PROCEDURE

1.  The case originated in an application (no. 59196/08) against the  lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Hungarian national, Mr István Baksza (“the applicant”), on 2 December 2008.

2.  The applicant was represented by Mr A. Kádár, a lawyer practising in . The Hungarian Government (“the Government”) were represented by Mr Z. Tallódi, Agent, Ministry of Public Administration and Justice.

3.  The applicant complained under Article 5 § 3 of the Convention that the excessive length of his pre-trial detention had not been justified. Furthermore, relying on Article 5 § 4 of the Convention, he complained that the principle of “equality of arms” had not been respected when he had been challenging his detention, since he could not get acquainted in detail with the material of the investigation which had underlain the risks held against him.

4.  On 13 October 2011 the application was communicated to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1).

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

5.  The applicant was born in 1974 and lives in Gödöllő.

6.  The applicant, married and father of a minor, was arrested on 18 January 2006, because the police found several suspicious spare car parts, car documents and various tools in his vehicle. On the same day he was interrogated on suspicion of attempted aggravated larceny, allegedly committed in respect of a van.

7.  On 20 January 2006 the prosecution proposed the applicant’s pre-trial detention. Relying essentially on the above material evidence, it was of the view that there was reasonable suspicion that the applicant and his accomplice, together with other unknown helpers, were active in the car theft business.

8.  On the same day, the Dunakeszi District Court ordered the applicant’s pre-trial detention, referring to, but not substantiating, the risks of absconding, collusion and repetition of crime. An accomplice was detained as well.

9.  The applicant appealed, challenging the suspicion against him and pointing out that his settled background – he had never been convicted before, had legal income, and supported several family members – rendered unlikely the risks of absconding and repetition of crime. The  dismissed the appeal on 27 January 2006, without addressing in detail the applicant’s arguments.

10.  On 13 February 2006 the applicant’s detention was prolonged. The decision referred to eight counts of larceny. In his appeal, the applicant pointed out that the material evidence relating to one of the thefts was in no way capable of connecting him to the vehicle in question, whereas in respect of the remaining seven counts, he had not formally been implicated as a suspect.

11.  On 28 February 2006 the  dismissed the appeal. Without addressing in detail the defence’s arguments, the court pointed out that it could not assess the evidence at that stage of the proceedings.

12.  On 24 April 2006 the applicant requested his release. He argued that the living conditions of those supported by him had deteriorated. His request was to no avail.

13.  Subsequently, the applicant’s detention was repeatedly prolonged at the statutory intervals. The reasoning in the decisions was largely identical to that in the previous ones, and the discrepancy in the counts of theft with which the applicant was charged persisted. His requests for release were to no avail.

14.  On 10 July 2006 the prosecution again proposed the prolongation of the applicant’s detention. This time, reasonable suspicion was invoked in respect of four counts of car theft. The reasons for the applicant’s proposed detention remained the same.

15.  On 14 July 2006 the District Court held a hearing and sustained the prosecution’s motion, while including in the decision the suspicion of another car theft. The applicant’s appeal and subsequent requests for release were to no avail.

16.  On 29 August 2006 an expert was appointed to examine whether or not the material evidence found in the applicant’s car was capable of connecting him to any car theft.

17.  Further prolongations took place on 19 October and 16 November 2006, with essentially unchanged reasoning. The applicant’s ensuing requests for release or a less stringent measure were unsuccessful.

18.  On 21 December 2006 the applicant was charged with further counts of car theft.

19.  On 15 January 2007 the  prolonged the applicant’s detention. The underlying reasons were the same as before. In his appeal, the applicant complained that the expert opinion had never been communicated to him.

20.  After further prolongations, on 16 May 2007 a bill of indictment was preferred. The applicant was charged with altogether 17 counts of car theft or attempted car theft and one count of forgery of documents. The applicant’s detention was maintained, with reference to the risk of absconding and repetition of crime.

