FIRST SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 33244/02
by Nikola GAVELLA
against Croatia
The European Court of Human Rights (First Section), sitting on 11 July 2006 as a Chamber composed of:
MrC.L. Rozakis, President,
MrL. Loucaides,
MrsF. Tulkens,
MrA. Kovler,
MrD. Spielmann,
MrS.E. Jebens, judges,
MrI. Grbin, ad hoc judge
and Mr S. Nielsen, Section Registrar,
Having regard to the above application lodged on 19 August 2002,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Nikola Gavella, is a Croatian national who was born in 1937 and lives in Zagreb. He was represented before the Court by Mrs I. K. Vucelić, a lawyer practising in Zagreb. The Croatian Government (“the Government”) were represented by their Agent, Mrs Š. Stažnik.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
1.Background to the case
On 1 January 1997 the Act on the Restitution of and Compensation for Property Expropriated during the Yugoslav Communist Regime (“the Denationalisation Act”) entered into force.
Pursuant to section 22 of the Denationalisation Act, nationalised flats in respect of which third persons had acquired specially protected tenancies (stanarsko pravo) were not to be restored to their former owners. The tenants had a right to purchase such flats from the Fund for the Restitution of and Compensation for Expropriated Property (Fond za naknadu oduzete imovine – “the Fund”) under favourable conditions set out in the Specially Protected Tenancies (Sale to Occupier) Act. At the same time, the former owners or their heirs were entitled to financial compensation in respect of the flats.
In addition, section 29 of the Denationalisation Act provided that, in the event of subsequent “disposal in rem” of flats purchased by such tenants, the former owners had the right of pre-emption (pravo prvokupa). In such cases, the new owner (the former tenant) was obliged to offer it first to the former owner for the same price as he or she had paid to the Fund. If the former owner accepted the offer and concluded a contract of sale with the new owner, he or she had to pay the Fund the difference between the sale price and the amount of financial compensation previously received.
Pursuant to section 29 (2) of the Denationalisation Act, the right of pre-emption was to be noted (zabilježba) in the land register on the basis of a mandatory clause to be inserted into every contract of sale concluded between a tenant and the Fund.
2.The particular circumstances of the case
Three residential buildings in the centre of Zagreb had been owned by the applicant's family and were nationalised during the Communist regime.
On 2 February and 29 March 2001 respectively, the Office for Property Affairs of the City of Zagreb (Grad Zagreb, Gradski ured za imovinskopravne poslove) issued two decisions finding that the applicant, as the sole heir of his late mother, E.G., was entitled to financial compensation in the amount of 2,763,164 Croatian kunas in respect of 27 flats situated in the nationalised buildings. Twenty-five percent of the compensation was to be paid within six months of the decisions becoming final, while the rest was to be paid in State bonds in 40 twice-yearly instalments over the period between 1 January 2000 and 1 July 2019.
The applicant submitted that he had renounced his pre-emption rights in respect of five of the flats.
In 1996 24 members of the upper house of Parliament – the House of Counties (Županijski dom Sabora Republike Hrvatske) – lodged an application with the Constitutional Court challenging the constitutionality of the Denationalisation Act (application for abstract constitutional review – zahtjev za ocjenu ustavnosti) under section 13 of the 1991 Constitutional Act on the Constitutional Court (“the 1991 Constitutional Court Act”).
In addition, in the period between 1996 and 1999, the Constitutional Court received 64 petitions lodged by various individuals requesting the institution of proceedings to review the constitutionality of the Denationalisation Act (petition for abstract constitutional review – prijedlog za ocjenu ustavnosti) under section 15 of the 1991 Constitutional Court Act.
On 21 April 1999 the Constitutional Court delivered a single decision on the above application and petitions. It quashed certain provisions of the Denationalisation Act as unconstitutional. Among other provisions, the Constitutional Court quashed section 29 (1), which provided for pre-emption rights for former owners. As a result, the applicant lost his right of pre-emption.
