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FIRST
SECTION
CASE OF
BISTROVIĆ v. CROATIA
(Application
no. 25774/05)
JUDGMENT
STRASBOURG
31 May 2007
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Bistrović v. Croatia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Mr C.L. Rozakis, President,
Mr L.
Loucaides,
Mrs N. Vajić,
Mrs E. Steiner,
Mr K.
Hajiyev,
Mr D. Spielmann,
Mr G. Malinverni, judges,
and
Mr S. Nielsen, Section Registrar,
Having
deliberated in private on 10 May 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 25774/05) against the Republic
of Croatia lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by two Croatian nationals, Mr Josip Bistrović
and Mrs Jasenka Bistrović (“the applicants”), on 7
June 2005.
- The
applicants were represented by Mr M. Ramušćak, a lawyer
practising in VaraZdin. The Croatian Government (“the
Government”) were represented by their Agent, Mrs Š.
StaZnik.
- On
12 September 2006 the Court decided to give notice of the application
to the Government. Under the provisions of Article 29 § 3 of the
Convention, it decided to examine the merits of the application at
the same time as its admissibility.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicants were born in 1951 and 1955 respectively and live in
Gojanec, Croatia.
- The
applicants, a husband and wife, owned a house and a surrounding plot
of land in Gojanec, Croatia. On an unspecified date “Croatian
Roads”, a public company based in Zagreb, instituted
expropriation proceedings before the VaraZdin County State
Administration, Office for Urban Planning, Environment, Construction
and Property Affairs (Ured drZavne uprave u VaraZdinskoj Zupaniji,
SluZba za prostorno uređenje, zaštitu okoliša,
graditeljstvo i imovinsko-pravne poslove, hereinafter the
“VaraZdin County Administration”), requesting that part
of the applicants' plot of land be expropriated with a view to
building a motorway. The applicants opposed this proposal, asking
that their estate, namely the house and the surrounding land, be
expropriated in its entirety. The applicants argued that with only
partial expropriation they, as farmers, would have no further use for
the house and the small area around it, since the house and the
agricultural land on which it was built represented an inseparable
unity. Furthermore, there would be no vehicle access to the
courtyard. As farmers, the applicants could not use their property
without access for tractors and other vehicles used in agricultural
activity.
- In
addition, the planned motorway would pass in close proximity to the
house, thus causing significant noise pollution due to the high
traffic frequency. The motorway and the exit road would pass less
then twenty metres and five metres respectively from the house.
- They
pointed out that the construction of 4.5-metre plastic
noise-protection walls would transform their house and its
surroundings into a cage, without efficiently protecting them from
noise and pollution. The entire ground floor, the terrace and a part
of the attic would be situated only 2 to 3 metres from the protection
walls.
- They
argued that the value of the remaining property would significantly
decrease, since construction of the motorway would deprive them of
the living conditions they hitherto enjoyed, such as direct road
access, pleasant surroundings, a huge courtyard and low noise
exposure, all of which made the property very suitable for
agricultural activity. For these reasons the applicants asserted that
they had no economic interest in retaining the house and the
surrounding courtyard.
- The
VaraZdin County Administration held three hearings and obtained an
expert opinion on the effects of the motorway construction on the
applicants' living conditions in the remaining house and courtyard,
and another expert opinion on the market value of the agricultural
land.
- The
applicants contested the proposed level of compensation, asserting
that they were entitled to the market value of their expropriated
land, and claiming that the market value of land suitable for
construction in the area was 180 Croatian Kunas (HRK) per square
metre, a figure which was significantly higher than the amount
proposed.
- By
a decision of 16 April 2003, VaraZdin County Administration ruled
that part of the applicants' estate, namely an agricultural plot and
three plots of land suitable for construction measuring 795 m²,
221m² and 507m² respectively, was expropriated with a view
to building a motorway. The applicants retained ownership of the
house and a surrounding courtyard.
- Compensation
was fixed at HRK 105,610.00, based on the sum of HRK 22.00 per square
metre for agricultural land, assessed on the basis of the report
submitted by a court expert for agriculture, and HRK 70.00 per square
metre for land suitable for construction, assessed according to the
criteria laid down by the Ministry of Finance, Tax Administration,
VaraZdin Office.
The
relevant part of the decision reads as follows:
“During the
expropriation proceedings a representative of “Croatian Roads”
limited liability company (d.o.o.), Zagreb, offered the owners
compensation in the amount of HRK 22 per square metre for
agricultural land, on the basis of its market value as established by
an agricultural expert, agricultural engineer Ivan Bašić,
... and HRK 70 per square metre for the land suitable for
construction, on the basis of data submitted by the Tax
Administration... The owners did not accept the above offer, however,
but persisted with their request that parcel no. 9854 in the VaraZdin
Municipality Land Register be expropriated in its entirety, pursuant
to section 7 of the Expropriation Act, claiming that they had no
interest in using the remaining parts of their estate. More
precisely, they sought expropriation of the entire estate together
with the house and all other objects built on the estate...
