Information Note on the Court’s case-law 257
December 2021
Zaklan v. Croatia - 57239/13
Judgment 16.12.2021 [Section I]
Article 1 of Protocol No. 1
Article 1 para. 1 of Protocol No. 1
Peaceful enjoyment of possessions
Prolonged stay of proceedings in the context of succession of States preventing applicant from recovering money temporarily confiscated by the former Socialist Federal Republic of Yugoslavia: violation
Facts – The applicant is a Croatian national. In 1991, the customs authorities for the former Socialist Federal Republic of Yugoslavia (“the SFRY”) temporarily confiscated sums of foreign currency from him at the border between the then SFRY (now Croatia) and Hungary for attempting to take the money across the State border, in contravention of the law. Administrative-offence proceedings were instated against him in the same year.
Thereafter, Croatia declared independence and severed all ties with the SFRY. In 1992, the Government of Croatia issued a decree whereby it stayed all relevant, pending administrative-offence proceedings until the completion of the succession process following the dissolution of the SFRY. In 2004, the Agreement on Succession Issues between the successor States to the SFRY entered into force.
In the meantime, the applicant’s administrative-offence proceedings became time-barred. The applicant brought unsuccessful civil proceedings requesting a return of the money. The domestic court considered that the applicant could only bring such an action after the administrative-offence proceedings had been concluded, and only in the event that the final decision had not ordered permanent confiscation of those sums. As the applicant’s case had been stayed, those proceedings had not ended and his action against the State had therefore been premature. The applicant appealed unsuccessfully.
Law – Article 1 of Protocol No. 1:
(a) Whether the violation complained of could be attributed to the respondent State
The Government had argued that the alleged violation could not have been attributed to the respondent State as it had resulted from actions undertaken by the federal authorities for the former SFRY before Croatia had declared independence, and because Croatia had not taken over the administrative-offence proceedings that the former federal authorities had instituted against the applicant.
In that connection, the Court firstly noted that the applicant had not complained of the temporary confiscation itself, but rather, his inability to recover the confiscated sums once the administrative offence that he had been charged with had become time-barred.
The situation complained of was attributable to the Croatian authorities, based on the following conclusions of the Court:
The Croatian authorities had taken over the administrative-offence proceedings against the applicant from the federal authorities of the former SFRY. The Government’s argument to the contrary was unconvincing in view of the overwhelming evidence to that effect, including relevant domestic law references and correspondence between various Croatian financial authorities and Serbia’s Minister of Finance;
From that moment the proceedings had been conducted in accordance with Croatian substantive and procedural law governing administrative offences;
Those proceedings had been stayed by the Croatian authorities and had remained stayed until the present day, which had resulted in the administrative offence with which the applicant had been charged becoming time-barred;
Under Croatian and Serbian law, temporarily confiscated items had to be retuned once the offence in question had become time-barred; however
The stay of proceedings imposed by Croatian legislation had been preventing the relevant authorities from issuing a decision to discontinue the administrative-offence proceedings against the applicant, which had prevented him from recovering the temporarily confiscated money both from the Croatian and from the Serbian authorities.
As Serbia was not a party to the proceedings that the applicant had instituted before the Court, the Court therefore could not pronounce itself on the issue of whether Serbia might also be held responsible for that situation.
The Government’s inadmissibility objection as to the incompatibility ratione materiae had to therefore be dismissed.
(b) Whether the prolonged inability by the applicant to recover temporarily confiscated money was in compliance with Article 1 of Protocol No. 1
The applicant’s prolonged inability to recover the money had to be examined in the light of the general principle laid down in the first rule of Article 1 of Protocol No. 1 (peaceful enjoyment of property). It was not necessary to categorise that inability as an interference, a failure to discharge the State’s positive obligations under Article 1 of Protocol No. 1, or a combination of both. Regardless of the category it fell into, the Court had to examine whether it had been in compliance with that Article – namely, whether it had been lawful, pursued an aim that had been in the general interest and whether a “fair balance” had been struck between the general interest in question and the applicant’s property rights.
The applicant’s inability to recover the money resulting from the stay of the administrative-offence proceedings had been prescribed by law and pursued an aim that had been in the general interest, namely that of protecting the public purse and the national economy.
Whereas some delays might be justified in exceptional circumstances, the applicant had been made to wait too long. What is more, the prolonged stay of the proceedings had prevented him from seeking the return of the temporarily confiscated sums not only from Croatian but also from Serbian authorities. Preventing the applicant from seeking the return of that money from Serbia could hardly be justified by the above aim of protecting the public purse and the national economy.
Further, in the case of Ališić and Others v. Bosnia and Herzegovina, Croatia, Serbia, Slovenia and “the former Yugoslav Republic of Macedonia” [GC], the succession negotiations had not prevented the successor States from undertaking measures at the national level aimed at protecting the interests of individuals within their respective jurisdictions. For the purposes of the present case it was important that Croatia had also assumed liability for damage caused by the authorities of the former SFRY in so far as it had the closest connection with the damage – notably, where the wrongful act had occurred on its territory, and the victim had been a Croatian national. That showed that solutions have been found as regards some categories of individuals whose rights had been affected by the dissolution of the former SFRY, but not with regard to the present applicant.
The Court was therefore not satisfied that the Croatian authorities, notwithstanding their wide margin of appreciation, had struck a fair balance between the general interest of the community and the property rights of the applicant who had been made to bear a disproportionate burden.
Conclusion: violation (unanimously).
Article 41: EUR 1,327 in respect of non-pecuniary damage.
(See also Ališić and Others v. Bosnia and Herzegovina, Croatia, Serbia, Slovenia and “the former Yugoslav Republic of Macedonia” [GC], 60642/08, 16 July 2014, Legal Summary)
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This summary by the Registry does not bind the Court.
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