EHRM, 31-05-2007, nr. 25774/05

The applicants were born in 1951 and 1955 respectively and live in Gojanec, Croatia.

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.

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.

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.

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.

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.

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.

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.

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:

The applicants filed an appeal against that decision, but the second-instance administrative body failed to rule on it.

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.

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.

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 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.

On 16 December 2004 the Constitutional Court dismissed the applicants' complaint as ill-founded. The decision of the Constitutional Court reads as follows:

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.

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.

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.

The applicants complained that they had not received the full market value of their expropriated property and that no account had been taken in the expropriation proceedings of the significantly decreased value of their remaining property. They relied on Article 1 of Protocol No. 1 of the Convention, which reads as follows:

The Government contested that argument.

The applicants contended that the proceedings which they had brought under Croatian law before the Varaždin County Court in order to challenge an administrative decision concerning the expropriation of their property had not complied with Article 6 § 1 of the Convention, which, in so far as relevant, provides:

The Government submitted that it was necessary, firstly, to establish to what extent the applicants' rights, as guaranteed under Article 6 § 1 of the Convention, had been protected in the administrative proceedings preceding the County Court's examination of the case.

In this respect they maintained that the basic principles governing proceedings before the administrative bodies, such as the principle of legality, the principle of material truth, providing an opportunity to the parties to present their case, the independent assessment of evidence and the right to appeal, all demonstrated that these proceedings had been conducted in accordance with the guarantees enshrined in Article 6 § 1 of the Convention. In the present case, the competent administrative body had held three hearings at which the applicants were able to present their evidence and facts. However, the applicants had failed to present any evidence at those hearings. The case was examined by the competent county court which, in the Government's view and having regard to sections 42 (a) to 42(h) of the Expropriation Act, satisfied the requirements of a court of full jurisdiction in that such a court had jurisdiction to examine questions of both fact and law. The only restriction concerned the presentation of new facts which had not been previously presented in the administrative proceedings. However, such a restriction had not undermined the full jurisdiction of the county court, because the principle of legal certainty and the efficient conduct of the proceedings required that the possibility of presenting new facts be denied after a certain stage in proceedings, usually at the appellate stage, without affecting the full jurisdiction of appellate courts.

The Government further contended that the applicants had merely repeated the objections already presented in the course of the administrative proceedings, without submitting any new evidence, which they had also failed to do at the hearing before the Varaždin County Court. The County Court, finding that the administrative bodies' application and interpretation of the relevant legal provisions had been correct, had dismissed the applicants' claim. In the Government's view the expropriation proceedings, taken as a whole, had satisfied the requirements of Article 6 of the Convention.

The applicants contested these arguments.

Without rejecting the Government's submissions as to the general nature of the administrative proceedings in Croatia, the Court notes at the outset the undisputed fact that the Varaždin County State Administration Office is an administrative body which cannot be considered a tribunal within the meaning of Article 6 § 1 of the Convention. The Court reiterates that Article 6 § 1 requires that in the determination of civil rights and obligations, decisions taken by administrative or other authorities which do not themselves satisfy the requirements of that Article — as is the case in this instance with the Varaždin County State Administration Office — must be subject to subsequent control by a ‘judicial body that has full jurisdiction’, including the power to quash in all respects, on questions of fact and law, the challenged decision (see, mutatis mutandis, the following judgments: Bendenoun v. France, 24 February 1994, Series A no. 284, pp. 19–20, § 46; Fischer v. Austria, 26 April 1995, Series A no. 312, p. 17, § 28; Schmautzer v. Austria, 23 October 1995, Series A no. 328-A, p. 15, § 34; Umlauft v. Austria, 23 October 1995, Series A no. 328-B, pp. 39–40, §§ 37–39; and Wos v. Poland(dec.), no. 22860/02, § 92, ECHR 2005-…).

Under Croatian law a party which is dissatisfied with the findings in expropriation proceedings conducted before the competent administrative bodies is entitled to bring an action in the competent county court. The county courts are, in general, ordinary courts of appellate jurisdiction in civil and criminal matters and first-instance courts in respect of serious crimes. While the appellate jurisdiction of county courts in civil and criminal matters is regulated by the Civil Procedure Act and the Criminal Procedure Act respectively, their appellate jurisdiction in respect of expropriation proceedings is regulated by special law, namely the 1994 Expropriation Act.

The Court notes that, under the above Act, a county court has jurisdiction when examining an action to examine all aspects of a matter before it. Its examination is not restricted to points of law but may also extend to factual issues, including the assessment of evidence. The only restriction concerning the examination of a case before a county court is that no new facts may be submitted to it. However, if a county court disagrees with the findings of the administrative bodies, it has the power to quash the decisions appealed against. Therefore, the Court concludes that the rules governing the powers of a county court in expropriation proceedings do not deprive such courts of acting as courts of full jurisdiction.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

Article 41 of the Convention provides: