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RADANOVIC v. CROATIA - 9056/02 [2006] ECHR 1143 (21 December 2006)
URL: http://www.bailii.org/eu/cases/ECHR/2006/1143.html
Cite as:
[2006] ECHR 1143
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FIRST
SECTION
CASE OF RADANOVIĆ v. CROATIA
(Application
no. 9056/02)
JUDGMENT
STRASBOURG
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:
PROCEDURE
The
case originated in an application (no. 9056/02) against the Republic
of Croatia lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Croatian and Canadian national, Mrs Seka
Radanović (“the applicant”), on 14 December 2001.
The
applicant, who had been granted legal aid, was represented by Mr T.
Vukičević, a lawyer practising in Split. The Croatian
Government (“the Government”) were represented by their
Agents, first Mrs L. Lukina-Karajković and subsequently Mrs Š.
StaZnik.
The
applicant alleged that her rights to property and to an effective
remedy had been violated. She relied on Article 1 of Protocol No. 1
to the Convention and Article 13 thereof.
By
a decision of 19 May 2005 the Court declared the application
admissible.
The
applicant and the Government each filed observations on the merits
(Rule 59 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1939 in Croatia. She currently lives in
Burlington, Canada.
The
applicant is the owner of a flat in Karlovac where she lived until
October 1991, when she left for Germany to join her son. Later on
both of them went to Canada.
On
27 September 1995 the Temporary Takeover and Managing of Certain
Property Act (“the Takeover Act”) entered into force. It
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. It also authorised local authorities
(takeover commissions) to temporarily accommodate other persons in
such property.
After
realising that her flat had been occupied by third persons, on
24 September 1996 the applicant brought a civil action against a
certain family U. in the Karlovac Municipal Court (Općinski
sud u Karlovcu) seeking their eviction.
On
27 September 1996 the Commission for Temporary Takeover and Use of
Property of the Municipality of Karlovac (Komisija za privremeno
preuzimanje i korištenje imovine Općine Karlovac –
“the Takeover Commission”) issued a decision authorising
a certain M.V. to use the applicant's flat temporarily.
On
16 November 1996 the Municipal Court invited the applicant to
designate the proper respondent. On 31 November 1996 the
applicant did so by designating M.V. as the respondent.
On
13 June 1997 the respondent submitted to the Municipal Court the
decision of the Takeover Commission.
In
June 1998 Parliament adopted the Programme for the Return of Refugees
and Displaced Persons (“the Programme for Return”),
regulating the principles for their return and repossession of their
property.
In
August 1998 the Act on Termination of the Takeover Act (“the
Termination Act”) entered into force. It incorporated and gave
legal force to the provisions of the Programme for Return providing
that those persons, whose property had during their absence from
Croatia been given for accommodation of others, had to apply for
repossession of their property with the competent local authorities –
the housing commissions.
At
the hearing held on 15 September 1999 the court enquired with the
Housing Commission of the Municipality of Karlovac (Stambena
Komisija Karlovac – “the Housing Commission”)
whether it had set aside the Takeover Commission's decision of
27 September 1996. On 22 February 2000 the Housing
Commission replied to the court in the negative.
On
10 March 2000 the Municipal Court declared the applicant's action
inadmissible for lack of jurisdiction. The court found that the
Termination Act was lex specialis in relation to the Act on
Ownership and Other Rights In Rem (“the Property Act”).
Accordingly, instead of bringing a civil action the applicant should
have applied for repossession of her property to the competent
housing commission, as provided by the Termination Act.
As
neither party appealed against the decision, it became final on
31 March 2000. On the same day the applicant applied for
repossession of her property to the Housing Commission.
On
16 October 2000 the Housing Commission decided to set aside the
Takeover Commission's decision by which M.V. had obtained the right
to use the applicant's property. It also ordered M.V. to vacate the
flat within 15 days. M.V. unsuccessfully appealed against that
decision to the Karlovac Municipal Court.
On
4 June 2001 the Housing Commission issued a warrant ordering M.V. to
vacate the flat within 15 days following the receipt of the warrant
and indicated that otherwise it would bring a civil action against
him in the competent municipal court.
M.V.
failed to comply with that warrant. However, the Housing Commission
brought no action against him.