21.  The first hearing took place on 21 November 2007. The applicant’s detention was upheld because, in the trial court’s view, the potential severe sanction gave rise to a risk of absconding. No reason was given as to the risk of repetition of crime.

22.  The applicant’s subsequent requests for release or a less stringent measure were to no avail.

23.  Apart from the one of 10 July 2006, none of the prosecution’s motions to have the applicant’s detention prolonged had made any specific reference to the actual evidence which underlay the alleged risks held against him. The applicant’s lawyer repeatedly complained about having no access to these pieces of evidence – in particular, on 17 July and 20 November 2006 – however, this omission was not redressed; and the courts did not refute the defence’s allegations of having no access.

24.  Of the altogether twenty-four decisions on the applicant’s detention, only one contained separate arguments in respect of each of the two co-detainees.

25.  The authorities prolonging the applicant’s pre-trial detention considered the possibility of applying less stringent measures on 8 May 14 July and 16 November 2006, but eventually they did not avail themselves thereof.

26.  The applicant was finally released on 2 June 2008. A prohibition on leaving his domicile was imposed on him.

27.  On 24 May 2011 the applicant was convicted at first instance. The case is currently in the appeal stage.

II.  RELEVANT DOMESTIC LAW

28.  Act no. XIX of 1998 on the Code of Criminal Procedure provides as follows:

Section 131

“(1) Pre-trial detention ordered prior to filing the indictment may continue up to the decision of the court of first instance during the preparations for the trial, but may never be longer than one month. The pre-trial detention may be extended by the investigating judge by three months at the most on each occasion, but the overall period may still not exceed one year after the order of pre-trial detention. Thereafter, pre-trial detention may be extended by the county court acting as a single judge by two months at the most on each occasion, in compliance with the procedural rules pertaining to investigating judges.”

Section 132

“(1) If the period of the pre-trial detention ordered or maintained after filing the indictment

a) exceeds six months and the court of first instance has not delivered a conclusive decision, the justification of such pre-trial detention shall be reviewed by the court of first instance,

b) exceeds one year, the justification of such pre-trial detention shall be reviewed by the court of second instance.

(2) After the lapse of the time period specified in subsection (1) b), the justification of the pre-trial detention ordered or maintained after filing the indictment shall be reviewed by the court of second instance, or, if the procedure is held before the court of third instance, by the court of third instance, at least once in every six months.”

Section 211

“(3) At the session the party [that is, the prosecution] having submitted the motion [on ordering or prolonging pre-trial detention] shall present the evidence substantiating the motion in writing or orally. Those present shall be granted the opportunity to examine – within the limits set forth in section 186 – the evidence of the party having submitted the motion. If the notified party does not attend the session but had submitted his observations in writing, this document shall be presented by the investigating judge.”

Section 186

“(1) Any person having the right to be present at an investigatory action may forthwith inspect the minutes taken.

(2) The suspect, the counsel for the defence and the victim may inspect the expert opinion during the investigation as well, but they may only inspect other documents if this does not injure the interests of the investigation.

(3) The suspect and the counsel for the defence shall be entitled to receive a copy of the documents they may inspect.

(4) The copy of the documents produced, obtained, filed or attached in the course of the investigation and containing the testimony or personal data of the victim or the witness shall not indicate the personal data of either the victim or the witness. No copy may be issued of the draft decisions of the prosecutor or the investigating authority. No copy may be issued of the documents created in the course of communications between the prosecutor and the investigating authority pursuant to sections 165 and 165/A, except for the documents that contain the legal standpoint of the prosecutor and the investigating authority in relation to the case – including particularly the document containing the prosecutor’s instruction concerning the conduct of the investigation, provided that the specific investigation was conducted – provided that this does not interfere with the interests of the investigation.”

THE LAW

I.  ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION

29.  The applicant complained that the length of his pre-trial detention had been excessive, in breach of Article 5 § 3, which reads as follows:

“Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”

30.  The Government contested that argument.

A.  Admissibility

31.  The Court considers that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B.  Merits

32.  The applicant maintained that the decisions prolonging his detention had not been individualised or taken into account his personal circumstances, had not substantiated the risk of his absconding, collusion and re-offending or involved an assessment of the possibility of applying less stringent measures.

