AS TO THE ADMISSIBILITY OF
Application no. 16153/02
by Marijana LAPAINE
The European Court of Human Rights (First Section), sitting on 26 May 2005 as a Chamber composed of:
Mr C.L. Rozakis, President,
Mr P. Lorenzen,
Mrs N. Vajić,
Mrs S. Botoucharova,
Mr A. Kovler,
Mrs E. Steiner,
Mr K. Hajiyev, judges,
and Mr S. Nielsen, Section Registrar,
Having regard to the above application lodged with the European Commission of Human Rights on 1 March 2002,
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 applicant, Ms Marijana Lapaine, is a Croatian citzen, who was born in 1938 and lives in Zagreb. She is represented before the Court by Mr Marko Lapaine and Ms Vlatka Ostrogonaj, lawyers practising in Varaždin. The respondent Government are represented by their Agents, Ms L. Lukina-Karajković and Ms Š. Stažnik.
The facts of the case, as submitted by the parties, may be summarised as follows.
A. The circumstances of the case
In 1947 several plots of agricultural land were confiscated from the applicant's father.
On 11 October 1996 Parliament passed a law, which enabled former owners of confiscated or nationalised property to seek either restitution of or compensation for the property taken from them (“the Compensation Act”). It also provided that within a year from its enactment the competent ministers were to issue relevant instructions on the implementation of that Act.
The Compensation Act entered into force on 1 January 1997.
On 20 March 1997 the applicant filed a request with the Zagreb County, Department for Property Affairs, Zaprešić Office (“the Office”), seeking restitution of, or compensation for, property taken from her late father.
On 28 February 2001 the Office accepted the applicant's request in part granting her state bonds as compensation for the property taken. The exact amount of the indemnities offered to the applicant was to be established after the enactment of the competent instructions. However, no such instructions had been adopted by the competent minister at that time.
On 3 October 2001 the applicant appealed against that decision. On 23 September 2003 the Ministry of Justice (Ministarstvo pravosuđa) dismissed the applicant's appeal in part. The first instance decision thereby became final.
The applicant subsequently filed an administrative action against the Ministry's decision. On 19 February 2004 the Administrative Court (Upravni sud Republike Hrvatske) accepted the applicant's action and quashed that decision. It appears that the case is still pending before the Ministry of Justice as the second instance authority.
Meanwhile, on 22 December 2003 the Ministry of Finance (Ministarstvo financija) adopted the Rules on the Criteria for the Determination of the Compensation for Confiscated Building Land and Business Premises (Pravilnik o mjerilima za utvrđivanje naknade za oduzeto građevinsko zemljište i poslovni prostor, Official Gazette no. 204/03, 03/04; “the Rules”). The Rules have been applicable since 1 April 2004.
B. Relevant domestic law
Section 9 of the Act on Compensation for, and Restitution of, Property Taken under the Yugoslav Communist Regime (Zakon o naknadi za imovinu oduzetu za vrijeme jugoslavenske komunističke vladavine, Official Gazette nos. 92/96, 39/99, 42/99, 92/99, 43/00, 131/00, 27/01, 65/01, 118/01, 80/02 and 81/02) provides that the Act applies to former owners and their statutory heirs who are relatives of the first degree.
Sections 63 and 64, inter alia, oblige the Minister of Finances to issue further instructions for the assessment of value of the property for which compensation is to be granted within one year from the enactment of the Compensation Act.
Section 270 § 1 of the Administrative Procedure Act (Zakon o općem upravnom postupku, Official Gazette no. 53/1991) provides that an administrative decision is executed once it becomes enforceable. Paragraph 2 of the same provision provides the cases in which a first instance decision exceptionally may become enforceable, whereas paragraph 3 provides that a second instance decision become enforceable on the day of the service on the party.
1. The applicant complains under Article 1 of Protocol No. 1 that her right to peaceful enjoyment of possessions was violated insofar as she is unable to obtain the bonds that have been granted to her for the property taken from her father.
2. The applicant further complains under Article 13 of the Convention that she has no remedy to enforce her rights under the Compensation Act.
The applicant complains that she has been unable to obtain the awarded compensation for the property taken from her father. She relies on Article 1 of Protocol No. 1, which in the relevant part 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 applicant further relies on Article 13, which reads as follows:
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
The Government contest this view.
They firstly observe that the property at issue was nationalised in 1946, whereas the Convention entered into force in respect of Croatia only on 5 November 1997. They consider that the State cannot be held responsible for the taking of property, which was an instantaneous act before the ratification of the Convention. They invite the Court to reject the application as being incompatible ratione temporis with the Convention.
The Government further submit that the applicant is no longer a victim of the alleged violation of her Convention rights since the competent Ministry has meanwhile adopted the Rules necessary for the determination of the compensation. They observe that the period during which the Rules were not yet adopted was not relevant in the present case, since the applicant's proceedings are still pending and she has no final and enforceable decision.
The Government finally argue that the application is premature, since the proceedings are still pending before the domestic authorities.
The Court considers it unnecessary to decide on the issues of compatibility ratione temporis and exhaustion of domestic remedies, since the application is in any event inadmissible for the following reasons.
The Court observes that on 22 December 2003 the competent Ministry adopted the Rules on which the applicant's compensation is to be determined. The applicant can therefore acquire the bonds she is entitled to once she has obtained an enforceable decision of the domestic authorities.
The Court recalls that during a certain period before the enactment of the Rules the applicant had an enforceable domestic decision (from 23 September 2003, when the Ministry of Justice gave its decision, until 22 December 2003, when the Rules were adopted). Taking into account, however, that this period lasted only three months and that the enforceable decision was quashed later in the proceedings, the Court considers that the failure of the Croatian authorities to adopt the Rules during that time did not amount to an unacceptable interference with the applicant's property rights in the present case. In these circumstances, the applicant can no longer claim to be a victim, within the meaning of Article 34 of the Convention, of a violation of her Convention rights in this respect.
It follows that the application must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court by a majority
Declares the application inadmissible.
Søren Nielsen Christos Rozakis
LAPAINE v. CROATIA DECISION
LAPAINE v. CROATIA DECISION