FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 22344/02 
by Petar KUNIĆ 
against Croatia

The European Court of Human Rights (First Section), sitting on 1 September 2005 as a Chamber composed of:

Mr C.L. Rozakis, President
 Mr L. Loucaides
 Mrs F. Tulkens
 Mr P. Lorenzen
 Ms N. Vajić
 Mrs S. Botoucharova, 
 Mr A. Kovler, judges
and Mr S. Nielsen, Section Registrar,

Having regard to the above application lodged on 11 April 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 FACTS

The applicant, Mr Petar Kunić, is a Croatian national of Serbian origin who was born in 1951 and lives in Krnjak, Croatia. He is represented before the Court by Mr T. Vukičević, a lawyer practising in Split. The respondent Government are represented by their Agents, Ms L. Lukina-Karajković and subsequently by Ms Š. Stažnik.

A.  The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

The applicant and his family lived in a family house in Krnjak where the applicant also ran a restaurant. The owner of that property was the applicant’s father, who died in 1992. In January 1999 the applicant was declared his legal heir.

In August 1995 the applicant and his family left for Bosnia and Herzegovina.

On 27 September 1995 the Temporary Takeover and Managing of Certain Property Act (Zakon o privremenom preuzimanju i upravljanju određenom imovinom – “the Takeover Act”) entered into force.

On 23 May 1996 the Krnjak Municipality Commission for Temporary Takeover and Use of Property (Komisija za privremeno preuzimanje i korištenje imovine Općine Krnjak – “the Takeover Commission”) entitled a certain V.P. to use the applicant’s property temporarily, with a view to running a restaurant.

1. Administrative and civil proceedings

On 15 September 1997 the applicant filed a request for repossession of his property with the Takeover Commission. He received no reply.

In January 1998 the applicant reiterated his request for repossession and sought annulment of the Takeover Commission’s decision of 23 May 1996.

On 4 June 1998 the Takeover Commission replied, without issuing a formal decision, that it had issued no decision concerning the applicant’s property and that it did not have competence to decide on the applicant’s repossession request.

In June 1998 Parliament adopted the Programme for the Return of Refugees and Displaced Persons (Program povratka i zbrinjavanja prognanika, izbjeglica i raseljenih osoba – “the Programme for Return”), regulating the principles for their return and the repossession of their property.

In August 1998 the Act on Termination of the Takeover Act (Zakon o prestanku važenja Zakona o privremenom preuzimanju i upravljanju određenom imovinom – “the Termination Act”) entered into force. It incorporated, and gave legal force to, the provisions of the Programme for Return providing that those persons, whose property had been given for accommodation of others during their absence from Croatia, had to file a request for repossession of their property with the competent local authorities – the housing commissions.

According to the above legislation, on 13 August 1998 the applicant filed a request for repossession with the Housing Commission of the Krnjak Municipality (Stambena Komisija Općine Krnjak – “the Housing Commission”).

On 31 August 1998 the Housing Commission informed the applicant about the status and degree of the damage to his property and, on 1 December 1998, invited him to prove the ownership of the property in question.

The applicant did so in April 1999, after the inheritance proceedings after his late father had ended in January 1999.

On 4 October 1999 the Housing Commission set aside the Takeover Commission’s decision of 23 May 1996. V.P. appealed.

On 14 February 2000 the Krnjak Municipality, acting as the second instance authority, dismissed V.P.’s appeal. It also ordered him to vacate the house within 15 days following the receipt of the order and indicated that otherwise it would bring a civil action against him in the competent municipal court.

Since V.P. failed to comply with the order, on 13 March 2000 the Housing Commission brought an action in the Karlovac Municipal Court (Općinski sud u Karlovcu) seeking his eviction from the property in question.

On 16 May 2000 that court declared the Housing Commission’s action of 13 March 2000 inadmissible since, under the Termination Act, the Municipality did not have competence to decide on V.P.’s appeal. It should have rather sent the case-file to the appellate authority in that matter, i.e. to the Karlovac Municipal Court.