33.  The Government submitted in reply that the applicant’s personal circumstances had duly been considered, in an individualised way, and this in an ever-increasing manner as time had passed. Likewise, the possibility of applying less stringent measures had not been overlooked by the courts. The measure had been maintained because the underlying reasons had remained relevant.

34.  Under the Court’s case-law, the issue of whether a period of detention is reasonable cannot be assessed in abstracto. Whether it is reasonable for an accused to remain in detention must be assessed in each case according to its special features. Continued detention can be justified in a given case only if there are specific indications of a genuine requirement of public interest which, notwithstanding the presumption of innocence, outweighs the rule of respect for individual liberty.

It falls in the first place to the national judicial authorities to ensure that, in a given case, the pre-trial detention of an accused person does not exceed a reasonable time. To this end they must examine all the facts arguing for or against the existence of a genuine requirement of public interest justifying, with due regard to the principle of the presumption of innocence, a departure from the rule of respect for individual liberty and set them out in their decisions dismissing the applications for release. It is essentially on the basis of the reasons given in these decisions and of the true facts mentioned by the applicant in his appeals, that the Court is called upon to decide whether or not there has been a violation of Article 5 § 3 of the Convention.

The persistence of reasonable suspicion that the person arrested has committed an offence is a condition sine qua non for the lawfulness of the continued detention, but after a certain lapse of time it no longer suffices. In such cases, the Court must establish whether the other grounds given by the judicial authorities continued to justify the deprivation of liberty. Where such grounds were “relevant” and “sufficient”, the Court must also ascertain whether the competent national authorities displayed “special diligence” in the conduct of the proceedings (see, among many authorities, Szepesi v. Hungary, no. 7983/06, §§ 23 to 25, 21 December 2010).

35.  The Court observes that there is a dispute between the parties as to whether the grounds given by the judicial authorities for the applicant’s continued detention were “relevant” and “sufficient”, especially in the face of the requisite individualised assessment of the particular circumstances of the detainee and of the case (see, in the context of Article 5 § 1, Darvas v. Hungary, no. 19547/07, §§ 27 to 29, 11 January 2011).

36.  The applicant was held in pre-trial detention from 20 January 2006 until 2 June 2008, that is, for over two years and four months. During this period, the courts made repeated references to the risk of his absconding, collusion and repetition of crime. While the Court accepts that these considerations were “relevant” to the applicant’s case, it finds that, as time elapsed, they were no longer “sufficient”. In particular, no reasons – other than the seriousness of the charges – were advanced at any stage of the proceedings for assuming that the applicant might abscond, which the Court does not find satisfactory in contrast to the fact that the applicant had legal income and supported several family members (see paragraph 9 above).

37.  Moreover, it appears that the courts attributed a certain importance to the risk of the applicant’s reoffending. However, the Court observes that their reasoning contained no particular elements pointing to this danger.

38.  For the Court, the courts’ reasoning for prolonging the applicant’s detention was rather stereotyped on most occasions and devoid of the requisite elements substantiating the specific risks referred to – which is also reflected by the fact that, one instance apart, no separate arguments were advanced by the courts in respect of the two co-detainees (see paragraph 24 above). It finds this particularly troubling in the face of the fact that the detention lasted over two years and four months, and was terminated only almost a year after the indictment on 16 May 2007 (see paragraph 20 above) (see Szepesi, cited above, § 28), during which time the authorities showed no special diligence in accelerating the proceedings.

39.  The above considerations enable the Court to find that the grounds for the applicant’s detention, if “relevant”, were not “sufficient” in respect of the entire period in question.

Drawing attention to its case-law on the matter (see, among many other authorities, the above-cited Szepesi judgment), the Court emphasises that, in protracted criminal proceedings involving a deprivation of personal liberty, it is incumbent on the authorities to seek to reduce the duration of pre-trial detention to the possible minimum and to examine the possibilities of applying less stringent alternatives.

