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FIRST
SECTION
CASE OF VUČAK v. CROATIA
(Application
no. 889/06)
JUDGMENT
STRASBOURG
23 October
2008
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 Vučak
v. Croatia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Anatoly
Kovler,
President,
Nina
Vajić,
Khanlar
Hajiyev,
Dean
Spielmann,
Sverre
Erik Jebens,
Giorgio
Malinverni,
George
Nicolaou,
judges,
and André Wampach,
Deputy
Section Registrar,
Having
deliberated in private on 2 October 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 889/06) 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 two Croatian nationals of Serbian origin, Mr
Nikola Vučak and Mrs Mira Vučak (“the applicants”),
on 6 December 2005.
- The
applicants were represented by Mr T. Vukičević, a lawyer
practising in Split. The Croatian Government (“the Government”)
were represented by their Agent, Mrs Š. StaZnik.
- On
14 May 2007 the Court decided to communicate the complaints
concerning the right to respect for one’s home and the right to
the peaceful enjoyment of one’s possessions to the Government.
Under the provisions of Article 29 § 3 of the Convention, it
decided to examine the merits of the application at the same time as
its admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicants were born in 1940 and 1946, respectively, and currently
live in Rijeka.
- They
are the owners of a three-storey family house in Knin, with a surface
area of 350 square metres. They lived there until 5 August 1995,
when they left Croatia. It appears that the second applicant returned
to Croatia in November or December 1995 and went to live with her son
in Rijeka. The first applicant joined them in July 2000.
- On
27 September 1995 the Temporary Takeover and Administration 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 sequestered, that is, 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.
- On
4 October 1996 the Commission for Temporary Takeover and Use of
Certain Property of the Town of Knin (Komisija za privremeno
preuzimanje i korištenje određene imovine Grada Knina
– “the Takeover Commission”) issued a decision
authorising a certain A.M. and M.M. to use the applicants’
house temporarily.
- 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 used to accommodate others, should apply to the
competent local authorities – the housing commissions –
to recover their property.
A. The proceedings for repossession of the applicants’
house
-
Meanwhile, on 13 December 1995 the second applicant made a request to
the Takeover Commission seeking that the house be returned to her.
She received no reply.
- On
17 March 1999 both applicants applied for repossession of their house
to the Housing Commission of the Town of Knin (Stambena Komisija
Knin – “the Housing Commission”), as provided
by the Programme for Return.
- On
30 November 2001 the Housing Commission set aside the Takeover
Commission’s decision of 4 October 1996 and ordered that the
property be returned to the applicants once alternative accommodation
had been secured for the temporary occupants. However, no such
accommodation was secured and the temporary occupants continued to
live in the applicants’ house.
- On
9 April 2003 the applicants brought a civil action in the Knin
Municipal Court (Općinski sud u Kninu) against A.M. and
M.M., seeking their eviction. On 7 October 2003 the court delivered a
judgment ordering the respondents to vacate the house within 15 days
after being provided with a place to stay. It held that until then
they were entitled to remain in the applicants’ property.
- Even
though the court formally ruled in favour of the applicants, they
appealed, arguing that by making their right to repossess their own
house dependent on a future and uncertain event, the first-instance
court actually exceeded its authority by granting a
relief different from the one they sought (that is, ruled
extra petitum).
- On
22 December 2003 the Šibenik County Court (Zupanijski sud u
Šibeniku) dismissed the applicants’ appeal and
upheld the first-instance judgment. The applicants then lodged a
constitutional complaint alleging violations of their constitutional
rights to respect for their home and their property and to equality
before the law.
- On
21 September 2005 the Constitutional Court (Ustavni sud Republike
Hrvatske) dismissed their complaint.
- The
applicants submit that they have never regained possession of their
house, which was instead sold without their authorisation (see
paragraph 18 below).
B. The proceedings following the sale of the
applicants’ house
- Meanwhile,
on 16 September 2004 the State Real Estate Agency (Agencija za
pravni promet i posjedovanje nekretninama) and a certain K.V. –
who submitted a power-of-attorney allegedly signed by the applicants
authorising her to act on their behalf – concluded a sale
contract whereby the applicants sold their house to the State for
335,700 Croatian kunas (HRK).
- On
27 October 2004 the State leased the house to the above-mentioned
temporary occupants.
- The
applicants claimed that they had never heard of K.V., let alone
authorised her to sell their house, and that only on 29 November 2004
had they found out that the house had been sold. On 1 December 2004
they filed a criminal complaint against K.V. with the competent State
Attorney’s Office.