Following the transfer of the case-file by the Krnjak Municipality to the Karlovac Municipal Court, on 13 February 2001 that court dismissed V.P.’s appeal against the Housing Commission’s decision of 4 October 2000, which thereby became final.

On 20 March 2001 the Housing Commission again brought civil proceedings against V.P. in the Karlovac Municipal Court seeking his eviction.

The court held hearings on 6 June, 11 October and 22 November 2001. On the last-mentioned date the applicant joined the proceedings as an intervener (umješač) on the side of the Housing Commission.

At the hearing held on 20 February 2002 the court gave judgment accepting the Housing Commission’s claim and ordered V.P. to vacate the premises.

On 18 March 2002 V.P. appealed.

On 4 March 2003 the Karlovac County Court (Županijski sud u Karlovcu) dismissed the appeal and upheld the first instance judgment, which thereby became final.

On 22 March 2003 V.P. lodged an appeal on points of law (revizija). After it was declared inadmissible by the Karlovac Municipal Court on 5 May 2003 and that decision upheld on 19 May 2003 by the Karlovac County Court, V.P. brought the issue of admissibility of his appeal on points of law to the Supreme Court. It appears that the Supreme Court so far did not give its decision.

2. The Constitutional Court proceedings

Meanwhile, on 30 July 2001, the applicant filed a constitutional complaint concerning the length of the proceedings. He alleged a violation of his right to property and of his right to respect for his home. He based his complaint on Section 59 § 4 of the 1999 Constitutional Act on the Constitutional Court (Ustavni zakon o Ustavnom sudu Republike Hrvatske – “the 1999 Constitutional Court Act”).

On 20 December 2001 the Constitutional Court (Ustavni sud Republike Hrvatske) dismissed the applicant’s complaint, finding that the applicant’s right to a trial within reasonable time or any other constitutional right had not been violated and that, accordingly, the requirements provided in section 59 § 4 of the 1999 Constitutional Court Act were not met.

3. Enforcement proceedings

Since V.P.’s appeal of 18 March 2002 did not postpone the enforceability, on 11 March 2002 the Housing Commission applied to the Karlovac Municipal Court for enforcement of the court’s judgment of 20 February 2002.

On 18 April 2002 the court issued a writ of execution (rješenje o ovrsi). V.P. appealed against the writ on 7 May 2002.

On 1 October 2002 the Amendments to the Act on Areas of Special State Care (Zakon o izmjenama i dopunama Zakona o područjima od posebne državne skrbi – “the 2002 Amendments”) entered into force. They transferred the jurisdiction in the matter from the housing commissions (which were abolished) to the Ministry of Public Works, Reconstruction and Construction (Ministarstvo za javne radove, obnovu i graditeljstvo – “the Ministry”). Accordingly, the State represented by the State Attorney’s Office took over the proceedings from the Housing Commission.

On 5 March 2003 the Karlovac County Court dismissed the appeal and the writ thereby became final.

On 30 April 2003 V.P. requested the Municipal Court to postpone the enforcement. On 2 September 2003 the court dismissed his request and scheduled an intervention of the bailiff for 1 October 2003. On 12 September 2003 V.P. appealed requesting at the same time delegation of jurisdiction (svrsishodna delegacija) from the Karlovac to the Zagreb Municipal Court. On 15 October 2003 the Supreme Court dismissed his request.

On 27 May 2003 the applicant joined the enforcement proceedings as an intervener on the side of the State.

The bailiff’s intervention scheduled for 1 October 2003 was adjourned pending a decision on V.P.’s request for delegation of jurisdiction and because the State Attorney’s Office did not receive the summons. The next intervention was scheduled for 22 December 2003.

On 18 December 2003 V.P. filed a new request for postponement of enforcement, which was dismissed.

On 23 December 2003 the bailiff evicted V.P. and the applicant repossessed his property.

4. Compensation

On 6 May 2003 the Ministry invited the applicant to contact its competent regional office in order to negotiate a settlement and receive compensation for the prolonged inability to use his property, in accordance with the 2002 Amendments.

