JOINT DISSENTING OPINION OF JUDGES LEMMENS AND RAVARANI

1. To our regret, we cannot agree with the majority’s finding that there has been a violation of Article 1 of Protocol No. 1 to the Convention in the present case. In our opinion, the complaint should have been declared inadmissible for non-exhaustion of domestic remedies and is in any event unfounded.

2. First of all, we think that it is important to highlight the principal facts.

There were two consecutive measures of provisional protection of the applicant’s building, one valid from 28 March 2003 until 27 March 2006, the other from 10 January 2007 until 9 January 2010 (see paragraphs 7 and 9 of the judgment). The applicant’s building was each time protected together with eleven other buildings. The impugned measures were thus part of a quite wide-ranging operation undertaken at the time by the Split Department for the Conservation of Cultural Heritage. The Government explained that protection of the industrial heritage had only in the last two decades become a matter of concern in Croatia, and that nothing had been done in the Split area before the twelve measures of provisional protection were taken. Eventually, protection was maintained for some of these buildings, but not for the applicant’s.

The applicant undertook no action against the first measure, ordered on 28 March 2003. While paragraph 8 of the judgment could create the impression that he was not aware of it, he in fact admitted that he had known about it but had seen no reason to challenge it. He did not argue, for instance, that his property had no heritage value.

On 10 January 2007 the Split Department decided to adopt a new measure of preventive protection. It was then that the applicant challenged the measure, first before the Ministry of Culture and later before the Administrative Court. He complained in the first place that he had not been informed of that measure (a circumstance that did not, however, affect the validity of the measure itself). He further complained, and this was his main argument, that domestic law prohibited the adoption of a second measure after a first one (see paragraph 11 of the judgment). The Administrative Court dismissed his action. It held that the competent authorities had had reason to consider that his property was an important object of cultural heritage, that they had needed time to carry out further investigations, and that they had therefore been justified in taking a second measure. It also held that the fact that a first measure had previously been taken was not a legal obstacle to the adoption of a second one (see paragraph 16 of the judgment).

3. What were the practical effects of the protection measure?

In paragraphs 21-22 of the judgment a number of obligations for the owner and restrictions of his or her property rights are mentioned, provided for by the Cultural Heritage Act. This is a very general and abstract enumeration. Nothing is said about the concrete effects on the applicant. The applicant did not submit, for instance, that he had sought and been denied authorisation for any specific transaction or activity relating to his property (compare, by way of example, SCEA Ferme de Fresnoy v. France (dec.), no. 61093/00, ECHR 2005 ‑ XIII (extracts), and Fürst von Thurn und Taxis v. Germany (dec.), no. 26367/10, § 27, 14 May 2013). Neither did he submit that he had actually had to bear any expenses for the protection and preservation of the property.

We note that the Government stressed the fact that the only direct consequence following from a protection measure was that, in the event of the intended sale of the property, the State had a right of pre-emption (see paragraph 31 of the judgment); the majority does not address that argument.

It is true that the applicant alleged that the protection measure discouraged investors from investing in his projects concerning the reconstruction of the building. In response to the Government’s argument that he remained vague on this point, he submitted outlines of projects which, according to him, had been abandoned owing to the application of the measure of preventive protection (see paragraph 30 of the judgment). We note, however, that the Government dismissed the ground plans and building layouts submitted as being of no probative value since it was not clear whether they even referred to the reconstruction of the real estate in question. The majority for its part accepts the applicant’s allegation that the restrictions on his commercial projects had an adverse effect, on the mere ground that his arguments in the domestic proceedings were “consonant with his arguments and evidence put before the Court” (see paragraph 39 of the judgment). The Government’s argument as to the probative value of the documents submitted is not explicitly addressed. We find the standard of proof thus applied to be of a lightness that is not compatible with the usual standard of proof “beyond reasonable doubt”.

4. Of utmost importance, in our opinion, is the fact that the Cultural Heritage Act provides for compensation for the restriction of property rights (see paragraph 21 of the judgment). This is a type of no-fault liability on the part of the State. The system allows the owners of protected property to turn to the State if they consider that the burden imposed on them by the protection measure is out of proportion to the aim pursued in the general interest (compare Geffre v. France (dec.), no. 51307/99, ECHR 2003 ‑ I (extracts)). Compensation is thus a means by which the State is able to strike a fair balance between the owner’s individual rights and the general interest legitimately and lawfully pursued by the measure of protection of cultural heritage.