1. Land registry proceedings
- On
11 October 2004 the State Real Estate Agency applied to the Land
Registry Division of the Knin Municipal Court with a view to
registering the State as the owner of the applicants’ house on
the basis of the above sale contract. On 10 November 2004, after
finding that the sale contract and the power-of-attorney were not in
conformity with certain formal requirements, the court allowed only
preliminary registration, which the State had to validate by bringing
a civil action against the applicants within 15 days. After finding
out about the sale (see paragraph 20 above), on 15 December 2004
the applicants appealed against the preliminary registration
decision, arguing they did not know who K.V. was and thus could not
have authorised her to sell their house.
- On
19 January 2005 the Šibenik County Court accepted the appeal
and reversed the first-instance decision by dismissing the Agency’s
request in its entirety. It found that the request did not even meet
the requirements for preliminary registration.
- On
14 June 2005 the State Real Estate Agency re-submitted their request.
On 28 June 2005 the Knin Municipal Court dismissed it.
2. Civil proceedings
- On
27 June 2005 the State brought a regular civil action against the
applicants in the Knin Municipal Court seeking to be declared the
owner of their house and recorded as such in the land register.
- The
plaintiff argued that the applicants had sold their house to the
State and received the money for it. The applicants replied that they
had never heard of K.V., who had purportedly signed the sale contract
on their behalf, nor authorised her to do so. They added that they
had never received any money for the sale of their house.
- After
obtaining an opinion from an expert in graphology, on 5 March
2007 the Municipal Court dismissed the plaintiff’s action,
finding that the applicants’ signatures on the
power-of-attorney allegedly given to K.V. had been forged and that
the sale contract was therefore null and void.
- On
18 June 2008 the Šibenik County Court dismissed the appeal of
the State and upheld the first-instance judgment, which thereby
became final.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- Section
27 (4) of the Act on Areas of Special State Concern (Zakon o
područjima od posebne drZavne skrbi, Official Gazette nos.
44/1996, 57/1996 (corrigendum), 124/1997, 73/2000, 87/2000
(corrigendum), 69/2001, 94/2001, 88/2002, 26/2003 (consolidated
text), 42/2005), as amended by the 2002 Amendments (which entered
into force on 1 October 2002), provides for the State to pay
compensation for the damage sustained by owners who applied for
repossession of their property prior to 30 October 2002 but
whose 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) established the
amount of that compensation at HRK 7 per month per square metre.
- The
other relevant domestic law and practice concerning repossession of
property sequestered by the State are set out in Radanović
v. Croatia, no. 9056/02, §§ 27-29 and 33, 21
December 2006, and Kunić v. Croatia, no. 22344/02,
§§ 42-43, 11 January 2007.
- Section
120 (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) provides that ownership of
immovable property shall be acquired by registration in the land
register, unless the law provides otherwise.
THE LAW
I. ALLEGED VIOLATIONS OF ARTICLE 8 OF THE CONVENTION AND
ARTICLE 1 OF PROTOCOL NO. 1 THERETO
-
The applicants complained that their right to respect for their home
and their right to the peaceful enjoyment of their possessions had
been infringed as they had been unable to regain possession of their
house for many years and it had subsequently been sold without their
consent. They relied on Article 8 of the Convention and Article 1 of
Protocol No. 1 thereto, which in their relevant parts read as
follows:
Article 8
“1. Everyone has the right to respect
for ... his home.
2. There shall be no interference by a public
authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society in
the interests of national security, public safety or the economic
well-being of the country, for the prevention of disorder or crime,
for the protection of health or morals, or for the protection of the
rights and freedoms of others.”
Article 1 of Protocol No. 1
“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 contested that argument.
A. Admissibility
1. The parties’ arguments
(a) The Government
- The
Government invited the Court to reject these complaints on the ground
that the applicants had failed to exhaust domestic remedies.
- The
Government first emphasized that according to the 2002 Amendments to
the Act on Areas of Special State Concern (see paragraph 28 above)
the applicants were entitled to compensation from the State if the
property had not been returned to them by 30 October 2002. However,
they had failed to avail themselves of that possibility.
- As
regards the sale of the applicant’s house, the Government
pointed out that under Croatian law the transfer of ownership of
immovable property on the basis of a sale contract is considered
completed only at the moment the purchaser registers itself as the
owner in the land register (see paragraph 30 above). Given that in
the present case the State’s request for registration had been
refused by the competent court, the applicants had remained the
owners of their house and the State had to bring a civil action for
declaration and registration of ownership (see paragraphs 24-27
above). In these proceedings the competent courts had ruled in favour
of the applicants, finding the sale contract null and void because
their signatures on the power-of-attorney had been forged. Once those
proceedings had ended with a final judgment it was for the applicants
to avail themselves of available domestic remedies in order to
repossess their house and seek compensation for the period during
which the property had not been in their possession.