...this Department
has also obtained the expert opinion of a sworn court expert Dragutin
Gergely, architecture engineer,... and the submissions of BoZidar
Jagec, the engineer who drew up the project,... from which it
transpires that there is no need for total expropriation and that the
remaining property continues to enjoy unhindered road access and that
provision has been made for noise-protection walls.
...furthermore, if
the owners' request for total expropriation is accepted, all other
houses and economic objects which are at an equal or even lesser
distance from the motorway... will also [have to] be expropriated...
In addition, the
owners' argument that the partial expropriation of parcel no. 9854
would significantly deteriorate their housing conditions is unfounded
because they ... do not live at that address.”
- The
applicants filed an appeal against that decision, but the
second-instance administrative body failed to rule on it.
- On
16 December 2003 the applicants filed a claim with the VaraZdin
County Court (Zupanijski sud u VaraZdinu) under Section 42(a)
§ 3 of the Expropriation Act, seeking expropriation of their
entire estate. They reasserted the arguments previously submitted to
the administrative authority. The applicants further contended that
the expert opinion had been drawn up without the expert ever actually
visiting the site and without any study of traffic frequency on the
road passing the applicants' house or on the effect of traffic
pollution on their quality of life. The expert opinion had been
prepared on the basis of a map of the land plot on which the
applicants' house had been erroneously drawn.
- The
applicants also complained about the amount of compensation awarded
to them and reiterated that the market value of the expropriated
plots had not been established. Instead, the amount was fixed
according to VaraZdin Tax Administration tables. The applicants
complained that their objections had not been adequately examined and
addressed by the administrative authority.
- On
30 December 2003 the VaraZdin County Court held a hearing at which
the applicants' representative repeated their arguments, but no new
evidence was presented or requested by the court. On the same day the
County Court dismissed the applicants' claim. The relevant part of
its judgment reads as follows:
“The reasoning
of the cited decision clearly indicates that compensation
corresponding to the market value of the plaintiffs' (the former
owners) estate was determined in the expropriation proceedings. The
market value of the agricultural land was assessed by a sworn court
expert for agriculture... and the market value of the land suitable
for construction was assessed according to the opinion of
construction experts and the data submitted by the Tax
Administration.
Relying on the
reasoning in the above-mentioned decision, this court has further
established that, ... in respect of the plaintiffs' request for
expropriation of their remaining estate and the existence of a road
access to the estate, the expert opinion of a sworn court expert for
construction ... had been obtained as well as the opinion of a
geodesic engineer..., from which it followed that the plaintiffs'
request for total expropriation was not founded because there were a
number of other houses and other objects in the same area which were
at an equal or lesser distance from the motorway and that noise
protection had been ensured to all expropriated [properties] and that
the remaining plaintiffs' property continued to enjoy road access. It
follows that there are no well-founded reasons for the plaintiffs'
request for total expropriation of their estate...
... this court has
established that no procedural defects, and especially no grave
procedural defects, were made in the administrative proceedings and
that the substantive law had been correctly applied, both concerning
the dismissal of the plaintiffs' request for total expropriation of
their estate and in respect of the amount of compensation fixed for
agricultural land and the land suitable for construction.
As has already been
stated, while the plaintiffs are not entitled to bring any new facts
in the proceedings before this court, except those presented in the
administrative proceedings, they are allowed to bring new evidence in
respect of the facts presented in the administrative proceedings.
However, the
plaintiffs have, neither in their claim nor during the proceedings,
presented any evidence concerning their objections and the reasons
for which they seek annulment of the VaraZdin County State
Administration Office... decision of 16 April 2003, which would
be capable of calling into question the facts on which the cited
decision was based...”
- The
applicants then filed a constitutional complaint, arguing that their
right to equality before the law, their right to a fair trial and
their right of appeal had been violated in that they had been unable
to submit new evidence to the VaraZdin County Court and that that
court had reached its decision without having any evidence presented
to it. Thus, their objections with regard to the expert opinion and
their assertions about the effects of the motorway construction on
their living conditions and on the value of their remaining property
had remained unaddressed. The applicants also argued that their right
to compensation for the market value of their expropriated property
had been violated.
- On
16 December 2004 the Constitutional Court dismissed the applicants'
complaint as ill-founded. The decision of the Constitutional Court
reads as follows:
“1. The
constitutional complaint is lodged against the VaraZdin County
Court's judgment no. P-1/03-9 of 30 December 2003, by which the
applicants' (plaintiffs') claim, filed against the Ministry of
Justice as defendant, Administration and Local Self-government,
seeking the annulment of the decision of the VaraZdin State
Administration, Office for Urban Planning, Environment, Construction
and Property Affairs, class: UP/I-943-04/02-01/1936, no.
2186-05-05-03-11 of 16 April 2003, was dismissed.
The first instance
administrative decision accepted the proposal by “Croatian
Roads” d.o.o., Zagreb, for partial expropriation of parcel no.
9854, VaraZdin Municipality Land Registry, owned by the applicants,
and established the compensation for the expropriated land, for
investments in the land and for the agricultural crops at HRK
105,610.
