CASE OF PETAR MATAS v. CROATIA

SECOND SECTION

CASE OF PETAR MATAS v. CROATIA

(Application no. 40581/12)

JUDGMENT

STRASBOURG

4 October 2016

FINAL

04/01/2017

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Petar Matas v. Croatia,

The European Court of Human Rights (Second Section), sitting as a Chamber composed of:

Işıl Karakaş, President,
Nebojša Vučinić,
Paul Lemmens,
Valeriu Griţco,
Ksenija Turković,
Stéphanie Mourou-Vikström,
Georges Ravarani, judges,
and Stanley Naismith, Section Registrar,

Having deliberated in private on 30 August 2016,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 40581/12) 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 national, Mr Petar Matas (“the applicant”), on 14 June 2012.

2. The applicant was represented by Ms M. Mešin, a lawyer practising in Split. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik.

3. The applicant complained of an allegedly unlawful and unreasonable restriction of his property rights in respect of a commercial building by the application of measures of preventive protection relating to cultural heritage, contrary to Article 1 of Protocol No. 1.

4. On 9 February 2015 the above complaint was communicated to the Government, and the remainder of the application was declared inadmissible, pursuant to Rule 54 § 3 of the Rules of Court.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1953 and lives in Split.

6. The applicant is the owner of a commercial building in Split, which he uses as a car repair workshop. The building in issue was bought from the State in 2001. At the time of purchase, no limitation on its use was registered or apparent.

7. On 28 March 2003 the Split Department for the Conservation of Cultural Heritage (Ministarstvo kulture, Uprava za zaštitu kulturne baštine, Konzervatorski odjel u Splitu, hereafter “the Split Department”) ordered a measure of preventive protection relating to cultural heritage with regard to the applicant’s building, pending the final evaluation of its cultural value. It explained that the building, which was being used as a car repair workshop at that point, appeared to be a rare example of early industrial architecture in Split, and therefore this warranted a measure limiting its use by the applicant. Under section 10 of the Protection and Preservation of Cultural Heritage Act (Zakon o zaštiti i očuvanju kulturnih dobara, hereafter “the Cultural Heritage Act”) the measure would remain in place for a period of three years, and, in accordance with section 11 of the same Act, would afford the same protection as a final protective measure (see paragraph 21 below).

8. The decision ordering the preventive protection was not transmitted to the applicant. It was forwarded to the land registry of the Split Municipal Court (Općinski sud u Splitu) and duly registered in the land register.

9. On 10 January 2007, after the expiry of the three-year period, the Split Department again ordered a measure of preventive protection with regard to the applicant’s commercial building, reiterating the same grounds as those specified in its previous decision.

10. The applicant was not informed of the above decision relating to the second measure of preventive protection in respect of his building. On 3 September 2007 the measure was registered in the land register.

11. On 16 October 2007, after becoming aware of the second measure of preventive protection following an enquiry with the land registry, the applicant challenged the extended application of that measure before the Ministry of Culture (Ministarstvo culture, hereafter “the Ministry”). He contended, in particular, that he had not been informed of the decision ordering the preventive protection, and that the protection could no longer be ordered, since the maximum duration of such a measure under the Cultural Heritage Act was three years. The applicant also enquired about compensation in respect of the pecuniary damage he had sustained as a result of the measure of preventive protection.

12. On 8 January 2008 the Split Department forwarded the applicant’s appeal to the Ministry. It stressed that the decision of 10 January 2007 extending the preventive protection after the expiry of the first three-year period had been necessary, owing to the fact that it had not been possible to obtain an excerpt from the land register from the Split Municipal Court, and that the building represented an important example of early industrial architecture in Split.

13. On 31 January 2008 the Ministry dismissed the applicant’s appeal as unfounded, on the grounds that there was nothing in the law preventing the competent authority from applying the measure twice for periods of three years, and that the measure of preventive protection had not limited the applicant’s ownership rights. It also pointed out that it was necessary to extend the preventive protection in respect of the building, as the determination of its heritage value required further comprehensive assessment.

14. On 9 March 2008 the applicant lodged an administrative action in the Administrative Court (Upravni sud Republike Hrvatske), challenging the lawfulness and reasonableness of the measure of preventive protection, and emphasising the passivity of the competent authorities in finally resolving the matter. He also contended that the decisions of the lower authorities had been arbitrary. He pointed out that, contrary to what the Ministry had stated, his ownership rights had been significantly limited, as his freedom to deal with the property as he wished had been restricted. In particular, his several attempts to sell the building and set up another business cooperation had failed, owing to the existing preventive protection. The applicant also asked the Administrative Court to award him 200,000 euros (EUR) in respect of the damage he had sustained as a result of the conduct of the administrative authorities.

