CASE OF PETROVIĆ AND OTHERS v. MONTENEGRO
No violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing)
Jon Fridrik Kjølbro;Ledi Bianku;Nebojša Vučinić;Paul Lemmens;Robert Spano;Stéphanie Mourou-Vikström
5. The applicants were born in 1956, 1952, 1975, and 1980 respectively. The first applicant lives in Tivat and the second, third and fourth applicants live in Kotor. 6. The facts of the case, as submitted by the parties, may be summarised as follows. 7. On 1 September 2009 the first and second applicants and the father of the third and fourth applicants instituted civil proceedings against the State, seeking that they be recognised as owners of two plots of land in the coastal zone (u zoni morskog dobra). They submitted, in particular, that the land at issue had been lawfully owned by their father, but that without any legal basis the State appeared as the registered owner thereof in the Real Estate Registry, and that they should be declared owners as their father’s legal successors (kao pravni sledbenici). 8. On 2 March 2010 the Real Estate Administration in Tivat (Uprava za nekretnine, područna jedinica Tivat), acting upon the first applicant’s request, issued a decision allowing the division into two of an adjacent plot of land, a forest in the coastal zone, the registered owner of which at the time was the Municipality. The Municipality remained registered as the owner of one part of it, whereas the other part was registered in the name of the applicants’ predecessor (the father of the first and second applicants, and the grandfather of the third and fourth applicants). 9. On 21 November 2011, after a remittal, the Court of First Instance (Osnovni sud) in Kotor ruled against the first and second applicants and the third and fourth applicants’ father. The court found that the land at issue had indeed been owned by their predecessors, notably their father, grandfather and grand-grandfather, but that they had not proved that they had inherited it when their last predecessor had died in 1997. Notably, the court considered that the land at issue was in the coastal zone and thus State property pursuant to section 4 of the Coastal Zone Act of 1992 and “section 13 and other sections” of the State Property Act (see paragraphs 21 and 24 below), and that the claimants could not claim the right to property in respect of such land. The court made no reference to section 30 of the Coastal Zone Act (see paragraph 22 below). As regards the State’s submission that the land had been nationalised, the court noted that the contents of the decisions relied on by the State could not be clarified. Notably, the State Archive (Državni arhiv) informed the court, on 4 October 2010 and 26 August 2011, that the case files and decisions Dn 428/90 and Dn 615/92, referred to by the State, had not been found in that institution. Finally, the court considered that the Real Estate Administration decision of 2 March 2010 (see paragraph 8 above) was “of no particular influence” (bez posebnog uticaja) given that it related to a different plot of land which was not the subject of these proceedings. 10. In their appeal the first and second applicants and the third and fourth applicants’ father confirmed that the said land had not been in their predecessor’s estate when he died, which was exactly the reason why they had initiated these proceedings. They also submitted that: (a) section 30 of the Coastal Zone Act had never been complied with even though it was indisputable that their predecessor had lawfully owned the land; and (b) the relevant legislation did not prohibit private ownership of land in the coastal zone, and referred to section 4 of the Coastal Zone Act and section 20 of the Property Act 2009 (see paragraphs 21 and 19 below). They reiterated that the adjacent plot of land, also a forest in the coastal zone, was privately owned, by them, and submitted the decision of the Real Estate Administration of 2 March 2010. They maintained that the first-instance court’s reasoning that the said decision was of no influence indicated legal uncertainty, given that the same legal issue was treated differently without any explanation in that regard. 11. On 6 April 2012 the High Court (Viši sud) upheld the first-instance judgment. It found that the land at issue was indisputably forest in the coastal zone, that it was State property pursuant to section 13 of the State Property Act and that the claimants therefore could not claim ownership. The court further held that even assuming that the claimants had had ownership of these plots of land, they had lost it “in accordance with the State Property Act and the Coastal Zone Act. In support of this was also section 30 of the Coastal Zone Act, relied upon by the claimants, which provided that the owners of land in the coastal zone, who had obtained it in a lawful manner before that Act entered into force and which was duly registered in the Real Estate Register as private property, were entitled to compensation in case of an expropriation”. The High Court made no reference to the decision of 2 March 2010 and the status of the adjacent plot of land, or as to whether the claimants could have inherited the land. 12. On 11 October 2012 the Supreme Court (Vrhovni sud) upheld the previous judgments. The court made no explicit reference to the adjacent plot of land and the decision of 2 March 2010. It held as follows: “As the real estate at issue is in the coastal zone regime – common resource (dobro od opšteg interesa), the lower courts correctly applied the substantive law when they ruled in the said way. Notably, pursuant to section 4 of the Coastal Zone Act, which had been in force until State Property Act entered into force (Official Gazette of Montenegro no. 21.09), coast is owned by the State and could not be object of the private property. The claimants were wrong to consider that the issue was to be resolved by means of section 30 of the Coastal Zone Act. That provision regulated the rights of the owners of land in the coastal zone who had obtained the property thereof before that Act entered into force by providing that they were entitled to compensation in case of an expropriation [...]. That means that the land did not remain in the private property regime, but became State property by the law itself. Likewise, section 20(2) of the Property Act 2009 is inapplicable to the present case as it cannot be retroactively applied to relations which had arisen before it came into force. Exceptionally, the right to property over a coastal zone can be acquired only after it entered into force.” 13. On 25 December 2012 the first and second applicants and the third and fourth applicants’ father lodged a constitutional appeal. They submitted, inter alia, that it was not true that land in the coastal zone could not be privately owned, as numerous plots of land in that zone were private property, including the plot of land adjacent to the one at issue, which was owned by them. They invoked the right to a fair trial and the right to property, and reiterated the importance of legal certainty. 14. On 23 July 2014 the Constitutional Court dismissed the constitutional appeal. It held that the lower courts’ assessment “was based on a correct application of substantive law and a constitutionally acceptable interpretation thereof, in accordance with Article 6 of the Convention”. As regards Article 1 of Protocol No. 1 the court held that a claim which had been dismissed because the claimants did not meet statutory conditions was not considered a possession that could constitute property rights, and thus there could be no violation of such a right either. This decision was served on 13 October 2014 at the earliest. 15. On 16 December 2014 the third and fourth applicants’ father died, leaving the third and fourth applicants as his heirs. 16. On 27 May 2015 the Supreme Court issued a general legal opinion (načelni pravni stav) relating to the use of land in the coastal zone. In reaching this opinion, the Supreme Court analysed the relevant domestic legislation, including the Constitution, the Coastal Zone Act 1992, the Property Act and the State Property Act. It found, inter alia, that section 20(2) of the Property Act provided that exceptionally coastal zone can be privately owned, while at the same time section 22(3) of the same Act provided that the coast cannot be privately owned. It also found that the conditions under which the coastal zone can be privately owned are not provided for by law (nisu zakonom određeni), “which leaves open numerous questions on practical implementation”. The court concluded that “by analysing [the relevant legislation] it can be concluded that acquiring private property rights in respect of the coastal zone is not possible save in exceptional cases which are not defined by legislation. It can also be concluded that the issue of lawfully acquired rights in respect of the coastal zone is not regulated in a precise and clear manner...”, but that it was a fact that there were lawfully acquired property rights over the coastal zone, as indicated by section 30 of the Coastal Zone Act.