It seems to us that the applicant did not bring any such compensation claim before the competent authorities. According to the judgment, he “enquired” about the possibility of compensation to the Ministry of Culture (see paragraph 11 of the judgment). Such an enquiry is not sufficient to constitute a claim. The applicant later filed an action with the Administrative Court in which he challenged the lawfulness of the second protection measure and sought compensation for the damage suffered as a result of the conduct of the administrative authorities (see paragraph 14 of the judgment). That claim was, however, based on the allegedly unlawful conduct of the authorities. Since the Administrative Court found that the challenged act was not unlawful, it could not logically award any compensation.

We must therefore conclude that the applicant at no point brought a substantiated claim before the competent administrative authority based on the no-fault liability of the State.

5. The foregoing leads us to the issue of the admissibility of the complaint.

We have no problem accepting that the applicant exhausted domestic remedies as far as the lawfulness, under domestic law, of the impugned measure is concerned (see paragraph 27 of the judgment).

However, we disagree with the majority in so far as they state that the applicant also “asked for compensation for the pecuniary damage he had sustained as a result of the application of the measure of preventive protection, before both the Ministry and the Administrative Court” (see the same paragraph). As indicated above, we consider that the applicant did not make use of the possibility to claim compensation for any disproportionate burden he might have had to bear in the general interest. In our opinion, he did not provide the competent authorities with an opportunity to assess any burden alleged by him and, if it was found to be disproportionate, to compensate him for it. We therefore disagree with the majority that the applicant exhausted domestic remedies (see paragraph 28 of the judgment). In our opinion, the complaint should have been declared inadmissible (see, mutatis mutandis , S.A. Sobifac and S.A. Algemene Bouwonderneming en Onroerende Promotie A.B.E.B. v. Belgium , no. 17720/91, Commission decision of 9 September 1992, unreported).

6. As far as the merits of the complaint are concerned, we would like to reiterate that the applicant complained first and foremost about the unlawfulness of the second measure of protection under Croatian law. This was also the issue before the Administrative Court.

The majority rightly notes that it is not the Court’s task to resolve problems of interpretation of domestic law. But then it seems to leave open the question whether the interference complained of was lawful under domestic law (see paragraph 34 of the judgment). We do not see any reason to shy away from a firm conclusion on this point. The Administrative Court clearly and unambiguously held that the measure was lawful under domestic law. In the absence of any arbitrariness or manifest unreasonableness in that finding, it is not for the Court to call that conclusion into question (see, mutatis mutandis , Anheuser-Busch Inc. v. Portugal [GC], no. 73049/01, § 85, ECHR 2007 ‑ I).

7. We fully agree with the majority’s assessment that the measure complained of was in the “general interest” within the meaning of Article 1, second paragraph, of Protocol No. 1 (see paragraph 35 of the judgment).

8. The majority then goes on to examine the proportionality of the interference.

We would like to note, first of all, that it does not seem to us that the applicant raised this issue before the domestic authorities. One can even wonder whether he did so before our Court. True, he mentioned that the measure of preventive protection had imposed a number of restrictions on his property rights (see paragraph 30 of the judgment). But is that enough to interpret his argument as amounting to one about the disproportionate character of the burden imposed on him? It rather seems that the applicant was complaining only about the lawfulness of the measures imposed.

In any event, we regret that we are unable to agree with the majority’s assessment of the proportionality of the measure.

The majority seems to consider that the period covered by the two consecutive measures of protection, that is, six years in total, should be taken into account (see paragraph 38 of the judgment). We consider that since the applicant did not challenge the first measure, the first three years of provisional protection should be of no concern to the Court and should not be weighed in the balance. One should also bear in mind that the protective measure was not in place continuously for six years, as a period of nine months passed between the end of the validity of the first measure and the adoption of the second measure, during which the applicant could freely dispose of his property.

The majority then refers to the “significant restrictions on the applicant’s use of the property” (see paragraph 39 of the judgment). However, as indicated above, we find that it is not sufficient to refer in the abstract to the restrictions listed in the Cultural Heritage Act. What matters are the concrete effects on the applicant’s right to use his property. The only concrete effect mentioned by the majority is the effect on the applicant’s commercial projects concerning his building. We have already indicated that we do not consider that this adverse effect was substantiated. In our opinion, there is nothing in the file that suggests that the Split Department would have acted in an irresponsible way if it had been asked to authorise any change to the applicant’s property. Moreover, it appears that the applicant only became aware on 16 October 2007 of the existence of the second measure (see paragraph 11 of the judgment), having up to then, for nine months, been not in the least affected in practical terms by its existence.

In general, we find it difficult to assess the proportionality of concrete measures by way of essentially abstract reasoning. Measures that have only theoretical effects, that are not really “felt” by the subject, should in our view not be taken into account for the purposes of the proportionality test.

9. The majority states that it has “reservations about two aspects of the domestic authorities’ conduct in the applicant’s case” (see paragraph 40 of the judgment).