On
1 October 2002 the Amendments to the Act on Areas of Special State
Concern (“the 2002 Amendments”) entered into force. They
transferred the jurisdiction in the matter from the housing
commissions (which were abolished) to the Ministry of Public Works,
Reconstruction and Construction (Ministarstvo za javne radove,
obnovu i graditeljstvo – “the Ministry”).
On
21 February 2003 the Ministry invited the applicant to contact its
competent regional office in order to repossess her flat and/or
receive compensation for the prolonged inability to use it, in
accordance with the 2002 Amendments.
One
day later the Ministry issued a decision by which it established that
M.V. had a right to housing which was to be satisfied by providing
him with construction material, in line with the 2002 Amendments.
Pursuant to that decision M.V. was obliged to vacate the flat within
90 days of the final shipment of the construction material. The date
on which M.V. received the final shipment is unknown.
On
2 April 2003 the applicant contacted the Ministry and requested
compensation. She also reiterated her request for repossession.
On
23 June 2003 the Ministry made an offer for a settlement according to
which the State was to pay compensation to the applicant. However,
the applicant declined the offer as unsatisfactory. She submitted
that the amount of compensation offered had covered only the period
from 1 November 2002 onwards. Moreover, the compensation had
amounted to only 314 Croatian kunas (HRK) per month while
the amount of the rent for the flat of that size (45 m²) should
have been assessed at HRK 2,500.
In
December 2003 M.V. delivered the flat to the Ministry and the
applicant repossessed it on 13 January 2004. She submitted that the
flat had been looted and rendered uninhabitable.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. The relevant legislation
1. The Takeover Act
The
Takeover Act (Zakon o privremenom preuzimanju i upravljanju
određenom imovinom, Official Gazette nos. 73/1995 and
7/1996) in its relevant part provided as follows:
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
The
Property Act (Zakon o vlasništvu i drugim stvarnim pravima,
Official Gazette nos. 91/1996, 73/2000 and 114/2001) in its relevant
part provides as follows:
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
Section
9 of the Programme for Return (Program povratka i zbrinjavanja
prognanika, izbjeglica i raseljenih osoba, Official Gazette no.
92/1998) provided as follows:
“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
Sections
8, 9 and 17 of the Act on Areas of Special State Concern (Zakon o
područjima od posebne drZavne skrbi, Official Gazette
nos. 44/1996, 57/1996 (errata), 124/1997, 73/2000, 87/2000
(errata), 69/2001, 94/2001, 88/2002, 26/2003 (consolidated text),
42/2005), as amended by the 2002 Amendments, provide that a temporary
occupant has a right to housing.
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.
The
Decision on the Level of Compensation Due to Owners for Damage
Sustained (Odluka o visini naknade vlasnicima za pretrpljenu
štetu, Official Gazette no. 68/2003) establishes the
amount of that compensation at seven Croatian kunas (HRK) per square
metre.
B. The Supreme Court's practice
In
a series of decisions (for example, in cases nos. Rev-291/1999-2
of 11 September 2002, Rev-1157/02-2 of 21 November 2002 and
Rev-1289/00-02 of 6 November 2003), starting with decision no.
Rev-574/02-2 of 23 April 2002 the Supreme Court interpreted the
relationship between the Property Act and the Termination Act as
follows:
“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.”
In
its decisions nos. Rev-967/00-2 of 30 September 2004 and
Rev-1444/02-2 of 29 June 2004 the Supreme Court gave further
interpretation of the relationship between the Property Act and the
Termination Act as well as of the Programme for Return:
“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.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 TO THE
CONVENTION
A. The parties' submissions
1. The applicant
34.
The applicant complained that she was prevented from using her
property for a prolonged period of time, contrary to 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
applicant submitted that M.V. was neither a refugee nor a displaced
person. In her view, the local authorities had tolerated his
occupation of her flat with the sole purpose of preventing her
return. This was illustrated by the fact that they had issued a
decision to justify that occupation immediately after she had
instituted civil proceedings for his eviction thereby effectively
preventing the otherwise competent court to rule on the merits of her
action.
She
further argued that, by letting her flat to be used by a person who
was not entitled to do so under the laws in force, the State had
violated her right to property. Moreover, once the decision to give
her flat for use to M.V. had been set aside and a warrant had been
issued to vacate it, M.V. became an illegal occupant. The failure of
the domestic authorities to evict him had been contrary to the law
and amounted to a breach of her property rights. In any event, by
preventing her to use her flat for a long period of time, and by not
providing compensation which would correspond to the market rent for
that period, the domestic authorities imposed on her a
disproportionate and excessive burden.