The Constitutional Court held that the constitutionally protected right to ownership included the right to dispose of a property, which meant, inter alia, the right to sell it at a contracted (market) price. Since the statutory right of pre-emption restricted the right of disposal, thereby placing a limitation on the constitutional right of ownership, that limitation had to meet the aim which it sought to achieve. The aim of the right of pre-emption was to protect former owners and the legal order against any unjustifiable profit which the new owner of a flat (the former tenant) might make by selling it at the market price (having previously bought it from the Fund at a significantly lower price). However, it was not necessary to provide for the right of pre-emption in perpetuity in order to meet that aim. Instead, the aim could have been achieved by imposing a reasonable time-limit. A perpetual right of pre-emption was not proportionate to the aim pursued, and therefore constituted an excessive restriction on the rights of current owners, hampering even socially desirable disposal of property (aimed, for example, at meeting the housing needs of the owner's immediate family members) and paralysing real property transactions to a significant extent.
In addition, section 29 (1) was found to be contrary to the principle of legal certainty and thereby to the rule of law, on account of the vague and imprecise nature of the terms used. In particular, it was not clear whether the right of pre-emption in question constituted a right in rem or in personam (and if the latter was the case, whether it existed for the lifetime of the former or the current owner). Moreover, the Constitutional Court held that the use of the term “disposal in rem” (which, apart from sale, could involve other forms of alienation and mortgaging of the property) to describe an event triggering the former owner's right of pre-emption, was inconsistent with the other provisions of the Denationalisation Act, which used the term “sale” to describe the same event.
The Constitutional Court deferred the effects of its decision by giving the legislature one year to comply with the decision and enact amendments to the Denationalisation Act to replace the unconstitutional provisions. The quashed provisions were to lose their legal force with the entry into force of the envisaged amendments, but no later than one year from the date of publication of the court's decision. The decision was published in the Official Gazette on 23 April 1999.
Following several requests by the Government, the Constitutional Court extended this time-limit on five occasions. The time-limit was finally set at 1 July 2002.
On 5 July 2002 Parliament adopted amendments to the Denationalisation Act (“the Amendments”) which entered into force on the same day. Section 4 of the Amendments repealed sections 29, 30 and 31 of the Denationalisation Act, that is, the provisions providing for pre-emption rights for former owners.
Parliament did not accept the Government's bill, which provided for pre-emption rights for former owners in the event of a flat's subsequent sale, donation or exchange, for a period of fifteen years. It considered that the proposed solution would result in an undesirable stalemate whereby the current owner would have no incentive to sell his or her flat, and therefore making it impossible for former owners to make use of their right of pre-emption. If adopted, the bill would impose an excessive burden on the current owners while not benefiting the former owners. Moreover, since property transactions concerning these flats would be paralysed, it would deprive the State of the taxation revenue from such transactions.
On 19 August 2002 the applicant requested the Constitutional Court to institute proceedings to review the constitutionality of the Amendments (petition for abstract constitutional review), arguing that they were in breach of the Constitution. The Constitutional Court has not yet decided on the applicant's petition.Relevant domestic law
1.The Constitution
The relevant provisions of the 1990 Croatian Constitution (Ustav Republike Hrvatske, Official Gazette nos. 56/1990, 135/97, 113/2000 and 28/2001) read as follows:
Article 16
“Rights and freedoms may be restricted only by law, in order to protect the rights and freedoms of others, the legal order, public morals or public health.”
Article 48
“1. The right of ownership is guaranteed.
2. Ownership implies duties. Owners and users of property shall contribute to the general welfare.”
Article 50
“1. Property may be restricted or taken in accordance with the law and in the interest of the Republic of Croatia subject to payment of compensation equal to its market value.
2. The exercise...of property rights may, on an exceptional basis, be restricted by law for the protection of the interests and security of the Republic of Croatia, nature, the environment or public health.”
Article 80
“The Croatian Parliament shall:
- ...
- enact statutes,
...”