2. The applicants
claimed a violation of their constitutional rights under Article 14
§ 2, Article 18, Article 29 § 1 and Article 50 §
1 of the Constitution.
In their
constitutional complaint the applicants argued that, in the preceding
proceedings, the facts had been incorrectly established and that
their estate should have been expropriated in its entirety. They
maintained that the County Court should have obtained the entire
administrative case-file and verified the experts' opinions with
regard to the finding that there was no need for total expropriation,
and the findings with regard to the amount of compensation, which
they claimed did not correspond to the market value but had been
fixed on the basis of the Tax Administration tables. They further
asserted that their right to an appeal had been violated because in
the proceedings before the County Court they had not been allowed to
present new facts and for that reason the whole proceedings had been
arbitrary.
They asked the
Constitutional Court to quash the impugned judgment.
The constitutional
complaint is unfounded.
3. Section 62
paragraph 1 of the Constitutional Court Act (Official Gazette no.
49/02) provides that everyone may lodge a constitutional complaint
with the Constitutional Court if he or she deems that an individual
act of a state body, a body of local and regional self-government or
a legal person invested with public authority, which resulted in a
decision on his or her rights and obligations, or on suspicion or
accusation of a criminal act, has violated his or her constitutional
right.
While deciding
whether constitutional rights were violated in proceedings concerning
the assessment of an individual's rights and obligations, within the
scope of the claim contained in the constitutional complaint, the
Constitutional Court does not, in principle, consider whether the
courts correctly and completely established the facts and assessed
the evidence. For the Constitutional Court the only facts to be taken
into consideration are those relevant for the assessment of a
violation of a constitutional right.
4. The proceedings
before the VaraZdin County Court were instituted by the applicants
pursuant to section 42a § 3 of the Expropriation Act (Official
Gazette nos. 9/94, 35/94, 112/00 – the Constitutional
Court's decision and 114/01) because the appellate administrative
body (the Ministry of Justice) did not decide on their appeal within
the fixed time-limit. In such proceedings, a court assesses the
legality of the first-instance decision concerning expropriation on
the basis of the facts presented in the claim filed with that court
and the defendant body's reply (if the reply reaches the court within
the fixed time-limit), ... pursuant to section 42e § 3 of the
same Act.
The proceedings in
connection with the applicants' claim were conducted under section
42e §§ 1 and 2 of the Expropriation Act, which provides:
The Chamber
considers and decides on the basis of the facts presented in the
administrative proceedings.
A claimant is not
allowed to present new facts, but may present new evidence concerning
the facts presented in the administrative proceedings.
As regards the
compensation for the expropriated land, the County Court found that
the compensation fixed corresponded to its market value. As regards
the agricultural land, the compensation was assessed by a sworn court
expert for agriculture, while the compensation for the land suitable
for construction was assessed on the basis of an opinion by a
construction expert and data provided by the Tax Administration.
As regards the
applicants' request for total expropriation, the County Court upheld
the first instance body's decision finding that there had been no
need for expropriation of the applicants' estate in its entirety, in
that the evidence presented to that administrative body had clearly
demonstrated that there existed a number of other houses and other
economic objects in the same area which were at an equal or lesser
distance from the corridor of the future motorway and that all
expropriated [properties] had been provided with protection against
noise. In particular, it was established that the applicants'
remaining estate continued to enjoy unhindered road access, and
therefore there existed no justification for the expropriation of the
applicants' remaining estate within the meaning of section 7 of the
Expropriation Act.
The VaraZdin County
Court established that no grave procedural defects had occurred in
the expropriation proceedings, nor had the material law been wrongly
applied; in particular, it established that the applicants had failed
to present any new evidence capable of calling into question the
facts on which the impugned decision had been based.
5. The applicants
further claimed in their constitutional complaint that the impugned
judgment had violated the constitutional guarantee of equality of all
before the law, provided for under Article 14 § 2 of the
Constitution.
Having established
that the legal opinions of the VaraZdin County Court in the present
case did not diverge from the established practice in the application
of relevant substantive law, and were not discriminatory on any
basis, the Constitutional Court does not accept the applicants'
allegations that, in the present case, equality before the law was
not secured to them, as guaranteed under Article 14 § 2 of the
Constitution.
6. Furthermore, after
analysing the constitutional complaint, the findings of the impugned
decisions and the case-file, the Constitutional Court has established
that the constitutional complaint's allegations about the violation
of the applicants' right to an appeal, provided for under Article 18
of the Constitution, are not founded, in that the competent court
addressed all of the arguments submitted by the applicants in the
appellate proceedings, the competence of which is regulated by
section 42a of the Act on Amendments to the Expropriation Act
(Official Gazette no. 114/01).
7. The Constitutional
Court considers further that the applicants' constitutional right to
a fair trial before an independent and impartial tribunal established
by law (Article 29 § 1 of the Constitution) has not been
violated.
