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FIRST
SECTION
CASE OF BRAJOVIĆ-BRATANOVIĆ v. CROATIA
(Application
no. 9224/06)
JUDGMENT
STRASBOURG
9
October 2008
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 Brajović-Bratanović v. Croatia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos Rozakis, President,
Nina
Vajić,
Khanlar Hajiyev,
Dean
Spielmann,
Sverre Erik Jebens,
Giorgio
Malinverni,
George Nicolaou, judges,
and André
Wampach, Deputy Section Registrar,
Having
deliberated in private on 18 September 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 9224/06) 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 a national of the United States of America, Ms
Sofija Brajović-Bratanović (“the applicant”),
on 16 February 2006.
- The
Croatian Government (“the Government”) were represented
by their Agent, Mrs Š. StaZniik.
- On
18 September 2007 the Court decided to give notice of the application
to the Government. It also decided to examine the merits of the
application at the same time as its admissibility (Article 29 §
3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1946 and lives in Bethesda, the United States
of America.
- The
applicant owns a flat in Cavtat, Croatia. In September 1995
Parliament passed a law governing the temporary use of property of
persons who had left Croatia - Temporary Takeover and Management of
Certain Property Act ( Zakon o privremenom preuzimanju i
upravljanju određenom imovinom - hereinafter the “Property
Takeover Act”), which allowed municipalities to temporarily
accommodate other persons in such property.
- In
1992 R., a policeman, forcibly moved into the applicant’s flat
in Cavtat, Croatia. On 25 September 1995 the Konavle Housing
Commission granted him refugee status and legalised his occupation of
the applicant’s flat. On 30 January 2002 the applicant applied
to the Housing Commission for repossession of her property.
- On
11 January 2002 the applicant instituted civil proceedings before the
Dubrovnik Municipal Court seeking R.’s eviction. On 27 February
2002 the claim was declared inadmissible for lack of jurisdiction.
The applicant appealed.
- On
29 August 2002 the applicant lodged a request with the Ministry of
Public Works, Reconstruction and Construction seeking annulment of
the decision authorising R. to occupy her flat.
- The
judgment of the Dubrovnik Municipal Court of 27 February 2002 was
quashed by the Dubrovnik County Court on 30 August 2002 and the case
was remitted to the Municipal Court for a fresh trial.
- 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 drZavne 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”).
- On
25 October 2003 the Dubrovnik Municipal Court upheld the claim and
ordered R.’s eviction. R. appealed.
- On
12 December 2003 the Ministry set aside the Property Takeover
Commission’s decision authorising R. to occupy the applicant’s
flat but also stated that R. had the right to housing under section 7
of the Act on Areas of Special State Concern.
- The
judgment of the Dubrovnik Municipal Court of 25 October 2003 was
quashed by the County Court on 17 February 2005 on the ground that no
alternative accommodation had been provided to R. Accordingly, the
case was returned to the Municipal Court for further examination. On
12 May 2006 the applicant lodged an application with the Supreme
Court complaining about the length of the proceedings. In a letter of
26 May 2006 the Supreme Court instructed the Dubrovnik Municipal
Court to speed up the proceedings.
- On
31 May 2006 the Municipal Court again granted the applicant’s
claim and ordered R.’s eviction. R. appealed against this
judgment to the Dubrovnik County Court. While the case was pending
there the applicant once more applied to the Supreme Court
complaining about the length of the proceedings. In a letter of 11
September 2006 the Supreme Court instructed the County Court to speed
up the proceedings and adopt a judgment.
- On
2 October 2006 the County Court again quashed the judgment of the
Municipal Court and accordingly the latter was once more required to
examine the applicant’s claims. In a judgment of 27 March 2007
the Municipal Court, as in its previous judgments, found in favour of
the applicant. R. appealed against this judgment and the appeal is at
present pending before the Dubrovnik County Court.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. The relevant legislation
1. The Property Takeover Act
- The
following are the relevant sections of the Property Takeover Act
(Zakon o privremenom preuzimanju i upravljanju određenom
imovinom, Official Gazette nos. 73/1995 and 7/1996):-
Section
2(2) transferred the property belonging to persons who had left
Croatia after 17 October 1990 to the care and control of the State.