There has accordingly been a violation of Article 5 § 3 of the Convention.

II.  ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION

40.  The applicant complained that the principle of “equality of arms” had been infringed when he had been challenging his detention, since he had had no access to the relevant material of the investigation. He relied on Article 5 § 4 of the Convention which provides as follows:

“Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”

41.  The Government contested that argument.

A.  Admissibility

42.  The Government submitted that the applicant should have filed an action in compensation with the civil courts claiming that the judicial authorities denying his right to have access to the documents submitted by the prosecution had caused him damages. Having failed to do so, he had not exhausted domestic remedies. To support this argument, they submitted excerpts of domestic judgments in which damages had been awarded to plaintiffs complaining about delayed imposition of a cumulative sentence, overdue release from detention, unlawful composition of a court chamber and inadequate service of a summons.

43.  The applicant submitted that at the material time – that is, prior to  decision no. 166/2011. (XII.20.) which endorsed the principles enounced by the Court in the case of Nikolova v. Bulgaria [GC] (no. 31195/96, ECHR 1999II) – it was ambiguous under the domestic law whether or not a suspect in pre-trial detention had a right to access the documents serving as basis for his detention. Therefore, any tort action based on the alleged breach of this right had little prospect of success. In any event, no tort liability could be established on the judicial authorities’ side unless an intentional breach of procedure could be proven. Given the cumbersome nature of bringing such an action, it could not be regarded as an effective remedy in the circumstances.

44.  The Court considers that it is not necessary to embark on a closer scrutiny of the parties arguments’ about the effectiveness of a civil action in the circumstances, since the Government have not produced any evidence to show that such an action has proved effective in cases sufficiently similar to the present one and would consequently constitute a remedy to be exhausted in the circumstances. It follows that this complaint cannot be rejected for non-exhaustion of domestic remedies. Moreover, the Court considers that it is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B.  Merits

45.  The Government submitted that under the domestic law access to the case-file in the investigation phase was not absolute in so far as it was limited to access to those elements of evidence which were relevant to the ordering or maintaining of pre-trial detention. The selection of these pieces of evidence was in the public prosecutor’s discretion. It was important to emphasise in this connection that the judge deciding on detention received exactly the same elements and based his decision on them. In reaction to a proposed amendment to the Code of Criminal Procedure, the  held (in decision no. 166/2011. (XII.20.)), in line with the Court’s judgment in the above-mentioned Nikolova case, that the existing rules satisfied the requirements of the principle of “equality of arms”. Since the applicant had never brought the civil action referred to above (see paragraph 42 above), the Government were unable to take a position as to whether the access actually granted in the instant case had satisfied those requirements.

46.  The applicant submitted that in his particular case no sufficient access to the evidence underlying his detention had been secured. Had such an access been granted, this would have been recorded in the case file. However, the Government had not demonstrated that this was the case. Moreover, had he been able to exercise the right of access, it would have been superfluous on his part to complain about this. However, he had repeatedly made such complaints, but in vain (see paragraph 23 above).

47.  The Court recalls that arrested or detained persons are entitled to a review bearing upon the procedural and substantive conditions which are essential for the “lawfulness”, in the sense of the Convention, of their deprivation of liberty. This means that the competent court has to examine “not only compliance with the procedural requirements set out in [domestic law] but also the reasonableness of the suspicion grounding the arrest and the legitimacy of the purpose pursued by the arrest and the ensuing detention”.

A court examining an appeal against detention must provide guarantees of a judicial procedure. The proceedings must be adversarial and must always ensure “equality of arms” between the parties, the prosecutor and the detained person. Equality of arms is not ensured if counsel is denied access to the investigation file in so far as it is essential in order effectively to challenge the lawfulness of his client’s detention. In the case of a person whose detention falls within the ambit of Article 5 § 1 (c), a hearing is required (see, among many other authorities, Nikolova, cited above, § 58). The disclosure of evidence must take place in good time, giving access to the relevant elements of the file prior to the applicant’s first appearance before the judicial authorities (see Lamy v. , 30 March 1989, § 29, Series A no. 151).