The first reservation is about the time it took to come to an assessment of the value of the applicant’s building from the point of view of the cultural heritage. The main reason for the majority’s criticism is that the Split Department did not act swiftly to obtain certain items of information that were allegedly publicly available (see paragraphs 41-43 of the judgment). To our regret, we find this a somewhat unfair way of treating the authorities. The applicant himself did not raise the issue of the public availability of the information in his submissions to the Court, and that issue was therefore not commented upon by the Government either. Moreover, the majority’s reasoning on this point is based entirely on a statement made by the Split Department when it had to refer the file to the Ministry of Culture (see paragraph 12 of the judgment). The Ministry did not rely on the excuse of the local authority in the further domestic proceedings. What is more, in their submissions before our Court the Government described in detail the complex nature of the process of determining cultural objects, and mentioned the specific obstacles encountered during the large-scale operation carried out in respect of the industrial heritage in Split. While that explanation seems plausible to us, the majority does not consider it worth even mentioning it when seeking to ascertain whether there was any justification for the application of the measure of preventive protection for six years.

The second reservation concerns two “procedural omissions relating to the manner in which the domestic authorities conducted the proceedings in the applicant’s case” (see paragraph 44 of the judgment).

According to the majority, the Split Department failed to take into account the applicant’s views before ordering the protective measures (see paragraph 45 of the judgment). As far as we can see, however, the applicant did not complain before the domestic authorities about a violation of his right to be heard; nor did he before our Court. We therefore do not think that this issue should be raised by the Court of its own motion. Moreover, in our opinion due attention should be paid to the fact that the measures of protection were of a provisional nature. The harm done, if any, was of a temporary nature. It is precisely in the proceedings that followed the second provisional measure that the applicant could make his views known. No attention is paid to the fact that the outcome was favourable to him since the authorities eventually abandoned the idea of protecting his property.

The majority further criticises the Administrative Court for not having assessed the proportionality of the measure (see paragraph 46 of the judgment). As indicated above, it does not seem to us that the applicant raised the proportionality issue before the domestic authorities. In his description of the domestic proceedings, he did not mention that he had done so. It is therefore questionable whether the Administrative Court can be blamed for any shortcoming in this respect. Moreover, before our Court the applicant did not complain about a lack of reasoning on this point in the Administrative Court’s judgment. We therefore find the reservation on this point to be unfounded.

10. What is conspicuously missing in the majority’s reasoning is a discussion of the compensation mechanism.

In their submissions to the Court relating to the merits of the complaint, the Government pointed to the fact that the applicant had never requested the State to compensate him for any effects on his property rights, and that he had never contacted the State regarding plans to sell his property. We consider the issue of compensation crucial for the determination of whether or not a fair balance was struck between the applicant’s individual rights and the general interest of the community (see Sporrong and Lönnroth v. Sweden , 23 September 1982, §§ 69 and 73, Series A no. 52).

At the same time, we do not want to imply that any restriction of the applicant’s rights invariably had to be accompanied by some form of compensation (see Potomska and Potomski v. Poland , no. 33949/05, § 67, 29 March 2011; Fürst von Thurn und Taxis , cited above, § 23; and Diaconescu v. Romania (dec.), no. 38353/05, 17 September 2013). Where a measure controlling the use of property is in issue, the lack of compensation is a factor to be taken into consideration, but is not of itself sufficient to constitute a violation of Article 1 of Protocol No. 1 (see Depalle v. France [GC], no. 34044/02, § 91, ECHR 2010, and Berger-Krall and Others v. Slovenia , no. 14717/04), § 199, 12 June 2014). The question to be answered is whether in the light of all the circumstances the applicant had to bear an individual and excessive burden and, if so, whether domestic law provided for sufficient compensation.

Where the majority does not take into consideration the possibilities offered by the compensation mechanism, we think that there can be no sufficient basis for it to conclude that the interference was disproportionate.

11. Lastly, we would like to say a word about the conclusions to be drawn from the present judgment.

Although we do not agree with what is stated in paragraphs 41-46 of the judgment, we trust that the majority consider that it is the facts mentioned in these paragraphs that tilt the balance in favour of the applicant. We therefore read the present judgment as being adopted in the light of the particular circumstances of the case.

In any event, it would be hard for us to imagine that the judgment could be interpreted in such a way as to imply that restrictions that generally follow from a measure of protection of cultural heritage (see, for instance , Article 4 of the Convention for the Protection of the Architectural Heritage of Europe, signed in Granada on 3 October 1985) are incompatible with the right to respect for property. We do not believe that the majority wants to upset the whole philosophy behind such protection.