AS TO THE ADMISSIBILITY OF
by Matija OČIĆ
The European Court of Human Rights (Fourth Section) sitting on 25 November 1999 as a Chamber composed of
Mr G. Ress,
Mr I. Cabral Barreto,
Mr V. Butkevych,
Mrs N. Vajić,
Mr J. Hedigan,
Mrs S. Botoucharova, judges,
and Mr V. Berger, Section Registrar;
Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 10 December 1998 by Matija Očić against Croatia and registered on 22 February 1999 under file no. 46306/99;
Having regard to the report provided for in Rule 49 of the Rules of Court;
Decides as follows:
The applicant is a Croatian citizen, born in 1932 and living in Zagreb. He is a lawyer.
A. Particular circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant lodged a constitutional complaint with the Croatian Constitutional Court (Ustavni sud Republike Hrvatske) on 4 December 1996, claiming that the Act on compensation for and restitution of assets taken under the Yugoslav communist regime, as a whole, violated the constitutional guarantees of right to property, social justice, rule of law and right to inheritance. Furthermore, he claims that the provisions of the Act prevented him from protecting his own legal interests as well as the interests of clients whom he represented as an attorney at law.
After fourteen months, the applicant requested the speeding up of proceedings before the Constitutional Court and received no answer.
The Constitutional Court gave its decision on 21 April 1999, which was published in the Official Gazette (Narodne novine). The Constitutional Court quashed or changed several provisions of the Act in question as not being in conformity with the Croatian Constitution. Firstly, changes were made so as to recognise the capacity of persons of foreign (non-Croatian) nationality to be entitled to the rights stemming from the Act in question. Secondly, the former owner's priority right to buy a flat where there existed previously a specially protected tenancy (stanarsko pravo) was abolished.
B. Relevant domestic law before the amendments made by the Constitutional Court (see above)
The relevant provisions of the Act on compensation for and restitution of assets taken under the Yugoslav communist regime provide the following:
Article 9: the Act applies to former owners and their statutory heirs who are relatives of the first degree, excepting those of foreign nationality.
Article 22: most of the flats that were let under a specially protected tenancy shall not be returnable to their original owners. Compensation may be due.
Article 45: company property shall not be returnable. It provides for compensation for such property.
Article 48: only movable property of cultural, artistic or historical value will be returned to former owners. Where such property is presently considered as a part of the cultural heritage and is in the ownership of collections, museums, galleries or similar institutions, only compensation may be awarded.
Article 53: real property which formed part of the assets of a company shall not be returnable, but compensation may be due.
Article 54 excludes from restitution property presently in the possession of legal entities in the fields of health, social welfare, education, culture, science, etc. It provides, however, that the Croatian Government may decide to return such property in exceptional circumstances.
Article 55 excludes from restitution a variety of property belonging to legal persons performing public services or dedicated to public use or property extra commercium. Restitution is likewise excluded where it would entail damage to the environment or would prejudice the operation of industrial complexes.
Article 58 establishes the sum of 3,700,000 Croatian kunas as the maximum amount of compensation.
1. The applicant complains under Article 1 of Protocol No. 1 that the right to property as such is violated by the Act on compensation for and restitution of assets taken under the Yugoslav communist regime. He specifically contests Articles 9, 22, 45, 48, 53, 54, 55 and 58 of the Act in question.
2. The applicant complains under Article 6 § 1 of the Convention that his case has not been heard within a reasonable time by the Constitutional Court.
1. The applicant complains that the Act in question, as a whole, violates his right to property under Article 1 of Protocol No. 1.
The Court observes that the application raises an issue relating in particular to the alleged incompatibility between the Convention and its Protocol No. 1, on the one hand, and the Act in question, governing questions concerning the restitution of the property taken during a period of some forty-five years, on the other hand.
The Court recalls that, whilst Article 33 of the Convention permits a High Contracting Party to refer to the Court "any alleged breach" of the Convention by another High Contracting Party, Article 34 requires that an individual applicant should be able to claim to be actually affected by the measure of which he complains. Article 34 may not be used to found an action in the nature of an actio popularis; nor may it form the basis of a claim made in abstracto that a law contravenes the Convention (see the Klass and Others v. Germany judgment of 6 September 1978, Series A no. 28, pp. 17-18, § 33). The Court further observes that the conditions governing individual applications under Article 34 of the Convention are not necessarily the same as the national criteria relating to locus standi. National rules in this respect may serve purposes different from those contemplated by Article 34 and, whilst those purposes may sometimes be analogous, they need not always be (ibid., p. 19, § 36). Be that as it may, the Court has held that Article 34 of the Convention enables individuals to contend that a law violates their rights by itself, in the absence of an individual measure of implementation, if they run the risk of being directly affected by it (see the Johnston and Others v. Ireland judgment of 18 December 1986, Series A no. 112, p. 21, § 42, and the Marckx v. Belgium judgment of 13 June 1979, Series A no. 31, p. 13, § 27).
