ŠTOKALO AND OTHERS v. CROATIA DECISION1
FIRST SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 22632/07
by Anton ŠTOKALO and Others
against Croatia
The European Court of Human Rights (First Section), sitting on 3 May 2011 as a Chamber composed of:
AnatolyKovler, President,
NinaVajić,
ElisabethSteiner,
KhanlarHajiyev,
GeorgeNicolaou,
MirjanaLazarova Trajkovska,
JuliaLaffranque, judges,
and Søren Nielsen, Section Registrar,
Having regard to the above application lodged on 14 March 2007,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having deliberated, decides as follows:
THE FACTS
The first applicant, Mr Anton Štokalo, was born in 1928 and died on 24December 2007. He was a Croatian national and lived in Rab.The second and the third applicants, Mrs Ljubica Bunić andMrs Marija Nikolić are his daughter and niece. They are Croatian nationals who were born in 1953 and 1952 respectively and live in Rab. Before the Court, all the applicants were represented by Mr I. Debelić, an advocate practising in Rab. The Croatian Government (“the Government”) were represented by their Agent, Mrs Š. Stažnik.
A.The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
In 1963 the authorities nationalised a plot of land on the island of Rab owned by the first applicant and his brother Mr V.Š., who was the second applicant’s uncle 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 companyI. (“the company”) for its use.
During the process of privatisation of the company, 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 confiscated or nationalised property, or their heirs in the first line of succession (direct descendants and spouse), to seek, under certain conditions, either restitution of or compensation for appropriated property.
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 as compensation for the above-mentioned 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.
On 18 April 2003 the applicants appealed to the Ministry of Justice (Ministarstvo pravosuđa) 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.
On 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 (Upravni sud Republike Hrvatske) challenging that decision.On 21 May 2009 the Administrative Court dismissed the applicants’ action.
On 7 July 2009 the applicants lodged a constitutional complaint against the Administrative Court. It would appear that the proceedings are currently pending before the Constitutional Court (Ustavni sud Republike Hrvatske).
2.Non-contentious proceedings for a provisional measure
On 3 August 2001 the first and second applicants, as well as Mr V.Š., instituted non-contentious proceedings before the Rab Municipal Court (Općinski sud u Rabu), asking the court to issue a provisional measure (privremena mjera) – a type of security measure (mjera osiguranja) – prohibiting the alienation or encumbering of the property by the company until the administrative authorities in the above administrative proceedings issued a final decision on their restitution request.
On 17 September 2001 the Municipal Court granted the applicants’ request and imposed the provisional measure sought.
Following an appeal by the company, on 9 January 2002 the Rijeka County Court (Županijski sud u Rijeci) quashed the first-instance decision of 17 September 2001 for procedural errors, and remitted the case to the Municipal Court for a fresh decision.
In the resumed proceedings, on 5 February 2003 the Rab Municipal Court dismissed the applicants’ request for a provisional measure.
Following an appeal by the applicants, on 17 October 2006 the Rijeka County Court quashed the first-instance decision of 5 February 2003for procedural errors and incomplete facts, and remitted the case to the Municipal Court for a fresh decision.
In the resumed proceedings, the Rab Municipal Court held a hearing at which it established that the first applicant and V.Š. had died and that their heirs were taking over the proceedings.
On 24 July 2008 the Municipal Court issued a decision whereby it dismissed the applicants’ request for a provisional measure. It held that their request had become obsolete after the Ministry of Justice had rendered its decision of 15 February 2006 in the above administrative proceedings whereby it dismissed their restitution request.
On 12 March 2009 the Rijeka County Court dismissed the applicants’ appeal and upheld the first-instance decision of 15 February 2006 endorsing the reasons contained therein.
On 20 April 2009 the applicants lodged an appeal on points of law (revizija) against the second-instance decision of 12 March 2009. It would appear that the case is currently pending before the Supreme Court (Vrhovni sud Republike Hrvatske).
3.The proceedings following the applicants’ request for the protection of the right to a hearing within a reasonable time
On 20 June 2006 the second and the third applicants lodged a request for the protection of the right to a hearing within a reasonable time with the Supreme Court. They complained about the length of the above non-contentious proceedings for a provisional measure.
On 15 January 2007 the Supreme Court found a violation of the second and third applicants’ right to a hearing within a reasonable time. It awarded them each 7,500 Croatian kunas (HRK) in compensation and ordered the Rab Municipal Court to issue a decision in the case within thirty daysof service of its decision.
B.Relevant domestic law
1.The Courts Act
The relevant part of the Courts Act (Zakon o sudovima, Official Gazette nos.150/2005, 16/2007 and 113/2008), which entered into force on 29December 2005, reads as follows:
III. PROTECTION OF THE RIGHT TO A HEARING WITHIN A REASONABLE TIME
Section 27
“(1) A party to court proceedings who considers that the competent court failed to decide within a reasonable time on his or her rights or obligations or a criminal charge against him or her may lodge a request for the protection of the right to a hearing within a reasonable time with the immediately higher court.