The applicant did not reply.

B.  Relevant domestic law and practice

Relevant part of the Takeover Act (Zakon o privremenom preuzimanju i upravljanju određenom imovinom, Official Gazette nos. 73/1995 and 7/1996) provided as follows.

Section 2 provided that property situated in the previously occupied territories and belonging to persons, who had left Croatia, should be taken into the care of and controlled by the State.

Section 5 authorised the takeover commissions to give property within the meaning of section 2 for temporary use to refugees and displaced persons, returnees whose property has been destroyed or damaged during the Homeland War, war invalids, families of Croatian defenders killed or missing in the Homeland War, and other citizens performing duties vital for the security, reconstruction and development of the previously occupied areas.

Section 11 provided for competence of the takeover commissions to decide owners’ repossession requests.

Section 161 (1) of the Property Act (Zakon o vlasništvu i drugim stvarnim pravima, Official Gazette nos. 91/1996, 73/2000 and 114/2001) entitles the owner of property to recover it against anyone who possesses it.

Section 163 (1) provides that the possessor may refuse to deliver the property to its owner if he has a right which authorises him to possess it (the right to possession).

Section 9 of the Programme for Return (Program povratka i zbrinjavanja prognanika, izbjeglica i raseljenih osoba, Official Gazette no. 92/1998) provided as follows:

“Persons with Croatian documents, who are owners of property in Croatia where other persons are temporarily accommodated, may apply to the municipal housing commissions and seek repossession of their property. The commission shall inform the owner within five days about the status of his property. Relying on the proof of ownership, the commission shall set aside any previous decision allowing temporary accommodation of other persons and order the persons accommodated to vacate the premises. The commission shall serve a written decision on the owner and the temporary occupier within seven days. The decision shall contain a time-limit for eviction and an offer of an alternative lodging for the temporary occupier in a house or a flat in state ownership.

...

“If a temporary occupier does not vacate the premises within the fixed time, the commission shall institute eviction proceedings in the competent municipal court within seven days. The court shall apply the provisions concerning the civil summary proceedings. The court’s decision is immediately enforceable. An appeal does not interfere with the enforcement proceedings or the re-possession of the property by the owner.”

Section 2(3) and 2(4) of the Termination Act (Zakon o prestanku važenja Zakona o privremenom preuzimanju i upravljanu određenom imovinom, Official Gazette no. 101/1998) provided that the Programme for Return applied to proceedings concerning temporary use, management and control of the property of persons who left Croatia and that these proceedings were to be conducted by the housing commissions in the first instance and by the municipal courts in the second instance. They should apply provisions of the Administrative Proceedings Act.

In a series of decisions (for example, in cases nos. Rev-291/1999-2 of 11 September 2002, Rev-1157/02-2 of 21 November 2002 and Rev-1289/00-02 of 6 November 2003), starting, with decision no. Rev-574/02-2 of 23 April 2002 the Supreme Court interpreted the relationship between the Property Act and the Termination Act as follows:

The jurisdiction to decide on the owner’s repossession request conferred on the administrative authorities under the Termination Act does not exclude the general court jurisdiction in the matter under the Property Act. Therefore, a civil action for repossession, based on section 161(1) of the Property Act and brought in a court against a temporary occupant by an owner whose property had been taken over under the Takeover Act, should be decided on its merits rather than declared inadmissible for lack of jurisdiction. If the administrative decision giving the property for temporary use to the occupant had not been set aside in the administrative proceedings by a competent authority, the occupant should be considered to possess the property with right and the owner’s claim should, accordingly, be dismissed pursuant to the section 163(1) of the Property Act. However, if the decision had been set aside, the owner’s claim should be accepted and the temporary occupant ordered to vacate the property. It follows that a successful civil action for repossession presupposes the successful outcome of the administrative proceedings instituted with a view to setting aside the decision by which the temporary occupant had been allowed to use the owner’s property.