15. Meanwhile, the Split Department found that the applicant’s building should not be registered as an object of cultural heritage. On 15 April 2010, after the expiry of the measure of preventive protection, the Split Municipal Court ordered that the entry concerning the measure be deleted from the land register.

16. On 18 May 2011 the Administrative Court dismissed the applicant’s administrative action as unfounded, endorsing the reasoning of the lower authorities. In particular, it pointed out that there had been solid evidence suggesting that the building was an important object of cultural heritage, and that the measure of preventive protection was therefore justified given the need to carry out further assessments. Moreover, the Administrative Court considered that nothing in the relevant domestic law prevented the adoption of the second decision on preventive protection following the expiry of the first three-year time-limit.

17. On 10 September 2011 the applicant lodged a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske), complaining of a violation of his property rights under Article 48 of the Constitution with regard to the allegedly unlawful and unreasonable application of the measure of preventive protection in respect of his property.

18. On 14 December 2011 the Constitutional Court declared the applicant’s constitutional complaint inadmissible as manifestly ill-founded.

II. RELEVANT DOMESTIC LAW

A. Constitution

19. The relevant provision of the Constitution of the Republic of Croatia (Ustav Republike Hrvatske, Official Gazette nos. 56/1990, 135/1997, 8/1998, 113/2000, 124/2000, 28/2001, 41/2001, 55/2001, 76/2010, 85/2010 and 5/2014) reads:

Article 48

“The right of ownership shall be guaranteed ... ”

B. The Cultural Heritage Act

20. The relevant provisions of the Protection and Preservation of Cultural Heritage Act (Zakon o zaštiti i očuvanju kulturnih dobara, Official Gazette, nos. 69/1999, 151/2003 and 157/2003) provide:

Preventive protection

Section 10

“Objects presumed capable of being of cultural benefit may be the subject of provisional decisions ordering preventive protection. ...

The period of preventive protection runs until the adoption of the [decision finally determining the status of an object of cultural heritage], but may not last longer than three years, ...

If, by the expiry of the time-limit referred to in paragraph 3 of this section, the decision determining the [heritage] status of a cultural object has not been adopted, the decision ordering preventive protection ceases to be valid. ...”

Section 11

“This Act, and all the provisions concerning the protection of objects of cultural heritage, are applicable to [matters relating to] an object which is under the preventive protection. ...”

21. The Cultural Heritage Act further provides for different obligations on the part of owners of objects of cultural heritage; in particular, the duty of care, protection and maintenance, and the duty to allow free access and the taking of further measurements in relation to the research and assessment of the objects (section 20). The owner of such an object is obliged to bear all expenses relating to the protection and preservation of the object, save for possible extraordinary expenses, which may be claimed from the Ministry (section 22). An owner who duly complies with the requirements of the Cultural Heritage Act may claim compensation for the restriction of his or her property rights, different tax and customs benefits and expert guidance concerning the use of the object of cultural heritage (sections 24-26).

22. The specific restrictions on property rights in respect of objects relevant to cultural heritage which may be imposed under the Cultural Heritage Act are enumerated in sections 27-42. These restrictions include:

(a) restrictions with regard to possession, particularly with regard to the duty to allow free access to the object for the purpose of research and assessment, where compensation may be claimed only if it can be proven that damage has been sustained;

(b) restrictions with regard to the use of objects, and in particular the obligation on the part of the owner to seek prior permission for any change in the nature of use of the object; and

(c) restrictions with regard to the transfer of property where the State has a right of pre-emption. An object of cultural heritage may also be expropriated in the interests of the State (section 41).

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION

23. The applicant complained of an allegedly unlawful and unreasonable restriction of his property rights in respect of a commercial building by the application of measures of preventive protection relating to cultural heritage. He relied on Article 1 of Protocol No. 1, which reads:

“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.”

A. Admissibility

1. The parties’ arguments

24. The Government argued that the applicant had failed to ask the Ministry to award him compensation for the restriction of his property rights by the application of the measure of preventive protection, as set out in the Cultural Heritage Act (see paragraphs 21-22 above). He had therefore failed to avail himself of an effective legal avenue whereby the question of the reasonableness of the restriction of his property rights could have been assessed.

25. The applicant maintained that he had properly exhausted the domestic remedies by pursuing his complaints before the administrative and judicial authorities concerning the application of the measure of preventive protection with regard to his building.