(b) The applicants
- The
applicants deemed the compensation provided for by the 2002
Amendments unsatisfactory as it did not cover the period prior to
1 November 2002 and was below the amount obtainable by renting
the house at market price.
- As
regards the sale of the house, the applicants admitted that they had
remained the owners but rejected the contention that their complaint
was premature. They explained that the sale of their house and the
ensuing proceedings had only extended the already lengthy period
during which they had not been able to return to their home and use
their property, which had still not been returned to them. The
possible good faith of the authorities existing at the time of the
conclusion of the sale contract had been undermined by their
subsequent behaviour. Namely, even though since December 2004 the
authorities had been aware – on the basis of the earlier land
registry proceedings and the applicants’ criminal complaint
against K.V. – that the power-of-attorney used to conclude the
sale contract had been obtained unlawfully, the State had in June
2005 nevertheless instituted civil proceedings against the applicants
and continued to use all possible legal mechanisms (for example, by
appealing against the first-instance decision in those proceedings)
to prolong occupation of the applicants’ property.
2. The Court’s assessment
- As
regards the Government’s argument based on the compensation
provided for by the 2002 Amendments, the Court notes that it had
rejected it in earlier cases (see Radanović
v. Croatia (dec.), no. 9056/02, 19 May 2005, and Kunić
v. Croatia (dec.), no. 22344/02, 1 September 2005) and sees no
reason to reach a different conclusion in the present case.
- Likewise,
the Court is unable to accept the Government’s argument that,
once the applicants had obtained a final judgment in their favour in
the civil proceedings in which a preliminary issue was the validity
of the sale contract of 16 September 2004 (see paragraphs 24-27
above), they should have resorted to further remedies in order to
repossess their house. In this connection, the Court notes that the
temporary occupants A.M. and M.M. are still living in the applicants’
house and that under domestic law they are allowed to remain there
until the State provides them with alternative accommodation. Since
the State has not yet done so, any remedy aimed at their eviction
from the applicants’ house would be bound to fail.
- It follows that the Government’s objection
concerning non-exhaustion of domestic remedies must be dismissed.
- The
Court further notes that these complaints are not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It also notes that they are not inadmissible on any other
grounds. They must therefore be declared admissible.
B. Merits
- The
Court has frequently found violations of the applicants’ right
to protection of their property under Article 1 of Protocol No. 1 to
the Convention in cases raising issues similar to the one in the
present case (see Radanović v. Croatia, no. 9056/02,
21 December 2006, and Kunić v. Croatia,
no. 22344/02, 11 January 2007).
- Having
examined all the material submitted to it, the Court considers that
the Government have not put forward any fact or argument capable of
persuading it to reach a different conclusion in the present case.
There
has accordingly been a breach of Article 1 of Protocol No. 1.
- In
view of this conclusion, the Court considers that it is not necessary
to examine whether, in this case, there has also been a violation of
Article 8 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION
- The
applicants further complained that the prolonged inability to use
their house and its sale without their approval had been due to their
Serbian origin. They relied on Article 14 of the Convention taken in
conjunction with Article 8 thereof and Article 1 of Protocol No. 1
thereto. Article 14 reads as follows:
“The enjoyment of the rights and freedoms set
forth in [the] Convention shall be secured without discrimination on
any ground such as sex, race, colour, language, religion, political
or other opinion, national or social origin, association with a
national minority, property, birth or other status.”
- The
Court notes that this complaint is similar to the one declared
inadmissible as manifestly ill-founded in the case of Kostić
v. Croatia ((dec.), no. 69265/01, 8 January 2004) and sees no
reason to reach a different conclusion in the present case.
- It
follows that this complaint is inadmissible under Article 35 §
3 as manifestly ill-founded and must be rejected pursuant to
Article 35 § 4 of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- Lastly,
the applicants complained that in the above proceedings for
repossession of their property the domestic courts had ruled extra
petitum (see paragraphs 13-16 above). They relied on Article 6
§ 1 of the Convention, the relevant part of which reads:
“In the determination of his civil rights and
obligations ... everyone is entitled to a fair ... hearing ....”
- The Court notes that the applicants complain about the
outcome of the proceedings, which, unless arbitrary, the Court is
unable to examine under Article 6 § 1 of the Convention. The
applicants do not complain and there is no evidence to suggest that
the domestic courts lacked impartiality or that the proceedings were
otherwise unfair.