Section
5, inter alia, authorised the property takeover commissions to
allow temporary occupation of property under section 2 by refugees,
displaced persons or persons whose property had been destroyed in the
war.
2. The Programme for Return and the Termination Act
- 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 [citizenship] documents who
are owners of property in Croatia in which other persons are
temporarily accommodated may apply to the municipal housing
commission seeking repossession of their property. The commission
shall inform the owner within five days about the status of his
property. Relying on proof of ownership, the commission shall set
aside any previous decision allowing the temporary accommodation of
other persons and order the temporary occupier to vacate the
premises. The commission shall serve a written decision on the owner
and on the temporary occupier within seven days. The decision shall
contain a time-limit for eviction and an offer of alternative
accommodation for the temporary occupier in a house or flat under
state ownership.
...
If a temporary occupier fails to vacate the premises
within the fixed time-limit, the commission shall institute eviction
proceedings in the competent municipal court within seven days. The
court shall apply the provisions concerning summary procedure in
civil matters. The court’s decision shall be immediately
enforceable. An appeal shall not interfere with the enforcement
proceedings or the repossession of the property by the owner.”
- Section
2(3) and 2(4) of the Termination Act (Zakon o prestanku vaZenja
Zakona o privremenom preuzimanju i upravljanu određenom
imovinom, Official Gazette no. 101/1998) provided that the
Programme for Return applied to proceedings concerning the temporary
use, management and control of the property of persons who had left
Croatia and that such proceedings were to be conducted by housing
commissions in the first instance and by municipal courts in the
second instance. They were required to apply the Administrative
Procedure Act.
3. The Act on Areas of Special State Concern and
related subordinate legislation
- Sections
7, 9 and 17 of the Act on Areas of Special State Concern (Zakon o
područjima od posebne drZavne skrbi, Official Gazette
nos. 44/1996, 57/1996 (errata), 124/1997, 73/2000, 87/2000
(errata), 69/2001, 94/2001, 88/2002, 26/2003 (consolidated text),
42/2005), as amended by the 2002 Amendments, gave a temporary
occupier a right to housing.
Section
24 (enacted on 14 July 2000, published in the Official Gazette no. 73
of 21 July 2000, came into force on 29 July 2000) obliges the
Ministry to secure alternative accommodation for the occupier within
six months of the owner’s request for the return of his or her
property, failing which the owner is entitled to seek the conclusion
of a lease agreement by which the occupier leases the premises and
the Ministry pays the rent to the owner.
Section
27 obliges the Ministry to pay compensation for the damage sustained
by an owner who applied 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 Due to Owners for Damage
Sustained (Odluka o visini naknade vlasnicima za pretrpljenu
štetu, Official Gazette no. 68/2003) establishes the
amount of that compensation at seven Croatian kunas (HRK) per square
metre.
4. The Property Act
- The
following are the relevant sections of the Property Act (Zakon o
vlasništvu i drugim stvarnim pravima, Official Gazette
nos. 91/1996, 73/2000 and 114/2001):-
Section
161(1) entitles the owner of property to recover
it from anyone who is in possession of it.
Section
163(1) allows anyone entitled to retain possession (that is, if he or
she has a right of possession) to refuse to return the property to
its owner.
5. The Courts Act
- The
relevant part of the Courts Act (Zakon o sudovima, Official
Gazette no. 150 of 21 December 2005, entered into force on 1 January
2006) reads as follows:
Section 4
“(1) In the determination of his rights and
obligations or of a criminal charge against him or her, everyone is
entitled to a fair hearing within a reasonable time by an independent
and impartial tribunal established by law.
...”
Section 27
“(1) A party to the judicial proceedings ... may
lodge a request for the protection of the right to a hearing within a
reasonable time with a court hierarchically superior [to the one
conducting the proceedings].