2. The Court’s assessment

26. The Court reiterates that the rule on exhaustion of domestic remedies under Article 35 § 1 of the Convention requires that complaints intended to be made subsequently in Strasbourg should have been made to the appropriate domestic body, at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law (see Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, § 72, 25 March 2014).

27. With regard to the case in issue, the Court notes that the central tenet of the applicant’s complaint is the allegedly unlawful and unjustified interference with his property rights by the application of the measure of preventive protection with regard to his building. In respect of that complaint, the applicant duly pursued all available legal remedies before the administrative and judicial authorities, and he also lodged a constitutional complaint with the Constitutional Court (see paragraphs 11, 14 and 16 above). Moreover, contrary to what the Government have asserted, the applicant asked for compensation for the pecuniary damage he had sustained as a result of the application of the measure of preventive protection, before both the Ministry and the Administrative Court (see paragraphs 11 and 14 above).

28. In view of the above, the Court finds that the applicant properly exhausted the domestic remedies. The Government’s objection should therefore be rejected.

29. The Court further notes that the applicant’s complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It also notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. The parties’ arguments

(a) The applicant

30. The applicant contended that, whereas he could have accepted that the first measure of preventive protection had been necessary in order to assess the value of his building with regard to cultural heritage, the second measure had been unlawful and unjustified. In particular, in his view, the second decision to apply the measure had been adopted contrary to section 10 of the Cultural Heritage Act, which clearly provided for the possibility of applying a measure of preventive protection for a period of only three years. In his case, the measure had been applied for two three-year periods, which had been contrary to the relevant domestic law, and also unnecessary and disproportionate. The applicant further contended that the application of the measure of preventive protection had imposed a number of restrictions on his property rights. It had also discouraged investors from investing in his projects concerning the reconstruction of the building. In that connection, the applicant provided outlines of the projects which had apparently been abandoned owing to the application of the measure of preventive protection.

(b) The Government

31. The Government conceded an interference with the applicant’s property rights by the application of the measure of preventive protection with regard to his building. They submitted that such an interference had been lawful, had pursued a legitimate aim of the protection of cultural heritage, and had not imposed an excessive individual burden on the applicant. This was particularly true given the need to identify and protect objects of early industrial architecture in Split, and the fact that the applicant’s building had been only one of twelve objects in respect of which substantial research and assessment had been carried out in order to determine heritage value. However, following the necessary research, it had been determined that the applicant’s building should not be registered as an object of cultural heritage. The Government further contended that, although preventive protection implied the applicability of other measures protecting cultural heritage under the Cultural Heritage Act, the only true restriction on the applicant’s property rights had been the right of pre-emption established in favour of the State. In this connection, the Government also submitted that there was arguably nothing supporting the applicant’s arguments that he had abandoned certain investment projects owing to the application of the measure of preventive protection.

2. The Court’s assessment

(a) Whether there has been interference with the applicant’s possession

32. In the present case, the Government admitted that there had been interference with the applicant’s right to the peaceful enjoyment of his possessions (see paragraph 31 above), and the Court cannot discern any reason to hold otherwise. It notes that the application of the measure of preventive protection in respect of the applicant’s building did not deprive him of his possession, but put in place restrictions regarding the use of that possession; hence, it may be regarded as a measure to control the use of property (see, mutatis mutandis, Valette and Doherier v. France (dec.), no. 6054/10, § 17, 29 November 2011).

(b) Whether the interference was prescribed by law

33. The Court notes that the impugned second measure of preventive protection concerning the applicant’s building was based on section 10 of the Cultural Heritage Act, which provided for the possibility of applying a measure of preventive protection for a period of three years with regard to objects capable of being declared objects of cultural heritage (see paragraph 20 above). The parties’ views differ as to whether this provision limited the possibility of applying a measure of preventive protection to one period of three years, or whether such a measure could have been applied for additional three-year periods. The applicant submitted that section 10 of the Cultural Heritage Act was clear that a measure of preventive protection could only be applied for one period of three years, whereas the Government supported the views of the domestic authorities, according to which there was nothing in the relevant domestic law preventing a measure of preventive protection from being applied for multiple periods of three years.

34. The Court reiterates, as it has held on many occasions, that it is not its task to resolve problems of interpretation of domestic law; its role is confined to ascertaining whether the effects of such an interpretation are compatible with the Convention (see, for instance, Ališić and Others v. Bosnia and Herzegovina, Croatia, Serbia, Slovenia and the former Yugoslav Republic of Macedonia [GC], no. 60642/08, § 113, ECHR 2014). In these circumstances, noting that it is in the first place for the national authorities, notably the courts, to interpret and apply domestic law (see Pine Valley Developments Ltd and Others v. Ireland, 29 November 1991, § 52, Series A no. 222), the Court will proceed on the assumption that the interference with the applicant’s property was lawful, and examine whether it pursued a legitimate aim and struck a “fair balance” between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights (see Sporrong and Lönnroth v. Sweden, 23 September 1982, §§ 68-69, Series A no. 52).

