FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 9056/02 by Seka RADANOVIĆ against Croatia

The European Court of Human Rights (First Section), sitting on 19 May 2005 as a Chamber composed of:

Mr C.L. Rozakis , President , Mr P. Lorenzen , Mrs N. Vajić , Mrs S. Botoucharova , Mr A. Kovler , Mrs E. Steiner , Mr K. Hajiyev , judges , and Mr S. Nielsen , Section Registrar ,

Having regard to the above application lodged on 14 December 2001 ,

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

Having deliberated, decides as follows:

THE FACTS

The applicant, Mrs Seka Radanović , who is both a Croatian and Canadian national, was born in 1939 and lives in Burlington , Canada . The respondent Government were represented by their Agents, firstly Ms L. Lukina-Karajković and then by Ms Š. Stažnik .

A. The circumstances of the case

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

The applicant is the owner of a flat in Karlovac where she lived until 1991. Subsequently, she left for Germany and, later on, Canada , where she currently lives.

On 27 September 1995 the Temporary Takeover and Managing of Certain Property Act ( Zakon o privremenom preuzimanju i upravljanju određenom imovinom – “the Takeover Act”) entered into force. The Takeover Act provided that all property of persons who left Croatia was to be taken into care and controlled by the State. It also entitled local authorities (takeover commissions) temporarily to accommodate other persons in such property.

On the same date the Karlovac Municipality Commission for Temporary Takeover and Use of Property ( Komisija za privremeno preuzimanje i korištenje imovine Općine Karlovac – “the Takeover Commission” ) issued a decision authorising M.V. to use the applicant ' s flat temporarily. The applicant submits that this decision was never served on her.

On 24 September 1996 the applicant brought a civil action against a certain family U. with the Karlovac Municipal Court ( Općinski sud u Karlovcu ) seeking repossession of her flat.

On 16 November 1996 the Municipal Court invited the applicant to correct the action by designating the r ight respondent. On 31 November 1996 the applicant did so by designating M.V. as the respondent.

On 13 June 1997 the respondent submitted to the Municipal Court the decision of the Takeover Commission. Subsequently, the applicant submitted evidence proving that she was the owner of the flat.

In June 1998 Parliament adopted the Programme for the Return of Refugees and Displaced Persons ( Program povratka i zbrinjavanja prognanika , izbjeglica i raseljenih osoba – “the Programme for Return”), regulating the principles for their return and the repossession of their property.

In August 1998 the Act on Termination of the Takeover Act ( Zakon o prestanku važenja Zakona o privremenom preuzimanju i upravljan j u određenom imovinom – “the Termination Act”) entered into force. It incorporated, and gave legal force to, the provisions of the Programme for Return providing that persons, whose property had been given for accommodation of others during their absence from Croatia , had to file a request for repossession of their property with the competent local authorities (the housing commissions).

Since the applicant ' s attorney did not attend the hearing held on 11 November 1998 , the proceedings in the Municipal Court concerning repossession were temporarily stayed ( mirovanje postupka ) pursuant to the law.

On 16 February 1999 the proceedings were resumed following the applicant ' s request made on the same date.

At a hearing held on 15 September 1999 the court enquired with the Karlovac Municipality Housing Commission ( Stambena Komisija Karlovac – “the Housing Commission”) whether it had set aside the Takeover Commission ' s decision of 27 September 1996 . On 22 February 2000 the Housing Commission replied to the court in the negative.

On 10 March 2000 the Municipal Court declined jurisdiction in the matter and declared the applicant ' s action inadmissible. The court stated that the Termination Act was lex specialis in relation to the Act on Ownership and O ther R ights In R em ( Zakon o vlasništvu i drugim stvarnim pravima – “ the Property Act ”). Accordingly, the applicant, instead of filing a civil action with a court, should have filed a request for repossession of her property with a housing commission, as provided by the Termination Act.

As neither party appealed against the decision, it became final on 31 March 2000 .

On 31 March 2000 the applicant filed a request for repossession of her proper ty with the Housing Commission.

On 16 October 2000 the Housing Commission decided to set aside the Takeover Commission ' s decision by which M.V. had obtained the right of use of the applicant ' s property. It also ordered M.V. to vacate the applicant ' s flat within 15 days.

M.V. unsuccessfully appealed against that decision to the Karlovac Municipal Court.

On 4 June 2001 the Housing Commission ordered M.V. to vacate the flat within 15 days following the receipt of the order and indicated that otherwise it would bring a civil action against him with the competent municipal court.