2. The Government
The
Government admitted that there had been an interference with the
applicant's right to peaceful enjoyment of her possessions when the
local authorities had placed another person in the applicant's flat.
However, they repudiated the applicant's contention that, by issuing
a decision allowing M.V. to use her flat shortly after she had
instituted civil proceedings to evict him, those authorities had
acted in bad faith. In the Government's view, it was highly unlikely
that the local authorities had been aware of the pending civil
proceedings instituted only three days before they had given the
impugned decision.
The
Government further argued that entitling M.V. to use the applicant's
flat had been a measure to control the use of property. The resultant
interference had been based on law, namely section 5 of the Takeover
Act and, later on, the Termination Act and the 2002 Amendments.
Moreover, the impugned measure had been in accordance with the
general interest as it had pursued a legitimate aim. The aim of these
statutes and the ensuing measure had been: (a) to protect from
deterioration and devastation the property which had been abandoned
by its owners, (b) to enable the persons whose homes had been
destroyed in the war to solve temporarily their housing needs, (c) to
secure repossession of property of persons who had left Croatia but
were subsequently returning, and, at the same time, (d) to
protect those refugees and displaced persons who had been placed in
the abandoned houses and flats.
As
to the proportionality of the measure, the Government firstly
observed that, when establishing whether a fair balance between the
general interest of the community and the protection of the
individual's fundamental rights had been struck, any special
circumstances and the wide margin of appreciation afforded to States
in assessing what had been in the general interest, were to be taken
into consideration. They argued that the measure had been
proportional since it had been only of a temporary character,
necessary to meet a pressing social need (to provide adequate
temporary accommodation for a large number of displaced persons and
refugees) and narrowly tailored (the users had been under duty to use
the property with the care of a prudent administrator and had been
prohibited from selling it or creating any charges on it).
Moreover,
following the applicant's request for repossession, the State had
taken appropriate measures to satisfy this request in accordance with
the laws in force and within the framework of the post-war social
situation.
Consequently,
the Government concluded that to grant M.V. temporary use of the
applicant's abandoned flat had not represented an immediate excessive
individual burden for the applicant. A fair balance had been struck
between the applicant's fundamental right to property and the general
interest of the community.
B. The Court's assessment
In the Court's view, there has indisputably been an interference with
the applicant's right to property as her flat was allocated for use
to another person and she was unable to use it for a prolonged period
of time.
The
Court further notes that the applicant was not deprived of her title.
Therefore, the interference complained of constituted a control of
use of property within the meaning of the second paragraph of Article
1 of Protocol No. 1 (see, mutatis mutandis, Immobiliare
Saffi v. Italy [GC], no. 22774/93, § 46 and 48,
ECHR 1999 V; and Scollo v. Italy, judgment of 28
September 1995, Series A no. 315 C, p. 52, § 27).
The
Court considers that it does not have to decide whether the very fact
of giving the applicant's flat for use to a third person was
justified under Article 1 of Protocol No.1 to the Convention. Even
assuming so, the situation became significantly different once the
applicant instituted relevant proceedings for repossession of her
flat.
In
those proceedings the domestic authorities recognised the applicant's
right to repossession and issued a warrant to the occupant to vacate
the flat. However, under the relevant legislation (see paragraphs
29-30 above) the authorities had to provide the temporary occupant
with alternative accommodation. Moreover, according to the case-law
of the Supreme Court, he could not have been evicted before being
secured a place to stay (see paragraph 33 above).
It
would appear that in the present case the domestic authorities were
unable to provide alternative accommodation for M.V. before December
2003. They were therefore reluctant and never brought a civil action
for his eviction knowing that in the circumstances such an action
would be doomed to fail. As a result, M.V. was permitted to remain in
the applicant's flat, effectively preventing her from using it, for
more than six years.
Therefore,
the issue to be examined is whether the domestic authorities breached
Article 1 of Protocol No. 1 of the Convention by making the
applicant's right to repossess her flat contingent on their own duty
– which they were unable to fulfil for several years – to
provide alternative accommodation for the temporary occupant.
Assuming
that the interference complained of was lawful and in the general
interest, it must be examined whether it struck the requisite fair
balance between the demands of the general interest of the public and
the requirements of the protection of the individual's fundamental
rights, and whether it imposed a disproportionate and excessive
burden on the applicant (see, for example, Immobiliare Saffi v.