(c) Whether the interference pursued a legitimate aim

35. The Court has already held that the conservation of cultural heritage and, where appropriate, its sustainable use, pursue a legitimate aim of the maintenance of a certain quality of life, the preservation of the historical, cultural and artistic roots of a region and its inhabitants, and as such, they are an essential value, the protection and promotion of which are incumbent on the public authorities (see Kozacıoğlu v. Turkey [GC], no. 2334/03, § 54, 19 February 2009, and Potomska and Potomski v. Poland, no. 33949/05, § 64, 29 March 2011).

(d) Proportionality of the interference

36. The general principles regarding the assessment of the proportionality of an interference with property rights in relation to cultural heritage issues are set out in the Potomska and Potomski case (see Potomska and Potomski, cited above, § 67).

37. The Court notes that, in the instant case, there was nothing to indicate that measures of protection relating to cultural heritage could be applied in respect of the building at the time the applicant purchased it for commercial use (compare Potomska and Potomski, cited above, § 68, and, by contrast, Fürst von Thurn und Taxis v. Germany (dec.), no. 26367/10, § 24, 14 May 2013). There is also no doubt that the authorities were aware that the building had been bought by the applicant for commercial use (see paragraph 6 above).

38. The central aspect of the applicant’s complaint concerns the legal effects on the status of his property flowing from the Split Department’s decision of 10 January 2007. By that decision, the Split Department extended the application of the measure of preventive protection relating to cultural heritage concerning the applicant’s building for a further period of three years. In total, this amounted to a period of six years during which the applicant’s building was subject to preventive protection (see paragraphs 7 and 9 above).

39. The Court notes that the preventive protection under the relevant domestic law entailed a number of significant restrictions on the applicant’s use of the property, including its commercial use as he saw fit. There is no dispute between the parties that, under section 11 of the Cultural Heritage Act, the effects of preventive protection were akin to those of protection following a final determination on the status of an object’s cultural heritage (see paragraph 20 above). In particular, those effects included restrictions with regard to the use of objects, and obligations on the part of owners to seek prior permission for any change in the nature of use of objects. There were also restrictions with regard to the transfer of property where the State had a right of pre-emption. Moreover, under the Cultural Heritage Act, an object of cultural heritage could be expropriated in the interests of the State (see paragraph 22 above). The Court observes that, during the proceedings before the domestic authorities, the applicant referred to the adverse effect of these restrictions on his commercial projects concerning the building, which is consonant with his arguments and evidence put before the Court (see paragraph 14 above, and compare, by contrast, Valette and Doherier, cited above, § 20).

40. The Court considers that the restriction on the applicant’s right to the peaceful enjoyment of his possessions by the application of the measure of preventive protection is not open to criticism per se, having regard in particular to the legitimate aim pursued and the wide margin of appreciation allowed to the State where cultural heritage issues are concerned (see SCEA Ferme de Fresnoy v. France (dec.), no. 61093/00, ECHR 2005‑XIII extracts). However, in its assessment of the proportionality of the measure complained of, the Court has reservations about two aspects of the domestic authorities’ conduct in the applicant’s case.

41. Firstly, although undoubtedly the assessment of the value of an object with regard to cultural heritage may require complex and lengthy assessments and studies, the Court notes that there is no indication in the case in issue that any measurements, assessments or studies in relation to the value of the applicant’s building with regard to cultural heritage – which would have justified the application of the measure of preventive protection for the period of six years – were actually taken or conducted (compare, by contrast, SCEA Ferme de Fresnoy, cited above). Indeed, the only reason cited by the Split Department during the proceedings to justify such a protracted application of the measure of preventive protection was its alleged inability to obtain an excerpt from the land register from Split Municipal Court concerning the building (see paragraph 12 above).

42. However, given that land registry data are public information – readily obtainable by other means, including via the Internet – and that there is no indication that the Split Department actually made a serious attempt to obtain that information and failed, the Court cannot accept the reason invoked as a justification for the application of the measure of preventive protection for the period of six years. In any case, the Court considers that the applicant should not have to bear any adverse consequences as a result of the alleged impossibility of the competent State bodies to coordinate their relevant actions in deciding on the matters affecting his property rights.

