European Court of Human Rights

 

 

 

FIRST SECTION

CASE OF PERO MARIĆ v. CROATIA

(Application no. 29525/15)

 

 

 

 

 

JUDGMENT

 

 

 

 

STRASBOURG

17 March 2022

This judgment is final but it may be subject to editorial revision.

In the case of Pero Marić v. Croatia,

The European Court of Human Rights (First Section), sitting as a Committee composed of:

          Péter Paczolay, President,
          Raffaele Sabato,
          Davor Derenčinović, judges,
and Liv Tigerstedt, Deputy Section Registrar,

Having regard to:

the application (no. 29525/15) 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 Croatian national, Mr Pero Marić (“the applicant”), on 13 June 2015;

the decision to give notice to the Croatian Government (“the Government”) of the complaint concerning the right to the peaceful enjoyment of possessions and to declare inadmissible the remainder of the application;

the parties’ observations;

Having deliberated in private on 22 February 2022,

Delivers the following judgment, which was adopted on that date:

INTRODUCTION

1.  The case concerns the State’s positive obligations under Article 1 of Protocol No. 1 to the Convention in a situation where, after the State had sequestered the applicant’s house and the local authorities had given it for temporary use to third persons, the property was returned to him damaged and plundered.

THE FACTS

2.  The applicant was born in 1945 and lives in Slavonski Brod. He was represented by Mr P. Krnić, a lawyer practising in Slavonski Brod.

3.  The Government were represented by their Agent, Ms Š. Stažnik.

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

Events giving rise to the dispute

5.  The applicant and his wife are the owners of a three-storey house in the town of Slavonski Brod, Croatia.

6.  In 1971 the applicant had gone to work in Germany whereas his wife and children had remained living in the house until September 1991 when they also joined him in Germany.

7.  On 23 May 1992 the house was blown up by an explosive device, which rendered the first floor uninhabitable. The police made inquiries but was unable to identify the perpetrator.

8.  On 12 October 1992 the local authorities allowed a certain Mr D.I., a military policeman, to use the applicant’s house temporarily.

9.  In August 1993 a certain family D., refugees from Bosnia and Herzegovina, moved in instead of D.I. who had in the meantime left the house.

10.  On 27 September 1995 the Temporary Takeover and Administration of Certain Property Act (“the Sequestration Act”) entered into force. It provided that property belonging to persons who had left Croatia after 17 October 1990 was to be sequestered - that is to say, taken into the care of and controlled by the State. It also entitled local authorities (sequestration commissions) to temporarily accommodate other persons in such property.

11.  On 26 March 1997 the Slavonski Brod Township Sequestration Commission issued a decision allocating the applicant’s house for temporary use to family D.

12.  On 5 August 1998 the Act on the Termination of the Sequestration Act entered into force. It repealed the Sequestration Act and provided that persons whose property had, during their absence from Croatia, been sequestered and used to accommodate others should apply to the relevant local authorities - the housing commissions - for the recovery of their property.

13.  In early 2000 the applicant lodged an application for the recovery of his house with the Slavonski Brod Township Housing Commission, as provided by the Termination Act. However, the commission could not grant his request immediately because it was unable to secure alternative accommodation for family D.

14.  On 14 April 2000 the applicant instituted proceedings for perpetuation of evidence (osiguranje dokaza) before the Slavonski Brod Municipal Court (Općinski sud u Slavonskom Brodu) against the Slavonski Brod Township and two members of family D. claiming that they had been removing certain items from his house (windows, radiators, central heating stove etc.).

15.  On 21 July 2000 the court held an on-site inspection in the presence of an expert who established that the house had been damaged by the explosion (see paragraph 7 above) but that there was also a further damage which had not been caused by the explosion. The expert assessed the total damage, including the one from the explosion, at 206,178.76 Croatian kunas (HRK).

16.  On 11 December 2000 the applicant repossessed his house and found that most of the movable property in it were missing and that parts of the house had been badly damaged.

Civil proceedings

17.  On 5 April 2001 the applicant brought a civil action in the Slavonski Brod Municipal Court against the Slavonski Brod Township seeking compensation for the damage to his house. He did not claim compensation for the damage caused by the explosion (see paragraph 7 above) but only for the further damage established by the court expert in the proceedings for perpetuation of evidence (see paragraph 15 above), which damage was in the applicant’s view caused by the temporary occupants.

