FIRST SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 49049/06
by Miroslava GOTTWALD-MARKUŠIĆ
against Croatia
The European Court of Human Rights (First Section), sitting on 30 March 2010 as a Chamber composed of:
Anatoly Kovler, President,
Nina Vajić,
Elisabeth Steiner,
Khanlar Hajiyev,
Dean Spielmann,
Giorgio Malinverni,
George Nicolaou, judges,
and André Wampach, Deputy Section Registrar,
Having regard to the above application lodged on 10 October 2006,
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, Mrs Miroslava Gottwald-Markušić, is a Croatian national who was born in 1937 and lives in Zagreb. She was represented before the Court by Mr A. Tomašić, an advocate 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
In 1938 the applicant’s mother, M.G., became the owner of a 600 square-metre plot of land in Zagreb and was registered as such in the land register. It would appear that the land in question was sequestered on 18 October 1946 by the Communist authorities.
Meanwhile, in 1939 the applicant’s mother had built a garage and a one-storey residential building comprising of four flats on it, but without recording them in the land register.
The applicant claims that in 1945, her mother and she were forcibly evicted from the building by the Communist authorities without any formal decision. She further claims that no proceedings leading to appropriation of the building were ever instituted, nor was it ever transferred into social ownership and registered as such in the land register.
During the Communist regime, the authorities awarded the flats in the building to various persons under specially protected tenancies (stanarsko pravo).
On 27 March 1996, following the applicant’s request, the Land Registry Division (Zemljišnoknjižni odjel) of the Zagreb Municipal Court (Općinski sud u Zagrebu) recorded the building and the garage in the land register, and registered the applicant’s mother as their owner, on the ground that the applicant’s mother, who died in 1990, had until then been recorded in the land register as the owner of the plot of land on which those constructions had been built. Once the proceedings concerning her late mother’s estate ended (inheritance proceedings), on 9 September 1996 the applicant, as her heir, registered herself as the owner of the property in question.
2. Civil proceedings
On 13 February 1997 A.S. and A.B., the tenants of two flats located in the building at issue, brought a civil action against the applicant in the Zagreb Municipal Court seeking: (a) a declaration that in 1958 the building had been nationalised and transferred into social ownership, (b) a declaration of nullity of the applicant’s and her mother’s registration as owners in the land register, and (c) deletion of those entries from the land register and registration of the property in the name of the City of Zagreb. The City of Zagreb later intervened in the proceedings on the side of the plaintiffs.
On 16 May 2000 the Municipal Court dismissed the plaintiffs’ action and ruled in favour of the applicant. The court held that, while the Act on Nationalisation of Rental Buildings and Construction Land of 1958 (“the 1958 Nationalisation Act”) had indeed provided that residential buildings conforming to certain criteria were nationalised and transferred into social ownership by its mere entry into force (ex lege), it had also required the authorities to issue individual decisions determining which buildings had been nationalised under that Act. Thus, in the absence of an individual decision issued in respect of the building in question, the court concluded that it had not been nationalised.
Following an appeal by the plaintiffs and the intervener, on 16 December 2003 the Zagreb County Court (Županijski sud u Zagrebu) reversed the first-instance judgment and ruled for the plaintiffs. It held that under the 1958 Nationalisation Act all residential buildings conforming to the criteria set forth in that Act had been nationalised ex lege and that the individual decisions to be issued by the authorities had only been of a declaratory nature. Thus, the failure of the Communist authorities to issue such a decision in the applicant’s case did not mean that the building in question had not been nationalised. The relevant part of the County Court’s judgment read as follows:
“The gist of the dispute between the parties is whether the building [in question], in which the plaintiffs were holders of specially protected tenancy in respect of the flats in it, could be considered nationalised by the operation of law on the day of the entry into force of [the 1958 Nationalisation Act].
...
The first-instance court correctly found, given the absence of a decision on nationalisation of the said building (...), that as a preliminary issue it had to be determined whether the provisions of [the 1958 Nationalisation Act] could be applied to the building in question.