43. In this connection, the Court would reiterate the particular importance of the principle of “good governance”, which requires that, where an issue in the general interest is at stake, in particular when the matter affects fundamental human rights such as those involving property, the public authorities must act in good time and in an appropriate and, above all, consistent manner (see, amongst others, Bogdel v. Lithuania, no. 41248/06, § 65, 26 November 2013). In the case in issue, the Court finds that the domestic authorities failed to act in a manner consonant with the necessity to protect the applicant’s property rights and to resolve the issues pertinent to the property status of his building in a timely manner.

44. Secondly, the Court notes several procedural omissions relating to the manner in which the domestic authorities conducted the proceedings in the applicant’s case. The Court reiterates that, although Article 1 of Protocol No. 1 contains no explicit procedural requirements, the proceedings in issue must afford the individual a reasonable opportunity to put his or her case to the relevant authorities for the purpose of effectively challenging the measures interfering with the rights guaranteed by this provision. In ascertaining whether this condition has been satisfied, the Court takes a comprehensive view (see, for instance, Zehentner v. Austria, no. 20082/02, § 73, 16 July 2009).

45. In this respect, the Court notes that, when ordering the measures of preventive protection on 28 March 2003 and 10 January 2007, the Split Department did not inform the applicant of the necessity to order those measures, nor did it transmit its decisions to the applicant. It therefore failed to take into account his views on the matter and the impact on his property rights which the application of the measures of preventive protection would have. At the same time, there is no doubt that the Split Department knew or should have known that the applicant owned the building, since in its decisions it referred to the fact that the building was used as a car repair workshop (see paragraph 7 above) at that point in time, and the applicant’s ownership was registered with the land registry.

46. Furthermore, the Court notes that, despite the applicant’s clear arguments as to the effects of the restrictions on his property rights, in particular regarding his commercial projects concerning the building (see paragraph 14 above), the Administrative Court limited its assessment to the question of the possible relevance of the building to cultural heritage, without conducting any assessment of whether the protracted application of the measures had disproportionately affected the applicant’s property rights. It also failed to address the applicant’s complaint of the competent authorities’ passivity with regard to finally resolving the matter. Those omissions of the Administrative Court were not remedied by the Constitutional Court (see paragraphs 16 and 18 above).

47. Having regard to all the above factors, the Court finds that the domestic authorities’ interference with the applicant’s right to the peaceful enjoyment of his possessions fell short of the requirements of the protection of his right of property under the Convention.

48. Accordingly, there has been a violation of Article 1 of Protocol No. 1 to the Convention.

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

49. 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.”

50. In his initial application, the applicant claimed EUR 15,000 in respect of damages and EUR 1,500 in respect of costs and expenses, plus the relevant statutory interest. In his further submissions to the Court, the applicant referred to his claim and stressed that he could not give any further details about the actual damage he had sustained, which had certainly been significant.

51. The Government pointed out that the applicant had failed to specify his just satisfaction claim in accordance with Rule 60 of the Rules of Court. They therefore submitted that there was no call to award him any amount in that respect.

52. The Court notes that under Rule 60 § 2 of the Rules of Court an applicant must submit itemised particulars of all claims, together with any relevant supporting documents, within the time-limit fixed for the submission of the applicant’s observations on the merits. If the applicant fails to comply with these requirements, the Court may reject the claim in whole or in part (Rules 60 § 3 and 71). In its letter dated 4 June 2015 the Court drew the applicant’s attention to the fact that these requirements applied even if he had indicated his wishes concerning just satisfaction at an earlier stage of the proceedings.

53. The Court notes in the case at issue that the applicant failed to submit and specify his just satisfaction claim, within the time-limit fixed therefor. The Court therefore, having regard to Rule 60, makes no award under Article 41 of the Convention (see, for instance, Schatschaschwili v. Germany [GC], no. 9154/10, §§ 169-170, ECHR 2015).

FOR THESE REASONS, THE COURT

1. Declares, by a majority, the application admissible;

2. Holds, by five votes to two, that there has been a violation of Article 1 of Protocol No. 1 to the Convention;

3. Dismisses, unanimously, the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 4 October 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

              Stanley NaismithIşıl Karakaş
RegistrarPresident

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judges Lemmens and Ravarani is annexed to this judgment.

A.I.K.
S.H.N.

JOINT DISSENTING OPINION OF JUDGES LEMMENS AND RAVARANI

1. To our regret, we cannot agree with the majority’s finding that there has been a violation of Article 1 of Protocol No. 1 to the Convention in the present case. In our opinion, the complaint should have been declared inadmissible for non-exhaustion of domestic remedies and is in any event unfounded.