18.  After the court on 10 March 2008 obtained an expert report which assessed the total damage to the house at HRK 265,575.94, the applicant deducted from it the amount which in his view corresponded to the damage caused by the explosion and sought HRK 231,284.25 in compensation for the further damage.

19.  By a judgment of 11 June 2008, the Municipal Court dismissed the applicant’s action.

20.  By a judgment of 22 December 2008, the Slavonski Brod County Court (Županijski sud u Slavonskom Brodu) dismissed an appeal by the applicant and upheld the first-instance judgment.

21.  By a decision of 13 April 2011, the Supreme Court (Vrhovni sud Republike Hrvatske) declared inadmissible an appeal on points of law (revizija) by the applicant. It held that under the legislation in force neither the State nor the local authorities could be held liable for damage inflicted on sequestered property by third persons, including temporary occupants.

22.  On 3 December 2014 the Constitutional Court (Ustavni sud Republike Hrvatske) dismissed the applicant’s constitutional complaint and on 16 December 2014 notified his representative of its decision.

RELEVANT LEGAL FRAMEWORK

23.  The relevant provision of the Civil Procedure Act concerning the reopening of proceedings following a final judgment of the European Court of Human Rights, namely section 428a, is cited in Lovrić v. Croatia (no. 38458/15, § 24, 4 April 2017).

24.  The other relevant domestic law as well as the relevant international and the Council of Europe instruments are set out in Dabić v. Croatia (no. 49001/14, §§ 25-29 and 31-32, 18 March 2021).

THE LAW

ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL no. 1 to THE CONVENTION

25.  The applicant complained that his property had been damaged and plundered in 2000 and that the State bore liability for that damage. He relied on Article 1 of Protocol No. 1 to the Convention, which reads as follows:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

A.    Admissibility

1.     The parties’ submissions

26.  The Government disputed the admissibility of the application, arguing that it was incompatible ratione temporis with the provisions of the Convention.

27.  They pointed out that in the civil proceedings the applicant had sought compensation for the damage to his house caused by the temporary occupants (see paragraphs 17-18 above) without indicating when the damage had occurred and which of the temporary occupants had damaged the house. Given that the temporary occupants had lived in the applicant’s house in the period between 1992 and 2000 (see paragraphs 8-11 and 17 above), the damage could have occurred at any moment during that period, including the time before the entry into force of the Convention in respect of Croatia on 5 November 1997. The expert report obtained in the proceedings for perpetuation of evidence assessing the damage to the house (see paragraph 15 above) had not been a proof as to when the damage had occurred.

28.  The applicant replied that the damage occurred in 2000 when family D. had moved out of his house, that is, at the time when the Convention had already been in force in respect of Croatia.

2.     The Court’s assessment

29.  The Court finds that the question of compatibility ratione temporis is inextricably linked to the merits of this complaint. Therefore, to avoid prejudging the latter, both questions should be examined together. Accordingly, the question of compatibility ratione temporis should be joined to the merits.

30.  The Court further notes that the application is neither manifestly ill‑founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.

B.    Merits

31.  The Court reiterates that when the authorities seize property, they also take on a duty of care in respect of it and are liable for the damage and/or loss of such property. Thus, when seizing property, the authorities must not only take the reasonable measures necessary for its preservation, but domestic legislation must also provide for the possibility of obtaining compensation for the damage resulting from the failure to keep such property in relatively good condition (see Dabić, v. Croatia, no. 49001/14, § 55 18 March 2021 and the cases cited therein).

32.  In the present case the State sequestered the applicant’s house and the local authorities gave it for temporary use to third persons (see paragraphs 8, 10 and 11 above). The house was eventually returned to the applicant plundered and damaged (see paragraphs 15-17 above).

33.  It was not disputed that the applicant’s house had not only been damaged by an explosive device in 1992 (see paragraph 7 above) but that it had also sustained a further damage which had occurred while the temporary occupants had been living in it, that is, in the period between 12 October 1992 and 11 December 2000 (see paragraphs 8-11 and 17 above). The applicant instituted civil proceedings against the local authorities arguing that they were liable for that further damage which had in his view been caused by the temporary occupants (see paragraph 18 above).