2.The 1991 Constitutional Court Act
The relevant provisions of the Constitutional Act on the Constitutional Court (Ustavni zakon o Ustavnom sudu, Official Gazette no. 13/1991 of 21 March 1991), as in force in the material time, provided as follows:
III. REVIEW OF THE CONSTITUTIONALITY OF STATUTES AND THE CONSTITUTIONALITY AND LEGALITY OF SUBORDINATE LEGISLATION
Section 13
“An application instituting proceedings before the Constitutional Court may be submitted by:
- Parliament;
- one-third of the members of each House of Parliament;
- the President of the Republic of Croatia;
- the Government of the Republic of Croatia, to review the constitutionality and legality of subordinate legislation;
- the Supreme Court of the Republic of Croatia, if the issue of constitutionality and legality has arisen in proceedings before a court;
- the Ombudsman, in proceedings under Article 83 of the Constitution of the Republic of Croatia;
- ...”
Section 15
“Everyone has the right to request the institution of proceedings to review the constitutionality of statutes...
The Constitutional Court may of its own motion institute proceedings to review the constitutionality of statutes...”
Section 21
“(1) The Constitutional Court shall quash a statute or its provisions if it finds that they are incompatible with the Constitution.
(2) Unless the Constitutional Court decides otherwise, the quashed statute or its provisions shall cease to have legal force on the day of publication of the Constitutional Court's decision in the Official Gazette.”
3.The Civil Obligations Act
Sections 527-33 of the Civil Obligations Act (Zakon o obveznim odnosima, Official Gazette nos. 53/1991, 73/1991, 3/1994, 7/1996, 112/1999), as in force in the material time, laid down general rules (lex generalis) concerning pre-emption rights.
Section 531 provided that the contractual right of pre-emption would expire five years after the conclusion of the contract of sale, unless it was stipulated that it would expire earlier.
Section 533 provided, inter alia, that the statutory right of pre-emption was of unlimited duration.
4.The Denationalisation Act
The relevant provisions of the Act on the Restitution of and Compensation for Property Expropriated during the Yugoslav Communist Regime (Zakon o naknadi za imovinu oduzetu za vrijeme jugoslavenske komunističke vladavine, Official Gazette no. 92/96 of 30 October 1996), as in force in the material time, read as follows:
3.1. (a) COMPENSATION FOR EXPROPRIATED FLATS
Section 22
“(1) Unless expropriated by confiscation, flats [...] let under specially protected tenancies shall not be returned to their former owners.
...
(3) The former owner shall have the right to compensation and the holder of the specially protected tenancy shall have the right to purchase the flat.”
Section 24 (6)
“The contract referred to in paragraph 2 of this section [by which the Fund sells the flat to the holder of the specially protected tenancy] shall stipulate, in the form of a mandatory clause, the right of pre-emption in favour of the former owner in case of further disposal in rem of the purchased flat. The right of pre-emption shall be noted (zabilježba) in the land register.”
Section 29
“(1) In the case of further disposal in rem of the flat purchased [from the Fund], the former owner shall have the right of pre-emption.
(2) The right of pre-emption of the former owner shall be noted in the land register of the competent court.
(3) The owner of a purchased flat who intends to sell it shall, through the notary public, offer the flat for sale to the former owner and notify him or her of the price [paid by the owner when he or she purchased the flat from the Fund] and the terms and conditions of the sale.”
Paragraph 5 provided that the former owner, within sixty days of conclusion of the contract of sale with the flat owner, had to (re)pay to the Fund the difference between the price set forth in paragraph 3 and the amount he or she had received in compensation for the nationalised flat.
Paragraphs 4, 6 and 7 set forth in detail the obligations of the current owner (former tenant) in respect of the former owner's right of pre-emption.
Section 30 of the Act provided for the remedies (a civil action) available to the former owner if the current owner failed to observe his or her right of pre-emption.
Section 31 stated that no turnover tax was payable on the sale of the flat, in accordance with the former owner's right of pre-emption.
5.The Amendments
The relevant provision of the Amendments to the Act on the Restitution of and Compensation for Property Expropriated during the Yugoslav Communist Regime (Zakon o izmjenama i dopunama Zakona o naknadi za imovinu oduzetu za vrijeme jugoslavenske komunističke vladavine, Official Gazette nos. 80/02 and 81/02 (amended)), provides as follows:
Section 4
“Sections 29, 30 and 31 [of the Act] are hereby repealed.”