...”
Section 28
“(1) Where the court deciding a request under
section 27 finds it founded it shall set a time-limit within which
the competent court must decide the case on the merits ... and shall
also assess appropriate compensation for the applicant for the
violation of his or her right to a hearing within a reasonable time.
...
(3) An appeal lies to the Supreme Court against a
decision on a request for protection of the right to a hearing within
a reasonable time. ... a constitutional complaint may be lodged
against the Supreme Court’s decision.”
6. The Constitutional Act on the Constitutional Court
- The
relevant part of the Constitutional Act on the Constitutional Court
(Ustavni zakon o Ustavnom sudu Republike Hrvatske, Official
Gazette no. 49/2002 of 3 May 2002 – “the Constitutional
Court Act”) 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 competent court 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 competent court 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 on which a request for
payment is lodged.”
B. The Supreme Court’s practice
- 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 an owner’s
application for repossession conferred on the administrative
authorities under the Termination Act does not exclude ordinary court
jurisdiction in such matters 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 occupier 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.”
- In
its decisions nos. Rev-967/00-2 of 30 September 2004 and
Rev 1444/02-2 of 29 June 2004 the Supreme Court gave a further
interpretation of the relationship between the Property Act and the
Termination Act as well as of the Programme for Return:
“The temporary occupier’s right to use the
owner’s property does not cease merely for the reason that a
housing commission has set aside the decision allowing him or her to
do so. This is because the duty to return the property to its owner
is conditional upon the duty of the State to provide alternative
accommodation for the temporary occupier.
It follows that the temporary occupier is not obliged to
compensate the owner for the use of his or her property since, before
being provided with alternative accommodation, he or she remains in
bona fide possession.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 TO THE
CONVENTION
- The
applicant complained that her prolonged inability to repossess her
flat in Cavtat had violated her right to peaceful enjoyment of her
possessions as provided in 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 contested that argument.
A. Admissibility
1. Compatibility ratione
temporis
- The
Government firstly maintained that the domestic authorities were
responsible only for acts, decisions and events which had occurred
after 5 November 1997, the date on which the Convention had
entered into force in respect of Croatia. Therefore, the interference
with the applicant’s rights caused by legislation enacted
before the entry into force of the Convention in respect of Croatia
fell outside the Court’s competence ratione temporis.
- The
applicant submitted that the alleged violations had continued after
the date of ratification. Accordingly, in her view the Court had
competence to examine them.
- The
Court observes that in the present case the applicant’s
complaint concerns a continuous situation. Accordingly, the Court is
competent ratione temporis to examine that complaint in so far
as it concerns the continuation of this situation after 5 November
1997.
2. Exhaustion of domestic remedies
- The
Government further submitted that the applicant had not exhausted
domestic remedies in that she had failed to seek repossession of the
flat from the relevant Ministry and to seek damages pursuant to
section 27(4) of the Act on Areas of Special State Concern. She had
also failed to seek, under section 24 of the same Act, the conclusion
of a lease agreement between herself and the Ministry by which the
flat in question would be let to R and the Ministry would pay the
rent until alternative accommodation was found for him.
- The
applicant firstly submitted that she had sought repossession of her
flat and that the Ministry had actually issued a decision to that
effect but had afterwards failed to secure the return of the flat to
her.
- The
Court considers that the Government’s objection as to the
exhaustion of domestic remedies raises issues which are closely
linked to the merits of the applicant’s complaint under Article
1 of Protocol no. 1 to the Convention. Thus, in order not to prejudge
the latter the Court decides to join this issue to the merits of the
case. Furthermore, the Court notes that this complaint is not
manifestly ill-founded within the meaning of Article 35 § 3 of
the Convention. It also notes that it is not inadmissible on any
other ground. It must therefore be declared admissible.
B. Merits
- The
applicant argued that the prolonged period for which her property had
been occupied by R., although he was neither a refugee nor a
displaced person, had no justification.