2. First of all, we think that it is important to highlight the principal facts.

There were two consecutive measures of provisional protection of the applicant’s building, one valid from 28 March 2003 until 27 March 2006, the other from 10 January 2007 until 9 January 2010 (see paragraphs 7 and 9 of the judgment). The applicant’s building was each time protected together with eleven other buildings. The impugned measures were thus part of a quite wide-ranging operation undertaken at the time by the Split Department for the Conservation of Cultural Heritage. The Government explained that protection of the industrial heritage had only in the last two decades become a matter of concern in Croatia, and that nothing had been done in the Split area before the twelve measures of provisional protection were taken. Eventually, protection was maintained for some of these buildings, but not for the applicant’s.

The applicant undertook no action against the first measure, ordered on 28 March 2003. While paragraph 8 of the judgment could create the impression that he was not aware of it, he in fact admitted that he had known about it but had seen no reason to challenge it. He did not argue, for instance, that his property had no heritage value.

On 10 January 2007 the Split Department decided to adopt a new measure of preventive protection. It was then that the applicant challenged the measure, first before the Ministry of Culture and later before the Administrative Court. He complained in the first place that he had not been informed of that measure (a circumstance that did not, however, affect the validity of the measure itself). He further complained, and this was his main argument, that domestic law prohibited the adoption of a second measure after a first one (see paragraph 11 of the judgment). The Administrative Court dismissed his action. It held that the competent authorities had had reason to consider that his property was an important object of cultural heritage, that they had needed time to carry out further investigations, and that they had therefore been justified in taking a second measure. It also held that the fact that a first measure had previously been taken was not a legal obstacle to the adoption of a second one (see paragraph 16 of the judgment).

3. What were the practical effects of the protection measure?

In paragraphs 21-22 of the judgment a number of obligations for the owner and restrictions of his or her property rights are mentioned, provided for by the Cultural Heritage Act. This is a very general and abstract enumeration. Nothing is said about the concrete effects on the applicant. The applicant did not submit, for instance, that he had sought and been denied authorisation for any specific transaction or activity relating to his property (compare, by way of example, SCEA Ferme de Fresnoy v. France (dec.), no. 61093/00, ECHR 2005‑XIII (extracts), and Fürst von Thurn und Taxis v. Germany (dec.), no. 26367/10, § 27, 14 May 2013). Neither did he submit that he had actually had to bear any expenses for the protection and preservation of the property.

We note that the Government stressed the fact that the only direct consequence following from a protection measure was that, in the event of the intended sale of the property, the State had a right of pre-emption (see paragraph 31 of the judgment); the majority does not address that argument.

It is true that the applicant alleged that the protection measure discouraged investors from investing in his projects concerning the reconstruction of the building. In response to the Government’s argument that he remained vague on this point, he submitted outlines of projects which, according to him, had been abandoned owing to the application of the measure of preventive protection (see paragraph 30 of the judgment). We note, however, that the Government dismissed the ground plans and building layouts submitted as being of no probative value since it was not clear whether they even referred to the reconstruction of the real estate in question. The majority for its part accepts the applicant’s allegation that the restrictions on his commercial projects had an adverse effect, on the mere ground that his arguments in the domestic proceedings were “consonant with his arguments and evidence put before the Court” (see paragraph 39 of the judgment). The Government’s argument as to the probative value of the documents submitted is not explicitly addressed. We find the standard of proof thus applied to be of a lightness that is not compatible with the usual standard of proof “beyond reasonable doubt”.

4. Of utmost importance, in our opinion, is the fact that the Cultural Heritage Act provides for compensation for the restriction of property rights (see paragraph 21 of the judgment). This is a type of no-fault liability on the part of the State. The system allows the owners of protected property to turn to the State if they consider that the burden imposed on them by the protection measure is out of proportion to the aim pursued in the general interest (compare Geffre v. France (dec.), no. 51307/99, ECHR 2003‑I (extracts)). Compensation is thus a means by which the State is able to strike a fair balance between the owner’s individual rights and the general interest legitimately and lawfully pursued by the measure of protection of cultural heritage.

It seems to us that the applicant did not bring any such compensation claim before the competent authorities. According to the judgment, he “enquired” about the possibility of compensation to the Ministry of Culture (see paragraph 11 of the judgment). Such an enquiry is not sufficient to constitute a claim. The applicant later filed an action with the Administrative Court in which he challenged the lawfulness of the second protection measure and sought compensation for the damage suffered as a result of the conduct of the administrative authorities (see paragraph 14 of the judgment). That claim was, however, based on the allegedly unlawful conduct of the authorities. Since the Administrative Court found that the challenged act was not unlawful, it could not logically award any compensation.