- In
the light of all the material in its possession, the Court considers
that in the impugned proceedings the applicants were able to submit
their arguments before courts which offered the guarantees set forth
in Article 6 § 1 of the Convention and which
addressed those arguments in decisions that were duly reasoned.
- It
follows that this complaint is also inadmissible under Article 35 § 3
as manifestly ill-founded and must be rejected pursuant to
Article 35 § 4 of the Convention.
IV. 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
- The
applicants claimed 79,505.91 euros (EUR) in respect of pecuniary
damage.
- The
Government contested that claim.
- The
Court considers that the most appropriate form of redress in respect
of a violation of Article 1 of Protocol No. 1 is to ensure that an
applicant as far as possible is put in the position he or she would
have been in had the requirements of that Article not been
disregarded (see, for example, Lukavica v. Croatia,
no. 39810/04, § 48, 5 July 2007). It therefore
considers that the Government must secure, by appropriate means, the
enforcement of the Housing Commission’s decision of 30 November
2001 in its part ordering the return of the house to the applicants.
The Court also considers that the applicants must have suffered
pecuniary damage as a result of their lack of control over their
property in the period after the entry into force of the Convention
in respect of Croatia on 5 November 1997 (see, mutatis
mutandis, Prodan v. Moldova, no. 49806/99, § 71,
ECHR 2004 III (extracts), and Radanović v. Croatia,
cited above, § 62).
- The
Court observes that the Government submitted information, collected
by the fiscal authorities according to which the average monthly rent
in Knin in the relevant period had been HRK 11 per square metre. The
applicants implicitly accepted that amount by using it to justify
their claim. In these circumstances the Court sees no reason to hold
otherwise and will take that amount as a reference point for
assessing the loss sustained.
- According
to the evidence in its possession, the Court considers that the total
surface area of the applicants’ house susceptible of being let
was 350 square metres.
- In
making its assessment, the Court takes into account the fact that the
applicants would inevitably have experienced certain delays in
finding suitable tenants and would have incurred certain maintenance
expenses in connection with the house. They would have also been
subjected to taxation (see Prodan v. Moldova, cited above,
§ 74, and Radanović v. Croatia, cited above,
§ 13). The Court also takes note of the Government’s
argument that the applicants did not avail themselves of the
opportunity existing under the 2002 Amendments and obtain partial
compensation that would have in their case amounted to some
EUR 23,900.
- Having
regard to the foregoing, and deciding on an equitable basis, the
Court awards the applicants jointly EUR 11,000 on account of the loss
of rent, plus any tax that may be chargeable on that amount.
B. Non-pecuniary damage
- The
applicants claimed EUR 6,000 each in respect of non-pecuniary damage.
- The
Government contested the claim.
- The
Court finds that the applicants must have sustained non-pecuniary
damage. Ruling on an equitable basis, it awards each applicant EUR
3,000 under that head, plus any tax that may be chargeable on that
amount.
C. Costs and expenses
- The applicants also claimed EUR 794.52 for costs and
expenses incurred before the domestic courts. However, they failed to
submit any relevant supporting documents proving that those costs had
actually been incurred, although they were invited to do so.
- The
Government contested this claim.
- The
Court observes that the applicants failed to comply with the
requirements set out in Rule 60 § 2 of the Rules of Court. In
these circumstances, it makes no award under this head (Rule 60 § 3).
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
- Declares the complaint concerning the
applicants’ inability to regain possession of their house for a
prolonged period of time admissible and the remainder of the
application inadmissible;
- Holds that there has been a violation of Article
1 of Protocol No. 1 to the Convention;
- Holds that there is no need to examine the
complaint under Article 8 of the Convention;
- Holds
(a) that
the respondent State shall secure, by appropriate means and within
three months from the date on which the judgment becomes final in
accordance with Article 44 § 2 of the Convention, the
enforcement of the decision of the Housing Commission of the Town of
Knin of 30 November 2001;
(b) that
the respondent State is to pay, within three months
from the date on which the judgment becomes final according to
Article 44 § 2 of the Convention, the
following amounts which are to be converted into Croatian kunas at a
rate applicable at the date of settlement:
(i) to
the applicants jointly EUR 11,000 (eleven thousand euros) in respect
of pecuniary damage;
(ii) to
each applicant EUR 3,000 (three thousand euros) in respect of
non-pecuniary damage;
(iii) any
tax that may be chargeable on the above amounts;
(c) 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 applicants’
claim for just satisfaction.
Done in English, and notified in writing on 23 October 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
André Wampach Anatoly Kovler
Deputy Registrar President