It appears that M.V. failed to comply with that order. However, the Housing Commission brought no action against him.

On 1 October 2002 the Amendments to the Act on Areas of Special State Care (“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 21 February 2003 the Ministry invited the applicant to contact its competent regional office in order to repossess her flat and/or receive compensation for the prolonged inability to use it, in accor dance with the 2002 Amendments.

One day later the Ministry issued a decision by which it established that M.V. had a right to housing which was to be satisfied by providing him with construction material, in line with the 2002 Amendments. Pursuant to that decision M.V. was obliged to vacate the flat within 90 days after the final shipment of the construction material. The date on which M.V. received the final shipment is unknown.

On 2 April 2003 the applicant contacted the Ministry and requested compensation. She also reiterate d her request for repossession.

On 23 June 2003 the Ministry made an offer for a settlement according to which the State was to pay damages to the applicant. However, the applicant declined the offer as unsatisfactory. She submits that the amount of compensation offered covered only the period from 1 November 2002 onwards. Moreover, the compensat ion amounted to only 314 Croatian kunas (HRK) per month while the amount of the rent for the flat should be assessed at HRK 2,500 .

In December 2003 M.V. delivered the flat to the Ministry and the applicant repossessed it on 13 January 2004 .

B. Relevant domestic law and practice

Relevant parts of the Takeover Act ( Zakon o privremenom preuzimanju i upravljanju određenom imovinom , Official Gazette nos. 73/95 and 7/96) provide as follows.

Section 2 provides that property situated in the previously occupied territories and belonging to persons, who had left Croatia , shall be taken into care of and controlled by the State.

Section 5, inter alia , authorises the takeover commissions to give the property from Section 2 for temporary use to refugees, displaced persons and persons whose property was destroyed in war.

Section 7 obliges the temporary occupants to use the property given with the care of a prudent administrator ( bonus paterfamilias ) and forbids them to sell the property or to create any charge on it.

Section 161 (1) of the Property Act ( Zakon o vlasništvu i drugim stvarnim pravima , Official Gazette nos. 91/96, 73/00 and 114/01) entitles the owner of property to recover it against anyone who possesses it.

Section 163 (1) provides that the possessor may refuse to deliver the property to its owner if he has a right which authorises him to possess it (the right to possession).

Section 9 of the Programme for Return ( Program povratka i zbrinjavanja prognanika , izbjeglica i raseljenih osoba , Official Gazette no. 92/98) provides as follows:

“Persons with Croatian documents, who are owners of property in Croatia where other persons are temporarily accommodated, may apply to the municipal housing commissions and seek repossession of their property. The commission shall inform the owner within five days about the status of his property. Relying on the proof of ownership, the commission shall set aside any previous decision allowing temporary accommodation of other persons and order the persons accommodated to vacate the premises. The commission shall serve a written decision on the owner and the temporary occupier within seven days. The decision shall contain a time-limit for eviction and an offer of an alternative lodging for the temporary occupier in a house or a flat in state ownership.

...

“If a temporary occupier does not vacate the premises within the fixed time, the commission shall institute eviction proceedings in the competent municipal court within seven days. The court shall apply the provisions concerning the civil summary proceedings. The court ' s decision is immediately enforceable. An appeal does not interfere with the enforcement proceedings or the re-possession of the property by the owner.”

Section 2(3) and 2(4) of the Termination Act ( Zakon o prestanku važenja Zakona o privremenom preuzimanju i upravljanu određenom imovinom , Official Gazette no. 101/98) provide that the Programme for Return applies to proceedings concerning temporary use, management and control of the property of persons who left Croatia and that these proceedings are to be conducted by the housing commissions in the first instance and by the municipal courts in the second instance. They shall apply provisions of the Administrative Proceedings Act.

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 the owner ' s repossession request conferred on the administrative authorities under the Termination Act does not exclude the general court jurisdiction in the matter 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 occupant 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. If the administrative decision giving the property for temporary use to the occupant had not been set aside in the administrative proceedings by a competent authority, the occupant should be considered to possess the property with right and the owner ' s claim should, accordingly, be dismissed pursuant to the section 163(1) of the Property Act. However, if the decision had been set aside, the owner ' s claim should be accepted and the temporary occupant ordered to vacate the property. It follows that a successful civil action for repossession presupposes the successful outcome of the administrative proceedings instituted with a view to setting aside the decision by which the temporary occupant had been allowed to use the owner ' s property.