Relying on section 12 of [the 1958 Nationalisation Act], the first-instance court established beyond dispute that the building at issue has more than two flats or three small flats, as it did at the time the Act had been passed, and that [the Act] accordingly applied to it.
...However, the first-instance court is of the view that a decision on nationalisation should also have been rendered in order to establish which building or part of a building was nationalised, [which meant that] ‘those buildings and parts of buildings in respect of which the competent authority did not establish that they were nationalised – in a decision rendered in the proceedings prescribed by [the 1958 Nationalisation Act] – were not nationalised.’
This view of the first-instance court is incorrect, primarily because it contradicts section 8(1) of [the 1958 Nationalisation Act].
Section 8(1) of that Act expressly provided that buildings, parts of buildings and construction land passed into social ownership on the day of [its] entry into force.
Therefore, what is important is the date of the entry into force of [the 1958 Act] and not the delivery of a decision.
On the day of the Act’s entry into force all immovable property to which [it] was applicable was by the operation of law nationalised and became social property. [Accordingly], from that date the former owners were no longer able to exercise any prerogatives of an owner in respect of those buildings, and the decisions issued in implementation of that Act were of a declaratory character.
...
Therefore, the fact that a certain immovable property was nationalised by the operation of law on the day of the entry into force of [the 1958 Nationalisation Act], is not altered by the fact that a potential decision on nationalisation was not issued or executed in the land register, or even by the fact that, as in the present case, the property itself was not recorded in the land register.
...
As regards the arguments raised in reply to the appeal, it should also be said that even though the legal system of the Republic of Croatia no longer recognises social ownership, for certain legal relations derived from social ownership it is sometimes still necessary to interpret provisions of statutes enacted [during the Communist regime]. This does not mean that nationalisation is being carried out retroactively, because, as already stated above, it occurred in 1958, on the day of the entry into force of [the 1958 Nationalisation Act].
However, the protection of the rights of [third] persons acquired in the implementation of that and other statutes enacted in that period depends on their correct interpretation. In the present case that means protection of the rights of plaintiffs who acquired specially protected tenancy of (and thereby the right to purchase) the flats [located] in the building [in question].”
On 17 February 2005 the applicant lodged a constitutional complaint against the second-instance judgment alleging violations of her constitutional rights to a fair hearing and ownership. On 17 May 2006 the Constitutional Court (Ustavni sud Republike Hrvatske) dismissed her complaint. The relevant part of the Constitutional Court’s decision read as follows:
“Article 48 paragraph 1 of the Constitution provides:
The right of ownership shall be guaranteed.
The Constitutional Court protects the right of ownership at the constitutional level in a manner that it prevents restriction or taking of that right by the state authorities, unless a restriction or taking is provided for by law.
The Constitutional Court, having regard to the reasons [adduced by] the second-instance court ..., finds that the constitutional guarantee [of ownership] was not breached.
The provision of section 50 paragraph 1 of the Constitution, which provides that ownership 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, is not relevant in the present case because it [the case] concerns [a] fact which occurred on 26 December 1958.”
B. Relevant domestic law and practice
1. The Property Act
The relevant part of the Ownership and Other Rights In Rem Act (Zakon o vlasništvu i drugim stvarnim pravima, Official Gazette of the Republic of Croatia nos. 91/1996, 73/2000, 114/2001, 79/2006, 141/2006, 146/2008 and 38/2009), which entered into force on 1 January 1997, reads as follows:
Chapter 4.
FINAL PROVISIONS
Section 388
“(1) The acquisition, modification, legal effects or termination of rights in rem after the entry into force of this Act shall be assessed on the basis of its provisions...
(2) The acquisition, modification, legal effects and termination of rights in rem until the entry into force of this Act shall be assessed on the basis of the rules applicable at the moment of the acquisition, modification or termination of those rights or of the legal effect thereof.
(3) ...”