- The
Government argued that the interference in question was based on the
Property Takeover Act and that it had been aimed at protecting
property left behind by persons who had left Croatia during the
Homeland War and securing housing for a large number of persons in
need, which was a consequence of the war. They further asserted that
the measure taken was proportionate to the legitimate aim pursued.
- The
Court notes that it is not disputed that there has been an
interference with the applicant’s right to property as her flat
was allocated to another person and she has been unable to use it for
a prolonged period of time.
- The
Court further notes that the applicant was not deprived of her
property title. Therefore, the interference complained of constituted
a control of use of property within the meaning of the second
paragraph of Article 1 of Protocol No. 1 (see, mutatis mutandis,
Immobiliare Saffi v. Italy [GC], no. 22774/93, § 46
and 48, ECHR 1999 V, and Scollo v. Italy, judgment of 28
September 1995, Series A no. 315 C, p. 52, § 27). In
order to comply with the requirements of the second paragraph, it
must be shown that the measure constituting the control of use was
lawful, that it was “in accordance with the general interest”
and that there existed a reasonable relationship of proportionality
between the means employed and the aim sought to be realised (see
Bimer, cited above, § 52).
- In
order to ascertain whether 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
Court must examine whether by reason of the State’s inaction
the applicant had to bear a disproportionate and excessive burden
(see Broniowski v. Poland [GC], no. 31443/96, § 150,
ECHR 2004-V, and Kirilova and Others v. Bulgaria, cited above,
§ 106).
- The
Court accepts the Government’s assertion, undisputed by the
applicant, that the interference in question was based in law, namely
the Property Takeover Act, and that its legitimate aim was to answer
an increase in housing needs caused by the Homeland War in Croatia.
- The Court thus accepts that housing persons in need in
property left behind by persons who had left Croatia
during the war may be regarded as a legitimate interest of the State.
Furthermore, the system which allows occupiers to remain in the
abandoned property before they have been provided with adequate
housing is not in itself in contradiction with the guarantees
contained in Article 1 of Protocol No. 1, provided that it ensures
sufficient safeguards for the protection of the applicant’s
property rights (see, mutatis mutandis, Saratlić v.
Croatia, (dec.) no. 35670/03, 24 October 2006).
- The
Court notes that the occupier of the applicant’s flat forcibly
moved into it in 1992, thus initially occupying it without any legal
ground. However, his position was remedied in September 1997 when the
Konavle Housing Commission authorised his occupation. The Court notes
that the parties agree that R., the occupier, was not a refugee or a
displaced person but a serving policeman. In January 2002 the
applicant sought repossession of her flat, firstly from the Housing
Commission which had authorised R. to occupy her flat and secondly by
bringing an action in the Dubrovnik Municipal Court for R.’s
eviction. While the Housing Commission remained silent, the civil
proceedings for eviction are still pending.
- The
Court notes further that in August 2002 the applicant also asked the
relevant Ministry to annul the decision authorising R. to occupy her
flat. While it is true that in December 2003 the Ministry did annul
the said decision, it also established R.’s right to housing,
which prevented the applicant from having her flat returned to her
since no alternative accommodation has so far been provided to R.
- While
the Court accepts that the initial placement of persons in need of
housing in another’s abandoned property during the war and for
a certain period after the war might be seen as justified, it has
difficulties in finding justification for the occupation of the
applicant’s flat for such a long period, particularly in view
of the fact that R. is not and has never been a refugee or a
displaced person. In this connection the Court notes that after the
war in Croatia had ended in 1995 the State has had ample time and
opportunity to secure proper housing for R. Furthermore, the Court
notes that even after the applicant sought repossession of her
property a period of more than six years has elapsed so far and that
no pressing need has been made out such as to require R.’s
further occupation of the applicant’s flat. The Court therefore
finds that the applicant’s prolonged and continuing inability
to recover possession of her flat has placed a disproportionate
individual burden on her. In these circumstances none of the remedies
relied on by the Government is effective because none is aimed at the
repossession of her flat by the applicant. The Court therefore
dismisses the Government’s objection as regards the applicant’s
failure to exhaust domestic remedies and finds that the foregoing
considerations are sufficient to enable the Court to conclude that
there has been a violation of Article 1 of Protocol. No. 1 to the
Convention.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained about the length of the civil proceedings. She
relied on Article 6 § 1 of the Convention, the relevant part of
which read 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 contested that argument.