The Amendments of Act on the Areas of Special State Concern ( Zakon o izmjenama i dopunama Zakona o područjima od posebne državne skrbi , Official Gazette no. 88/02 – “the 2002 Amendments”) transfer jurisdiction 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”).

Sections 8, 9 and 17 of the Act on the Areas of Special State Concern ( Zakon o područjima od posebne državne skrbi , Official Gazette nos. 44/96, 57/96 (correction), 124/1997, 73/2000, 87/2000 (correction), 69/01, 94/01, 88/02, 26/03 (consolidated text)), as amended by the 2002 Amendments, provide that a temporary occupant has a right to housing.

Section 18(1) provides that a temporary occupant, whose right to housing is to be satisfied by providing him with construction material, shall vacate the house or the flat given for temporary use within 90 days of the final shipmen t of the construction material.

Section 18(2) provides that in case a temporary occupant fails to observe the above time-limit, the State Attorney shall, within next 15 days following the lapse of the time-limit, institute civil proceedings for his eviction.

Section 18(5) provides that, regardless of whether or not the State Attorney has filed a civil action for eviction, the owner has an independent right to file such action for the protection of his ownership.

Section 27 provides that the Ministry shall compensate the damage suffered by the owner who has submitted the request 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 to Owners for the Damage Incurred ( Odluka o visini naknade za pretrpljenu Å¡tetu , Official Gazette no. 68/03) establishes the above compensation as HRK 7 per square metre.

COMPLAINTS

1. The applicant complains under Article 1 of Protocol No. 1 that she was prevented from repossessing her property for a prolonged period of time.

2. The applicant also complains under Article 13 of the Convention that she has no effective remedy at her disposal for the protection of her property rights.

THE LAW

1. The applicant submits that she had been prevented from repossessing her property for a prolonged period of time contrary to Article 1 of Protocol No. 1 which in the relevant part 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. The Government contest this view. They firstly submit that this complaint is incompatible ratione personae with the provisions of the Convention in so far as the applicant can no longer claim to be a victim of a violation of the Convention as she regained possession of her flat on 13 January 2004. Moreover, the applicant was offered compensation for the damage suffered due to a prolonged impossibility to use her flat, but she rejected it.

The applicant submits that the amount of compensation offered covered only the period after 1 November 2002 . Furthermore , the comp ensation amounted to only HRK 314 per month while the amount of the rent for the flat should be assessed at HRK 2,500. Therefore, the applicant finds the compensation offered unsatisfactory.

The Court considers that an applicant ' s status as a victim may depend on compensation being awarded at domestic level on the basis of the facts about which he or she complains before the Court (see Andersen v. Denmark , no. 12860/87, and Frederiksen and Others v. Denmark , no. 12719/87, Commission decisions of 3 May 1988; Normann v. Denmark ( dec .), no. 44704/98, 14 June 2001; and Jensen and Rasmussen v. Denmark ( dec .), no. 52620/99, 20 March 2003) and on whether the domestic authorities have acknowledged, either expressly or in substance, the breach of the Convention. Only when the se two conditions are satisfied does the subsidiary nature of the protective mechanism of the Convention preclude examination of an application (see Eckle v. Germany , judgment of 15 July 1982, Series A no. 51, p. 32, §§ 69 et seq ., and Jensen v. Denmark ( dec .), no. 48470/99, ECHR 2001-X).

The Court observes that the present application concerns a situation where the applicant was unable to access her property for more than seven years and three months (of which six years and two months fall within the Court ' s competence ratione temporis ). However, the alleged violation was not recognised by any decision of the domestic authorities ; and , irrespective of its amount, the compensation offered to the applicant did not cover the period prior to 1 November 2002 .

In these circumstances, the Court is satisfied that the applicant may claim to be a victim of the violation of the rights guaranteed by the Convention.

It follows that the Government ' s objection must be dismissed.

b. The Government also invite the Court to declare the complaint inadmissible on the ground that the applicant failed to exhaust domestic remedies. They submit in particular that the applicant failed to appeal against the Karlovac Municipal Court ' s decision of 10 March 2000 by which that court declined jurisdiction in the case and declared the applicant ' s action inadmissible. Moreover, since 1 October 2002 , when the 2002 Amendments entered into force, the applicant has been able to file a civil action seeking repossession of her flat.

The applicant does not comment on this issue.

