CASE OF BISTROVIC v. CROATIA
Preliminary objection dismissed (non-exhaustion of domestic remedies);Violation of P1-1;Partly inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial claim;Costs and expenses partial award - Convention proceedings
Christos Rozakis
4. The applicants were born in 1951 and 1955 respectively and live in Gojanec, Croatia. 5. The applicants, a husband and wife, owned a house and a surrounding plot of land in Gojanec, Croatia. On an unspecified date “Croatian Roads”, a public company based in Zagreb, instituted expropriation proceedings before the Varaždin County State Administration, Office for Urban Planning, Environment, Construction and Property Affairs (Ured državne uprave u Varaždinskoj Županiji, Služba za prostorno uređenje, zaštitu okoliša, graditeljstvo i imovinsko-pravne poslove, hereinafter the “Varaždin County Administration”), requesting that part of the applicants' plot of land be expropriated with a view to building a motorway. The applicants opposed this proposal, asking that their estate, namely the house and the surrounding land, be expropriated in its entirety. The applicants argued that with only partial expropriation they, as farmers, would have no further use for the house and the small area around it, since the house and the agricultural land on which it was built represented an inseparable unity. Furthermore, there would be no vehicle access to the courtyard. As farmers, the applicants could not use their property without access for tractors and other vehicles used in agricultural activity. 6. In addition, the planned motorway would pass in close proximity to the house, thus causing significant noise pollution due to the high traffic frequency. The motorway and the exit road would pass less then twenty metres and five metres respectively from the house. 7. They pointed out that the construction of 4.5-metre plastic noise-protection walls would transform their house and its surroundings into a cage, without efficiently protecting them from noise and pollution. The entire ground floor, the terrace and a part of the attic would be situated only 2 to 3 metres from the protection walls. 8. They argued that the value of the remaining property would significantly decrease, since construction of the motorway would deprive them of the living conditions they hitherto enjoyed, such as direct road access, pleasant surroundings, a huge courtyard and low noise exposure, all of which made the property very suitable for agricultural activity. For these reasons the applicants asserted that they had no economic interest in retaining the house and the surrounding courtyard. 9. The Varaždin County Administration held three hearings and obtained an expert opinion on the effects of the motorway construction on the applicants' living conditions in the remaining house and courtyard, and another expert opinion on the market value of the agricultural land. 10. The applicants contested the proposed level of compensation, asserting that they were entitled to the market value of their expropriated land, and claiming that the market value of land suitable for construction in the area was 180 Croatian Kunas (HRK) per square metre, a figure which was significantly higher than the amount proposed. 11. By a decision of 16 April 2003, Varaždin County Administration ruled that part of the applicants' estate, namely an agricultural plot and three plots of land suitable for construction measuring 795 m², 221m² and 507m² respectively, was expropriated with a view to building a motorway. The applicants retained ownership of the house and a surrounding courtyard. 12. Compensation was fixed at HRK 105,610.00, based on the sum of HRK 22.00 per square metre for agricultural land, assessed on the basis of the report submitted by a court expert for agriculture, and HRK 70.00 per square metre for land suitable for construction, assessed according to the criteria laid down by the Ministry of Finance, Tax Administration, Varaždin Office. The relevant part of the decision reads as follows: “During the expropriation proceedings a representative of “Croatian Roads” limited liability company (d.o.o.), Zagreb, offered the owners compensation in the amount of HRK 22 per square metre for agricultural land, on the basis of its market value as established by an agricultural expert, agricultural engineer Ivan Bašić, ... and HRK 70 per square metre for the land suitable for construction, on the basis of data submitted by the Tax Administration... The owners did not accept the above offer, however, but persisted with their request that parcel no. 9854 in the Varaždin Municipality Land Register be expropriated in its entirety, pursuant to section 7 of the Expropriation Act, claiming that they had no interest in using the remaining parts of their estate. More precisely, they sought expropriation of the entire estate together with the house and all other objects built on the estate... ...this Department has also obtained the expert opinion of a sworn court expert Dragutin Gergely, architecture engineer,... and the submissions of Božidar Jagec, the engineer who drew up the project,... from which it transpires that there is no need for total expropriation and that the remaining property continues to enjoy unhindered road access and that provision has been made for noise-protection walls. ...furthermore, if the owners' request for total expropriation is accepted, all other houses and economic objects which are at an equal or even lesser distance from the motorway... will also [have to] be expropriated... In addition, the owners' argument that the partial expropriation of parcel no. 9854 would significantly deteriorate their housing conditions is unfounded because they ... do not live at that address.” 