FIRST SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 17487/08
by Antonija JAKUŠIĆ
against Croatia
The European Court of Human Rights (First Section), sitting on 18 November 2010 as a Chamber composed of:
Christos Rozakis, President,
Nina Vajić,
Elisabeth Steiner,
Khanlar Hajiyev,
Dean Spielmann,
Sverre Erik Jebens,
George Nicolaou, judges,
and Søren Nielsen, Section Registrar,
Having regard to the above application lodged on 10 March 2008,
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, Ms Antonija Jakušić, is a Croatian national who was born in 1950 and lives in Zlatar Bistrica. She was represented before the Court by Mr N. Perišić, 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.
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1950 and lives in Zlatar Bistrica.
In 1979 the applicant’s mother, together with other heirs, inherited twenty plots of land from her husband. She thereby became a co-owner of various proportions of that property.
On 29 August 1989 the applicant and her sister signed a contract of lifelong care (ugovor o doživotnom uzdržavanju) with their mother before the Zlatar Municipal Court (Općinski sud u Zlataru), stipulating that the daughters were to provide for their mother until her death while the mother transferred the ownership of all her immovable property, that is, her share of the above twenty plots of land, to the daughters after her death.
On 23 March 1992 the parties amended the above contract so that the applicant and her sister, at the moment of signing of the amendment to the contract, became the co-owners of their mother’s share of the above twenty plots of land.
On the basis of the above amendment of 23 March 1992, on 24 April 1992 the applicant was recorded in the land register as the co-owner of those twenty plots of land in various proportions.
1. Civil proceedings for recognition of ownership
Meanwhile, on 27 February 1990 the applicant’s aunt B.J. brought a civil action in the Zlatar Municipal Court against the applicant’s mother, with a view to being declared the owner of part of the above property. After the death of the applicant’s mother in May 1992, in October 1992 the applicant and her sister became parties to the proceedings.
On 26 June 2000 the Zlatar Municipal Court adopted a judgment. However, that judgment was quashed on 24 March 2004 by the Zlatar County Court (Županijski sud u Zlataru) and the case was remitted to the first-instance court for fresh proceedings.
On 29 March 2004 the applicant and her sister lodged a constitutional complaint under section 63 of the Constitutional Court Act, complaining about the length of the civil proceedings. On 4 November 2004 the Constitutional Court (Ustavni sud Republike Hrvatske) found a violation of their constitutional right to a hearing within a reasonable time, awarded them each 7,250 Croatian kuna (HRK) in compensation and ordered the Zlatar Municipal Court to adopt a decision in their case in the shortest time possible but no later than ten months from the publication of its decision in the Official Gazette. The Constitutional Court’s decision was published on 22 November 2004.
On 19 July 2005 the Zlatar Municipal Court dismissed the plaintiff’s action. That judgment was upheld by the Zlatar County Court on 21 December 2005 and thereby became final, with the consequence that all concerned remained, as before, co-owners of the twenty plots of land.
2. The first non-contentious proceedings for partition of co-ownership instituted by the applicant
On 13 July 2006 the applicant instituted non-contentious proceedings before the Zlatar Municipal Court against the other co-owners B.J., Ž.J. and I.J., seeking partition of the co-ownership of six of the above twenty plots of land.
At the hearing held on 18 September 2006 the applicant appeared before the court but the defendants failed to appear.
An on-site visit was carried out on 9 November 2006 in the presence of the judge assigned to hear the case, the parties and an expert. The expert submitted his opinion and a drawing of the site the same day.
The next on-site visit, scheduled for 27 March 2007, was adjourned because the defendants did not attend.
During the following on-site visit, on 26 April 2007, the defendants prevented the experts present from taking the necessary measurements
The subsequent on-site visit, scheduled for 22 May 2007, was adjourned and the parties agreed to arrange for the measurements to be taken again. The next on-site visit, scheduled for 2 April 2008, was adjourned because the defendants did not attend.
At a hearing held on 9 May 2008 the parties reached a settlement whereby they remained co-owners of one plot of land, the defendants B.J., Ž.J. and I.J. became co-owners of one third of three plots of land and the applicant became the sole owner of two plots of land.
On 28 May 2008 the applicant approached the Land Registry Division of the Zlatar Municipal Court seeking to enforce the above in-court settlement of 9 May 2008 by recording the partition of co-ownership in the land register.
On 30 May 2008 the Land Registry Division of the Zlatar Municipal Court dismissed the applicant’s request. It found that the changes stipulated in the in-court settlement of 9 May 2008 could not be recorded in the land register because the share of the property in question belonging to Ž.J. was subject to enforcement proceedings instituted in 2006 and 2007 by his creditors before the same court, after which it was not allowed, under the Enforcement Act, to record any changes in ownership or other rights in rem in respect of that property in the land register.