The right to a fair
trial would have been violated if a party to the proceedings had not
been given an opportunity to be heard and to participate in the
proceedings within the frames set out by laws; if a party had not
been given an opportunity to present facts and evidence and a
competent court had failed to rule on those of the party's arguments
which were relevant to its decision; if, contrary to law, reasons had
not been given for an individual act and if a party had in other way
been prevented from having a fair trial before the competent body
established by law.
Since the VaraZdin
County Court verified the legality of the impugned decision within
the meaning of the Expropriation Act on the basis of the evidence
presented to it and by scrutinising the reasoning of the impugned
decision on expropriation, it follows that the proceedings were
conducted ... in conformity with the relevant provisions of
substantive and procedural law; the Constitutional Court therefore
considers that the applicants' right to a fair trial was not
violated.
8. The applicants'
further claimed a violation of their constitutional right contained
in Article 50 § 1 of the Constitution, which provides:
Any restriction
[of property rights] or confiscation of property shall be done by
law, in the interest of the Republic of Croatia, and compensation of
the market value shall be paid.
Since the competent
County Court established that the expropriation proceedings had been
conducted in accordance with the provisions of the Expropriation Act,
with the correct application of substantive law and without grave
procedural defects, and since the same court established that the
applicants had received compensation for their expropriated estate
equal to its market value, the cited constitutional right has not
been violated.
9. For these reasons
and pursuant to sections 73 and 75 of the Constitutional Court Act it
has been so decided.”
II. RELEVANT DOMESTIC LAW
- The
relevant parts of the 1994 Expropriation Act (Zakon o izvlaštenju,
Official Gazette nos. 9/94, 35/94, 112/00 and 114/01) provide as
follows:
Section
7 entitles the owner of an estate subject to partial expropriation to
request its total expropriation if he or she has no interest in using
the remaining property.
Sections
8 and 33 require that compensation for expropriated property equals
the market value of that property on the date on which the
first-instance decision in expropriation proceedings is adopted.
Section
42 § 1 enables an action to be brought before the competent
county court against a second-instance administrative decision on
expropriation.
Section
42(a) § 3 provides that such an action may also be brought if
the second-instance administrative body fails to decide on appeal
against the first-instance administrative decision.
Section
42(b) stipulates that, unless otherwise provided, the Administrative
Disputes Act is to be applied in expropriation proceedings conducted
before the competent county court.
Section
42(e) §§ 1 and 2 obliges the competent county court to
decide on the basis of the facts presented in the preceding
administrative proceedings, and prevents a claimant from presenting
any new facts, while at the same time allowing presentation of new
evidence before the county court.
Section
42(e) § 3 requires that the county court, when dealing with an
action brought under Section 42(a) § 3, examines the case on the
basis of the facts presented in such an action and of the submissions
of the administrative body which issued the impugned decision.
- Section
60 of the Administrative Disputes Act (Zakon o upravnim sporovima,
Official Gazette nos. 53/1991, 9/1992 and 77/1992) provides for the
application of the Civil Procedure Act to proceedings concerning
administrative disputes, in so far as these proceedings are not
regulated by the Administrative Disputes Act.
- Section
428(a) of the Civil Procedure Act enables an applicant in respect of
whom the European Court of Human Rights has found a violation of the
Convention or its Protocols to request, within 30 days of the Court's
judgment becoming final, the re-opening of the domestic proceedings
in question. In the new proceedings the domestic courts are obliged
to follow the reasons given in the Court's judgment.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1
- The
applicants complained that they had not received the full market
value of their expropriated property and that no account had been
taken in the expropriation proceedings of the significantly decreased
value of their remaining property. They relied on Article 1 of
Protocol No. 1 of the Convention, 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 contested that argument.
A. Admissibility
- The Government
argued that the applicants had failed to exhaust domestic remedies
because they did not file a civil action seeking damages for noise
exposure and dangerous emissions. They relied on the Court's findings
in the case of Cokarić v. Croatia ((dec), no. 33212/02,
19 January 2006) where it was found as follows:
“under section 156 of the Civil Obligations Act
anyone can seek the prevention of damage, inter
alia, to the environment. Moreover, under the same
section, the owners of property may seek compensation for the damage
actually sustained on account of activities in the general interest.
Noting the case-law of the Supreme Court in this respect, which shows
that the above section covers material damage as well as the possible
drop in the value of property, the Court is satisfied that the
applicants should have filed such an action with the competent
domestic courts, which all but three of them failed to do.”
25. The applicants
maintained that their situation had no relation to the Cokarić
case because all of the decisions relevant to the expropriation of
their property had to be taken in the course of expropriation
proceedings.
26. The Court observes
that the rule of exhaustion of domestic remedies contained in Article
35 § 1 of the Convention requires that normal recourse should be
had by an applicant to remedies which are available and sufficient to
afford redress in respect of the breaches alleged (see, among other
authorities, Akdivar and Others v. Turkey, judgment of 16
September 1996, Reports of Judgments and Decisions 1996 IV,
p. 1210, § 65). The existence of the remedies in
question must be sufficiently certain not only in theory but in
practice, failing which they will lack the requisite accessibility
and effectiveness (ibid.).
