Communicated on 16 May 2019
SECOND SECTION
Application no. 12131/18
Ilija NEŠIĆ
against Montenegro
lodged on 3 March 2018
STATEMENT OF FACTS
The applicant, Mr Ilija Nešić, is a Serbian national, who was born in 1931 and lives in Tivat. He is represented before the Court by Mr Z. Miljanić, a lawyer practising in Tivat.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 21 October 1980 the applicant bought two plots of land, nos. 697/1 and 698/1, from another person. On 22 October 1980, pursuant to the relevant decision to that effect, the applicant was registered as the owner.
Over the time the numbering and sizes of the plots of land changed. Thus the plot no. 698/1 turned into several plots of land, including nos. 955/3 and 955/4.
On 17 October 2006 the State instituted civil proceedings against the applicant seeking that it be recognised as the owner of the plots nos. 955/3 and 955/4.
In the course of the proceedings, on 1 October 2014, the court went to the site (izlaskom na lice mjesta) and established that the plots of land at issue were on the coast (na samoj obali mora).
On 19 December 2014 the Court of First Instance (Osnovni sud) in Kotor ruled in favour of the State. It found that there was no dispute that the applicant had become the owner in a lawful manner (na zakonit način) pursuant to the sales contract concluded in 1980. It also found, however, that the land at issue was in the coastal zone (u zoni morskog dobra) and hence was the property of the State pursuant to sections 2(a) and 4 of the Coastal Zone Act and sections 10 and 11 of the State Property Act. It specified that the applicant’s rights ceased by establishing the coastal zone (formiranjem granica morskog dobra), that is by entering into force of these Acts, and thus became the State property.
This judgment was upheld by the High Court on 25 September 2015. The High Court further specified that the applicant preserved the right to use the property at issue “until its expropriation” (sve do njegovog izuzimanja).
On 16 December 2015 the Supreme Court upheld the High Court’s judgment.
On 23 October 2017 the Constitutional Court dismissed the applicant’s constitutional appeal. As regards the applicant’s complaint under Article 1 of Protocol No. 1 the court held that “having regard to the contents of the right to property..., the findings expressed in the reasoning of this decision and the object of the dispute preceding the procedure before the Constitutional Court, there was no violation of ... Article 1 of Protocol No. 1”.
B. Relevant domestic law
The 1992 Constitution guaranteed the right of property and provided that it could be limited only when the public interest so required and in return for compensation at market value. The 2007 Constitution guarantees the same, except that it provides for just compensation instead of market value.
The Property Act 1980 (Zakon o osnovama svojinsko-pravnih odnosa), with its amendments of 1990 and 1996, regulated property rights in detail. Section 3 provided, inter alia, that the owner had the right to use and dispose of his/her property within the statutory limits, and that everybody had a duty to refrain from violating other persons’ property rights. Section 8 provided that one could be deprived of the right to property or that this right could be restricted, in accordance with the constitution or the law.
The Property Act 2009 (Zakon o svojinsko-pravnim odnosima) repealed the previous Act. Section 6 thereof, however, corresponds to section 3 of the Property Act 1980. Section 10 provides, inter alia, that the right of property can be restricted in accordance with law and that no one can be deprived of his/her property, except in the public interest and in return for just compensation.
Section 3 of the 1992 Coastal Zone Act (Zakon o morskom dobru) defined the coastal zone (morsko dobro) as a strip of coast up to the line reached by the biggest waves in the stormiest weather (do koje dopiru najveći talasi za vrijeme najjačeg nevremena) and at least 6 metres beyond that. The Parliament could declare land beyond also as coastal zone. Section 4 provided that the coastal zone was the property of the State, but that exceptionally, the land beyond the 6 metre line that was declared coastal zone by the Parliament could be privately owned.
Section 30 provided, inter alia, that the owners of land in the coastal zone who had obtained the property thereof lawfully before this Act entered into force and which was duly registered in the Real Estate Registry as private property, were entitled to compensation in case of its expropriation, pursuant to the provisions on expropriation.
The State Property Act 2009 repealed section 4 of the 1992 Coastal Zone Act. However, sections 10 and 13 thereof taken together provide, inter alia, that land in the coastal zone is a good of public interest (dobro od opšteg interesa) which is disposed of (kojima raspolaže) by Montenegro.
COMPLAINT
The applicant complains under Article 1 of Protocol No. 1 to the Convention about a deprivation of his property without any prior individual decision to that effect and without having been compensated for it.
QUESTIONS TO THE PARTIES
1. Has the applicant exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention? In particular, was a compensation claim against the State an effective remedy within the meaning of this provision ?
2. (a) Has there been an interference with the applicant’s peaceful enjoyment of possessions, within the meaning of Article 1 of Protocol No. 1?
(b) If so, was the interference in accordance with the requirements of Article 1 of Protocol No. 1, and in particular was it provided for by law (see Hutten-Czapska v. Poland [GC], no. 35014/97, §§ 163-168, ECHR 2006‑VIII; Vistiņš and Perepjolkins v. Latvia [GC], no. 71243/01, §§ 95-97, 25 October 2012; Former King of Greece and Others v. Greece [GC], no. 25701/94, §§ 79 and 82, ECHR 2000‑XII; Jahn and Others v. Germany [GC], nos. 46720/99, 72203/01 and 72552/01, § 81, ECHR 2005‑VI; mutatis mutandis, Belvedere Alberghiera S.r.l. v. Italy, no. 31524/96, § 58, ECHR 2000‑VI; Immobiliare Saffi v. Italy [GC], no. 22774/93, § 54, ECHR 1999‑V; and Broniowski v. Poland [GC], no. 31443/96, § 151, ECHR 2004‑V)?
(c) If there has been an interference and if it was in accordance with law, was it proportionate (see Nastou v. Greece (no. 2), no. 16163/02, § 33, 15 July 2005; and Jahn and Others, cited above, § 111)?
(d) Was an expropriation procedure in respect of the land at issue undertaken and/or was the applicant paid compensation therefor? If not, will the expropriation procedure be undertaken in the future? If so, the Government are invited to clarify the details of expropriation procedure in cases when the land is in the coastal zone and the expropriation is undertaken after a court’s decision in favour of the State (when it takes place, upon whose initiative etc.). The Government are also invited to submit the relevant domestic case-law in that regard.
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