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FIRST
SECTION
CASE OF ŠTOKALO AND OTHERS v. CROATIA
(Application
no. 15233/05)
JUDGMENT
STRASBOURG
16 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 Štokalo and Others 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 25 September 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 15233/05) 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 five Croatian nationals, Mrs Lucija Štokalo, Mrs Vesna
Balen, Mrs SnjeZana Grce, Mr Anton Štokalo and Mr Viktor
Štokalo (“the applicants”), on 21 March 2005.
- The
applicants were represented by Mr I. Debelić, a lawyer
practising in Rab. The Croatian Government (“the
Government”) were represented by their Agent, Mrs Š.
StaZnik.
- On
13 September 2006 the
President of the First Section decided to communicate the complaints
concerning the length of the proceedings and the lack of remedies in
that respect to the Government. It was also decided to rule on the
admissibility and merits of the application at the same time (Article
29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicants were born in 1931, 1961, 1964, 1928 and 1927 respectively
and live in Banjol, Croatia.
- In
1963 the Communist authorities nationalised a plot of land on the
island of Rab, owned by the fourth and fifth applicants and a certain
J.Š., who was the first applicant’s husband and the
second and the third applicants’ father. In 1964, a restaurant
was built on the site. It appears that the land, which had been
transferred into social ownership, was subsequently given to the
company I. for its use.
- During
the process of privatisation of the company I. the land was included
as part of its share capital. However, a number of shares were
reserved to serve as compensation for former owners of nationalised
property which formed part of the company’s share capital. On
20 June 1994 the Croatian Privatisation Fund (Hrvatski fond za
privatizaciju) gave its consent to the privatisation of the
company, which on the basis of that decision subsequently became the
owner of the land in question.
- On
11 October 1996 the Croatian Parliament passed the Act on
Compensation for, and Restitution of, Property Taken under the
Yugoslav Communist Regime (Zakon o naknadi za imovinu oduzetu za
vrijeme jugoslavenske komunističke vladavine, Official
Gazette nos. 92/96, 92/99 (corrigendum), 80/02 (amendments) and 81/02
(corrigendum) – “the Denationalisation Act”) which
enabled former owners of nationalised or confiscated property, or
their heirs in the first line of succession to seek either
restitution of or compensation for the property taken. The Act
entered into force on 1 January 1997.
A. The first set of proceedings
1. Administrative proceedings for restitution of or
compensation for nationalised property
- On
16 June 1997 the applicants, relying on the Denationalisation Act,
instituted administrative proceedings before the regional office of
the state administration in Rab, as the competent first-instance
administrative authority. Initially they asked to be awarded shares
in the company I. as compensation for the above plot of land. It
would appear that they subsequently sought restitution in kind.
- On
24 March 2003 the Rab regional office issued an interim decision
granting the applicants state bonds in compensation for the property
taken. The exact amount of compensation was to be determined after
the enactment of the relevant subordinate legislation. On 22 December
2003 the Ministry of Finance adopted the Ordinance on the Criteria
for the Determination of Compensation for Construction Land and
Business Premises Taken under the Yugoslav Communist Regime
(Pravilnik o mjerilima za utvrđivanje naknade za oduzeto
građevinsko zemljište i poslovni prostor, Official
Gazette no. 204/03, 03/04 – “the Ordinance”), which
entered into force on 1 April 2004.
- On
18 April 2003 the applicants appealed to the Ministry of Justice
against the first-instance decision asserting in the main that they
were seeking the restitution of the plot of land in question rather
than compensation for it.
- As
a result of the fact that the Ministry of Justice did not render a
decision on their appeal within the statutory time-limit of sixty
days, on 24 September 2003 the applicants brought an action for
failure to respond (tuZba zbog šutnje administracije,
see paragraph 31 below) in the Administrative Court (Upravni sud
Republike Hrvatske).
- On
23 June 2004 the applicants lodged a constitutional complaint under
section 63 of the Constitutional Court Act. They complained about the
length of the above administrative proceedings and requested the
Constitutional Court (Ustavni sud Republike Hrvatske) to order
the Administrative Court to decide on their action within three
months.