Section 11
“Proceedings instituted under the Denationalisation Act which have not ended in a res judicata decision by the date of entry into force of this Act shall be continued under the provisions of this Act.”The Land Register Act
The relevant provisions of the Land Register Act (Zakon o zemljišnim knjigama, Official Gazette no. 91/96 of 28 October 1996), as in force at the material time, provided as follows:
REGISTER ENTRIES
Section 1
Entries in general
a. Types of entries
Section 30
“(1) Register entries shall take the form of registration, preliminary registration and annotation.
(2) Registration (uknjižba) is a form of entry whereby the register rights are acquired, transferred, limited or extinguished without ... subsequent validation.
(3) Preliminary registration (predbilježba) is a form of entry whereby the register rights are acquired, transferred, limited or extinguished subject to subsequent validation, and within the limits of that validation.
(4) Annotation (zabilježba) is a form of entry making public any relevant circumstances which may, by law, be noted in the land register. Annotation may give rise to certain legal effects where a statute so prescribes.”
b. Subject matter of registration and preliminary registration
Section 31(1)
“Only the right of ownership and other rights in rem may be the subject of registration in the land register. The same shall apply to rights of redemption, pre-emption, lease, as well as concessions and other rights in immovables, where provided for by another statue.”
c. Subject matter of annotation
Section 39
“Annotations may be made in the land register for the following purposes:
- to make public the legal relationships concerning personal status, in particular restrictions concerning the administration of property (for example, minority, guardianship, continuation of parental authority, opening of bankruptcy proceedings, etc.), as well as other legal relationships and facts prescribed by law, in order that no one may claim that he did not know or should not have known of their existence;
- to establish the legal effects of annotations prescribed by this or another statute (annotation of order of priority..., compulsory auction, prohibition of alienation or encumbrances, annotations prescribed by the rules governing enforcement and provisional remedies, etc.).”
COMPLAINTS
1. The applicant complained under Article 1 of Protocol No. 1 to the Convention that he had been deprived of his possessions by the decision of the Constitutional Court of 21 April 1999.
2.The applicant also complained under Article 6 § 1 of the Convention that he had not had a fair hearing because he had not been a party to the proceedings before the Constitutional Court.
3.Lastly, relying on Article 13 of the Convention taken in conjunction with Article 1 of Protocol No. 1 thereto, the applicant claimed that he had not had an effective remedy against the Constitutional Court's decision.
THE LAW
A.Alleged violation of Article 1 of Protocol No. 1
The applicant complained that he had been deprived of his pre‑emption rights, which formed part of the compensation scheme for property nationalised during the Communist regime. He submitted that no law existed authorising the Constitutional Court to deprive an individual of his or her possessions, that he had received no compensation and that the deprivation had served only the interests of the new owners (former tenants). The deprivation had therefore been unlawful, contrary to the general principles of international law and not in the public interest. 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.”
1.The parties' submissions
The Government disputed the admissibility of the complaint on several grounds.
(a)Compatibility ratione temporis et personae
(i) The Government
The Government argued that the measure to nationalise the property in question had been taken in respect of the applicant's mother and had pre‑dated the entry into force of the Convention in respect of Croatia on 5 November 1997. It had been an instantaneous act which had not created a continuing situation. As to the issue of compensation for the property, the Government argued, relying on the case-law of the Commission (see Weidlich and Fullbrecht, Hasenkamp, Golf, Klausser and Mayer v. Germany, nos. 19048/91; 19049/91; 19342/92; 19549/92; 18890/91 (joined), Commission decision of 4 March 1996), that the Court was not competent ratione temporis to examine complaints relating to compensation claims based on events that had occurred prior to the entry into force of the Convention with respect to the State concerned.
(ii) The applicant
The applicant replied that his complaint did not relate to the nationalisation of his mother's property. Rather, it concerned the loss of the pre-emption rights that he had acquired on the basis of the Denationalisation Act and of which he had been deprived by the Constitutional Court's decision, delivered after the Convention's entry into force in respect of Croatia.