2. The Act on Nationalisation of Rental Buildings and Construction Land
(a) Relevant provisions
The relevant provisions of the Act on Nationalisation of Rental Buildings and Construction Land (Zakon o nacionalizaciji najamnih zgrada i građevinskog zemljišta, Official Gazette of the Federal People’s Republic of Yugoslavia no. 52/1958 – “the 1958 Nationalisation Act”), which entered into force on 26 December 1958, provided as follows:
I. GENERAL PROVISIONS
Section 8
“(1) Buildings, parts of buildings and construction land nationalised by this Act shall become [that is, be transferred into] social property on the day of its entry into force.
(2) A decision of the competent authority rendered in the proceedings prescribed by this Act and [relevant] subordinate legislation ..., shall determine which objects are nationalised by this Act.”
II. OBJECT OF NATIONALISATION
1. Residential buildings and special parts of residential buildings
Section 12
“On the day of the entry into force of this Act the following [property] shall be nationalised:
1) residential buildings, that is, privately owned buildings with more than two flats or with more than three small [two-room] flats;
2) ...”
(b) The Supreme Court’s practice
The Supreme Court has consistently held that the nationalisation of property falling within the scope of the 1958 Nationalisation Act had occurred by the operation of law (ex lege), that is, by the Act’s mere entry into force on 26 December 1958, and that the decisions issued pursuant to its section 8(2) had had been merely declaratory. Accordingly, the absence of such a decision or the failure of the competent authorities to record in the land register that the property had been transferred into social ownership had been of no relevance (see judgments in cases nos. Rev-2760/99-2 of 24 January 2002, Rev-557/02-2 of 18 February 2003 and Rev 698/05-2 of 7 December 2006 and decision no. Rev-2018/1996-2 of 23 April 2002).
3. The Denationalisation Act
(a) Relevant provisions
The Act on Compensation for, and Restitution of, Property Taken During the Yugoslav Communist Regime (Zakon o naknadi za imovinu oduzetu za vrijeme jugoslavenske komunističke vladavine, Official Gazette of the Republic of Croatia nos. 92/1996, 92/1999 (corrigendum), 80/2002 (amendments) and 81/2002 (corrigendum) – “the 1996 Denationalisation Act”), which entered into force on 1 January 1997, enables the former owners of confiscated or nationalised property, or their heirs in the first line of succession (direct descendants and spouse), to seek under certain conditions either restitution of or compensation for appropriated property.
Section 2(1) provides that former owners shall have the right to restitution of, or compensation for, property appropriated on the territory of the Republic of Croatia on the basis of legislation listed in that section, including the 1958 Act on Nationalisation of Rental Buildings and Construction Land.
Section 3 provides that former owners shall also have the right to restitution of, or compensation for, property appropriated by judgments, decisions, rulings or other acts issued by military or civilian authorities from 15 May 1945 until the enactment, or in the implementation of legislation listed in section 2 of the Denationalisation Act, as well as for property appropriated without a legal ground or without basis in any legislation.
Section 22 of the Denationalisation Act provided that 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 provider of the flat under favourable conditions set out in the Specially Protected Tenancies (Sale to Occupier) Act (Zakon o prodaji stanova na kojima postoji stanarsko pravo). At the same time, the former owners were entitled to financial compensation in respect of the flats. Section 22 reads as follows:
Section 22
“(1) Unless they were appropriated by means of confiscation, the ownership of flats ... let under specially protected tenancies shall not be restored to their former owners.
...
(3) The former owner shall have the right to compensation and the tenant [i.e. the holder of a specially protected tenancy] shall have the right to purchase the flat.”
Section 65(3) provides that the former owners have to lodge their requests within six months from the Act’s entry into force (that is, by 1 July 1997). Section 65(4) provides that requests submitted after that date shall be declared inadmissible, resulting in the loss of all rights under the Denationalisation Act.
Section 67, which stipulates what documents should be enclosed with the request of the former owner, prescribes that such a request should be accompanied by, inter alia, the act whereby the property was transferred into state or social ownership (“akt o podržavljenju, odnosno podruštvovljenju imovine”) as well as an extract from the land register containing all entries from the date the property was transferred into state or social ownership.