Italy [GC], cited above, § 49).
The
Court recognises that the Croatian authorities faced an exceptionally
difficult task in having to balance the rights of owners against
those of temporary occupants in the context of the return of refugees
and displaced persons, as this involved dealing with socially
sensitive issues. Those authorities had, on the one hand, to secure
the protection of the property rights of the former and, on the
other, to respect the social rights of the latter, both of them often
being socially vulnerable individuals. The Court therefore accepts
that a wide margin of appreciation should be accorded to the
respondent State. However, the exercise of the State's discretion
cannot entail consequences which are at variance with Convention
standards (see Broniowski v. Poland [GC], no. 31443/96, § 182,
ECHR 2004 V). In this connection the Court reiterates that a
situation as the one in the present case calls for a fair
distribution of the social and financial burden involved. This burden
cannot be placed on a particular social group or a private individual
alone, irrespective of how important the interests of the other group
or the community as a whole may be (see, mutatis mutandis,
Hutten-Czapska v. Poland [GC], no. 35014/97, § 225,
to be published in ECHR 2006). However, in the instant case the
applicant was forced to bear a burden – which should have been
borne by the State – of providing the temporary occupant with a
place to stay, a weight she eventually had to carry for more than six
years.
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
The
applicant further complained that she had not had an effective remedy
for her Convention complaint under Article 1 of Protocol No. 1. She
relied on Article 13 of the Convention, which reads as follows:
“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.”
The
applicant argued that she had not appealed against the Karlovac
Municipal Court's decision of 10 March 2000 because at the material
time such an appeal would have lacked any prospects of success. In
support of her argument she referred to the Municipal Court's
reasoning (see paragraph 16 above) and the provisions of the
Termination Act which, in her view, had clearly excluded ordinary
court jurisdiction in such matters.
The
applicant further argued that bringing a new civil action after the
entry into force of the 2002 Amendments would not have had any
prospects of success either. Even though the courts would have
examined the merits of such an action, they would have still ruled
against her. This was so because a favourable outcome of her civil
action would have depended on the availability of alternative
accommodation for the temporary occupant and, in particular, after 22
February 2003 (see paragraph 23 above), on the receipt of the final
shipment of the construction material. Only when the temporary
occupant's housing needs had been satisfied the courts could have
ordered his eviction. Once this had occurred in December 2003, to
bring a civil action had become obsolete as M.V. had left her flat of
his own accord.
2. The Government
The
Government maintained that there had been no violation of the
applicant's right to an effective remedy. They firstly submitted that
under the case-law of the Supreme Court the courts had always had
jurisdiction to decide on the civil action for repossession brought
by an owner against a temporary occupant. Contrary to the applicant's
view, the 2002 Amendments had not (re)established but merely
confirmed the existence of that jurisdiction and the right of owners
to sue for repossession of their property. In spite of that, the
Government conceded that to lodge an appeal against the Karlovac
Municipal Court's decision of 10 March 2000 – by which that
court declined jurisdiction in the case – would have been
futile. The appeal would have ultimately resulted only in a negative
decision on the merits instead of a negative procedural decision
because at the material time the decision allowing M.V. to use the
applicant's flat had not yet been set aside in the administrative
proceedings. However, once the Housing Commission had done so on 16
October 2000 (see paragraph 18 above), the situation became
completely different and from then on to bring a (second) civil
action would have resulted in a decision favourable to the applicant.
Accordingly, the Government argued that at the time she introduced
her application with the Court the applicant had at her disposal an
effective domestic remedy for the alleged violation of her right to
property.
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.
The Court therefore has to determine whether the remedies to
which the applicant had recourse, or which were otherwise available,
were “effective” in the sense of either preventing the
alleged violation of her right to property or its continuation, or of
providing adequate redress for any violation that had already
occurred (see, mutatis mutandis, Kudła v. Poland [GC],
no. 30210/96, § 158, ECHR 2000 XI).
The
Court notes that, initially, the domestic authorities recognised the
applicant's right to repossession and issued a warrant to the
temporary occupant to vacate her flat. However, as already noted
above (see paragraph 45), prior to his eviction the authorities
had to provide him with alternative accommodation. As they were
unable to do so before December 2003, for the applicant to bring
another civil action for his eviction, as suggested by the
Government, would have had no prospects of success. Given that the
remedies to which the applicant previously resorted proved equally
ineffective, the Court concludes that she had no effective remedy for
the protection of her Convention right to property.