13. The applicants filed an appeal against that decision, but the second-instance administrative body failed to rule on it. 14. On 16 December 2003 the applicants filed a claim with the Varaždin County Court (Županijski sud u Varaždinu) under Section 42(a) § 3 of the Expropriation Act, seeking expropriation of their entire estate. They reasserted the arguments previously submitted to the administrative authority. The applicants further contended that the expert opinion had been drawn up without the expert ever actually visiting the site and without any study of traffic frequency on the road passing the applicants' house or on the effect of traffic pollution on their quality of life. The expert opinion had been prepared on the basis of a map of the land plot on which the applicants' house had been erroneously drawn. 15. The applicants also complained about the amount of compensation awarded to them and reiterated that the market value of the expropriated plots had not been established. Instead, the amount was fixed according to Varaždin Tax Administration tables. The applicants complained that their objections had not been adequately examined and addressed by the administrative authority. 16. On 30 December 2003 the Varaždin County Court held a hearing at which the applicants' representative repeated their arguments, but no new evidence was presented or requested by the court. On the same day the County Court dismissed the applicants' claim. The relevant part of its judgment reads as follows: “The reasoning of the cited decision clearly indicates that compensation corresponding to the market value of the plaintiffs' (the former owners) estate was determined in the expropriation proceedings. The market value of the agricultural land was assessed by a sworn court expert for agriculture... and the market value of the land suitable for construction was assessed according to the opinion of construction experts and the data submitted by the Tax Administration. Relying on the reasoning in the above-mentioned decision, this court has further established that, ... in respect of the plaintiffs' request for expropriation of their remaining estate and the existence of a road access to the estate, the expert opinion of a sworn court expert for construction ... had been obtained as well as the opinion of a geodesic engineer..., from which it followed that the plaintiffs' request for total expropriation was not founded because there were a number of other houses and other objects in the same area which were at an equal or lesser distance from the motorway and that noise protection had been ensured to all expropriated [properties] and that the remaining plaintiffs' property continued to enjoy road access. It follows that there are no well-founded reasons for the plaintiffs' request for total expropriation of their estate... ... this court has established that no procedural defects, and especially no grave procedural defects, were made in the administrative proceedings and that the substantive law had been correctly applied, both concerning the dismissal of the plaintiffs' request for total expropriation of their estate and in respect of the amount of compensation fixed for agricultural land and the land suitable for construction. As has already been stated, while the plaintiffs are not entitled to bring any new facts in the proceedings before this court, except those presented in the administrative proceedings, they are allowed to bring new evidence in respect of the facts presented in the administrative proceedings. However, the plaintiffs have, neither in their claim nor during the proceedings, presented any evidence concerning their objections and the reasons for which they seek annulment of the Varaždin County State Administration Office... decision of 16 April 2003, which would be capable of calling into question the facts on which the cited decision was based...” 17. The applicants then filed a constitutional complaint, arguing that their right to equality before the law, their right to a fair trial and their right of appeal had been violated in that they had been unable to submit new evidence to the Varaždin County Court and that that court had reached its decision without having any evidence presented to it. Thus, their objections with regard to the expert opinion and their assertions about the effects of the motorway construction on their living conditions and on the value of their remaining property had remained unaddressed. The applicants also argued that their right to compensation for the market value of their expropriated property had been violated. 18. On 16 December 2004 the Constitutional Court dismissed the applicants' complaint as ill-founded. The decision of the Constitutional Court reads as follows: “1. The constitutional complaint is lodged against the Varaždin County Court's judgment no. P-1/03-9 of 30 December 2003, by which the applicants' (plaintiffs') claim, filed against the Ministry of Justice as defendant, Administration and Local Self-government, seeking the annulment of the decision of the Varaždin State Administration, Office for Urban Planning, Environment, Construction and Property Affairs, class: UP/I-943-04/02-01/1936, no. 2186-05-05-03-11 of 16 April 2003, was dismissed. The first instance administrative decision accepted the proposal by “Croatian Roads” d.o.o., Zagreb, for partial expropriation of parcel no. 9854, Varaždin Municipality Land Registry, owned by the applicants, and established the compensation for the expropriated land, for investments in the land and for the agricultural crops at HRK 105,610. 