Section 73 provides that if in the administrative proceedings for restitution of, or compensation for, property appropriated during the Communist regime a dispute arises between the parties as regards facts on which a certain right of theirs depends, or as regards the existence of a right, the competent administrative authority shall stay the administrative proceedings and instruct the parties to bring a civil action or institute other proceedings before the competent authority.
(b) The Administrative Court’s practice
In interpreting the Denationalisation Act the Administrative Court held that the six-month time-limit stipulated in its section 65(3) was of a substantive-law nature (decision no. Us-10020/1999 of 27 June 2002) and preclusive in its character (decision Us-12303/1999 of 31 October 2001), meaning that after its expiry a former owner lost his or her right to restitution of or compensation for property appropriated during the Communist regime.
In its decision no. Us-5564/200 of 19 April 2001 the Administrative Court held that the former owner was entitled to obtain compensation for property appropriated during the Communist regime even if the decision on nationalisation had never been recorded in the land register and he had remained recorded as the owner of the nationalised property.
4. The Administrative Procedure Act
The relevant provisions of the Administrative Procedure Act (Zakon o općem upravnom postupku, Official Gazette of the Socialist Federal Republic of Yugoslavia 47/1986 (consolidated text), and Official Gazette of the Republic of Croatia no. 53/1991) provide as follows:
Section 144(1) provides that if the authority before which the administrative proceedings are pending finds that the case cannot be decided without deciding an issue the resolution of which is within the competence of a court or other authority (preliminary issue), it may decide on that issue itself or stay the administrative proceedings until the competent authority resolves it.
Section 249 provides that administrative proceedings that ended in a definitive decision may be reopened if, inter alia, the contested decision is based on a preliminary issue which the competent authority later resolved differently in important aspects.
COMPLAINTS
1. The applicant complained under Article 1 of Protocol No. 1 to the Convention that she had been deprived of her ownership by the second-instance judgment. She had also lost the opportunity to seek compensation under the Denationalisation Act because the time-limit for doing so had expired in July 1997.
2. She also complained under Article 6 § 1 of the Convention about the outcome of the above proceedings.
THE LAW
A. Alleged violation of Article 1 of Protocol No. 1 to the Convention
The applicant complained that the judgment of the Zagreb County Court of 16 December 2003 had deprived her of her ownership of the building in question. Moreover, as that judgment had been rendered after the time-limit fixed in section 65(3) of the Denationalisation Act (1 January to 1 July 1997) had expired, she had also lost the opportunity to seek compensation granted to former owners for property appropriated during the Communist regime. She relied on Article 1 of Protocol No. 1, which reads as follows:
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
The Government disputed the admissibility of this complaint on two grounds, namely, that it was incompatible ratione temporis with the provisions of the Convention and that the applicant had failed to exhaust domestic remedies.
1. The submissions of the parties
(a) Compatibility ratione temporis
The Government first submitted that the building in question had been nationalised ex lege in 1958 by the entry into force of the 1958 Nationalisation Act. The judgment of the Zagreb County Court of 16 December 2003, rendered after the entry into force of the Convention in respect of Croatia on 5 November 1997, could not have amounted to interference with the applicant’s property rights as it was only of a declaratory nature. It was based on events that took place prior to the date of ratification and thus could not bring the case within the Court’s temporal jurisdiction.
The applicant pointed out that the Zagreb County Court’s judgment of 16 December 2003, which in her view constituted interference with her property rights, had been rendered after the entry into force of the Convention in respect of Croatia. The judgment had not been declaratory but had constitutive effects as it had ordered the deletion of her ownership of the property in question from the land register.
(b) Non-exhaustion of domestic remedies
(i) The Government
The Government further argued that the applicant had not lodged a request for compensation for the nationalised building in question under section 65 of the Denationalisation Act. While it was true that the time-limit set forth in section 65(3) for lodging such a request had already expired when the Zagreb County Court gave its judgment on 16 December 2003, the Government submitted that the applicant could not speculate what the outcome of such proceedings might have been had she nevertheless lodged the request after that date.