- On
27 October 2004 the Administrative Court passed a judgment ordering
the Ministry of Justice to decide on the applicants’ appeal of
18 April 2003 within thirty days.
- On
8 December 2004 the Constitutional Court dismissed the applicants’
constitutional complaint of 23 June 2004 and served its decision on
their representative on 17 December 2004. It examined only the length
of the proceedings before the Administrative Court between
24 September 2003 and 23 June 2004, when the constitutional
complaint was lodged. It held, consequently, that the length of
proceedings, which had lasted for only nine months, could not be
considered excessive.
- The
applicants, having taken the view that the Ministry had failed to
comply with the Administrative Court’s judgment of 27 October
2004 within the time-limit indicated, initially urged the Ministry to
do so on 6 December 2004 (see paragraph 35 below) and on 17
December 2004 requested the Administrative Court to decide on their
appeal, that is to say, act as a court of full jurisdiction and issue
its own decision in substitution for that of the Ministry (see
paragraph 36 below).
- On
9 March 2005 the Administrative Court declared the applicants’
request inadmissible as being premature. It found that its judgment
of 27 October 2004 had only been served on the Ministry on
9 November 2004 and that therefore the applicant’s request
of 6 December 2004 urging the Ministry to decide on their appeal had
been submitted too early.
- On
the 15 February 2006 the Ministry of Justice reversed the
first-instance decision of 24 March 2003 and dismissed the
applicants’ request of 16 June 1997 in its entirety.
- The
applicants then brought an action before the Administrative Court
challenging that decision. It appears that the proceedings are still
pending before that court.
B. The second set of proceedings
- On
29 February 2000 the applicants filed with the Croatian Privatisation
Fund a petition to declare null and void (prijedlog za
proglašavanje rješenja ništavim) its
decision of 20 June 1994 (see paragraph 6 above) – an
extraordinary remedy available under the Administrative Procedure Act
(see paragraph 29 below). They argued that they had not been given
the opportunity to participate in the proceedings leading to that
decision.
- As
the Fund did not give a decision on the applicants’ petition
within the statutory time-limit of sixty days, on 27 June 2000 the
applicants brought an action for failure to respond in the
Administrative Court (see paragraph 32 below).
- On
28 July 2000 the Fund dismissed the applicants’ petition as it
considered it to be a petition for the reopening of the proceedings.
- Shortly
afterwards, the applicants modified their action of 27 June 2000 and
challenged the Fund’s decision of 28 July 2000 maintaining that
they had not requested the reopening of the case but had challenged
the Fund’s decision of 20 June 1994 on its merits.
- On
12 September 2002 the Administrative Court found for the applicants
and quashed the Fund’s decision of 28 July 2000. The case was
remitted to the Fund.
- On
23 January 2003 the Fund dismissed the applicants’ petition
finding that the arguments adduced by the applicants did not
constitute grounds to declare the decision of 20 June 1994 null and
void. The applicants once again brought an action in the
Administrative Court.
- On
14 October 2004 the Administrative Court dismissed the applicants’
action endorsing the reasons given by the Fund in its decision of
23 January 2003.
- On
31 January 2005 the applicants lodged a constitutional complaint
against the Administrative Court’s decision.
- On
18 October 2007 the Constitutional Court dismissed their complaint.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. The relevant legislation
1. The Constitutional Court Act
- 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 a request for payment
is lodged.”
2. The Administrative Procedure Act
- The
relevant provisions of the Administrative Procedure Act (Zakon o
općem upravnom postupku, Official Gazette no. 53/1991
of 8 October 1991) provide as follows:
6. Declaring a decision null and void
Section 267
A decision shall be declared null and void if:
1) it is delivered in administrative proceedings in
matters which fall within the jurisdiction of the courts or in
matters not to be decided in administrative proceedings;
2) its enforcement might result in a criminal offence
punishable by the criminal code;
3) its enforcement is not at all possible;
4) it is rendered without a prior request by a party
(section 216), and the party did not subsequently expressly or
tacitly consent to it;
5) it is affected by an error expressly provided for in
a statutory provision as a ground of nullity;
6) its enforcement would be contrary to public policy
(ordre public)
Section 268
(1) A decision may be declared null and void ex
officio or following the petition of a party or the state
attorney.