- In
addition, the application of the rule must make due allowance for the
fact that it is being applied in the context of machinery for the
protection of human rights that the Contracting Parties have agreed
to set up (ibid., § 69). Accordingly, the Court has
recognised that Article 35 § 1 must be applied with some degree
of flexibility and without excessive formalism (see, for example,
Cardot v. France, judgment of 19 March 1991, Series A
no. 200, p. 18, § 34). It has further recognised that the
rule of exhaustion is neither absolute nor capable of being applied
automatically; in reviewing whether it has been observed it is
essential to have regard to the particular circumstances of each
individual case (see, for example, Van Oosterwijk v. Belgium,
judgment of 6 November 1980, Series A no. 40, p. 18, § 35). This
means, amongst other things, that it must take realistic account not
only of the existence of formal remedies in the legal system of the
Contracting Party concerned but also of the general legal and
political context in which they operate as well as the personal
circumstances of the applicants (see the Akdivar judgment
cited above, p. 1211, § 69).
- The
Court notes at the outset that in the Cokarić case relied
on by the Government, the applicants complained that they had
suffered damaging effects to their living conditions and their
property due to the close proximity of a newly established sewage
works, a complaint raised irrespective of any domestic proceedings
involving a possibility of awarding the applicants compensation of
any kind. However, the present case concerns expropriation
proceedings in which a part of the applicants' estate was subject to
expropriation. It is normal in the course of such proceedings that
compensation be assessed, taking into account all relevant factors
such as a decrease in the value of remaining property due to any
circumstances. The Court therefore considers that the applicants, who
were a party to the expropriation proceedings and who submitted their
objections concerning the compensation fixed in the course of these
proceedings, were not obliged to institute separate civil proceedings
in this respect. In these circumstances such a requirement would
overstretch their duties under Article 35 § 1 of the Convention.
29. The Court notes
further that this complaint is not manifestly ill-founded within the
meaning of Article 35 § 3 of the Convention. It further notes
that it is not inadmissible on any other grounds. It must therefore
be declared admissible.
B. Merits
Submissions of the parties
- After
summarising the principles established by the Court's case-law in
respect of Article 1 of Protocol No. 1, the Government submitted that
the legality of interference and the legitimate aim were not disputed
in the present case. As to whether the interference had been
proportional, they maintained that the applicants only objected to
the fact that their estate had not been expropriated in its entirety
since, as they alleged, the house and its surrounding area were not
agreeable for living in that they were situated too close to the
motorway under construction. The Government submitted that these
objections were entirely unfounded, since the applicants' remaining
estate was presently situated 40 metres from the motorway and, on
completion of the motorway, would be situated 80 metres from it.
Furthermore, fourteen other houses were at a similar distance from
the motorway and these houses had not been expropriated.
Noise-protection measures had been envisaged. Finally, they contended
that the applicants had not objected to the amount of compensation
before the first-instance administrative body. In the Government's
view, the applicants had obtained the market value of their property
and the State had therefore satisfied its obligations under Article 1
of Protocol No.1. They argued that the Court's case-law did not
establish any obligation for the States to expropriate someone's
property in its entirety.
- The
applicants contested these arguments and asserted that an excessive
individual burden had been placed on them, in that they had not
received the market value for their expropriated property, and
because of the decreased value of their remaining property and
insupportable living conditions in their house, which was now
situated less than 3 metres from the motorway. They further contested
the Government's assertion that there were fourteen other houses at
the same or lesser distance from the motorway, claiming that theirs
was the only house in extreme proximity to the motorway.
The Court's assessment
- The
Court notes at the outset that it was common ground in the present
case that the applicants had been deprived of their property in
accordance with the provisions of the Expropriation Act with a view
of building a motorway, and that the expropriation thus pursued a
lawful aim in the public interest. Accordingly, it is the second
sentence of the first paragraph of Article 1 of Protocol No. 1 which
is applicable in the instant case (see, among other authorities, the
judgments in Mellacher and Others v. Austria, 19 December
1989, Series A no. 169, pp. 24-25, § 42 and Papachelas v.
Greece [GC], no. 31423/96, § 45, ECHR 1999 II).
- The
essential object of Article 1 of Protocol No. 1 is to protect
individuals against unjustified interference by the State with the
peaceful enjoyment of their possessions. However, by virtue of
Article 1 of the Convention, each Contracting Party “shall
secure to everyone within [its] jurisdiction the rights and freedoms
defined in [the] Convention”. The discharge of this general
duty may entail positive obligations inherent in ensuring the
effective exercise of the rights guaranteed by the Convention. In the
context of Article 1 of Protocol No. 1, those positive obligations
may require the State to take the measures necessary to protect the
right of property (see
Sovtransavto Holding v. Ukraine,
no. 48553/99, § 96, ECHR 2002-VII and Broniowski v. Poland
[GC], no 31443/96, § 143, ECHR 2004-V), particularly where there
is a direct link between the measures which an applicant may
legitimately expect from the authorities and the effective enjoyment
of his possessions (see Öneryıldız v. Turkey [GC],
no. 48939/99, § 134, ECHR 2004 XII). This means, in
particular, that the States are under an obligation to provide
judicial procedures that offer the necessary procedural guarantees
and therefore enable the domestic courts and tribunals to adjudicate
effectively and fairly any cases concerning property matters (see,
mutatis mutandis, Sovtransavto Holding v. Ukraine,
cited above, § 96).