2. The applicants claimed a violation of their constitutional rights under Article 14 § 2, Article 18, Article 29 § 1 and Article 50 § 1 of the Constitution. In their constitutional complaint the applicants argued that, in the preceding proceedings, the facts had been incorrectly established and that their estate should have been expropriated in its entirety. They maintained that the County Court should have obtained the entire administrative case-file and verified the experts' opinions with regard to the finding that there was no need for total expropriation, and the findings with regard to the amount of compensation, which they claimed did not correspond to the market value but had been fixed on the basis of the Tax Administration tables. They further asserted that their right to an appeal had been violated because in the proceedings before the County Court they had not been allowed to present new facts and for that reason the whole proceedings had been arbitrary. They asked the Constitutional Court to quash the impugned judgment. The constitutional complaint is unfounded. 3. Section 62 paragraph 1 of the Constitutional Court Act (Official Gazette no. 49/02) provides that everyone may lodge a constitutional complaint with the Constitutional Court if he or she deems that an individual act of a state body, a body of local and regional self-government or a legal person invested with public authority, which resulted in a decision on his or her rights and obligations, or on suspicion or accusation of a criminal act, has violated his or her constitutional right. While deciding whether constitutional rights were violated in proceedings concerning the assessment of an individual's rights and obligations, within the scope of the claim contained in the constitutional complaint, the Constitutional Court does not, in principle, consider whether the courts correctly and completely established the facts and assessed the evidence. For the Constitutional Court the only facts to be taken into consideration are those relevant for the assessment of a violation of a constitutional right. 4. The proceedings before the Varaždin County Court were instituted by the applicants pursuant to section 42a § 3 of the Expropriation Act (Official Gazette nos. 9/94, 35/94, 112/00 – the Constitutional Court's decision and 114/01) because the appellate administrative body (the Ministry of Justice) did not decide on their appeal within the fixed time-limit. In such proceedings, a court assesses the legality of the first-instance decision concerning expropriation on the basis of the facts presented in the claim filed with that court and the defendant body's reply (if the reply reaches the court within the fixed time-limit), ... pursuant to section 42e § 3 of the same Act. The proceedings in connection with the applicants' claim were conducted under section 42e §§ 1 and 2 of the Expropriation Act, which provides: The Chamber considers and decides on the basis of the facts presented in the administrative proceedings. A claimant is not allowed to present new facts, but may present new evidence concerning the facts presented in the administrative proceedings. As regards the compensation for the expropriated land, the County Court found that the compensation fixed corresponded to its market value. As regards the agricultural land, the compensation was assessed by a sworn court expert for agriculture, while the compensation for the land suitable for construction was assessed on the basis of an opinion by a construction expert and data provided by the Tax Administration. As regards the applicants' request for total expropriation, the County Court upheld the first instance body's decision finding that there had been no need for expropriation of the applicants' estate in its entirety, in that the evidence presented to that administrative body had clearly demonstrated that there existed a number of other houses and other economic objects in the same area which were at an equal or lesser distance from the corridor of the future motorway and that all expropriated [properties] had been provided with protection against noise. In particular, it was established that the applicants' remaining estate continued to enjoy unhindered road access, and therefore there existed no justification for the expropriation of the applicants' remaining estate within the meaning of section 7 of the Expropriation Act. The Varaždin County Court established that no grave procedural defects had occurred in the expropriation proceedings, nor had the material law been wrongly applied; in particular, it established that the applicants had failed to present any new evidence capable of calling into question the facts on which the impugned decision had been based. 