Section 31(1) of the Act on the Areas of Special State Concern (Zakon o područjima od posebne državne skrbi, Official Gazette no. 26/2003 (consolidated text)), as amended by the 2002 Amendments, provides that the State Attorney shall institute civil proceedings for eviction against a person who, without valid legal ground, resides in a property awarded for use under the Takeover Act.

Section 31(3) provides that, regardless of whether the State Attorney has filed a civil action for eviction, the owner has an independent right to file such action for the protection of his ownership.

Section 27(4) provides that the State shall compensate the damage suffered by the owner who has submitted the request for repossession of his or her property prior to 30 October 2002 but to whom the property was not returned by that date.

The Decision on the Level of Compensation to Owners for the Damage Incurred (Odluka o visini naknade za pretrpljenu štetu, Official Gazette no. 68/03) establishes the above compensation as seven Croatian kunas (HRK) per square metre.

The relevant part of the 1999 Constitutional Act on the Constitutional Court (Ustavni zakon o Ustavnom sudu, Official Gazette 99/99 – “the 1999 Constitutional Court Act”), which came into force on 24 September 1999, provided as follows:

Section 59(4)

“The Constitutional Court may, exceptionally, examine a constitutional complaint prior to exhaustion of other available remedies, if it is satisfied that the contested act or failure to act within a reasonable time grossly violates a party’s constitutional rights and freedoms and that, if it does not act, a party will risk serious and irreparable consequences.”

The relevant part of the Constitutional Act on the Constitutional Court (Ustavni zakon o Ustavnom sudu Republike Hrvatske, Official Gazette no. 49/2002 (consolidated text) – “the 2002 Constitutional Court Act”) as amended by the 2002 Amendments to the Constitutional Act on the Constitutional Court reads as follows:

Section 63

“(1) The Constitutional Court shall examine a constitutional complaint whether or not all legal remedies have been exhausted if the court with jurisdiction fails to decide a claim concerning the applicant’s rights and obligations or a criminal charge against him or her within a reasonable time ...

(2) If a constitutional complaint ... under paragraph 1 of this section is upheld, the Constitutional Court shall set a time-limit within which the court with jurisdiction must decide the case on the merits...

(3) In a decision issued under paragraph 2 of this section, the Constitutional Court shall assess appropriate compensation for the applicant for the violation of his or her constitutional rights ... The compensation shall be paid out of the State budget within three months from the date a request for payment is lodged.”

Under the case-law of the Constitutional Court (for example, decision no. U-IIIA/1165/2003 of 12 September 2003 and decision no. U-IIIA/781/2003 of 14 May 2004), at the material time, it lacked jurisdiction to address the question whether non-enforcement of court decisions (or the excessive length of enforcement proceedings) amounts to a violation of any of the constitutional rights. The Constitutional Court changed the above case-law by its decision no. U-IIIA/1128/2004 of 2 February 2005.

Sections 206 – 209 of the Civil Procedure Act (Zakon o parničnom postupku, Official Gazette nos. 53/1991, 91/1992 and 112/1999), as in force at the material time, provided that a person with a legal interest that, in the proceedings pending among others, one of the parties succeed may intervene in support to that party (benefiting party). Such a person might intervene during the proceedings up until to the final decision on the plaintiff’s claim, and even after, if the proceedings continued on the basis of further remedies. An intervener joined the lawsuit as it was at the moment of the entry and from then on he was entitled to plead or undertake any other procedural action (except those amounting to dispositions with the claim) within the time-limits set forth for the benefiting party. Procedural actions of the intervener produced effects for the benefiting party if they were not in contradiction with that party’s own acts. An intervener had an independent right to appeal or lodge further remedies. In case of successful intervention, he had a right to recover the costs from the opposite party.

Under the case-law of the Constitutional Court (U-III/457/2000 of 13 December 2000 and U-III/714/2002 of 17 September 2004), an intervener has an independent right to file a constitutional complaint concerning the outcome or the length of proceedings in which he intervened.