(b)Compatibility ratione materiae
(i) The Government
The Government submitted that the pre-emption rights in question did not constitute “possessions” within the meaning of Article 1 of Protocol No. 1. They explained that, unless the current owners decided to sell their flats, the pre-emption rights per se had no pecuniary value. Furthermore, it was very unlikely that the owners would do so since they had bought their flats as tenants and had thereby met their own and their immediate family's housing needs.
The Government further submitted that pre-emption rights could be properly assessed only when bearing in mind the aim which the legislature had sought to achieve in adopting the Denationalisation Act. In balancing the competing interests of the tenants and of the former owners, the legislature had enabled tenants to have the right to purchase the flats in which they were living, while the former owners would be entitled to financial compensation in the form of money and/or securities. Only under exceptional circumstances were former owners entitled to restitution in kind. Within that framework, the pre‑emption rights served merely as a protective measure and were not to be viewed as part of the compensation for nationalised property. In particular, since the tenants had purchased the flats at a favourable price (significantly below the market value) the legislature had sought to prevent the creation of unjustified profits which the tenants, once they had become owners, might obtain by selling the flats at market value. With that framework in mind, the legislature had not envisaged that the former owners should derive benefit from renouncing their pre-emption rights in favour of the current owners for a monetary consideration, since that would have entailed an obligation on the part of the latter to participate in compensating the former – an obligation for which the State had taken sole responsibility.
(ii) The applicant
The applicant emphasised that pre-emption rights were considered potestative rights, that is, rights which authorised their holders to unilaterally influence their own or another person's legal situation by creating, modifying or terminating certain other rights. In his view, if a potestative right entitled its holder to create or modify a certain patrimonial right (imovinsko pravo), as in the present case, then that right itself must also be considered a patrimonial right, and hence a “possession”.
He further submitted that his pre-emption rights did not represent a mere hope that he would regain the long-lost ownership rights over the flats in question. On the contrary, they were acquired rights, which, under the law, had become part of his patrimony and were entered as such in the land register.
The applicant further argued that his pre-emption rights had pecuniary value, in other words, they were assets, and not only because in the event of their realisation he could have purchased the flats under favourable conditions, but also because he was entitled to renounce them in exchange for adequate remuneration.
Lastly, the applicant challenged the Government's contention that the pre‑emption rights had not been envisaged as part of the compensation scheme for nationalised flats. He referred to the text of the Denationalisation Act, pointing out that the sub‑heading above sections 29-31 read “Compensation for flats taken”. That compensation consisted of financial compensation as well as the pre-emption rights. Since it was unrealistic to expect that the new owners would sell their flats at a price considerably below the market value, the legislature's aim in adopting the Denationalisation Act had actually been to ensure that the profits from selling the flats at market price would be shared between the current and the former owners. That aim could have been achieved only if the former owners renounced their pre-emption rights in exchange for adequate remuneration, to be provided by the new owners.
(c) Exhaustion of domestic remedies
(i) The Government
The Government noted that on 19 August 2002 the applicant had lodged a petition for constitutional review of the Amendments with the Constitutional Court, and that those proceedings were still pending.
(ii) The applicant
The applicant replied that his pre-emption rights had not been extinguished by the entry into force of the Amendments on 5 July 2002. He had already been deprived of those rights by the Constitutional Court's decision, which became effective on 1 July 2002, and against which no domestic remedy existed.
(d)Whether the complaint is manifestly ill-founded
(i) The Government
The Government submitted that the alleged interference was provided for by law, since the Constitutional Court had quashed section 29 (1) of the Denationalisation Act under the powers conferred on it by section 21 of the Constitutional Court Act. By the same token, Parliament had subsequently enacted the Amendments repealing sections 29, 30 and 31 of the Denationalisation Act, under the powers conferred on it by Article 80 of the Constitution.