(2) A decision may be declared null and void in its
entirety or in part.
(3) ...
(4) An appeal lies against the decision declaring
certain decisions null and void or dismissing the party’s or
state attorney’s petition to declare a decision null and void.
If no appellate authority exists, one may bring an administrative
action directly.
3. The Administrative Disputes Act
- The
relevant provisions of the Administrative Disputes Act (Zakon o
upravnim sporovima, Official Gazette nos. 53/1991, 9/92
and 77/92) provide as follows:
- Section
26 (1) provides that if the appellate administrative authority fails
to give a decision on a party’s appeal against a first-instance
decision within sixty days, and fails to do so upon a repeated
request within a further period of seven days, the party may bring an
action in the Administrative Court (action for failure to respond,
tuZba zbog šutnje administracije), as if his or her
appeal had been dismissed.
- Section
26 (2) provides that when the first-instance administrative authority
fails to give a decision against which no appeal lies, the party may
directly bring an action in the Administrative Court.
- Section
26 (3) provides that, in matters where the right of appeal exists, if
a first-instance administrative authority fails to give a decision on
a party’s application within sixty days, the party may submit
his or her application to the appellate administrative authority.
Against the latter authority’s decision the party may bring an
action in the Administrative Court, and if the authority fails to
give a decision, the party may bring an administrative action under
the conditions set out in paragraph 1.
- Section
42 (5) provides that when the Administrative Court, following the
action for failure to respond, finds for the plaintiff, it shall
either instruct the respondent administrative authority as to how to
decide the case on points of law, or shall itself rule on the
application (acting as a court of full jurisdiction under paragraph 2
of section 64).
- Section
64 (1) provides that, in the execution of the judgment rendered under
section 42 (5), the administrative authority shall issue its decision
immediately but at the latest within 30 days. Otherwise, a party may
by a special submission request it to do so. If the authority does
not issue a decision within seven days following that request, a
party may apply to the Administrative Court.
- Section
64 (2) provides that if such an application is made, the
Administrative Court shall first ask the administrative authority to
give reasons for its omission. The authority shall reply immediately
but at the latest within seven days. If the authority fails to do so,
or if the reasons given do not justify the failure to decide, the
Administrative Court shall give a decision which will substitute the
decision of the administrative authority.
B. The Constitutional Court’s practice
- In
case no. U-IIIA/635/2004 of 25 November 2004, the Constitutional
Court was seized under Section 63 of the Constitutional Court Act to
examine the length of administrative proceedings instituted in July
1996 when the complainant had brought an action in the Administrative
Court for the Ministry of Defence’s failure to give a decision
in his case. In October 1998 the Administrative Court ordered the
Ministry to give a decision within 30 days. The Ministry gave a
negative decision in July 1999. The complainant then brought a second
administrative action, challenging that decision. In September 2000
the Administrative Court quashed the impugned decision and remitted
the case. The Ministry again gave a negative decision and served it
on the complainant in January 2004. On 18 February 2004 the
complainant brought a third administrative action, which was
dismissed by the Administrative Court in June 2004. At the same time
on 25 February 2004 he lodged a constitutional complaint arguing that
the Constitutional Court should, like the European Court of Human
Rights, take into consideration the overall length of administrative
proceedings when examining whether or not they exceeded a reasonable
time.
- Following
its previous practice (decisions no. U-III-2467/2001 of 27 February
2002, and U-IIIA-3638/2003 of 18 February
2004), the Constitutional Court held
that only the inactivity of the judicial
authorities was relevant as constituting a breach of Article 29 § 1
of the Constitution. In its view it was not possible for proceedings
before the administrative authorities to last an unreasonably long
period of time because the statutes regulating those proceedings
contained the presumption that if the administrative authorities
failed to give a decision within the statutory time-limits the
application was considered dismissed. The Constitutional Court
therefore examined only the length of the proceedings between the
introduction of the complainant’s third action in the
Administrative Court and the lodging of the constitutional complaint.