On 18 June 2008 the applicant appealed against that decision to the Zlatar County Court.
On 25 November 2009 the Zlatar County Court in part upheld and in part quashed the first-instance decision. It held that while the Enforcement Act indeed did not allow the changes stipulated in the in-court settlement of 9 May 2008 to be recorded in respect of Ž.J.’s share of the property, they could be recorded in respect of B.J. and I.J.’s share of the property.
Due to the outcome of the civil proceedings for annulment (see below), it appears that no further steps were taken with a view to recording the changes stipulated in the in-court settlement of 9 May 2008 in the land register.
3. Civil proceedings for annulment of the in-court settlement of 9 May 2008
On 4 July 2008 the applicant brought a civil action in the Zlatar Municipal Court against B.J., Ž.J. and I.J. seeking to annul the above in-court settlement of 9 May 2008 because at the time it had been entered into Ž.J. had concealed the fact that enforcement proceedings had been pending in respect of his share of the property.
On 24 March 2009 the court delivered a judgment whereby it annulled the in-court settlement, with the effect that all concerned remained, as before, co-owners of the six plots of land in question.
4. The second non-contentious proceedings for partition of co-ownership instituted by the applicant
On 26 March 2009 the applicant instituted a second set of non-contentious proceedings against B.J., Ž.J. and I.J. for partition of co-ownership before the Zlatar Municipal Court. This time she sought partition of the co-ownership of four plots of land.
On 4 November 2009 the court issued a decision ordering the partition of the co-ownership by sale of the four plots of land in question at a public auction and distribution of the proceeds of the sale to the co-owners in proportion to their shares. It held that partition in kind (geometrijska dioba) was not feasible and therefore ordered partition by auction (civilna dioba).
The applicant and B.J. appealed as they both objected to partition by auction and sought partition in kind.
It would appear that the case is currently pending before the Zlatar County Court.
B. Relevant domestic law
The relevant part of the Ownership and Other Rights In Rem Act (Zakon o vlasništvu i drugim stvarnim pravima, Official Gazette nos. 91/1996, 73/2000, 114/2001, 79/2006, 141/2006, 146/2006, 38/2009 and 153/2009), which entered into force on 1 January 1997, reads as follows:
Section 47(1) and (2)
“(1) A co-owner has the right to partition of co-ownership if that is practicable and permissible. That right is not subject to statute of limitations.
(2) A co-owner may require partition at any time, except when that would be detrimental to the interests of other co-owners ...”
Section 56(1)
“Partition may not be detrimental to the rights of third persons ...”
COMPLAINT
The applicant complained under Article 1 of Protocol No. 1 to the Convention about the prolonged inability to obtain possession and effectively use her property.
THE LAW
The applicant complained that the prolonged inability to effectively enjoy her property had violated her right to the peaceful enjoyment of her possessions. She relied on Article 1 of Protocol No. 1 to the Convention, 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 the application on two grounds. They argued that the applicant had failed to exhaust domestic remedies and that, in any event, the application was manifestly ill-founded.
1. Non-exhaustion of domestic remedies
(a) The arguments of the parties
The Government argued that the applicant had not exhausted domestic remedies. They submitted that the above land registry proceedings and the second non-contentious proceedings for partition of co-ownership were still pending, and that therefore the application was premature.
The applicant maintained that she had exhausted all effective domestic remedies.
(b) The Court’s assessment
The Court notes that the applicant complained about her prolonged inability to obtain possession of, and effectively enjoy her property. In these circumstances the Government’s arguments appear misconceived. It follows that their objection concerning non-exhaustion of domestic remedies must be dismissed.
The Court further notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It also notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
2. Whether the application is manifestly ill-founded
(a) The arguments of the parties
(i) The Government
The Government argued that there had been no interference with the applicant’s peaceful enjoyment of her possessions in the present case. They explained that the applicant had been registered as a co-owner of the property in question since 24 April 1992 and that B.J.’s action challenging the applicant’s right of ownership had been dismissed by the Zlatar Municipal Court’s judgment of 19 July 2005, which had become final on 21 December 2005. The applicant had always (that is, since 24 April 1992) been able to freely dispose of her co-ownership share provided that she did not infringe other people’s rights.
As to whether the refusal of the Zlatar Municipal Court to record the partition of co-ownership stipulated in the in-court settlement of 9 May 2008 could be understood to constitute an interference with the applicant’s right to peacefully enjoy her possessions, the Government averred that the interference had been justified as it sought to protect the rights of third persons, namely, Ž.J.’s creditors.