As to whether the alleged interference had been in the public interest, the Government reiterated, in substance, the reasons set out in the Constitutional Court's decision and the arguments put forward by Parliament when enacting the Amendments. The Constitutional Court had quashed section 29 (1) of the Denationalisation Act in order to protect the rights of others (the ownership rights of the new owners) and maintain to legal certainty and the rule of law. Parliament, for its part, had abolished pre-emption rights because it found that the aim behind their introduction had been frustrated in practice. The pre-emption rights had impinged disproportionately on the ownership rights of the current owners and created excessive difficulties in real property transactions.
In the Government's view, the interference had been proportionate in that it had not created an excessive individual burden for the applicant.
(ii) The applicant
The applicant argued that no existing legislation authorised the Constitutional Court to deprive an individual of his or her “possessions”. Moreover, any deprivation of property without compensation was contrary to both Article 50 of the Constitution and international law. Thus, the interference had been neither lawful nor in accordance with “the general principles of international law”.
The applicant further argued that the interference had not been in the public interest, but had served exclusively the interests of the current owners. Moreover, in his view, only Parliament was authorised to determine what was in the public interest, and not the Constitutional Court.
Lastly, the applicant submitted that the interference had been disproportionate in that he had not been awarded any compensation for the loss of his pre-emption rights.
2.The Court's assessment
The Court does not find it necessary to examine all the issues raised by the Government, as the complaint is in any event inadmissible for the following reasons.
The Court reiterates that an applicant may allege a violation of Article 1 of Protocol No. 1 only in so far as the impugned decisions relate to his or her “possessions” within the meaning of that provision. The concept of “possessions” has an autonomous meaning which is independent from the formal classification in domestic law (see Former King of Greece and Others v. Greece [GC], no. 25701/94, § 60, ECHR 2000‑XII). “Possessions” can be “existing possessions” or assets, including claims, in respect of which an applicant can argue that he has at least a “legitimate expectation” (which must be of a nature more concrete than a mere hope) that they will be realised, that is, that he or she will obtain effective enjoyment of a property right (see, inter alia, Gratzinger and Gratzingerova v. the Czech Republic (dec.) [GC], no. 39794/98, ECHR 2002‑VII, § 69; and Kopecký v. Slovakia [GC], no. 44912/98, § 35, ECHR 2004‑IX). A claim may be regarded as an asset only when it is sufficiently established to be enforceable (see, inter alia, Kopecký v. Slovakia [GC], cited above, § 49; and Stran Greek Refineries and Stratis Andreadis v. Greece, judgment of 9 December 1994, Series A no. 301‑B, p. 84, § 59). No “legitimate expectation” can come into play in the absence of a claim sufficiently established to constitute an asset. By way of contrast, a conditional claim cannot be considered an asset (see Kopecký v. Slovakia [GC], cited above, §§ 42, 51 and 58). In the Court's view, a claim is conditional where it depends upon a future uncertain event.
The issue that first needs to be examined is whether the circumstances of the case, considered as a whole, conferred on the applicant title to a substantive interest protected by Article 1 of Protocol No. 1.
The Court takes the view that the applicant's pre-emption rights were “claims” rather than “existing possessions”.
The Court notes that a right of pre-emption is a right to buy prior to or ahead of others, but only if the owner decides to sell. It does not grant the power to compel an unwilling owner to sell, and is thus distinguishable from an option to purchase. For that reason, it is often referred to as an option on condition precedent. In this connection, the Court recalls that in the Mirailles case (see Mirailles v. France (dec.), no. 63156/00, ECHR 2003‑XI (extracts)) it has already dealt with a similar issue, finding that the applicant's conditional option to purchase did not constitute a “possession” within the meaning of Article 1 of Protocol No. 1.
Turning to the present case, the Court notes that, under the Denationalisation Act, pre-emption rights accrued to an individual in two phases: (1) the establishment of his or her status as former owner of a nationalised flat, which ex lege entitled him or her to pre-empt in the event of a sale; and (2) the actual sale of the flat.
The Court observes that, in the present case, only the first of the above-mentioned two phases was completed, on 2 February and 29 March 2001 respectively, when the local authorities issued decisions recognising the applicant's status as the former owner of 27 flats and granting him compensation.