34.  The Court considers that in those circumstances the above-mentioned positive obligation of the State under Article 1 of Protocol No. 1 (see paragraph 31) would have, at the very least, required the domestic courts to examine the substance of the applicant’s claim, rather than dismissing it by categorically excluding any liability of the State or the local authorities in the matter (see paragraphs 19-21 above). Had they done so, the circumstances surrounding the occurrence of the damage - including the relevant point in time - could have been established. If such an examination had shown that the damage occurred before the ratification, the Government could have successfully relied on that argument.

35.  However, the domestic courts did not conduct such an examination nor did the Government provide any other evidence that the damage had occurred before the ratification date. The time when the damage occurred thus remained unproven.

36.  Because of this, the Government’s incompatibility ratione temporis argument is in effect built on an omission attributable to the respondent State’s own authorities. The Government cannot invoke in their defence failures or negligence of their own State authorities (nemo auditur propriam turpitudinem allegans) (see, mutatis mutandis, Monory v. Hungary and Romania (dec.), no. 71099/01, 17 February 2004). To hold otherwise would in the given circumstances render the protection guaranteed by the Convention nugatory, it being understood that the Convention as a whole, must be interpreted in such a way as to guarantee rights that are practical and effective, not theoretical or illusory (see, among many other authorities, Vistiņš and Perepjolkins v. Latvia [GC], no. 71243/01, § 114, 25 October 2012).

37.  It follows that the Government’s inadmissibility objection as to the incompatibility ratione temporis (see paragraphs 26-27 above) must be dismissed.

38.  The Court further notes that it has already found a violation of Article 1 of Protocol No. 1 to the Convention in a case raising similar issues to the present one (see Dabić, cited above, §§ 47-60).

39.  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.

40.  There has accordingly been a violation of Article 1 of Protocol No. 1 to the Convention.

APPLICATION OF ARTICLE 41 OF THE CONVENTION

41.  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

42.  The applicant claimed 30,837.90 euros (EUR) in respect of pecuniary damage, which corresponded to the damage to the house and to the value of the items missing from it. That claim was equal to his compensation claim in the domestic proceedings (see paragraph 18 above).

43.  The Government contested that claim.

44.  The Court notes that under section 428a of the Civil Procedure Act (see paragraph 23 above), an applicant may request reopening of the civil proceedings in respect of which the Court has found a violation of the Convention. It further notes that the applicant’s house was first damaged by the explosion which gives rise to difficulties in determining the exact extent of the further damage claimed by the applicant (see paragraphs 15, 17-18 and 42 above). The Court therefore considers that in the present case the most appropriate way of repairing the consequences of that violation is to reopen the proceedings complained of (see, mutatis mutandis, Dabić, cited above, § 65). As it follows that the domestic law allows such reparation to be made, the Court considers that there is no call to award the applicant any sum in respect of pecuniary damage (ibid.).

45.  The Court further notes that the applicant made no claim in respect of non-pecuniary damage. It therefore does not award him any sum on that account.

B.    Costs and expenses

46.  The applicant also claimed EUR 13,882.50 for the costs and expenses incurred before the domestic courts and for those incurred before the Court.

47.  The Government contested that claim.

48.  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 were actually and necessarily incurred and are reasonable as to the quantum.

49.  In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award EUR 830 for the costs of the constitutional complaint (see paragraph 22 above), plus any tax that may be chargeable to the applicant. The remainder of the applicant’s claim for costs and expenses incurred before the domestic courts must be rejected, given that he will be able to have them reimbursed should the proceedings complained of be reopened (see, for example, Stojanović v. Croatia, no. 23160/09, § 84, 19 September 2013).

50.  As regards the costs and expenses incurred before it, the Court observes that the applicant failed to comply with the requirements set out in Rule 60 § 2 of the Rules of Court in that he did not submit itemised particulars of his claim or any relevant supporting documents, even though he was invited to do so. The Court therefore rejects this part of the applicant’s claim for costs and expenses (Rule 60 § 3).

C.    Default interest

51.  The Court considers it appropriate that the default interest rate 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,

1.      Joins to the merits the Government’s objection as to incompatibility ratione temporis and rejects it;

2.      Declares the application admissible;

3.      Holds that there has been a violation of Article 1 of Protocol No. 1 to the Convention;

4.      Holds,

(a)  that the respondent State is to pay the applicant, within three months, EUR 830 (eight hundred and thirty euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

5.      Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 17 March 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

                       

            Liv Tigerstedt                                                     Péter Paczolay
          Deputy Registrar                                                      President