It dismissed the constitutional complaint finding that the
proceedings had lasted only seven days.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicants complained that the length of the first and the second set
of proceedings had been incompatible with the “reasonable time”
requirement, laid down in Article 6 § 1 of the Convention, which
reads as follows:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal...”
- The
Government contested that argument.
A. Admissibility
1. The parties’ arguments
- The
Government invited the Court to reject the applicants’
complaint in respect of the second set of proceedings because they
never complained about their length before the domestic authorities
and thus failed to exhaust the available domestic remedies, as
required under Article 35 § 1 of the Convention.
- The
applicants denied, without further substantiation, the Government’s
argument.
2. The Court’s assessment
- The
Court does not find it necessary to examine the Government’s
non-exhaustion objection, as the applicants’ complaint in
respect of the second set of proceedings is in any event inadmissible
for the following reasons.
- The
Court reiterates that it has to satisfy itself that it has
jurisdiction in any case brought before it, and is therefore obliged
to examine the question of its jurisdiction at every stage of the
proceedings (see Blečić v. Croatia [GC],
no. 59532/00, § 67, to be published in ECHR 2006).
Thus, even though the Government in their observations raised no plea
of inadmissibility concerning lack of jurisdiction ratione
materiae, the Court nevertheless has to examine, of its own
motion, whether Article 6 of the Convention is at all applicable to
the proceedings complained of (see Nylund v. Finland (dec.),
no. 27110/95, ECHR 1999 VI).
- The Court points out that for Article 6 § 1 to be
applicable under its “civil” head, there must be a
“dispute” over a “right” which can be said,
at least on arguable grounds, to be recognised under domestic law. In
deciding whether a “right” could arguably be said to be
recognised under the domestic law, the Court must have regard to the
wording of the relevant legal provisions and to the way in which
these provisions are interpreted by the domestic courts (see Nylund
v. Finland, cited above).
- In
this connection the Court observes that the applicants initiated the
second set of proceedings by filing a petition to declare null and
void the Fund’s decision of 20 June 1994 on the grounds that
they had not participated in the proceedings leading up to that
decision. Such a petition represents an extraordinary remedy which
may be used to challenge administrative decisions exclusively on one
of the grounds listed in section 267 of the Administrative Procedure
Act (see paragraph 29 above). That being so, the Court considers that
the right claimed by the applicants, namely to have the Fund’s
decision declared null and void on the grounds of their
non-participation in the proceedings, is not recognised, even on
arguable grounds, under Croatian law (see Gallo v. Slovakia,
no. 30900/96, Commission decision of 4 September 1996).
Accordingly, Article 6 of the Convention is not applicable to the
second set of proceedings. It follows that the applicants’
complaint in respect of those proceedings is incompatible ratione
materiae with the provisions of the Convention within the meaning
of Article 35 § 3 and must be rejected pursuant to
Article 35 § 4.
-
On the other hand, the Court notes that the applicants’
complaint in respect of the first set of proceedings 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 grounds. It must therefore be declared admissible.
B. Merits
1. Period to be taken into consideration
- The
Court observes that the first administrative proceedings were
instituted on 16 June 1997. However, the period to be taken into
consideration began only on 18 April 2003 when the applicants
appealed against the first-instance decision. It was then that a
“dispute” within the meaning of Article 6 § 1 arose
(see, for example, BoZić v. Croatia, no. 22457/02,
§ 26, 29 June 2006, Počuča v. Croatia,
no. 38550/02, § 30, 29 June 2006, and Janssen v.
Germany, no. 23959/94, § 40, 20 December 2001).
- Those
proceedings are still pending. Thus, they have so far lasted five
years and five months during which one decision on the merits has
been adopted.
2. Reasonableness of the length of the proceedings
- 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 applicant and the relevant authorities and what
was at stake for the applicant in the dispute (see, among many other
authorities, Cocchiarella v. Italy [GC], no. 64886/01,
§ 68, to be published in ECHR 2006, and Frydlender
v. France [GC], no. 30979/96, § 43, ECHR
2000-VII).
- The
Court has frequently found violations of Article 6 § 1 of the
Convention in cases raising issues similar to the one in the present
case (see, for example, G.S. v. Austria, no. 26297/95, 21
December 1999).
- Having
examined all the material submitted to it, the Court considers that
the Government have not put forward any fact or argument capable of
persuading it to reach a different conclusion in the present case.
Having regard to its case-law on the subject, the Court considers
that in the instant case the length of the first set of proceedings
is excessive and fails to meet the “reasonable time”
requirement.
There
has accordingly been a breach of Article 6 § 1.
III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
- The
applicants further complained that they had not had an effective
remedy in respect of the length of the above two sets of the
administrative proceedings. They relied on Article 13 of the
Convention, which reads as follows:
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
- The
Government contested that argument.
A. Admissibility
- In
so far as the applicants’ complaint concerns the first set of
proceedings, the Court notes that it is linked to the one examined
above and must therefore likewise be declared admissible.
- To
the extent that the applicants’ complaint concerns the second
set of proceedings, the Court reiterates that Article 13 does
not contain a general guarantee of legal protection of all rights. It
relates exclusively to those cases in which the applicant alleges, on
arguable grounds, that one of his rights or freedoms set forth in the
Convention has been violated. In this connection the Court
refers to its above findings according to which the applicants’
complaint concerning the length of the second set of proceedings is
outside its competence ratione materiae. It
follows that this complaint is also incompatible ratione materiae
with the provisions of the Convention within the meaning of Article
35 § 3 and must be rejected pursuant to Article
35 § 4.
B. Merits
1. The parties’ arguments
- The
Government first submitted that, regardless of the fact that the
Constitutional Court had dismissed the applicant’s
constitutional complaint, the applicants had successfully availed
themselves of other remedies available to them for accelerating the
part of the proceedings that was before the administrative
authorities. In particular, on 27 October 2004 the
Administrative Court granted their action for failure to respond and
ordered the Ministry to decide on their appeal of 18 April 2003,
and the Ministry had eventually done so.
- Furthermore,
given that the applicants’ case is pending before the
Administrative Court, the Government pointed out that if that court
did not render a judgment within a reasonable time, the applicants
had the possibility of addressing the Constitutional Court once
again, which in accordance with its jurisprudence, sanctioned the
excessive length of proceedings before the Administrative Court.
- Relying
on the Court’s case-law (see BoZić v. Croatia,
cited above, § 35) – according to which even if a
single remedy does not by itself entirely satisfy the requirement of
effectiveness, the aggregate of remedies afforded by domestic law may
do so – the Government deemed that the remedies to which they
referred, taken in aggregate, met the requirement of effectiveness.
Thus, the applicants had had an effective remedy for their complaint
about the length of the first set of proceedings.
- The
applicants contested these arguments.
2. The Court’s assessment
(a) As to the action for failure to respond
- The
Court notes that, following the applicants’ action for failure
to respond of 24 September 2003, the Administrative Court in its
judgment of 27 October 2004 ordered the Ministry of Justice to
decide on their appeal within thirty days (see paragraph 16 above).
However, it was not until 15 February 2006 that the Ministry did
so (see paragraph 17 above). That was more than one year and three
months after 9 November 2004, the date on which the
Administrative Court’s judgment was served on the Ministry (see
paragraph 16 above).
- What
is more, when the applicants, with a view to preventing the
aforementioned delay, on 17 December 2004 addressed the
Administrative Court for the second time requesting it to decide on
their appeal itself, that court declared their request inadmissible
as being premature (see paragraphs 15-16 above). In doing so it held
that its previous judgment of 27 October 2004 had only been served on
the Ministry on 9 November 2004 and that therefore the
applicant’s request of 6 December 2004 urging the Ministry
to decide on their appeal had been submitted too early. The
Administrative Court held in this way despite the fact that the
applicants could not possibly have known when the judgment of 27
October 2004 had been served on the Ministry, and despite the fact
that on 9 March 2005, when it gave its decision declaring the
applicants’ request premature, it was clear that the Ministry
had not complied with that court’s order to decide the
applicants’ appeal within thirty days.