T he Court finds unconvincing the Government ' s argument that the applicant should have appealed against the Karlovac Municipal Co urt ' s decision of 10 March 2000 . It is true that, according to the above cited case-law of the Supreme Court, the applicant ' s action was, in the circumstances, to be dismissed on the merits rather than declared inadmissible. However, for the Court, to lodge an appeal to obtain, ultimately, a negative judgment on the merits instead of a negative procedural decision would have been futile, and this omission cannot be held against the applicant .

As regards the Government ' s suggestion that from 1 October 2002 onwards the possibility to institute civil proceedings and obtain a decision on the merits was again opened to the applicant herself , the Court firstly recalls that the issue whether the domestic remedies have been exhausted shall be determined by reference to the date when the application was lodged with the Court (see Baumann v. France , no. 33592/96, § 47, ECHR 2001 ‑ V (extracts)). In this connection, the Court observes that the applicant lodged her application with the Court on 14 December 2001 while the remedy suggested by the Government (a civil action) became available only on 1 October 2002 . Moreover, the Court observes that under the 2002 Amendments a civil action would possibly have been successful only if introduced within a 15-day time-limit following a 90-day period counted from the final shipment of the construction material to M.V. Since this event was beyond the knowledge and control of the applicant, that remedy cannot be considered effective.

It follows that the Government ' s objection as to the non-exhaustion of domestic remedies must be dismissed.

c . In the alternative, the Government invite the Court to reject the application as manifestly ill-founded.

They admit that there was an interference with the applicant ' s right to peaceful enjoyment of her possessions when the domestic authorities placed other persons in the applicant ' s flat. They argue that this measure amounted to control of use of property. The interference was based on law, namely section 5 of the Takeover Act and, later on, the Termination Act and the 2002 Amendments. Moreover, the measure was in accordance with the general interest since it pursued a legitimate aim. The aim of these statutes and the ensuing measure was: (a) to protect from deterioration and devastation the property which had been abandoned by its owners, (b) to enable the persons whose homes had been destroyed in the war to solve temporarily their housing needs, (c) to secure repossession of property of persons who had left Croatia but were subsequently returning, and, at the same time, (d) to protect those refugees and displaced persons who were placed in the abandoned houses and flats.

As to the proportionality of the measure, the Government firstly observe that, when establishing whether a fair balance between the general interest of the community and the protection of the individual ' s fundamental rights was struck, any special circumstances and the wide margin of appreciation afforded to the States in assessing what is in the general interest, are to be taken into consideration. They argue that the measure was proportional since it was only of a temporary character, necessary to meet a pressing social need (to provide adequate temporary accommodation for a large number of displaced persons and refugees) and narrowly tailored (the users were under duty to use the property with the care of a prudent administrator and were forbidden to sell it or to create any charge on it).

Moreover, following the applicant ' s request for repossession, the State took appropriate measures to satisfy this request in accordance with the laws in force and within the framework of the post-war social situation.

Consequently, the Government conclude that to grant M.V. temporary use of the applicant ' s vacant flat did not represent an immediate excessive individual burden for the applicant. A fair balance was struck between the applicant ' s fundamental right to property and a general interest of community.

The applicant submits that the above considerations are inapplicable in her case. She argued that M.V. was not a refugee or a displaced person. The domestic authorities tolerated his occupation of her flat with the sole purpose of preventing her return. After she had expressed her intention to repossess her flat, the authorities immediately issued a decision to justify M.V. ' s occupation.

She further argues that, by giving her flat to use to a person who was not entitled to it under the laws in force, the State violated her property rights. In any event, once the decision to give her flat for use to M.V. had been set aside and an order had been issued to vacate the flat, M.V. became an illegal occupant. The failure of the domestic authorities to evict him was contrary to the law and amounted to a breach of her property rights.

The Court considers, in the light of the parties ' submissions, that this complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

2. The applicant further complains that she has no effective remedies in respect of protection of her property, contrary to 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 submit that no violation of the applicant ' s right to an effective remedy occurred. They invite the Court to declare the complaint inadmissible as being manifestly ill-founded.

They again make reference to the applicant ' s failure to appeal against the Karlovac Municipal Court ' s decision of 10 March 2000 as well as her failure to file a civil action seeking repossession of her flat after 1 October 2002 .

The applicant does not submit further comments on this issue.

The Court considers, in the light of the parties ' submissions, that this complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

For these reasons, the Court unanimously

Declares the application admissible, without prejudging the merits of the case.

Søren Nielsen Christos Rozakis Registrar President