FIRST SECTION
CASE OF VUČAK v. CROATIA
(Application no. 889/06)
JUDGMENT
STRASBOURG
23 October 2008
FINAL
23/01/2009
This judgment 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
1. 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.
2. 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. Stažnik.
3. 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
4. The applicants were born in 1940 and 1946, respectively, and currently live in Rijeka.
5. 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.
6. 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.
7. 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.
8. 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.
9. 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
10. 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.
11. 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.
12. 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.
13. 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.
14. 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).
15. On 22 December 2003 the Šibenik County Court (Županijski 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.
16. On 21 September 2005 the Constitutional Court (Ustavni sud Republike Hrvatske) dismissed their complaint.
17. 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
18. 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).
19. On 27 October 2004 the State leased the house to the above-mentioned temporary occupants.
20. 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
21. 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.
22. 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.
23. 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
24. 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.
25. 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.
26. 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.
27. 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
28. Section 27 (4) of the Act on Areas of Special State Concern (Zakon o područjima od posebne državne 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.
29. 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.
30. 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
31. 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.”
32. The Government contested that argument.
A. Admissibility
1. The parties’ arguments
(a) The Government
33. The Government invited the Court to reject these complaints on the ground that the applicants had failed to exhaust domestic remedies.
34. 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.
35. 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
36. 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.
37. 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
38. 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.
39. 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.
40. It follows that the Government’s objection concerning non-exhaustion of domestic remedies must be dismissed.
41. 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
42. 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).
43. 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.
44. 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
45. 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.”
46. 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.
47. 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
48. 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 ....”
49. 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.
50. 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.
51. 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
52. 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
53. The applicants claimed 79,505.91 euros (EUR) in respect of pecuniary damage.
54. The Government contested that claim.
55. 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).
56. 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.
57. 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.
58. 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.
59. 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
60. The applicants claimed EUR 6,000 each in respect of non-pecuniary damage.
61. The Government contested the claim.
62. 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
63. 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.
64. The Government contested this claim.
65. 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
66. 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
1. 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;
2. Holds that there has been a violation of Article 1 of Protocol No. 1 to the Convention;
3. Holds that there is no need to examine the complaint under Article 8 of the Convention;
4. 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;
5. 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 WampachAnatoly Kovler
Deputy RegistrarPresident
Full & Egal Universal Law Academy