The relevant part of the Enforcement Act (Ovršni zakon, Official Gazette nos. 57/1996, 29/1999), as in force at the material time, provided as follows:

Section 13 provided that in enforcement proceedings a court should proceed urgently.

Section 40(1) and (2) provided that enforcement should be carried out and the claim executed even before a writ of execution became final (the writ became final after the expiry of the time-limit for the appeal or after the delivery of the decision on the appeal), unless the Act provided otherwise.

Section 46(5) provided that an appeal against a writ of execution should not postpone its implementation.

Section 226(2) provided that a writ ordering eviction should be implemented before it becomes final and within eight days following its service on the debtor.

COMPLAINTS

The applicant complains that the overall length of the proceedings did not comply with the “reasonable time” requirement of Article 6 § 1 of the Convention.

The applicant also complains under Article 6 § 1 of the Convention that he had no access to a court because he was not in a position to institute proceedings concerning repossession of his property himself.

The applicant further complains under Article 1 of Protocol No. 1 of the inability to recover the possession of his property.

Finally, the applicant complains under Article 14 read in conjunction with Articles 6 § 1 of the Convention and Article 1 of Protocol No. 1 that he was discriminated against on the basis of his Serbian origin.

THE LAW

1. The applicant complains about the length of the proceedings and the lack of access to a court. He also complains that his right to peacefully enjoy his property has been violated and that he was discriminated against on account of his ethnic origin. He relies on Articles 6 § 1 and 14 of the Convention and Article 1 of Protocol No. 1.

a. The Government maintain that the domestic authorities are responsible only for acts, decisions and events which occurred after 5 November 1997, the date on which the Convention entered into force in respect of Croatia. Therefore, the interference with the applicant’s rights caused by legislation adopted before the entry into force of the Convention in respect of Croatia falls outside the Court’s competence ratione temporis.

The applicant submits that the alleged violations have continued after the date of the ratification. Accordingly, in his view the Court has competence to examine them.

The Court observes that in the present case the applicant’s complaints concern continuous situations. Accordingly, the Court is competent ratione temporis to examine these complaints in so far as they concern the continuation of these situations after 5 November 1997.

b. The Government further submit that the applicant has lost his victim status as he regained possession of his property on 23 December 2003. Moreover, according to the 2002 Amendments, the applicant was entitled to compensation from the State if the property has not been returned to him within the prescribed time-limits. The domestic authorities invited the applicant to negotiate and conclude a settlement regarding such compensation but he did not respond to their invitation. The violation complained of has, therefore, been remedied before the domestic authorities and the applicant had a further remedy available to remove the consequences stemming from the violation, of which he did not avail himself.

The applicant finds the compensation provided for by the 2002 Amendments unsatisfactory. It covered only the period from 1 November 2002 onwards and amounted to only HRK 7 per square meter per month – an amount far below the market value, obtainable under the general rules of tort law. Moreover, since provided by law, the amount of compensation was not subject to negotiation. Finally, the compensation covered only damage incurred in respect of the impossibility to repossess houses and flats but not the damage (lost profits) concerning the impossibility to repossess and use business premises.

The Court considers that an applicant’s status as a victim may depend on compensation being awarded at domestic level on the basis of the facts about which he or she complains before the Court (see Andersen v. Denmark, no. 12860/87, and Frederiksen and Others v. Denmark, no. 12719/87, Commission decisions of 3 May 1988; Normann v. Denmark (dec.), no. 44704/98, 14 June 2001; and Jensen and Rasmussen v. Denmark (dec.), no. 52620/99, 20 March 2003) and on whether the domestic authorities have acknowledged, either expressly or in substance, the breach of the Convention. Only when those two conditions are satisfied does the subsidiary nature of the protective mechanism of the Convention preclude examination of an application (see Eckle v. Germany, judgment of 15 July 1982, Series A no. 51, p. 32, §§ 69 et seq., and Jensen v. Denmark (dec.), no. 48470/99, ECHR 2001-X).