As to the second phase, the Court notes that the decision to sell the flats was at the sole discretion of the current owners, who might equally well choose not to sell. Prior to that moment, the applicant could not enforce his claims against them. The sale of the flats was therefore an event which was possible but was not certain to arise.
The Court further observes that there is no indication that any of the owners of the flats in question had decided to sell their flats before the alleged interference took place, that is, before July 2002. It follows that the applicant never had claims against the owners that were valid at the material time and that, in fact, his claims were conditional from the outset.
As to the applicant's argument that his pre-emption rights were entered in the land register, the Court is unable to attach particular importance to this fact, given the disparity between the types of entries envisaged by the Denationalisation Act (annotation) and the Land Register Act (registration). As a consequence thereof, it is not clear what the effects of those entries were, that is, whether they were constitutive entries or served merely as publication measures, enabling the applicant to assert his pre-emption rights in the event of the sale of the flats.
Neither can the Court attach decisive importance to the fact that the applicant renounced his pre-emption rights in respect of five flats. In the Court's view, it is precisely because of the special nature of these rights that there appears to be uncertainty as to the point at which they may be renounced – immediately before the intended sale, or even earlier. Therefore, it remains unclear whether such a step, if taken in advance, was valid under domestic law.
For these reasons, the Court is not satisfied that the decisions of 2 February and 29 March 2001 alone gave rise to claims sufficiently established to qualify as assets for the purposes of Article 1 of Protocol No. 1. The applicant's prospects of benefiting from his right of pre-emption were dependent on a potestative condition. Accordingly, at the moment of the alleged interference the applicant could not have had a “legitimate expectation” that his claims would be realised.
It follows that this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected pursuant to Article 35 § 4.
B.Alleged violation of Article 6 § 1 of the Convention
The applicant further complained about the unfairness of the proceedings before the Constitutional Court. He claimed that he had been deprived of his possessions in proceedings to which he had not been a party. He 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 reiterates that proceedings come within the scope of Article 6 § 1 of the Convention, even if they are conducted before a Constitutional Court, where their outcome is decisive for civil rights and obligations (see, inter alia, Süssmann v. Germany, judgment of 16 September 1996, Reports of Judgments and Decisions 1996-IV, § 41).
It notes that in the proceedings before the Constitutional Court, the members of the House of Counties and the petitioners challenged, inter alia, the constitutionality of the provisions of the Denationalisation Act concerning the pre-emption rights of former owners. Having regard to the erga omnes effect of the Constitutional Court's decision to declare section 29 (1) unconstitutional, these proceedings could therefore be regarded as decisive for the applicant's civil rights and obligations for the purposes of Article 6 § 1 (see, mutatis mutandis, Wendenburg and Others v. Germany (dec.), no. 71630/01, ECHR 2003‑II (extracts)).
The Court further notes that, given the particular features of the abstract constitutional review proceedings before the Constitutional Court, the applicant was barred from appearing in person before that court.
However, the Court has already held that in proceedings involving a decision affecting large number of individuals, notably those conducted before constitutional courts following a challenge to legislation, it is not always required or even possible that every individual concerned is heard before the court (see Roshka v. Russia (dec.), no. 63343/00, 6 November 2003, and Wendenburg and Others v. Germany (dec.), cited above). The Cout 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.
C.Alleged violation of Article 13 of the Convention
Lastly, the applicant complained under Article 13 of the Convention taken in conjunction with Article 1 of Protocol No. 1 that he had not had a remedy enabling him to challenge the Constitutional Court's decision. Article 13 reads:
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
The Court notes that Article 13 does not contain a general guarantee of legal protection of all substantive rights. It relates exclusively to those cases in which the applicant alleges, on arguable grounds, that one of his rights or freedoms set forth in the Convention has been violated.
In this connection the Court refers to its findings above according to which the applicant's complaint under Article 1 of Protocol No. 1 to the Convention is outside its competence ratione materiae.
It follows that this complaint is also incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected pursuant to Article 35 § 4.
For these reasons, the Court unanimously
Declares the application inadmissible.
Søren NielsenChristos Rozakis Registrar President
Full & Egal Universal Law Academy