We must therefore conclude that the applicant at no point brought a substantiated claim before the competent administrative authority based on the no-fault liability of the State.

5. The foregoing leads us to the issue of the admissibility of the complaint.

We have no problem accepting that the applicant exhausted domestic remedies as far as the lawfulness, under domestic law, of the impugned measure is concerned (see paragraph 27 of the judgment).

However, we disagree with the majority in so far as they state that the applicant also “asked for compensation for the pecuniary damage he had sustained as a result of the application of the measure of preventive protection, before both the Ministry and the Administrative Court” (see the same paragraph). As indicated above, we consider that the applicant did not make use of the possibility to claim compensation for any disproportionate burden he might have had to bear in the general interest. In our opinion, he did not provide the competent authorities with an opportunity to assess any burden alleged by him and, if it was found to be disproportionate, to compensate him for it. We therefore disagree with the majority that the applicant exhausted domestic remedies (see paragraph 28 of the judgment). In our opinion, the complaint should have been declared inadmissible (see, mutatis mutandis, S.A. Sobifac and S.A. Algemene Bouwonderneming en Onroerende Promotie A.B.E.B. v. Belgium, no. 17720/91, Commission decision of 9 September 1992, unreported).

6. As far as the merits of the complaint are concerned, we would like to reiterate that the applicant complained first and foremost about the unlawfulness of the second measure of protection under Croatian law. This was also the issue before the Administrative Court.

The majority rightly notes that it is not the Court’s task to resolve problems of interpretation of domestic law. But then it seems to leave open the question whether the interference complained of was lawful under domestic law (see paragraph 34 of the judgment). We do not see any reason to shy away from a firm conclusion on this point. The Administrative Court clearly and unambiguously held that the measure was lawful under domestic law. In the absence of any arbitrariness or manifest unreasonableness in that finding, it is not for the Court to call that conclusion into question (see, mutatis mutandis, Anheuser-Busch Inc. v. Portugal [GC], no. 73049/01, § 85, ECHR 2007‑I).

7. We fully agree with the majority’s assessment that the measure complained of was in the “general interest” within the meaning of Article 1, second paragraph, of Protocol No. 1 (see paragraph 35 of the judgment).

8. The majority then goes on to examine the proportionality of the interference.

We would like to note, first of all, that it does not seem to us that the applicant raised this issue before the domestic authorities. One can even wonder whether he did so before our Court. True, he mentioned that the measure of preventive protection had imposed a number of restrictions on his property rights (see paragraph 30 of the judgment). But is that enough to interpret his argument as amounting to one about the disproportionate character of the burden imposed on him? It rather seems that the applicant was complaining only about the lawfulness of the measures imposed.

In any event, we regret that we are unable to agree with the majority’s assessment of the proportionality of the measure.

The majority seems to consider that the period covered by the two consecutive measures of protection, that is, six years in total, should be taken into account (see paragraph 38 of the judgment). We consider that since the applicant did not challenge the first measure, the first three years of provisional protection should be of no concern to the Court and should not be weighed in the balance. One should also bear in mind that the protective measure was not in place continuously for six years, as a period of nine months passed between the end of the validity of the first measure and the adoption of the second measure, during which the applicant could freely dispose of his property.

The majority then refers to the “significant restrictions on the applicant’s use of the property” (see paragraph 39 of the judgment). However, as indicated above, we find that it is not sufficient to refer in the abstract to the restrictions listed in the Cultural Heritage Act. What matters are the concrete effects on the applicant’s right to use his property. The only concrete effect mentioned by the majority is the effect on the applicant’s commercial projects concerning his building. We have already indicated that we do not consider that this adverse effect was substantiated. In our opinion, there is nothing in the file that suggests that the Split Department would have acted in an irresponsible way if it had been asked to authorise any change to the applicant’s property. Moreover, it appears that the applicant only became aware on 16 October 2007 of the existence of the second measure (see paragraph 11 of the judgment), having up to then, for nine months, been not in the least affected in practical terms by its existence.

In general, we find it difficult to assess the proportionality of concrete measures by way of essentially abstract reasoning. Measures that have only theoretical effects, that are not really “felt” by the subject, should in our view not be taken into account for the purposes of the proportionality test.

9. The majority states that it has “reservations about two aspects of the domestic authorities’ conduct in the applicant’s case” (see paragraph 40 of the judgment).