The Court observes that the present application concerns a situation where the applicant was unable to access his property for about six years and two months (of which about six years fall within the Court’s competence ratione temporis). Even though the applicant repossessed his house on 23 December 2003, the compensation available did not cover the period prior to 1 November 2002.

In these circumstances, the Court is satisfied that the applicant may claim to be a victim of the violation of the rights guaranteed by the Convention.

c. The Government further submit that the applicant has not exhausted domestic remedies in that he failed to lodge a constitutional complaint under section 63 of the 2002 Constitutional Court Act in order to complain about the length of the proceedings, after that Act had come into force on 15 March 2002. They admit that the applicant had previously filed a constitutional complaint to the same end under section 59(4) of the 1999 Constitutional Court Act and that his complaint was dismissed. However, conditions for filing a constitutional complaint under these two Acts were quite different. This was acknowledged by the Court in its decision in Slaviček case (see Slaviček v. Croatia (dec.), no. 20862/02, ECHR 2002-VII). While in the Horvat judgment (Horvat v. Croatia, no. 51585/99, ECHR 2001-VIII) the Court held that a constitutional complaint under section 59(4) of the 1999 Constitutional Court Act was not an effective remedy for the purposes of Article 35 § 1 of the Convention, in Slaviček it held the opposite for a complaint under section 63 of the 2002 Constitutional Court Act. Moreover, in its Nogolica decision (see Nogolica v. Croatia (dec.), no. 77784/01, ECHR 2002-VIII) the Court held that there existed special circumstances justifying a departure from the general rule on exhaustion of domestic remedies (according to which the issue of exhaustion should normally be determined by reference to the date when an application was lodged with the Court). Consequently, the Court ruled in Nogolica that the applicant had to address himself firstly to the Constitutional Court with a complaint under section 63 of the 2002 Constitutional Court’s Act even though he had filed his application before the introduction of a new remedy. In sum, the applicant should have lodged another constitutional complaint.

The applicant points out that the new remedy became available only after he had introduced his complaint with the Court. In any event, having regard to the findings of the Constitutional Court in its decision of 20 December 2001 that his right to trial within a reasonable time had not been violated and the short period of time between that decision and the introduction of a new remedy, it is unlikely that the Constitutional Court would have given a different decision under the new law.

The Court observes that when the 2002 Constitutional Court Act entered into force on 15 March 2002, part of the proceedings complained of had already reached the enforcement phase (the Housing Commission applied for enforcement on 11 March 2002), while the remainder was still pending before the second instance court. The Court further observes that on 18 April 2002 the enforcement court issued a writ of execution and that the delays in the enforcement phase of the proceedings occurred only after that date. In these circumstances, the applicant could be expected to have attempted to accelerate the enforcement, in particular after the issuance of a writ, rather than the parallel second instance proceedings. However, under the case-law of the Constitutional Court at the material time, that court lacked jurisdiction to address the question whether the excessive length of enforcement proceedings amounts to a violation of any of the constitutional rights. Accordingly, the remedy suggested by the Government would, in the circumstances, have lacked any prospects of success.

It follows that the Government’s objection as to the non-exhaustion of domestic remedies must be dismissed.

2. The applicant complains that the consecutive administrative, civil and enforcement proceedings following his request for repossession have not been concluded within reasonable time He relies on Article 6 § 1 of the Convention which in the relevant part reads as follows:

“In the determination of his civil rights and obligations ..., everyone is entitled to a... hearing within a reasonable time by [a] ... tribunal...”

The Government claim that the case was complex insofar as it included administrative, civil and enforcement proceedings. Admitting the importance of the case for the applicant, the Government emphasize that it must be viewed in the context of the inflow of a large number of similar cases, which was a consequence of the war and the process of the return of refugees and displaced persons afterwards. In these circumstances, there was no reason to treat the applicant’s case differently from other similar cases.

They further argue that the applicant contributed to the length of the proceedings insofar as he had failed to prove the ownership of the property in question immediately. While in the further proceedings the applicant did not contribute to their protraction, V.P. did so by availing himself of all the available remedies. In this connection the Government notes that the State cannot be held responsible for delays attributable to the parties of a civil dispute.