(2) If the request concerns proceedings pending before the High Commercial Court of the Republic of Croatia, the High Court for Administrative Offences of theRepublic of Croatia or the Administrative Court of the Republic of Croatia, the request shall be decided by the Supreme Court of the Republic of Croatia.
(3) The proceedings for deciding the request referred to in paragraph 1 of this section shall be urgent. The rules of non-contentious procedure shall apply mutatis mutandis in those proceedings and, in principle, no hearing shall be held.
Section 28
(1) If the court referred to in section 27 of this Act finds the request well founded, it shall set a time-limit within which the court before which the proceedings are pending must decide on a rightor obligation of, or a criminal charge against, the person who lodged the request, and shall award him or her appropriate compensation for the violation of his or her right to a hearing within a reasonable time.
(2) The compensation shall be paid out of the State budget within three months from the date the party’s request for payment is lodged.
(3) An appeal, to be lodged within fifteen days with the Supreme Court, lies against a decision on the request for the protection of the right to a hearing within a reasonable time. No appeal lies against the Supreme Court’s decision but one may lodge a constitutional complaint.”
2.The Enforcement Act
(a)Relevant provisions
The Enforcement Act (Ovršni zakon, Official Gazette of the Republic of Croatia, nos. 57/1996, 29/1999, 42/2000, 173/2003, 194/2003, 151/2004, 88/2005, 121/2005 and 6720/08) regulates both the enforcement proceedings (ovršni postupak) in civil law matters and security proceedings (proceedings for the issuance of interim measures,postupak osiguranja).
The Act provides for six types of security (interim) measures (mjere osiguranja), two of which are voluntary and four of which are compulsory.
The two voluntary measures are: (a) judicial and notarial pledge security on the basis of the agreement of the parties (sudsko i javnobilježničko založnopravno osiguranje tražbina na temelju sporazuma stranaka) and (b)judicial and notarial (fiduciary) security by transferring ownership of a property or by transferring a right (sudsko i javnobilježničko (fiducijarno) osiguranje prijenosom vlasništva na stvari i prijenosom prava).
The four compulsory measures are: (a) security by compulsory mortgaging of an immovable property (osiguranje zasnivanjem založnog prava na nekretnini), (b) security by anticipatory enforcement (osiguranje prethodnom ovrhom), (c) security by preliminary measures (osiguranje prethodnim mjerama), and (d) provisional measures (privremene mjere).
The relevant provisions of the Enforcement Act regulating provisional measures provide as follows:
C h a p t e r t h i r t y o n e
PROVISIONAL MEASURES
...
3. Provisional measures for securing a non-monetary claim
Requirements for imposition of a provisional measure
Section 298
“(1)A provisional measure may be imposed with a view to securing a non-monetary claim if the requesting party [i.e. the creditor]demonstratesthe probability that his or her claim exists [that is, is well founded], and if he or she:
1.demonstrates that without such measure there is a probable risk that the opposing party [i.e. the debtor] would frustrate or seriously hinder the satisfaction of the claim [i.e. the collection of the debt], in particular by altering the current state of affairs, or
2.demonstrates that the measure is necessary in order to prevent violence or the risk of irreparable damage that may occur.
(2)....”
Types of provisional measures for securing non-monetary claims
Section 299
“(1)With a view to securing a non-monetary claim any measure capable of achieving the aim of such a security may be imposed, in particular:
...
4. the prohibition on the opposing party to alienate or encumber the immovable property at which the claim is directed [that is, the property in dispute], ..., accompanied by the annotation (zabilježba) of the prohibition in the land register, ...
(2)...
(3)Prohibitions referred to in paragraph 1 of this section shall be considered effective from [the moment] of their service on the person concerned, or the land registry division of a court or other register.
(4)The effect of the annotation referred to in subparagraph 1) of paragraph 4) of this section is that [third persons] may, after the registration of [that] annotation in the land register, acquire certain rights in respect of the immovable property [in question] ... [to the detriment of] the requiring party through ... voluntary dispositions of the opposing party only if the claim of the requiring party secured by registration of that annotation is dismissed by a final decision in the [main] proceedings he or she had instituted with a view to satisfying that claim. On the basis of an enforcement title [for example, a court judgment] obtained in the proceedings instituted by the requiring party with a view to satisfying the claimsecured by registration of the annotation, and [on the basis of] the evidence that a [third] person acquired certain rights in respect of the immovable property [in question] ...through voluntary dispositions of the opposing party after the registration of the annotation in the land register, the requiring party may apply for enforcement directly against that person with a view to realising his right ascertained by the enforcement title.
(5) ...
(6) ...”
(b)The position of legal scholars
Croatian legal scholars classify security (interim) measures (mjere osiguranja) into three main categories according to their purpose: (a) protective (conserving) measures, (b) regulatory measures, and (c) anticipatory measures.