In any event, the civil action leading to the above judgment of the Zagreb County Court had been brought on 13 February 1997, that is, almost five months before the expiry of the said time-limit on 2 July 1997. At that time, the applicant should have been aware that the civil proceedings instituted by that action might not end in her favour and should have lodged the request under section 65 of the Denationalisation Act within the time remaining. In so doing, she could have indicated to the administrative authority before which her request would have been examined that civil proceedings concerning the status of the property were still pending, and asked for the administrative proceedings concerning her request to be stayed until the courts in those civil proceedings had resolved the preliminary issue of whether the building in question had been nationalised or not.
In this connection the Government noted that the applicant had been legally represented by a qualified legal representative who should have informed her of her overall legal situation and advised her accordingly. The State could not be held responsible for the failure of the applicant’s advocate to do so.
Lastly, the Government also emphasised that the civil courts that decided the applicant’s case had been limited by the plaintiffs’ claim and were thus able only to declare whether the property in question had actually been nationalised in 1958 or not. The question whether the applicant should receive compensation for the nationalised property was not within the competence of the courts as it should have been resolved by the competent administrative authorities under the Denationalisation Act in the context of the administrative proceedings the applicant had failed to institute.
(ii) The applicant
The applicant contested the Government’s view that she had not exhausted the domestic remedies. She explained that in the period between 1 January and 1 July 1997, during which former owners could lodge requests under the Denationalisation Act, she had been recorded as the owner of the property in question in the land register and thus had not had any legal basis or need to lodge such a request. Her ownership had not been registered conditionally and in the absence of an individual decision on nationalisation she had not known, nor was there any way she could have known, that the building in question might have been nationalised in 1958 by the 1958 Nationalisation Act, or been aware of any other circumstances rendering her ownership dubious.
Moreover, the applicant submitted, she could not have lodged such a request because at the relevant time she had not had at her disposal an act whereby she had been deprived of her ownership (“akt o podržavljenju, odnosno podruštvovljenju imovine”), as required by section 67 of the Denationalisation Act. Had she done so regardless, her request would have been declared inadmissible as incomplete.
2. The Court’s assessment
The Court notes that the Zagreb County Court held in its judgment of 16 December 2003 that the building at issue had been nationalised ex lege by the entry into force of the Nationalisation Act in 1958. It also held that the issuing of an individual decision by the competent authorities or the recording in the land register that a property had been nationalised by that Act had declaratory nature only. In other words, the absence of an individual decision on nationalisation or registration in the land register that a certain property had passed into social ownership did not mean that it had not been nationalised. The Constitutional Court subscribed to these findings when it dismissed the applicant’s constitutional complaint.
The Court further notes that this interpretation reflects the constant case-law of the Supreme Court concerning the effects of the 1958 Nationalisation Act (see above under Relevant domestic law and practice).
In this connection the Court first reiterates that it is in the first place for the national authorities, notably the courts, to interpret and apply the domestic law, even in those fields where the Convention “incorporates” the rules of that law since the national authorities are, in the nature of things, particularly qualified to settle the issues arising in this connection (see, mutatis mutandis, Winterwerp v. the Netherlands, 24 October 1979, § 46, Series A no. 33).
Having regard to the fact that the building in question comprised four flats and that section 12 of the 1958 Nationalisation Act provided for the nationalisation of all residential buildings with more than two flats (or more than three small flats) on the day of its entry into force, the Court considers that there is no indication that the Zagreb County Court applied the relevant provisions of the Act arbitrarily or that its judgment was unlawful under domestic law. Moreover, given that the applicant and her mother had been forcibly evicted from the building at issue as early as 1946 and that the Communist authorities had subsequently awarded specially protected tenancy of the flats in it to various tenants (which they could do only in respect of socially owned flats), the Court considers that the applicant cannot argue that in the absence of an individual decision on nationalisation she did not know or could not have known that the said building had been nationalised and transferred into social ownership.