Finally, they consider that the domestic authorities showed due diligence and acted rather expediently in the circumstances.

The applicant submits that the complexity of the case is not a consequence of its subject-matter but rather of the envisaged scheme (according to which he was first required to institute administrative proceedings before the Housing Commission, which was then entitled to institute civil and, subsequently, enforcement proceedings for eviction) that doubled the procedural steps to be taken. The length originating from the complexity of the case is therefore attributable to the State.

The applicant further argues that there was no need for him to prove his ownership since that information was easily accessible to the authorities in the land register.

As to V.P.’s conduct, the applicant argues that he was abusing the available remedies and that it is for the State to prevent such conduct.

As to the conduct of the authorities, the applicant submits that on 4 June 1998 the Takeover Commission falsely informed him, with a view to evading its competence, that it had issued no decision concerning his property, that V.P.’s appeal against the Housing Commission’s decision of 4 October 1999 was deliberately transmitted to the Krnjak Municipality – an authority with no competence in the matter – instead of the Karlovac Municipal Court, and that the bailiff’s intervention in the enforcement proceedings scheduled for 1 October 2003 was adjourned since the State Attorney’s Office – a public authority – had not received the summons.

The Court considers, in the light of the parties’ submissions, that this complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

3. The applicant also complains about lack of access to a court since he was unable to institute the civil proceedings himself.

The Government submit that the applicant instituted (administrative) proceedings for the repossession of property on his own initiative. As regards the judicial phase of the proceedings, the legislator’s intention was not to limit the applicant’s access to a court but to facilitate it by simplifying the proceedings. This was illustrated by the fact that the relevant legislation set very short time-limits for the housing commissions to bring civil action for eviction once the administrative decision allowing the temporary occupant to use the property has been set aside.

In the applicant’s case, the Housing Commission instituted eviction proceedings as soon as the decision allowing V.P. to use the applicant’s property had been set aside. Moreover, since the applicant intervened on the plaintiff’s side in the civil and the enforcement proceedings, he actively participated in those proceedings and was able to use all procedural means that were at the disposal of the plaintiff. Therefore, he was in the same position as if he had instituted the proceedings himself.

Finally, the Government deem that the applicant could have at any time sought the protection of his property through a civil action – a standard rei vindicatio claim – under the Property Act. Any doubt that might have existed in this respect was cleared up on 1 October 2002, when the 2002 Amendments entered into force, expressly providing for the independent right of owners to institute civil proceedings for repossession of their property.

The applicant submits that the envisaged scheme did not simplify the proceedings since it actually doubled the procedural steps to be taken. He further submits that the institution of the administrative proceedings was futile since by the entry into force of the Termination Act all decisions allowing the temporary occupants to use the property lost their legal force ex lege and, accordingly, there was no need to set them aside by a separate administrative decision.

As to the availability of the civil action, the applicant submits that prior to the entry into force of the 2002 Amendments the courts were declaring any action for repossession filed by the owners inadmissible, for lack of jurisdiction.

The Court reiterates that Article 6 § 1 of the Convention embodies the “right to a court” of which the right of access, namely the right to institute proceedings before a court in civil matters, constitutes one aspect (see Golder v. the United Kingdom, judgment of 21 February 1975, Series A no. 18, pp. 13-18, §§ 28-36). However, this right is not absolute, but may be subject to limitations. These are permitted by implication since the right of access by its very nature calls for regulation by the State. In this respect, the Contracting States enjoy a certain margin of appreciation, although the final decision as to the observance of the Convention’s requirements rests with the Court. It must be satisfied that the limitations applied do not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired. Furthermore, a limitation will not be compatible with Article 6 § 1 if it does not pursue a legitimate aim and if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be achieved (see Stubbings and Others v. the United Kingdom, judgment of 22 October 1996, Reports of Judgments and Decisions 1996-IV, § 50).