Accordingly,
there has been a breach of Article 13.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the Convention provides:
“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
The
applicant claimed 43,363 euros (EUR) in respect of pecuniary damage,
of which EUR 33,363 was for the loss of rent, and EUR 10,000 for the
value of her property left in the flat, which had been lost. She
submitted that the amount of the lost rent was calculated according
to the monthly market rent, which amounted to approximately EUR 5 per
square metre. In support of her claim, the applicant submitted an
advertisement from a local newspaper of 29 May 2006 offering for rent
a furnished flat in Karlovac of the same size (45 m²) for 1,200
Croatian kunas (HRK) per month.
The
Government contested these claims. They submitted information
collected by the fiscal authorities according to which the average
monthly rent for the flats in Karlovac in the period between 1997 and
2004 ranged between HRK 3.13 and 8.57 per square metre. That being
so, the Government reiterated that, in June 2003, the applicant had
been offered compensation amounting to HRK 7 per square metre but she
had refused it (see paragraph 25 above).
The
applicant considered derisory the amounts the Government alleged to
have corresponded to the market rent in the relevant period. She
explained that those amounts represented, in fact, the lowest amounts
of rent tolerated by the fiscal authorities for the purposes of
taxation, whereas the average rent had in reality been substantially
higher. The Government, for their part, agreed that the advertisement
submitted by the applicant could serve as an indicator of the average
rent for flats in Karlovac in the year 2006. However, in their view,
it could by no means indicate the average rent in the period for
which the applicant was seeking compensation, that is, the period
before 13 January 2004.
2. The Court's assessment
The
Court considers that the applicant must have suffered pecuniary
damage as a result of her lack of control over her flat from
5 November 1997 (being the date of the entry into force of
the Convention in respect of Croatia) until 13 January 2004 (see,
mutatis mutandis, Prodan v. Moldova, no. 49806/99,
§ 71, ECHR 2004 III (extracts)).
As
regards the loss of rent, the Court firstly notes that the applicant
already had accommodation and therefore it is reasonable to assume
that she would have attempted to let the flat (see Prodan v.
Moldova, cited above, § 72; and Popov v. Moldova
(no. 1) (just satisfaction), no. 74153/01, § 11,
17 January 2006).
Having
examined the parties' submissions, the Court will take the amount set
forth in the newspaper advertisement submitted by the applicant as a
reference point for assessing the loss suffered.
In
making its assessment, the Court takes into account the fact that the
applicant would inevitably have experienced certain delays in finding
suitable tenants and would have incurred certain maintenance expenses
in connection with the flat. She would have also been subjected to
taxation (see Prodan v. Moldova, cited above, § 74;
and Popov v. Moldova (no. 1) (just satisfaction), cited above,
§ 13). The Court also takes note of the Government's
argument that the applicant refused to accept compensation that would
have amounted to some EUR 615.
Having
regard to the foregoing, and deciding on an equitable basis, the
Court awards the applicant EUR 6,000 on account of the loss of rent,
plus any tax that may be chargeable on that amount.
As
regards the loss of the applicant's personal belongings in the flat,
the Court does not discern any causal link between the violation
found and the pecuniary damage alleged. It therefore rejects this
claim.
B. Non-pecuniary damage
The
applicant claimed EUR 4,000 in respect of non-pecuniary damage.
The
Government contested the claim.
The
Court finds that the applicant must have sustained non-pecuniary
damage. Ruling on an equitable basis, it awards her EUR 2,500 under
that head, plus any tax that may be chargeable on that amount.
C. Costs and expenses
The
applicant also claimed EUR 100 for the costs and expenses incurred
before the domestic courts.
The
Government contested the claim.
According
to the Court's case-law, an applicant is entitled to reimbursement of
his or her costs and expenses only in so far as it has been shown
that these have been actually and necessarily incurred and were
reasonable as to quantum. In the present case, regard being had to
the information in its possession and the above criteria, the Court
considers that the sum claimed for costs and expenses in the domestic
proceedings should be awarded in full, plus any tax that may be
chargeable on that amount.
D. Default interest
The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Holds that there has been a violation of Article
1 of Protocol No. 1 to the Convention;
Holds that there has been a violation of Article
13 of the Convention;
Holds
(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;
Dismisses the remainder of the applicant's claim
for just satisfaction.
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
Registrar President