- In
each case involving an alleged violation of this provision, the Court
must determine whether, due to the State's interference or passivity,
a fair balance was struck between the demands of the general interest
of the community and the requirements of the protection of the
individual's fundamental rights. The search for this balance is
inherent in the whole of the Convention and is also reflected in the
structure of Article 1 of Protocol No. 1 (see Sporrong and
Lönnroth v. Sweden, judgment of 23 September 1982, Series A
no. 52, p. 26, § 69 and Novoseletskiy v.
Ukraine, no. 47148/99, § 101, 22 February 2005).
Compensation terms under the relevant legislation are material to the
assessment of whether the contested measure respects the requisite
fair balance and, notably, whether it does not impose a
disproportionate burden on the applicant. In this connection, the
taking of property without payment of an amount reasonably related to
its value will normally constitute a disproportionate interference
that cannot be justified under Article 1. That Article does not,
however, guarantee a right to full compensation in all circumstances,
since legitimate objectives of “public interest” may call
for less than reimbursement of the full market value (see Holy
Monasteries (The) v. Greece, judgment of 9 December 1994,
Series A no. 301 A, pp.
34-35, §§ 70-71 and Papachelas v. Greece, cited
above, § 48).
- In
order to assess the conformity of the State's conduct with the
requirements of Article 1 of Protocol No. 1, the Court must have
regard to the fact that the Convention is intended to guarantee
rights that are practical and effective. It must go beneath
appearances and look into the reality of the situation, which
requires an overall examination of the various interests in issue;
this may call for an analysis not only of the compensation terms –
if the situation is akin to the taking of property (see, for example,
Lithgow and Others v. the United Kingdom, judgment of 8
July 1986, Series A no. 102, pp.
50-51, §§ 120-121) – but also, as in the instant
case, of the conduct of the parties to the proceedings, including the
steps taken by the State (see Beyeler v. Italy [GC],
no. 33202/96, § 114, ECHR 2000 I,
and Novoseltskiy v. Ukraine, cited above, §102).
- Turning
to the particular circumstances of the present case, the Court notes
that the applicants requested the VaraZdin County Court to reconsider
the administrative decision expropriating a part of their estate and
assessing the compensation to be paid for this expropriation. The
Court notes that the matter to be decided represented the most
serious interference with the applicants' right guaranteed under
Article 1 of Protocol No. 1, since it concerns expropriation of their
property. Bearing in mind the utmost importance of the
consequences of the expropriation for the applicants' property
rights, the Court considers that a careful examination of all
relevant factors by a court dealing with the case was necessary to
ensure that the requirements of Article 1 of Protocol No.1 were
complied with.
- In
this respect the Court also reiterates that proceedings before courts
must conform to the rule of law, which can be identified with the
good administration of justice and that, in the absence of any
obligation for a judicial authority to give reasons for their
decisions, the rights guaranteed by the Convention would be illusory
and theoretical. Without requiring a detailed response to each
argument presented before a court, this obligation nevertheless
presupposes the right of a party to the proceedings to have his or
her essential contentions carefully examined (see Novoseletskiy v.
Ukraine, cited above, § 111).
- The
Court notes that in the present case there was a serious dispute as
to the primary facts. Throughout the proceedings the applicants
argued that partial expropriation significantly decreased the
economic value of the remaining property as well as rendering it
useless to them for a variety of reasons, such as the lack of vehicle
access to the property, the motorway's very close proximity to their
house and inadequate protection from noise and pollution. However,
although the County Court addressed a part of the applicants'
arguments, it did not answer their main objections concerning the
administrative authority's findings.
- Thus,
a number of questions relevant to the applicants' rights under
Article 1 of Protocol No.1, such as the method of calculating
the market value of the applicants' property, the precise effect of
the planned motorway on their living conditions, the applicants'
assertion that the expert opinion relied on in the administrative
body's decision had been drawn without the expert ever visiting the
actual site, remained unanswered. Furthermore, a crucial question
concerning the effect of the partial expropriation on the value of
the applicants' remaining estate was never addressed and thus the
potential decrease in this value in assessing the compensation to be
awarded was not taken into account.
- In
this respect, the Court recalls that it has already examined on many
occasions domestic authorities' refusal to fix a special indemnity
for properties remaining to their owners after a partial
expropriation. In some cases the Court found that, when fixing the
compensation, the domestic courts had not had regard to the nature of
the construction and whether or not it provided any advantage for the
owners, but had only fixed compensation with regard to the plots
actually expropriated. The Court considered, however, that, having
regard to the margin of appreciation left under Article 1 of Protocol
No.1 to the national authorities, there appeared no indication
warranting the conclusion that the refusal to grant special
indemnities might amount to a violation of Article 1 of Protocol No.1
(see, for example, Azas v. Greece, no. 50824/99,
§§ 51-53, 19 September 2002 and Interoliva ABEE v.