The first reservation is about the time it took to come to an assessment of the value of the applicant’s building from the point of view of the cultural heritage. The main reason for the majority’s criticism is that the Split Department did not act swiftly to obtain certain items of information that were allegedly publicly available (see paragraphs 41-43 of the judgment). To our regret, we find this a somewhat unfair way of treating the authorities. The applicant himself did not raise the issue of the public availability of the information in his submissions to the Court, and that issue was therefore not commented upon by the Government either. Moreover, the majority’s reasoning on this point is based entirely on a statement made by the Split Department when it had to refer the file to the Ministry of Culture (see paragraph 12 of the judgment). The Ministry did not rely on the excuse of the local authority in the further domestic proceedings. What is more, in their submissions before our Court the Government described in detail the complex nature of the process of determining cultural objects, and mentioned the specific obstacles encountered during the large-scale operation carried out in respect of the industrial heritage in Split. While that explanation seems plausible to us, the majority does not consider it worth even mentioning it when seeking to ascertain whether there was any justification for the application of the measure of preventive protection for six years.

The second reservation concerns two “procedural omissions relating to the manner in which the domestic authorities conducted the proceedings in the applicant’s case” (see paragraph 44 of the judgment).

According to the majority, the Split Department failed to take into account the applicant’s views before ordering the protective measures (see paragraph 45 of the judgment). As far as we can see, however, the applicant did not complain before the domestic authorities about a violation of his right to be heard; nor did he before our Court. We therefore do not think that this issue should be raised by the Court of its own motion. Moreover, in our opinion due attention should be paid to the fact that the measures of protection were of a provisional nature. The harm done, if any, was of a temporary nature. It is precisely in the proceedings that followed the second provisional measure that the applicant could make his views known. No attention is paid to the fact that the outcome was favourable to him since the authorities eventually abandoned the idea of protecting his property.

The majority further criticises the Administrative Court for not having assessed the proportionality of the measure (see paragraph 46 of the judgment). As indicated above, it does not seem to us that the applicant raised the proportionality issue before the domestic authorities. In his description of the domestic proceedings, he did not mention that he had done so. It is therefore questionable whether the Administrative Court can be blamed for any shortcoming in this respect. Moreover, before our Court the applicant did not complain about a lack of reasoning on this point in the Administrative Court’s judgment. We therefore find the reservation on this point to be unfounded.

10. What is conspicuously missing in the majority’s reasoning is a discussion of the compensation mechanism.

In their submissions to the Court relating to the merits of the complaint, the Government pointed to the fact that the applicant had never requested the State to compensate him for any effects on his property rights, and that he had never contacted the State regarding plans to sell his property. We consider the issue of compensation crucial for the determination of whether or not a fair balance was struck between the applicant’s individual rights and the general interest of the community (see Sporrong and Lönnroth v. Sweden, 23 September 1982, §§ 69 and 73, Series A no. 52).

At the same time, we do not want to imply that any restriction of the applicant’s rights invariably had to be accompanied by some form of compensation (see Potomska and Potomski v. Poland, no. 33949/05, § 67, 29 March 2011; Fürst von Thurn und Taxis, cited above, § 23; and Diaconescu v. Romania (dec.), no. 38353/05, 17 September 2013). Where a measure controlling the use of property is in issue, the lack of compensation is a factor to be taken into consideration, but is not of itself sufficient to constitute a violation of Article 1 of Protocol No. 1 (see Depalle v. France [GC], no. 34044/02, § 91, ECHR 2010, and Berger-Krall and Others v. Slovenia, no. 14717/04), § 199, 12 June 2014). The question to be answered is whether in the light of all the circumstances the applicant had to bear an individual and excessive burden and, if so, whether domestic law provided for sufficient compensation.

Where the majority does not take into consideration the possibilities offered by the compensation mechanism, we think that there can be no sufficient basis for it to conclude that the interference was disproportionate.

11. Lastly, we would like to say a word about the conclusions to be drawn from the present judgment.

Although we do not agree with what is stated in paragraphs 41-46 of the judgment, we trust that the majority consider that it is the facts mentioned in these paragraphs that tilt the balance in favour of the applicant. We therefore read the present judgment as being adopted in the light of the particular circumstances of the case.

In any event, it would be hard for us to imagine that the judgment could be interpreted in such a way as to imply that restrictions that generally follow from a measure of protection of cultural heritage (see, for instance, Article 4 of the Convention for the Protection of the Architectural Heritage of Europe, signed in Granada on 3 October 1985) are incompatible with the right to respect for property. We do not believe that the majority wants to upset the whole philosophy behind such protection.

 

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