In the present case the legislation complained of had never been enforced against the applicant - his claim was in the nature of an actio popularis by means of which he sought a review in abstracto of the contested legislation in the light of the Convention.
This being the case, it has now to be ascertained whether, by reason of the particular legislation being challenged, the applicant qualifies as a potential victim, in the sense of Article 34, of a violation of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1, those articles being the provisions giving rise to the central issue in the present case.
The relevant part of Article 34 of the Convention reads:
“The Court may receive applications from any person (...) claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the protocols thereto. (...)”
In general, the Act in question regulates the entitlement for restitution of the property taken during the Yugoslav Communist Regime (a period of some forty-five years), the scope of such restitution and the modalities of compensation or restitution. Although the applicant contests the Act in question as a whole, he specifically criticises Articles 9, 22, 45, 48, 53, 54, 55 and 58.
The Court observes that the Articles specified and the Act as a whole regulate the categories of property that might or might not be returned to former owners and the modalities of compensation.
Article 9 of the Act in question restricts the categories of persons that could be entitled to the rights under that Act by excluding all private persons who are not Croatian citizens on the day of enactment of the Act. However, the Constitutional Court changed that provision so as to include also foreign nationals. In any case, the applicant himself is a Croatian citizen and, even before the changes made by the Constitutional Court, could not have been affected by that provision.
Article 22 provides that the flats which had been let under a specially protected tenancy will not be returned to former owners, with the exception of the flats taken from former owners on the basis of the laws on confiscation. However, according to paragraph 3 of Article 22, former owners are entitled to compensation.
Articles 45, 48, 53, 54, and 55 altogether exclude certain categories of property from restitution or from the rights set out in the Act. Article 48 relates to movable property of cultural, artistic or historical value, Article 53 to certain categories of real property, Articles 54 and 55 to property which is in possession of legal persons performing public services or is in public use or property extra commercium. Article 58 provides that the amount of compensation may not exceed the sum of 3,700,000 Croatian kunas.
Even assuming that potential beneficiaries of the rights to be derived from the contested Act are entitled to the protection granted by Article 1 of Protocol No. 1, the Court notes that the applicant has failed to show that he himself could have in any way been affected by the Act challenged. His main complaint is that that Act violates the right to property as such. Only sporadically does the applicant mention that the Act violates his human rights and that it has prevented him from protecting his own legal interests or those of his clients. He has not shown that he is a potential holder of a right to restitution of or compensation for any property taken from owners under the Yugoslav communist regime, nor that any property has ever been taken from him or his legal predecessors.
The Court observes that there is no sufficiently direct connection between the applicant as such and the injury he maintains he suffered as a result of the alleged breach of the Convention. In this connection, the Court recalls that a person who is unable to demonstrate that he or she is personally affected by the application of the law which he or she criticises cannot claim to be the victim of a violation of the Convention (see No. 9939/82, Dec. 4.7.1983, D.R. 34, p. 213).
For these reasons the applicant cannot be considered the victim of a violation of the rights set out in the Convention. Accordingly, his claim under Article 1 of Protocol No. 1 is incompatible ratione personae with the provisions of the Convention.
2. The applicant complains that the length of the proceedings which he had instituted before the Constitutional Court regarding constitutional issues related to the Act on compensation for and restitution of assets taken under the Yugoslav communist regime, was excessive. He invokes Article 6 § 1 of the Convention.
With regard to the applicant's complaint under Article 6 § 1 of the Convention, the Court reiterates that for Article 6 § 1 to be applicable, there must be a genuine and serious dispute over a civil right which can be said, at least on arguable grounds, to be recognised under domestic law. The outcome of the proceedings must be directly decisive for the right in question. As the Court has consistently held, mere tenuous connections or remote consequences are not sufficient to bring Article 6 § 1 into play (see the following judgments: Masson and Van Zon v. the Netherlands, 28 September 1995, Series A no. 327-A, p. 17, § 44; Balmer-Schafroth and Others v. Switzerland of 26 August 1997, Reports of Judgments and Decisions 1997-IV, § 32, p. 1357).
While the right of property as such is a civil right, the Court, in view of the considerations put forward above and in view of the actio popularis nature of the applicant's claim, concludes that Article 6 § 1 does not apply and that this claim is incompatible ratione materiae with the provisions of the Convention.
It follows that the application as a whole is inadmissible within the meaning of Article 35 § 3 and must therefore be rejected in accordance with Article 35 § 4 of the Convention.
For these reasons, the Court, unanimously/by a majority,
DECLARES THE APPLICATION INADMISSIBLE.
Vincent Berger Matti Pellonpää Registrar President
46306/99 - -
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