Furthermore, the Government noted that the applicant herself had requested the annulment of the valid in-court settlement on the partition of co-ownership. She had done so because one of the parties, Ž. J, had acted in bad faith by concealing the fact that his co-ownership share had been encumbered in the enforcement proceedings instituted against him. However, for the Government, the State could not be held responsible for such actions of the parties to the proceedings made in bad faith. In particular, they stressed that under the domestic law whether or not a co-owner’s share was encumbered was not to be determined by the court of its own motion in proceedings for the partition of co-ownership. On the contrary, the Government argued that the applicant herself could and should have verified whether a share belonging to any of the co-owners had been encumbered, before instituting proceedings for the partition of co-ownership, and, more importantly, before entering into the in-court settlement. She could have done so simply by consulting the land register. That register was public and therefore under the domestic law no one could claim that they had not known or could not have known of certain information recorded in the land register. In any event, the applicant had the possibility to partition the co-ownership of the property in question once the enforcement proceedings had come to an end and the encumbrance had been removed.
In the light of the above, and especially given that the applicant had been a co-owner of the property at issue since 24 April 1992 and able freely to dispose of it, the Government concluded that there had been no violation of her right to the peaceful enjoyment of her possessions.
The Government therefore invited the Court to find that the application was manifestly ill-founded.
(ii) The applicant
The applicant argued that there was a considerable difference between being recorded in the land register as the co-owner of a particular property and the actual enjoyment of that property. This was so because co-owners’ shares were defined in terms of abstract ratios where, in theory, every co-owner had a right to use the entire property in proportion to his share. The property in question had not been divided in kind, that is, in such a way that a co-owner could use and enjoy a particular plot or plots of land independently from the other co-owners. That being so, and given that relations between the co-owners had been disrupted for years and even decades, the applicant had not actually been able to enjoy her property, regardless of the fact that she had been recorded as its co-owner in the land register. In particular, since she had been unable to enter into possession of the four plots of land that had been the subject of the last non-contentious proceedings for partition of co-ownership, she had suffered damage because she had not been able to plant fruit trees, commence construction works in order to extend her yard, or use the farm buildings (the hayloft, barn and pigsty).
The applicant contested, in particular, the Government’s argument that she should have consulted the land register before commencing the non-contentious proceedings for partition of co-ownership and before agreeing to the in-court settlement of 9 May 2008. She explained that under the Civil Procedure Act, the provisions of which applied to non-contentious proceedings in the absence of specific provisions governing those proceedings, it was the court’s duty to prevent the parties from exercising rights which they were not entitled to exercise. Therefore, it had been the court’s obligation to warn the parties that Ž.J.’s share of the property at issue was the subject of enforcement proceedings and that the in-court settlement in question would amount to unlawfully disposing of his share.
In the light of the foregoing, the applicant maintained that her right to the peaceful enjoyment of her possessions had been violated.
(b) The Court’s assessment
The Court agrees with the Government that in the present case there was no interference by a public authority with the applicant’s Convention right to peacefully enjoy her possessions. The proceedings in the present case concern a civil law dispute between private individuals and therefore do not themselves engage the responsibility of the State under Article 1 of Protocol No. 1 (see mutatis mutandis, Ruiz Mateos v. the United Kingdom, no. 13021/87, Commission decision of 8 September 1988, Decisions and Reports (DR) 57, p. 268 and 275; Skowronski v. Poland (dec.), no. 52595/99, 28 June 2001; Kranz v. Poland (dec.), no. 6214/02, 10 September 2002; Eskelinen v. Finland (dec.), no. 7274/02, 3 February 2004, and Tormala v. Finland (dec.), no. 41258/98, 16 March 2004). In particular, the mere fact that the State, through its judicial system, provided a forum for the determination of such a private law dispute does not give rise to an interference by the State with property rights under Article 1 of Protocol No. 1 (see, for example, Kuchař and Štis v. the Czech Republic (dec.), no. 37527/97, 21 October 1998).
Admittedly, when an interference with the right to peaceful enjoyment of possessions is perpetrated by a private individual, a positive obligation arises for the State to ensure in its domestic legal system that property rights are sufficiently protected by law and that adequate remedies are provided whereby the victim of an interference can seek to vindicate his or her rights (see Blūmberga v. Latvia, no. 70930/01, § 67, 14 October 2008). However, the Court considers that in the present case there was no interference with the applicant’s right of property by private individuals either. Rather, the gist of the applicant’s complaint is that she is unable to obtain partition of co-ownership and thus enjoy her property (or at least a part of it) as the exclusive owner. However, that inability does not follow from an interference with her right of ownership perpetrated by other co-owners as private individuals but from the nature of every co-ownership where the rights of a single co-owner over the property in question are inherently restricted by the rights of the other co-owners.
It follows that the application is inadmissible under Article 35 § 3 of the Convention as manifestly ill-founded and must therefore be rejected pursuant to Article 35 § 4 thereof.
For these reasons, the Court unanimously
Declares the application inadmissible.
Søren NielsenChristos Rozakis
RegistrarPresident
Full & Egal Universal Law Academy