Greece, no. 58642/00, 10 July 2003).
- In
the case of Ouzounoglou v. Greece, however, the Court found
that the construction of a motorway in the near vicinity of the
applicant's house (about 15 metres) must have limited the free
disposition of her right to use the house, which limitation was found
to amount to an interference with the applicant's right to peaceful
enjoyment of her possessions, and that the nature of the construction
had evidently contributed more directly to the substantial
depreciation of the value of the remaining property than in the other
cases concerning Greece, mentioned above (see Ouzounoglou v.
Greece, no. 32730/03, § 30, 24 November 2005).
Therefore, such interference might
warrant the granting of additional compensation for the limited use
of the house.
- In
the Court's view the present case falls in the latter category of
cases. In this respect the Court notes that the applicants argued
that the future motorway would pass two to three metres from their
house and that the estate had lost its hitherto pleasant
surroundings, a huge courtyard and low noise exposure, all of which
had made the property very suitable for agricultural activity. The
Court notes that none of these factors were taken into account by the
domestic authorities when fixing the compensation for the applicants'
expropriated property.
- Furthermore,
throughout the domestic proceedings the applicants asserted that the
expert's report serving as a basis for assessing the effects of the
motorway on their remaining property had been drawn up without the
expert ever visiting the actual site, which had resulted in their
house being erroneously drawn. The Court considers that it was
necessary to have these facts established in a precise manner by
further verifying the applicants' argument that their house had been
erroneously drawn on the map of the land plot. Only after such
verification of all factors concerning the effects of the motorway
construction on the applicants' remaining property, such as the
decrease in the value of their estate, the possibility of selling it
and the applicants' interest in further use of the remaining estate,
would it be possible for the domestic authorities to fix adequate
compensation in the expropriation proceedings.
- The
Court therefore finds that, by failing to establish all the relevant
factors for establishing the compensation for the applicants'
expropriated property, and by failing to grant indemnity for the
decrease in the value of their remaining estate, the national
authorities have failed to strike a fair balance between the
interests involved and have failed to make efforts to ensure adequate
protection of the applicants' property rights in the context of
expropriation proceedings which involved the ultimate interference on
the part of the State with these rights.
- Having
regard to the foregoing, the Court finds that there has been an
infringement of the applicants' right to the peaceful enjoyment of
their possessions, as guaranteed by Article 1 of Protocol No. 1.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicants contended that the proceedings which they had brought
under Croatian law before the VaraZdin County Court in order to
challenge an administrative decision concerning the expropriation of
their property had not complied with Article 6 § 1 of the
Convention, which, in so far as relevant, provides:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a fair ... hearing ... by
[a] ... tribunal...”
- The
Government submitted that it was necessary, firstly, to establish to
what extent the applicants' rights, as guaranteed under Article 6 §
1 of the Convention, had been protected in the administrative
proceedings preceding the County Court's examination of the case.
- In
this respect they maintained that the basic principles governing
proceedings before the administrative bodies, such as the principle
of legality, the principle of material truth, providing an
opportunity to the parties to present their case, the independent
assessment of evidence and the right to appeal, all demonstrated that
these proceedings had been conducted in accordance with the
guarantees enshrined in Article 6 § 1 of the Convention. In the
present case, the competent administrative body had held three
hearings at which the applicants were able to present their evidence
and facts. However, the applicants had failed to present any evidence
at those hearings. The case was examined by the competent county
court which, in the Government's view and having regard to sections
42 (a) to 42(h) of the Expropriation Act, satisfied the requirements
of a court of full jurisdiction in that such a court had jurisdiction
to examine questions of both fact and law. The only restriction
concerned the presentation of new facts which had not been previously
presented in the administrative proceedings. However, such a
restriction had not undermined the full jurisdiction of the county
court, because the principle of legal certainty and the efficient
conduct of the proceedings required that the possibility of
presenting new facts be denied after a certain stage in proceedings,
usually at the appellate stage, without affecting the full
jurisdiction of appellate courts.
- The
Government further contended that the applicants had merely repeated
the objections already presented in the course of the administrative
proceedings, without submitting any new evidence, which they had also
failed to do at the hearing before the VaraZdin County Court. The
County Court, finding that the administrative bodies' application and
interpretation of the relevant legal provisions had been correct, had
dismissed the applicants' claim. In the Government's view the
expropriation proceedings, taken as a whole, had satisfied the
requirements of Article 6 of the Convention.
- The
applicants contested these arguments.
