Communicated on 12 January 2017
SECOND SECTION
Application no. 18116/15
Božidar PETROVIĆ and others
against Montenegro
lodged on 1 April 2015
STATEMENT OF FACTS
A list of the applicants is set out in the appendix.
A. The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
On 1 September 2009 the first and second applicants and the father of the third and fourth applicants instituted civil proceedings against the State, seeking that they be recognised as owners of two plots of land in the coastal zone (u zoni morskog dobra). They submitted, in particular, that the land at issue was lawfully owned by their predecessors, notably their father and grandfather, but that without any legal basis the State appeared as the registered owner thereof in the Real Estate Registry.
On 2 March 2010 the Real Estate Administration in Tivat (Uprava za nekretnine, područna jedinica Tivat), acting upon the first applicant’s request, issued a decision allowing the division into two of an adjacent plot of land, a forest in the coastal zone, the registered owner of which at the time was the Municipality. The Municipality remained registered as the owner of one part of it, whereas the other part was registered in the name of the applicants’ predecessor (the father of the first and second applicants, and the grandfather of the third and fourth applicants).
On 21 November 2011, after a remittal, the Court of First Instance (Osnovni sud) in Kotor ruled against the first and second applicants, and the third and fourth applicants’ father. The court found that the land at issue had indeed been owned by the applicants’ predecessors, notably the father, grandfather and grand-grandfather, but that the plaintiffs had not inherited it when their predecessor passed away in 1997. It held, in substance, that the land at issue was in the coastal zone, that it had become State property when it was declared a coastal zone, pursuant to section 4 of the Coastal Zone Act (see at B below), and that the plaintiffs could not claim the right to property in respect of such land. The court found that the Real Estate Administration decision of 2 March 2010 was irrelevant given that it related to a different plot of land which was not the subject of these proceedings. The court made no reference to section 30 of the Coastal Zone Act (see at B below).
In their appeal the first and second applicants, and the third and fourth applicants’ father affirmed that the said land was not in their predecessor’s estate when he passed away, which was exactly the reason why they had initiated these proceedings. They also submitted that: (a) section 30 had never been complied with even though it was indisputable that their predecessor had lawfully owned the land; and (b) the relevant legislation did not prohibit private ownership over such land given that the adjacent plot of land, also a forest in the coastal zone, was owned by them. They submitted the decision of the Real Estate Administration of 2 March 2010 and maintained that the first-instance court’s reasoning that the said decision was irrelevant indicated legal uncertainty, given that the same legal issue was treated differently without any explanation in that regard.
On 6 April 2012 the High Court (Viši sud) in Podgorica upheld the first‑instance judgment. The court found that the land was indisputably forest in the coastal zone, that it was State property pursuant to section 13 of the State Property Act and that the plaintiffs therefore could not claim the property in that regard. The court further held that even assuming that the plaintiffs had the property over these plots of land they had lost that right “in accordance with the State Property Act and the Coastal Zone Act. In support of this was also section 30 of the Coastal Zone Act, relied upon by the plaintiffs, which provided that the owners of land in the coastal zone, who had obtained it in a lawful manner before that Act entered into force and which was duly registered in the Real Estate Register as a private property, were entitled to compensation in case of an expropriation”.
On 11 October 2012 the Supreme Court (Vrhovni sud) in Podgorica upheld the previous judgments. The court held, in substance, that the land at issue was in the coastal zone and as such, pursuant to section 4 of the Coastal Zone Act, was owned by the State, and therefore could not be privately owned. It also held that:
“The plaintiffs were wrong to consider that the issue was to be resolved by means of section 30 of the Coastal Zone Act. That provision regulated the rights of the owners of land in the coastal zone who had obtained the property thereof before that Act entered into force by providing that they were entitled to compensation in case of an expropriation [...]. That means that the land did not remain in the private property regime, but became State property by the law itself.”
On 25 December 2012 the first and second applicants, and the third and fourth applicants’ father lodged a constitutional appeal. They submitted, inter alia, that it was not true that the land in the coastal zone was State property and could not be privately owned, as numerous plots of land in that zone were private property, including the plot of land adjacent to the one at issue, which was owned by them. They invoked the right to a fair trial and the right to property, and reiterated the importance of legal certainty.
On 23 July 2014 the Constitutional Court dismissed the constitutional appeal. It held that the lower courts’ assessment “was based on a correct application of substantive law and a constitutionally-acceptable interpretation thereof, in accordance with Article 6 of the Convention”. As regards Article 1 of Protocol No. 1 the court held that a claim which had been dismissed because the plaintiffs did not meet statutory conditions was not considered a possession that could constitute property rights, and thus there could be no violation of such a right either. This decision was served on 13 October 2014 at earliest.
On 16 December 2014 the third and fourth applicants’ father died leaving the third and fourth applicants as his heirs.
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 forests, forest land and land in the coastal zone are goods of public interest (dobra od opšteg interesa) which are disposed of (kojima raspolaže) by Montenegro.
COMPLAINTS
The applicants complain under Article 1 of Protocol No. 1 and Article 6 § 1 of the Convention about an unlawful de facto expropriation of their property without any compensation and arbitrary reasoning of the domestic courts.
QUESTIONS TO THE PARTIES
1. Having regard to the fact that the domestic decisions provided no explanation as to why the applicants were not entitled to any compensation under section 30 of Coastal Zone Act, and did not clarify the different status of the adjacent plot of land, also a forest in the coastal zone, did the applicants have a fair hearing in the determination of their civil rights and obligations, in accordance with Article 6 § 1 of the Convention (see Van de Hurk v. the Netherlands, 19 April 1994, § 61, Series A no. 288; Perez v. France [GC], no. 47287/99, § 81, ECHR 2004‑I; Ruiz Torija v. Spain, 9 December 1994, §§ 29-30, Series A no. 303‑A; Hiro Balani v. Spain, 9 December 1994, §§ 27-28, Series A no. 303‑B; and, mutatis mutandis, Anđelković v. Serbia, no. 1401/08, §§ 27 and 29, 9 April 2013)?
2. (a) Was an expropriation procedure in respect of the land at issue ever undertaken and/or were the applicants and/or their predecessors ever paid compensation therefor?
(b) Was section 30 of the Coastal Zone Act applicable to the applicants and/or their predecessors, and if not, why?
(c) Has there been an interference with the applicants’ peaceful enjoyment of possessions, within the meaning of Article 1 of Protocol No. 1?
(d) 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)?
(e) 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)?
Appendix
No.
First name LASTNAME
Birth date
Place of residence
Nationality
Representative
Božidar PETROVIĆ
(the first applicant)
26/12/1956
Tivat
Montenegrin
V. VULEKOVIĆ
Alma KUZMANOVIĆ
(the second applicant)
10/03/1952
Kotor
Montenegrin
V. VULEKOVIĆ
Kristina PETROVIĆ
(the third applicant)
18/10/1975
Kotor
Montenegrin
V. VULEKOVIĆ
Željko PETROVIĆ
(the fourth applicant)
12/10/1980
Kotor
Montenegrin
V. VULEKOVIĆ
Full & Egal Universal Law Academy