- The
Court considers that the period to be taken into consideration began
on 11 January 2002 when the applicant brought her civil action in the
Dubrovnik Municipal Court, seeking R’s eviction from her flat.
The proceedings are still pending. Thus, they have so far lasted
about six years and eight months at two levels of jurisdiction.
A. Admissibility
- The
Government argued that the applicant had not exhausted domestic
remedies in respect of the length of proceedings under the Courts Act
and the Constitutional Court Act.
- The
applicant asserted that she had twice applied to the Supreme Court
about the length of proceedings, but to no avail.
- The
Court reiterates that as of 20 March 2002 an effective domestic
remedy in respect of the length of pending civil proceedings has been
introduced in Croatia: a constitutional complaint to the
Constitutional Court (see Slaviček v. Croatia
(dec.), no. 20862/02, ECHR 2002 VII). Furthermore, as of 1
January 2006 additional avenues for complaints about the length of
pending proceedings were opened up by the Courts Act under which a
complaint in respect of the length of proceedings is to be lodged
with a court hierarchically superior than the one before which the
proceedings are pending. At the same time a constitutional complaint
has remained the ultimate resort concerning the length of proceedings
pending at national level.
- The
Court notes that the applicant twice applied to the Supreme Court
complaining about the length of the civil proceedings she had
instituted before the national courts seeking R.’s eviction.
However, the Supreme Court did not issue any formal decision on the
applicant’s complaint. Instead, both times the Supreme Court
reacted by a letter addressed in the first instance to the Dubrovnik
Municipal Court and in the second to the Dubrovnik County Court,
instructing them to speed up the proceedings. In these circumstances
the applicant was not in a position to lodge a constitutional
complaint against the Supreme Court’s decision since no such
decision has been issued and a constitutional complaint cannot be
lodged against a letter (see, mutatis mutandis, Štitić
v. Croatia, no. 29660/03, § 27, 8 November
2007). Hence, the Government’s objection must be rejected.
- The
Court further notes 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 ground. It
must therefore be declared admissible.
B. Merits
- The
applicant argued that although three judgments had already been
adopted by the first-instance court, her case had not been finally
determined.
- The
Government replied that the case was complex and not urgent. They
further asserted that the domestic courts had been diligent in
processing the case.
- The
Court reiterates that the reasonableness of the length of proceedings
must be assessed in the light of the circumstances of the case and
with reference to the following criteria: the complexity of the case,
the conduct of the applicants and the relevant authorities and what
was at stake for the applicants in the dispute (see, among many other
authorities, Frydlender v. France [GC], no. 30979/96, §
43, ECHR 2000-VII).
- The
Court notes that although in the proceedings at issue there have been
no substantial periods of inactivity and three judgments have so far
been adopted on the merits, it cannot be said that the proceedings
have complied with the reasonable-time requirement because the
first-instance judgment, upholding the applicant’s claim, has
been quashed twice on appeal, both times on the ground that no
alternative accommodation had been secured for R. The Court further
notes that the proceedings are still pending, at present before the
appellate court, and that the Government have not shown that
alternative accommodation for R. has been found, which has so far
delayed the final resolution of the applicant’s case.
- In
view of the above considerations, the Court concludes that there has
been a breach of Article 6 § 1 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
applicant claimed 35,000 euros (EUR) in respect of pecuniary and
non-pecuniary damage. She argued that she had not been able to rent
her flat and also that she had had to pay for accommodation during
her holidays elsewhere since she had not been able to stay in her
flat, which was situated on the coast. She also claimed the value of
her property left in the flat, which had been lost.