5. The applicants further claimed in their constitutional complaint that the impugned judgment had violated the constitutional guarantee of equality of all before the law, provided for under Article 14 § 2 of the Constitution. Having established that the legal opinions of the Varaždin County Court in the present case did not diverge from the established practice in the application of relevant substantive law, and were not discriminatory on any basis, the Constitutional Court does not accept the applicants' allegations that, in the present case, equality before the law was not secured to them, as guaranteed under Article 14 § 2 of the Constitution. 6. Furthermore, after analysing the constitutional complaint, the findings of the impugned decisions and the case-file, the Constitutional Court has established that the constitutional complaint's allegations about the violation of the applicants' right to an appeal, provided for under Article 18 of the Constitution, are not founded, in that the competent court addressed all of the arguments submitted by the applicants in the appellate proceedings, the competence of which is regulated by section 42a of the Act on Amendments to the Expropriation Act (Official Gazette no. 114/01). 7. The Constitutional Court considers further that the applicants' constitutional right to a fair trial before an independent and impartial tribunal established by law (Article 29 § 1 of the Constitution) has not been violated. The right to a fair trial would have been violated if a party to the proceedings had not been given an opportunity to be heard and to participate in the proceedings within the frames set out by laws; if a party had not been given an opportunity to present facts and evidence and a competent court had failed to rule on those of the party's arguments which were relevant to its decision; if, contrary to law, reasons had not been given for an individual act and if a party had in other way been prevented from having a fair trial before the competent body established by law. Since the Varaždin County Court verified the legality of the impugned decision within the meaning of the Expropriation Act on the basis of the evidence presented to it and by scrutinising the reasoning of the impugned decision on expropriation, it follows that the proceedings were conducted ... in conformity with the relevant provisions of substantive and procedural law; the Constitutional Court therefore considers that the applicants' right to a fair trial was not violated. 8. The applicants' further claimed a violation of their constitutional right contained in Article 50 § 1 of the Constitution, which provides: Any restriction [of property rights] or confiscation of property shall be done by law, in the interest of the Republic of Croatia, and compensation of the market value shall be paid. Since the competent County Court established that the expropriation proceedings had been conducted in accordance with the provisions of the Expropriation Act, with the correct application of substantive law and without grave procedural defects, and since the same court established that the applicants had received compensation for their expropriated estate equal to its market value, the cited constitutional right has not been violated. 9. For these reasons and pursuant to sections 73 and 75 of the Constitutional Court Act it has been so decided.” 19. The relevant parts of the 1994 Expropriation Act (Zakon o izvlaštenju, Official Gazette nos. 9/94, 35/94, 112/00 and 114/01) provide as follows: Section 7 entitles the owner of an estate subject to partial expropriation to request its total expropriation if he or she has no interest in using the remaining property. Sections 8 and 33 require that compensation for expropriated property equals the market value of that property on the date on which the first-instance decision in expropriation proceedings is adopted. Section 42 § 1 enables an action to be brought before the competent county court against a second-instance administrative decision on expropriation. Section 42(a) § 3 provides that such an action may also be brought if the second-instance administrative body fails to decide on appeal against the first-instance administrative decision. Section 42(b) stipulates that, unless otherwise provided, the Administrative Disputes Act is to be applied in expropriation proceedings conducted before the competent county court. Section 42(e) §§ 1 and 2 obliges the competent county court to decide on the basis of the facts presented in the preceding administrative proceedings, and prevents a claimant from presenting any new facts, while at the same time allowing presentation of new evidence before the county court. Section 42(e) § 3 requires that the county court, when dealing with an action brought under Section 42(a) § 3, examines the case on the basis of the facts presented in such an action and of the submissions of the administrative body which issued the impugned decision. 20. Section 60 of the Administrative Disputes Act (Zakon o upravnim sporovima, Official Gazette nos. 53/1991, 9/1992 and 77/1992) provides for the application of the Civil Procedure Act to proceedings concerning administrative disputes, in so far as these proceedings are not regulated by the Administrative Disputes Act. 21. Section 428(a) of the Civil Procedure Act enables an applicant in respect of whom the European Court of Human Rights has found a violation of the Convention or its Protocols to request, within 30 days of the Court's judgment becoming final, the re-opening of the domestic proceedings in question. In the new proceedings the domestic courts are obliged to follow the reasons given in the Court's judgment.