- Without
rejecting the Government's submissions as to the general nature of
the administrative proceedings in Croatia, the Court notes at the
outset the undisputed fact that the VaraZdin County State
Administration Office is an administrative body which cannot be
considered a tribunal within the meaning of Article 6 § 1
of the Convention. The Court reiterates that Article 6 § 1
requires that in the determination of civil rights and obligations,
decisions taken by administrative or other authorities which do not
themselves satisfy the requirements of that Article - as is the case
in this instance with the VaraZdin County State Administration Office
- must be subject to subsequent control by a “judicial body
that has full jurisdiction”, including the power to quash in
all respects, on questions of fact and law, the challenged decision
(see, mutatis mutandis, the following judgments: Bendenoun
v. France, 24 February 1994, Series A no. 284, pp. 19-20, §
46; Fischer v. Austria, 26 April 1995, Series A no. 312, p.
17, § 28; Schmautzer v. Austria, 23 October 1995,
Series A no. 328 A, p. 15, § 34; Umlauft v.
Austria, 23 October 1995, Series A no. 328-B, pp. 39-40,
§§ 37-39; and Wos v. Poland (dec.), no.
22860/02, § 92, ECHR 2005 ...).
- Under
Croatian law a party which is dissatisfied with the findings in
expropriation proceedings conducted before the competent
administrative bodies is entitled to bring an action in the competent
county court. The county courts are, in general, ordinary courts of
appellate jurisdiction in civil and criminal matters and
first-instance courts in respect of serious crimes. While the
appellate jurisdiction of county courts in civil and criminal matters
is regulated by the Civil Procedure Act and the Criminal Procedure
Act respectively, their appellate jurisdiction in respect of
expropriation proceedings is regulated by special law, namely the
1994 Expropriation Act.
- The
Court notes that, under the above Act, a county court has
jurisdiction when examining an action to examine all aspects of a
matter before it. Its examination is not restricted to points of law
but may also extend to factual issues, including the assessment of
evidence. The only restriction concerning the examination of a case
before a county court is that no new facts may be submitted to it.
However, if a county court disagrees with the findings of the
administrative bodies, it has the power to quash the decisions
appealed against. Therefore, the Court concludes that the rules
governing the powers of a county court in expropriation proceedings
do not deprive such courts of acting as courts of full jurisdiction.
- It
follows that this complaint is manifestly ill-founded and must be
rejected in accordance with Article 35 §§ 3 and 4
of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicants claimed 349,665.05 euros (EUR) in respect of pecuniary
damage and EUR 20,000 in respect of non-pecuniary damage.
- The
Government deemed the requested amounts excessive.
- As
to the pecuniary damage claimed the Court, having regard to its
findings concerning Article 1 of Protocol No. 1 to the Convention
(see § 45 above) and the insufficiency of the proceedings
conducted before the VaraZdin County Court, the Court considers that
it cannot speculate as to whether or not the applicants were granted
the market value of their two expropriated plots of land and to what
extent the value of their remaining property was decreased. Thus, on
account of the shortcomings in the domestic proceedings, the Court is
unable to assess the applicants' claim for pecuniary damage. In this
respect the Court specifically refers to the opportunity available to
the applicants to request re-opening of the proceedings in accordance
with section 428(a) of the Civil Procedure Act, which would allow for
a fresh examination of their claims concerning the expropriation of
their property. It is now for the applicants to make use of that
opportunity. Only after a fresh examination of the applicants'
objections, in expropriation proceedings conducted in compliance with
the requirements of Article 1 of Protocol No. 1 to the Convention,
would the Court be in a position to rule on the applicants' potential
claim concerning pecuniary damage sustained by them.
- On
the other hand, the Court considers that the applicants must have
sustained non-pecuniary damage - such as distress resulting from the
lack of respect for their rights guaranteed under Article 1 of
Protocol No. 1 - which is not sufficiently compensated by the finding
of a violation. Ruling on an equitable basis, it awards the
applicants EUR 5,000 jointly in respect of non-pecuniary damage, plus
any tax that may be chargeable on this amount.
B. Costs and expenses
- The
applicants also claimed 20,764.40 Croatian Kunas (HRK) for the costs
and expenses incurred before the Court.
- The
Government left to the Court to assess the necessity of the costs
incurred.
- Under
the Court's case-law, an applicant is entitled to reimbursement of
his costs and expenses only in so far as it has been shown that these
have been actually and necessarily incurred and were reasonable as to
quantum. In the present case, regard being had to the information in
its possession and the above criteria, the Court considers it
reasonable to award the sum of EUR 2,800 for the proceedings before
it.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint under Article 1 of
Protocol No.1 admissible and the remainder of the application
inadmissible;
- Holds that there has been a violation of Article
1 of Protocol No. 1 o to the Convention;
- Holds
(a) that
the respondent State is to pay the applicants jointly, within three
months from the date on which the judgment becomes final according to
Article 44 § 2 of the Convention, the following
amounts which are to be converted into the national currency of the
respondent State at a rate applicable at the date of settlement:
(i)
EUR 5,000 (five thousand euros) in respect of non-pecuniary damage;
(ii) EUR
2,800 (two thousand eight hundred euros) in respect of costs and
expenses;
(iii) any
tax that may be chargeable on the above amounts;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicants' claim
for just satisfaction.
Done in English, and notified in writing on 31 May 2007,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