Consequently, contrary to the applicant’s view, it was not the judgment of the Zagreb County Court that lead to the deprivation of ownership. Rather, the building in question was nationalised ex lege on 26 December 1958, when the 1958 Nationalisation Act entered into force. The subsequent judgment of the Zagreb County Court merely highlighted the already existing deprivation of property that had occurred during the Communist regime, that is, before the Convention entered into force in respect of Croatia on 5 November 1997 (see, mutatis mutandis, Kefalas and Others v. Greece, 8 June 1995, § 45, Series A no. 318‑A; Kefalas and Giannoulatos v. Greece, no. 14726/89, Commission’s report of 17 January 1994, Series A no. 318‑A, p. 23, §§ 48-49; Potocka and Others v. Poland, no. 33776/96, § 42, ECHR 2001‑X; and, mutatis mutandis, Blečić v. Croatia [GC], no. 59532/00, § 85, ECHR 2006‑III). In this connection the Court first reiterates that while it is true that from the ratification date onwards all of the State’s acts and omissions must conform to the Convention (see Yağcı and Sargın v. Turkey, 8 June 1995, § 40, Series A no. 319‑A), the Convention imposes no specific obligation on the Contracting States to provide redress for wrongs or damage caused prior to that date (see Kopecký v. Slovakia [GC], no. 44912/98, § 38, ECHR 2004‑IX).
As regards the alleged loss of opportunity to seek compensation for the nationalisation of the building at issue under the Denationalisation Act, the Court notes that paragraph 4 of section 65 of that Act provides that requests of former owners lodged outside the statutory time-limit set forth in paragraph 3 of the same section shall not only be declared inadmissible but shall lead to the loss of all rights under that Act. According to the interpretation provided by the Administrative Court, that time-limit is preclusive and of a substantive-law nature (see above under Relevant domestic law and practice). That means that the lodging of such a request within the said time-limit was a statutory condition in order for the right to restitution of, or compensation for, property appropriated during the Communist regime, granted to former owners by the Denationalisation Act, to arise and not only a procedural means of asserting or enforcing the already existing right. In other words, if the applicant had a right to compensation under the Denationalisation Act in respect of the building in question, which had been nationalised in 1958, that right was extinguished on 2 July 1997 by her failure to lodge the request for compensation within the statutory time-limit.
Consequently, when on 5 November 1997 the Convention entered into force in respect of Croatia, the applicant had no right under domestic law to compensation for the property appropriated during the Communist regime and thus did not have sufficient proprietary interest to constitute a “possession” within the meaning of Article 1 of Protocol No. 1 to the Convention (see, mutatis mutandis, see Slivenko v. Latvia (dec.) [GC], no. 48321/99, § 122, ECHR 2002‑II (extracts), and Gaćeša v. Croatia (dec.), no. 43389/02, 1 April 2008).
It follows that this complaint is incompatible ratione temporis et materiae with the provisions of the Convention within the meaning of Article 35 § 3 thereof and must be rejected pursuant to Article 35 § 4.
B. Alleged violation of Article 6 § 1 of the Convention
The applicant also complained that the above civil proceedings had been unfair, alleging that the domestic courts had erred in the application of the relevant provisions of substantive law and that the judgment of the second-instance court had not been duly reasoned. She relied on Article 6 § 1 of the Convention, the relevant part of which reads:
“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ...”
The Court notes that the applicant complained about the outcome of the proceedings, which, unless it was arbitrary, the Court is unable to examine under Article 6 § 1 of the Convention. The applicant did not complain, and there is no evidence to suggest, that the domestic courts lacked impartiality or that the proceedings were otherwise unfair. In the light of all the material in its possession, the Court considers that in the present case the applicant was able to submit her 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 and not arbitrary.
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.
For these reasons, the Court unanimously
Declares the application inadmissible.
André WampachAnatoly Kovler
Deputy RegistrarPresident
Full & Egal Universal Law Academy