
Mr L. Loucaides,
Mrs F. Tulkens,
Mrs N. Vajić,
Mr A. Kovler,
Mrs E. Steiner,
Mr K. Hajiyev, judges,
and Mr S. Nielsen, Section Registrar,
Having deliberated in private on 30 November 2006,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. The relevant legislation
1. The Takeover Act
Section 2(2) provided that property belonging to persons who had left Croatia after 17 October 1990, was to be taken into the care of, and controlled, by the State.
Section 5, inter alia, authorised the takeover commissions to entrust the property under Section 2 for temporary use by refugees, displaced persons or persons whose property had been destroyed in the war.
Section 7 obliged temporary occupants to use the property with the care of a prudent administrator (bonus paterfamilias) and prohibited them from selling it or from creating any charges on such property.
2. The Property Act
Section 161(1) entitles the owner of property to recover it from anyone who possesses it.
Section 163(1) provides that the possessor may refuse to deliver the property to its owner if he is entitled to retain possession of it (i.e. if he has a right of possession).
Section 164(1) provides that a bona fide possessor, who is not actually entitled to possess the property, must deliver it to its owner but is not obliged to compensate the owner for its use, the benefit derived from it, or the damage resulting from its loss or deterioration.
3. The Programme for Return and the Termination Act
“Persons with Croatian [citizenship] documents who are owners of property in Croatia in which other persons are temporarily accommodated may apply to the municipal housing commission and seek repossession of their property. The commission shall inform the owner within five days about the status of his property. Relying on proof of ownership, the commission shall set aside any previous decision allowing the temporary accommodation of other persons and order the temporary occupant to vacate the premises. The commission shall serve a written decision on the owner and on the temporary occupant within seven days. The decision shall contain a time-limit for eviction and an offer of alternative accommodation for the temporary occupant in a house or flat under state ownership.
If a temporary occupant fails to vacate the premises within the fixed time-limit, the commission shall institute eviction proceedings in the competent municipal court within seven days. The court shall apply the provisions concerning summary procedure in civil matters. The court's decision shall be immediately enforceable. An appeal shall not interfere with the enforcement proceedings or the repossession of the property by the owner.”
Section 2(3) and 2(4) of the Termination Act (Zakon o prestanku vaZenja Zakona o privremenom preuzimanju i upravljanu određenom imovinom, Official Gazette no. 101/1998) provided that the Programme for Return applied to proceedings concerning the temporary use, management and control of the property of persons who had left Croatia and that such proceedings were to be conducted by housing commissions in the first instance and by municipal courts in the second instance. They were required to apply the Administrative Procedure Act.
4. The Act on Areas of Special State Concern and related subordinate legislation
Section 18(1) provides that a temporary occupant whose right to housing is to be satisfied by providing him with construction material, must vacate the house or flat entrusted for his temporary use within 90 days of the final shipment of such material.
Section 18(2) provides that if a temporary occupant fails to observe the above time-limit, the State Attorney will, within the 15 days following the expiry of the time-limit, institute civil proceedings for his eviction.
Section 18(5) provides that, regardless of whether the State Attorney has brought a civil action for eviction, the owner has an independent right to bring such an action for the protection of his ownership.
Section 27 provides that the Ministry shall pay compensation for the damage sustained by an owner who applied for repossession of his or her property prior to 30 October 2002 but to whom the property was not returned by that date.
B. The Supreme Court's practice
“The jurisdiction to decide on an owner's application for repossession conferred on the administrative authorities under the Termination Act does not exclude ordinary court jurisdiction in such matters under the Property Act. Therefore, a civil action for repossession, based on section 161(1) of the Property Act and brought in a court against a temporary occupant by an owner whose property had been taken over under the Takeover Act, should be decided on its merits rather than declared inadmissible for lack of jurisdiction.”
“The temporary occupant's right to use the owner's property does not cease merely for the reason that a housing commission has set aside the decision allowing him or her to do so. This is because the duty to return the property to its owner is conditional upon the duty of the State to provide alternative accommodation for the temporary occupant.
It follows that the temporary occupant is not obliged to compensate the owner for the use of his or her property since, before being provided with alternative accommodation, he or she remains a bona fide possessor.”
I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 TO THE CONVENTION
A. The parties' submissions
1. The applicant
“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.”
2. The Government
B. The Court's assessment
50. Notwithstanding the State's margin of appreciation, and in the absence of adequate compensation (see paragraph 25 above), the Court considers that the Croatian authorities failed to strike the requisite fair balance between the general interest of the community and the protection of the applicant's right to property. As a result thereof the applicant had to bear an excessive individual burden; therefore the interference with her right to property cannot be considered proportionate to the legitimate aim pursued.
There has accordingly been a breach of Article 1 of Protocol No. 1.
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
A. The parties' submissions
1. The applicant
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
2. The Government
B. The Court's assessment
55. The Court observes that the applicant had at her disposal remedies to seek repossession of her flat: a civil action and an application to the local (administrative) authorities. She availed herself of these remedies. However, Article 13 requires a remedy to be “effective”, and the question arises whether this was the case in the specific circumstances having regard to the fact that it took more than six years for the applicant to repossess her flat. The gist of the applicant's complaint under that Article thus concerns the ineffectiveness rather than the lack of the available remedies.
Accordingly, there has been a breach of Article 13.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
A. Pecuniary damage
1. The parties' submissions
2. The Court's assessment
B. Non-pecuniary damage
C. Costs and expenses
D. Default interest
FOR THESE REASONS, THE COURT UNANIMOUSLY
(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the national currency of the respondent State at the rate applicable at the date of settlement:
(i) EUR 6,000 (six thousand euros) in respect of pecuniary damage;
(ii) EUR 2,500 (two thousand five hundred euros) in respect of non-pecuniary damage;
(iii) EUR 100 (one hundred euros) in respect of costs and expenses;
(iv) any tax that may be chargeable on the above amounts;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
Done in English, and notified in writing on 21 December 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis