Stjepan RAUS and Biserka RAUS RADOVANOVIC v Croatia - 43603/05 [2008] ECHR 1175 (2 October 2008)

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Application no. 43603/05
by Stjepan RAUŠ and Biserka RAUŠ RADOVANOVIĆ
against Croatia

The European Court of Human Rights (First Section), sitting on 2 October 2008 as a Chamber composed of:

Anatoly Kovler, President,
Nina Vajić,
Khanlar Hajiyev,
Dean Spielmann,
Sverre Erik Jebens,
Giorgio Malinverni,
George Nicolaou, judges,
and André Wampach, Deputy Section Registrar,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

The first applicant, Mr Stjepan Rauš, was born in 1932 and died on 24 May 2007. He was a Croatian national. The second applicant, Mrs Biserka Rauš Radovanović, is a Croatian national who was born in 1958 and lives in VaraZdin. She is the first applicant's daughter and his sole heir. Before the Court both applicants were represented by Mr G. Vučetić, a lawyer practising in VaraZdin. The Croatian Government (“the Government”) were represented by their Agent, Mrs Š. StaZnik.

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

On 2 March 1981 the administrative authorities issued a decision expropriating a plot of land in VaraZdin, together with the house built on it, with a view to building a public elementary school there. At that time, the house was owned by the first applicant who lived in it together with his wife and daughter (the second applicant). Even though the decision stipulated that the house was to be demolished, it appears that this never happened and that the applicants remained living there. The second applicant left the house in 1984, after she got married.

As the first applicant and the local authorities (who were the beneficiaries of the expropriation) had not been able to agree on the amount of compensation that should be granted for the expropriated property, on 13 July 1981 non-contentious proceedings for determining the said compensation were instituted before the VaraZdin Municipal Court. The parties to those proceedings were the first applicant, on one side, and the local authorities, on the other. The second applicant acted as her father's representative in those proceedings.

On 8 May 1984 the Municipal Court issued a decision awarding the first applicant 1,091,809.66 Yugoslav dinars (YUD) in compensation. On 28 September 1984 the VaraZdin County Court dismissed the first applicant's appeal and upheld the first-instance decision. On 5 March 1987 the Supreme Court allowed the first applicant's appeal on points of law (revizija), quashed the lower courts' decisions in part and remitted the case back to the first-instance court. It instructed the first-instance court to determine whether, apart from the sum already awarded on 8 May 1984, the first applicant should receive an additional amount of compensation.

In the resumed proceedings, on 7 March 1988 the VaraZdin Municipal Court issued a decision awarding the first applicant the additional amount of YUD 4,555,093. On 29 September 1988 the VaraZdin County Court allowed the first applicant's appeal, quashed the first-instance decision and remitted the case.

In the resumed proceedings, on 13 May 1993 the VaraZdin Municipal Court dismissed the first applicant's claim for additional compensation. On 21 October 1993 the VaraZdin County Court allowed his appeal, quashed the first-instance decision and remitted the case.

In the fresh proceedings, the VaraZdin Municipal Court held a hearing on 11 February 1994. On 18 February 1994 the new Expropriation Act entered into force. Shortly afterwards, the case was transferred to the administrative authorities, in particular the regional office of the state administration in the County of VaraZdin (the VaraZdin Office).

In the ensuing administrative proceedings, the VaraZdin Office held hearings on 22 September 1995, 24 January 1996, 26 June and 4 September 2001 and 20 December 2002.

On 30 December 2002 the Office issued a decision dismissing the first applicant's claim for additional compensation. On 17 February 2003 the first applicant appealed.

On 17 October 2003 the Ministry of Justice (Ministarstvo pravosuđa) quashed the first-instance decision and remitted the case.

In the resumed proceedings, the VaraZdin Office held hearings on 17 February 2004, 10 April, 20 September and 14 December 2007 as well as holding in situ inspections on 11 and 17 September 2007.

The first applicant died on 24 May 2007. On 20 June 2007 the second applicant, who until then had only acted as her father's representative, was declared his only heir and soon afterwards took over the proceedings.

On 31 December 2007 the VaraZdin Office issued a decision awarding the second applicant 588,800.45 Croatian kunas (HRK) in compensation. The second applicant appealed to the Ministry of Justice.

On 16 April 2008 the second applicant and the local authorities (the Town of VaraZdin) reached an out-of-court settlement whereby they agreed to pay her the amount of HRK 706,252.47 in compensation for the property expropriated from her father whereas she waived any further claims against them in respect of compensation for the expropriated property and agreed to withdraw her claim and appeal in the above administrative proceedings.

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:

“(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 individual's rights and obligations or a criminal charge against him or her within a reasonable time, or if it is satisfied that the contested act grossly violates constitutional rights and it is completely clear that the complainant may risk serious and irreparable consequences if the constitutional court proceedings are not instituted.

(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.

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:

Section 218 (1) provides that in simple matters, where there is no need to undertake separate examination proceedings, an administrative authority shall give a decision and serve it on a party within one month following the submission of an application. In all other, more complex cases, the authority shall give a decision and serve it on a party within two months.

Section 218 (2) provides that a party whose application has not been decided and served within the time-limits set out in paragraph (1) may lodge an appeal (appeal for failure to respond, Zalba zbog šutnje administracije) as if his or her application had been dismissed.

Section 247 (1) provides that the decision on the appeal shall be given and served on a party as soon as possible but at the latest within two months following the submission of the appeal.

Section 246 (1) provides that the second-instance administrative authority deciding on the appeal for failure to respond shall request the first-instance authority to give reasons for its omission. If it finds that the failure to respond was attributable to the party or the reasons for such omission were otherwise justified, the second-instance authority shall order the first-instance authority to give a decision within one month. If it finds that the omission was not justified, it shall request the case file.

Section 246 (2) provides that if the case file contains sufficient information, the second-instance administrative authority shall decide the case. Otherwise, it shall first hear the case and take evidence, and then give a decision. Exceptionally, if it considers that such a procedure would save time and costs, it shall order the first-instance authority to hear the case and take evidence within a specified time-limit, whereupon it shall decide the case itself. Such a decision shall be final.

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.

In her letter to the Court of 3 July 2007 the second applicant informed the Court that the first applicant had died on 24 May 2007 and that she had taken over the domestic proceedings. She submitted a death certificate and a decision of a public notary of 20 June 2007 naming her as his sole heir. She also stated that, being the first applicant's sole heir, she was “entitled to take over the proceedings before the European Court of Human Rights after the late applicant” and requested the Court “to continue the proceedings.” The Government did not contest this request.

The Court considers that the second applicant expressed the wish to continue the case not only in her own right but also in her father's place and finds that she has standing to do so.

The applicants complained about the failure of the administrative authorities to pay them compensation for the first applicant's expropriated property. They relied on 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 disputed the admissibility of this complaint on two grounds: they argued that the second applicant could not be considered a victim of the violation complained of, and that the applicants had failed to exhaust domestic remedies.

In their observations of 16 May 2007, the Government argued that the second applicant was not, nor had ever been the owner of the expropriated property. Moreover, whereas she had represented her father, she had not been a party to the proceedings complained of. Therefore, in the Government's view, she could not claim to be a victim of the alleged violation of the right to peaceful enjoyment of her possessions.

In her reply of 3 July 2007 to the Government's observations, the second applicant responded that in the application to the Court, she had not claimed to be either the victim, the owner of the expropriated property, the party to the proceedings complained of or even an applicant. She had only represented her father in the impugned proceedings. Thus, she left for the Court to decide whether or not she could be considered a victim of the alleged violation.

The Government further noted that the applicants had actually complained about the length of the domestic proceedings determining the amount of compensation for the expropriated property, and that after the entry into force of the 1994 Expropriation Act those proceedings had been conducted before the administrative authorities, under the Administrative Procedure Act. The latter Act (sections 218 and 246) together with the Administrative Disputes Act (section 26), contained a system of remedies against the administrative authorities' failure to respond – an appeal and a separate administrative action for failure to respond (Zalba i tuZba zbog šutnje administracije) – which allowed the parties in administrative proceedings to prevent any unnecessary delays before those authorities and quickly bring their case before the Administrative Court (see above under the Relevant domestic law). However, the Government claimed, the applicants had failed to avail themselves of those remedies and thereby accelerate the proceedings complained of.

The applicants replied that the remedies suggested by the Government could not be considered effective in practice. Given that the domestic authorities had been so inefficient that even after 26 years they had been unable to bring the proceedings to an end, the applicants considered that resorting to any further remedy in the same case would have been completely futile.

The Court notes that on 16 April 2008 the second applicant and the local authorities reached an out-of-court settlement whereby they agreed to pay her the amount of 706,252.47 Croatian kunas (HRK) in compensation for the property expropriated from her father whereas she waived any further claims against them in respect of compensation for the expropriated property and agreed to withdraw her claim and appeal in the above administrative proceedings. In these circumstances, the Court considers that the applicants can no longer claim to be victims, within the meaning of Article 34 of the Convention, of the alleged violation of their right to peaceful enjoyment of possessions.

In view of this conclusion, it is not necessary for the Court to examine the Government's objections concerning the second applicant's victim status in the period prior to the above out-of-court settlement and the failure of the applicants to exhaust domestic remedies.

In their application form the applicants complained under Article 8 of the Convention that they had been deprived of their home and rendered homeless. However, in their reply to the Government's observations they reformulated their complaint under that Article and complained about the lack of compensation for expropriation and the imposition of a rent. Article 8 of the Convention in its relevant part reads as follows:

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

The Government disputed the admissibility of this complaint on three grounds. They argued that the second applicant could not be considered a victim of the violation complained of, that the first applicant had failed to exhaust domestic remedies and that, in any event, their complaint was manifestly ill-founded.

The Government noted that the second applicant had moved out of the house in question in 1984, after her marriage, and that ever since she had lived with her family at another address. Therefore, the Government considered that she could not claim to be a victim of the alleged violation of the right to respect for her home.

The second applicant replied that her marriage and her subsequent departure from her parents' house had not severed her links with the house in which she had grown up.

The Government further argued that the first applicant had never raised this complaint before the domestic authorities. In particular, relying on Article 34 (1) of the Constitution, which guarantees the right to respect for one's home, and Article 8 of the Convention, he could have lodged a constitutional complaint under section 63 of the Constitutional Court Act. That provision allowed, inter alia, for proceedings to be instituted before the Constitutional Court based on such a complaint even before all remedies were exhausted if the contested act grossly violated constitutional rights and it was clear that the complainant might risk serious and irreparable consequences. However, he had never done so.

The applicants repeated the same arguments as in their reply to the Government's non-exhaustion objection made in respect of their complaint under Article 1 of Protocol No. 1 (see above).

Lastly, the Government submitted that there had been no interference with the applicants' right to respect for their home. Contrary to the applicants' assertions, the house in question had not been demolished and the first applicant had continued living in it, whereas the second applicant had left the house in 1984. Moreover, the domestic authorities had never sought the first applicant's eviction from the house.

The applicants replied that the first applicant had been forced to remain in the house as, given the low amount of compensation awarded in the VaraZdin Municipal Court's decision of 8 May 1984, he had been unable to find any other appropriate accommodation. Moreover, while it was true that the authorities had not sought his eviction from the house, they nevertheless asked that he pay rent in respect of it.

The Court does not find it necessary to examine all the objections raised by the Government because this complaint is in any event inadmissible for the following reasons.

The Court notes that in their application the applicants claimed that they had been deprived of their home and rendered homeless. When the Government disproved these facts, the applicants did not attempt to refute the Government's claims but reformulated their complaint complaining about the lack of compensation for expropriation and the imposition of a rent.

As regards the first applicant, the Court first notes that the he remained living in the house until his death on 24 May 2007 and that the domestic authorities never sought his eviction. It also reiterates that the issues related to rent fall outside of the scope of Article 8 of the Convention (see Langborger v. Sweden, 22 June 1989, § 39, Series A no. 155).

As regards the second applicant, the Court notes that she ceased living in the house as long ago as 1984 following her marriage, and had established her home elsewhere. Apart from her claim that this had not severed her links with the house in which she had grown up, the second applicant did not submit any evidence enabling the Court to conclude that in the period after 1984 she retained “sufficient and continuous links” with the house for it to be considered her “home” for the purposes of Article 8 of the Convention (see, by converse implication, Mckay-Kopecka v. Poland (dec.), no. 45320/99, 19 September 2006).

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

The applicants also complained under Article 6 § 1 of the Convention about the length and the fairness of the proceedings. Article 6 in its relevant part reads as follows:

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

As to the applicants' complaint about the length of the proceedings, the Court first reiterates that when under the national legislation an applicant has to exhaust a preliminary administrative procedure before having recourse to a court, the proceedings before the administrative authorities are to be included when calculating the overall length of the proceedings for the purposes of Article 6 of the Convention (see, for example, Kiurkchian v. Bulgaria, no. 44626/98, § 51, 24 March 2005). The Court however observes that in the present case the proceedings for determining the amount of compensation for the expropriated property, that is to say, the applicants' “civil right” within the meaning of Article 6 of the Convention, were in the period following the Convention's entry into force in respect of Croatia (5 November 1997) pending exclusively before the administrative authorities: the VaraZdin Office and the Ministry of Justice. Before reaching any judicial authority (in the instant case, the Administrative Court) they ended by the out-of-court settlement of 16 April 2008. Thus, an issue may arise whether Article 6 is at all applicable to the proceedings in question. However, the Court considers that it does not have to address the issue of applicability of Article 6 in the present case because, even assuming so, this complaint is in any event inadmissible for the following reasons.

The Court notes that neither applicant attempted to accelerate the proceedings complained of by lodging an appeal for failure to respond (Zalba zbog šutnje administracije) to the Ministry of Justice when the VaraZdin Office exceeded the statutory time-limit of sixty days for delivering its decisions. Nor did they bring an action for failure to respond in the Administrative Court (tuZba zbog šutnje administracije) when the Ministry of Justice failed to decide their appeals within the same statutory time-limit.

In these circumstances, given that the applicants had means at their disposal to speed up the proceedings, but failed to use them, this complaint is inadmissible under Article 35 § 1 for non-exhaustion of domestic remedies and must be rejected pursuant to Article 35 § 4 of the Convention (see Štajcar v. Croatia (dec.), no. 46279/99, 20 January 2000, Sirc v. Slovenia (dec.), no. 44580/98, 16 May 2002, and, mutatis mutandis, Bašić v. Austria, no. 29800/96, §§ 34-40, ECHR 2001 I and Pallanich v. Austria, no. 30160/96, §§ 27-33, 30 January 2001).

As to the applicants' complaint about the fairness of the proceedings, the Court notes that on 16 April 2008 the second applicant and the local authorities reached an out-of-court settlement whereby, in return for the stipulated amount of compensation, she agreed, inter alia, to withdraw both her claim and her appeal in the proceedings in question.

In these circumstances, the Court finds that this complaint is inadmissible under Article 35 § 3 as manifestly ill-founded and must be rejected pursuant to Article 35 § 4 of the Convention.

E. Alleged violation of Article 14 of the Convention in conjunction with Article 1 of Protocol No. 1 thereto

Lastly, the applicants complained under Article 14 of the Convention in conjunction with Article 1 of Protocol No.1 thereto that they had been discriminated against in the enjoyment of their Convention right to respect for their property. Article 14 reads as follows:

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

The Court considers that this complaint is wholly unsubstantiated. It is therefore inadmissible under Article 35 § 3 as manifestly ill-founded and must be rejected pursuant to Article 35 § 4 of the Convention.

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You are here: BAILII >> Databases >> European Court of Human Rights >> Stjepan RAUS and Biserka RAUS RADOVANOVIC v Croatia - 43603/05 [2008] ECHR 1175 (2 October 2008) URL: http://www.bailii.org/eu/cases/ECHR/2008/1175.html Cite as: [2008] ECHR 1175