Turning to the present case, the Court firstly observes that, according to the above cited case-law of the Supreme Court the applicant always had a right to institute civil proceedings himself by bringing an action in court under section 161 of the Property Act.

It is true that the successful outcome of such an action presupposed that the decision by which V.P. had been allowed to use the applicant’s property was previously set aside in administrative proceedings. However, the mere fact that in such circumstances the applicant’s action may have had very limited prospects of success is not equivalent to depriving him of the right of access to a court (see, mutatis mutandis, X. v. the United Kingdom, no.7443/76, Commission decision of 10 December 1976, Decisions and Reports (DR) 8, pp. 216, 217).

In any event, the Court observes that under the Civil Procedure Act the powers of an intervener are equal to those of a plaintiff, except in relation to the institution of proceedings and dispositions with the claim. Therefore, having regard to the applicant’s intervention in the civil and the enforcement proceedings and the promptness of the Housing Commission in instituting these proceedings (i.e. in all three occasions these proceedings were instituted approximately within a month after the formal conditions had been met), the Court considers that the degree of access afforded to the applicant was sufficient to satisfy the requirements of Article 6 § 1 of the Convention.

It follows that this complaint is inadmissible under Article 35 § 3 as manifestly ill-founded and must be rejected pursuant to Article 35 § 4 of the Convention.

4. The applicant further complains that he was prevented from repossessing his property for a prolonged period of time, contrary to Article 1 of Protocol No. 1 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 admit that there was an interference with the applicant’s right to peaceful enjoyment of his possessions when the domestic authorities allowed V.P. to use his property. They argue that this measure amounted to control of use of property and that it was not disputed that the interference was based on law and in the general interest. As to proportionality, the State was amending the relevant legislation as the circumstances and the need for the control of possessions were changing. Namely, the legislation granting rather extensive powers to temporary occupants at the beginning was amended over time to benefit the owners. Therefore, the interference met the conditions of the extraordinary post-war situation and did not place an excessive individual burden on the applicant.

The Government submit that the interference lasted until the decision allowing V.P. to use the applicant’s property had been set aside. From then on, the State no longer interfered with the applicant’s right to peaceful enjoyment of his possessions but rather attempted to provide for the repossession of his property. The Government admit that the repossession proceedings lasted for a long period of time. However, in this respect they refer to their arguments concerning the applicant’s length complaint (see under 2. above).

The applicant challenges the Government’s contention that the interference ended when the decision allowing V.P. to use his property was set aside on 4 October 1999. Rather, it continued in a different form – a prolonged impossibility to access his property – and ended only on 23 December 2003 when the applicant repossessed it.

The applicant further submits that the interference was not proportionate to the general interest. While it can be maintained that it was in the general interest to provide accommodation for refugees, displaced persons or persons whose property has been destroyed in the war, these considerations were not applicable in the present case since V.P. did not fall within these categories but was rather awarded the use of the property in question being a citizen “performing duties vital for the ... reconstruction and development of the previously occupied areas” (section 5 of the Takeover Act). V.P. was running a restaurant in the applicant’s property and was, unlike the applicant, in no need for accommodation.

The Court considers, in the light of the parties’ submissions, that this complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

5. Lastly, the applicant complains under Article 14 taken in conjunction with Articles 6 § 1 of the Convention and Article 1 of Protocol No. 1 that he was discriminated against on the basis of his non-Croatian origin. Article 14 of the Convention reads as follows:

“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

The Court considers that this complaint is unsubstantiated in any respect and does not disclose any appearance of a violation of the Convention or its Protocols.

It follows that it is manifestly ill-founded within the meaning of Article 35 § 3 and must be rejected pursuant to Article 35 § 4 of the Convention.

For these reasons, the Court unanimously

Declares admissible, without prejudging the merits, the applicant’s complaints concerning the length of the proceedings and the right to property;

Declares the remainder of the application inadmissible.

Søren Nielsen Christos Rozakis 
 Registrar President

KUNIĆ v. CROATIA DECISION


KUNIĆ v. CROATIA DECISION