- The
Government argued that the minimum monthly rent for a flat in Cavtat
in the same location as the applicant’s flat, and measuring 45
square metres, was 1,000 Croatian kuna (HRK) and that the applicant
would inevitably have had some maintenance expenses.
- The
Court considers that the most appropriate form of redress in respect
of a violation of Article 1 of Protocol No. 1 is to ensure the
applicant’s repossession of her flat (see, mutatis mutandis,
Reynbakh v. Russia, no. 23405/03, §§
34-35, 29 September 2005, and Lukavica v. Croatia,
no. 39810/04, § 48, 5 July 2007). It therefore
considers that the Government must secure, by appropriate means, the
enforcement of the Ministry’s decision of 12 December 2003 in
so far as it relates to the return of the applicant’s flat. The
Court also considers that the applicant must have suffered pecuniary
damage as a result of her lack of control over her flat and that the
relevant period commenced in January 2002 when she first sought its
repossession and has not yet ended. As regards the loss of rent, the
Court firstly notes that the applicant already had accommodation and
therefore it is reasonable to assume that she would have attempted to
let the flat (see Prodan v. Moldova, cited above, § 72;
Popov v. Moldova (no. 1) (just satisfaction), no. 74153/01,
§ 11, 17 January 2006; and Radanović v. Croatia,
no. 9056/02, § 63, 21 December 2006). Having examined
the parties’ submissions, the Court will take the amount
specified in the Government’s submission as to the minimum rent
for a flat of the same size and in the same location as the
applicant’s flat as a reference point for assessing the loss
suffered.
- In
making its assessment, the Court takes into account the fact that the
applicant would inevitably have experienced certain delays in finding
suitable tenants and would have incurred certain maintenance expenses
in connection with the flat. She would have also been subjected to
taxation (see Prodan v. Moldova, cited above, § 74,
and Popov v. Moldova (no. 1) (just satisfaction), cited above,
§ 13). Having regard to the foregoing, and deciding on an
equitable basis, the Court awards the applicant EUR 10,000 on account
of pecuniary damage. As regards the loss of the applicant’s
personal belongings in the flat, the Court does not discern any
causal link between the violation found and the pecuniary damage
alleged. It therefore rejects this claim. The Court, however, also
awards the applicant EUR 3,000 in respect of non-pecuniary damage on
account of the excessive length of the proceedings, plus any tax that
may be chargeable on these amounts to the applicant.
B. Costs and expenses
- The
applicant also claimed EUR 7,000 for the costs and expenses incurred
before the domestic authorities.
- The
Government contested this claim.
- According
to the Court’s case-law, an applicant is entitled to the
reimbursement of 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 5,000 for the
proceedings before the national authorities, plus any tax that may be
chargeable on that amount to the applicant.
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
- Joins to the merits the Government’s
objection concerning the exhaustion of domestic remedies and rejects
it;
- Declares the application admissible;
- Holds that there has been a violation of Article
1 of Protocol No. 1 to the Convention;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds
(a) that
the respondent State shall secure, by appropriate means and within
three months from the date on which the judgment becomes final in
accordance with Article 44 § 2 of the Convention, the
enforcement of the decision of the Ministry of Public Works,
reconstruction and Construction of 12 December 2003;
(b) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following
amounts, to be converted into the national currency of the respondent
State at the rate applicable at the date of settlement:
(i) EUR
10,000 (ten thousand euros) in respect of pecuniary damage, plus any
tax that may be chargeable on that amount to the applicant;
(ii) EUR
3,000 (three thousand euros) in respect of non-pecuniary damage, plus
any tax that may be chargeable on that amount to the applicant;
(iii) EUR
5,000 (five thousand euros) in respect of costs and expenses, plus
any tax that may be chargeable on that amount to the applicant;
(c) 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 applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 9 October 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
André Wampach Christos Rozakis
Deputy
Registrar President