- The
Court therefore considers that in the instant case, where the
Ministry failed to comply with the Administrative Court’s
judgment in a timely fashion and where that court, in a manner
amounting to excessive formalism, declared inadmissible the
applicants’ subsequent request to sanction the behaviour of the
Ministry, it cannot be argued, as the Government did, that “the
applicants successfully availed themselves of other remedies
available to them for accelerating the proceedings in their part
before the administrative authorities.”
(b) As to the constitutional complaint
- The
Court notes that the above-cited practice of the Constitutional Court
(see paragraphs 37-38 above) indicates that the Constitutional Court,
when deciding a constitutional complaint concerning the length of
proceedings pending before the Administrative Court, does not take
into consideration their overall duration as it excludes the period
during which the case was pending before the administrative
authorities. The Court reiterates in this connection that in its
judgments in the BoZić and Počuča cases
it noted that that approach of the Constitutional Court differed from
the one of the Court as it did not cover all stages of the
proceedings. For that reason the Court held that a constitutional
complaint alone could not be considered an “effective”
remedy within the meaning of Articles 35 § 1 and 13 of the
Convention in respect of the length of administrative proceedings
(see BoZić v. Croatia, cited above, §§ 34, 36
and 45, and Počuča v. Croatia, cited above, § 37).
As the Government did not submit any evidence to the contrary, the
Court sees no reasons to reach a different conclusion in the present
case.
(c) As to the aggregate of remedies
- Since,
as already noted above (see paragraph 63 above) the applicants’
action for failure to respond did not result in the acceleration of
the part of the proceedings that was before the administrative
authorities, the Court is unable to conclude, in the circumstances of
the present case, that this remedy could have increased the
effectiveness of a constitutional complaint. As a constitutional
complaint alone cannot be considered an effective remedy for the
length of administrative proceedings (see paragraph 64 above), it
follows that in the present case the applicants did not have an
effective remedy for their complaint about the length of the first
set of proceedings.
- There
has accordingly been a breach of Article 13.
III. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 TO
THE CONVENTION
- Lastly,
the applicants complained under Article 1 of Protocol No. 1 to the
Convention that their right to respect for their property had been
violated in that they had not been able to obtain the restitution of
the plot of land which had been nationalised. Article 1 of Protocol
No. 1 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
Court notes that the proceedings to
determine the applicants’ claim for restitution of the
land at issue (the first set of proceedings) are still pending. In
these circumstances, the Court considers that it
would
be premature
to take
a position
on the substance of this complaint (see, for example, Krysziewicz
v. Poland (dec.), no.
77420/01, 29 November 2005, and Wesołowska
v. Poland (dec.), no.
17949/03, 4 March 2008). It follows that this complaint is
inadmissible as premature and must be rejected pursuant to
Article 35 § 4 of the Convention.
IV. 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 328,500 euros (EUR) in respect of pecuniary damage
and EUR 75,000 in respect of non-pecuniary damage.
- The
Government contested these claims.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim. On
the other hand, it awards each applicant EUR 3,000 in respect of
non-pecuniary damage, plus any tax that may be chargeable on that
amount.
B. Costs and expenses
- The
applicants also claimed 332,267 Croatian kunas (HRK) for the costs
and expenses incurred before the domestic authorities.
- The
Government contested the 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 applicants jointly the sum of
EUR 660 for costs and expenses in the domestic proceedings, plus any
tax that may be chargeable on that amount.
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 complaints concerning the excessive
length of the first set of proceedings and the lack of an effective
remedy in this respect admissible and the remainder of the
application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds that there has been a violation of Article
13 of the Convention;
- Holds
(a) that
the respondent State is to pay, 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 Croatian kunas at a
rate applicable at the date of settlement:
(i) to
each applicant EUR 3,000 (three thousand euros) in respect of
non-pecuniary damage;
(ii) to
the applicants jointly EUR 660 (six hundred and sixty euros) in
respect of costs and expenses;
(iii) any
tax that may be chargeable to the applicants 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 16 October 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
André Wampach Christos Rozakis
Deputy Registrar President