Protective measures are those measures whose purpose is to create conditions for the future satisfaction of a creditor’s claim. Judicial and notarial pledge security, judicial and notarial fiduciary security, security by compulsory mortgaging of an immovable property, all preliminary measures and the majority of provisional measures are considered as protective measures. In particular, the provisional measure prohibiting disposal (alienation or encumbering) of an immovable property provided for in section 299 paragraph 1 subparagraph 4 of the Enforcement Act is considered a protective measure.
Regulatory measures are those measures whose purpose is to temporarily regulate relations between the parties. Certain provisional measures are considered regulatory measures.
Anticipatory measures are those measures whose purpose is to satisfy a creditor’s claim in advance. The anticipatory enforcement and certain provisional measuresare considered anticipatory measures.
In terms of their effects, Croatian legal scholars classify security (interim) measures into three main categories: (a) those that lead to (complete or partial) satisfaction of creditors’ claims (the anticipatory enforcement and certain provisional measures), and (b) those that create certain rights in rem (judicial and notarial pledge security, judicial and notarial fiduciary security, security by compulsory mortgaging of an immovable property and all preliminary measures), and (c) those that create certain quasi rights in rem or which de facto remove or reduce the risk of frustrating the satisfaction of a creditor’s claim in the future (all provisional measures). In particular, the provisional measure prohibiting disposal (alienation or encumbering) of an immovable property provided for in section 299 paragraph 1 subparagraph 4 of the Enforcement Act is, in terms of its effects, considered to create a quasi right in rem, in particular the right of a creditor to satisfy his claim before third persons who after the imposition of such a provisional measure acquired certain rights in rem over the immovable property in respect of which the measure had been imposed.
3.The Denationalisation Act
The Act on Compensation for, and Restitution of, Property Taken During the Yugoslav Communist Regime (Zakon o naknadi za imovinu oduzetu za vrijeme jugoslavenske komunističke vladavine, Official Gazette of the Republic of Croatia nos. 92/1996, 92/1999 (corrigendum), 80/2002 (amendments) and 81/2002 (corrigendum) – “the 1996 Denationalisation Act”), which entered into force on 1 January 1997, enables the former owners of confiscated or nationalised property, or their heirs in the first line of succession (direct descendants and spouse), to seek under certain conditions either restitution of or compensation for appropriated property.
Section 74 of the Denationalisation Act reads as follows:
Section 74
“Upon a request by the former owner, the court may impose a provisional measure prohibiting the disposal of the property which is the subject [of the restitution proceedings instituted] ... under the provisions of this Act, if the former owner demonstrates that there is a probable risk of the property being alienated or for other justified reasons, in accordance with the provisions of special legislation.
Together with the request for the imposition a provisional measure, the former owner shall, within thirty days of the day the motion was filed, submit evidence that he instituted restitution proceedings before the competent authority.”
COMPLAINTS
1.The applicants complained under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 theretothatthe length of the non-contentious proceedings had been excessive.
2.They also complained under Article 13 of the Convention that they had not had an effective remedy in respect of their length complaint.
3.Lastly, the applicants relied on Article 14 of the Convention and Article 1 of Protocol No. 12 thereto, without substantiating these complaintsfurther.
THE LAW
A.Legal consequences of the first applicant’s death
By a letter of 22 December 2009 the applicants’ representative informed the Registry that the first applicant had died on 24December 2007 and that the second applicant was his heir. The applicants’ representative submitted that the proceedings before the Court should therefore be “discontinued” as regards the first applicant. By a letter of 15 February 2011 the Government also informed the Registry of the first applicant’s death and invited the Court “to dismiss the application of the late applicant in accordance with Article 35 of the Convention”. They submitted a death certificate together with their letter.
The Court notes that the second applicant lodged the application in her own right and that, after her father’s death, she did not express the wish to continue the case in his name as well. In these circumstances, the Court considers that in so far as the application concerns the first applicant, the second applicant as his heir does not wish to pursue it, within the meaning of Article 37 § 1 of the Convention (see, by converse implication, Rauš and Rauš-Radovanović v. Croatia (dec.), no.43603/05, 2 October 2008). Furthermore, in accordance with Article 37 § 1 in fine, the Court finds no special circumstances regarding respect for human rights as defined in the Convention and its Protocols which require the continued examination of the case in respect of the first applicant.
Accordingly, the Court decides to strike the application out of its list of cases in respect of the first applicant.
B.Alleged violation of Article 6 § 1 of the Convention
The second and third applicants (“the applicants”) complained that the length of the above non-contentious proceedings for a provisional measure 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 disputed the admissibility of this complaint on two grounds. They first argued that Article6§ 1 of the Convention was not applicable to the proceedings in question. In the alternative, the Government contended that the applicants were not, or were no longer, victims of the violation of which they complained.