48.  In the present case, the Court notes the Government’s submission according to which – in the absence of a subsequent civil action, in which the disputed issues could be clarified – they were not in a position to form a view on the adequacy of the information provided to the applicant concerning his continued detention. In this connection, the Court would refer to its above finding (see paragraph 44 above) that the non-introduction of the civil action suggested by the Government must be seen as immaterial in the circumstances.

49.  Furthermore, the Court observes that the applicant has consistently asserted, both before the domestic authorities and the Court, that he was granted no access to the relevant elements of the file and that the domestic courts did not refute the allegations about the denial of access (see paragraph 23 above). It also notes (see paragraph 28 above) that such an access is guaranteed by the Code of Criminal Procedure, unless it interferes with the interests of the investigation.

However, there is no element in the case file or the parties’ submissions indicating that the applicant could indeed exercise this right (cf. Lamy v. Belgium, loc. cit.; Lietzow v. , no. 24479/94, § 47, ECHR 2001I; Svipsta v. Latvia, no. 66820/01, § 138, ECHR 2006III (extracts)).

50.  In these circumstances, the Court cannot but conclude that the Government have failed to provide evidence that the requisite access was indeed made available to the applicant, the burden of proof being incumbent on the Government in this connection.

It follows that the principle of “equality of arms” cannot be considered to have been respected in the instant case.

Consequently, there has been a violation of Article 5 § 4 of the Convention.

III.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

51.  Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A.  Damage

52.  The applicant claimed 6,494 euros (EUR) in respect of pecuniary damage. This amount corresponds to income lost during his detention. Moreover, he claims EUR 20,000 in respect of non-pecuniary damage.

53.  The Government contested these claims.

54.  The Court finds no causal link between the violations found and the pecuniary damage claimed. It therefore rejects this claim. On the other hand, it considers that the applicant must have sustained some non-pecuniary damage, and awards him, on an equitable basis, EUR 6,500 under this head.

B.  Costs and expenses

55.  The applicant also claimed EUR 5,800 for the costs and expenses incurred before the Court. This sum corresponds to 43 hours of legal work billable by his lawyer at an hourly rate of EUR 131, plus EUR 167 of clerical costs.

56.  The Government contested this claim.

57.  According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 4,500 covering costs under all heads.

C.  Default interest

58.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1.  Declares the application admissible;

2.  Holds that there has been a violation of Article 5 § 3 of the Convention;

3.  Holds that there has been a violation of Article 5 § 4 of the Convention;

4.  Holds

(a)  that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

5.  Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 23 April 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.


PROCEDURE

1.  The case originated in an application (no. 46726/11) against the  lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Croatian national, Ms Slavica Zrilić (“the applicant”), on 21 July 2011.

2.  The applicant was represented by Ms V. Šnur, a lawyer practising in Vinkovci. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik.

3.  The applicant alleged in particular that her rights to respect for her home and to peaceful enjoyment of her possessions under Article 8 of the Convention and Article 1 of Protocol No. 1 had been violated by the national courts’ order for the partition of the house she had jointly owned with her former husband.

4.  On 3 October 2011 the applicant’s complaints concerning the right to respect for her home and peaceful enjoyment of her possessions under Article 8 of the Convention and Article 1 of Protocol No. 1 were communicated to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1).

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

5.  The applicant was born in 1958 and lives in Vinkovci.

6.  In 1992 the applicant and her former husband G.Z. built a family house in Vinkovci. The house measured 176.42 square metres on two levels, each consisting of two rooms, bathroom, hallway, dining-room and a kitchen. It was placed on a plot of land measuring in total 455 square metres. The applicant and her former husband lived on the ground floor while the upper level was left in a rough stage of construction.

7.  In May 2005 the applicant and G.Z. divorced, but continued to live in the same house.

8.  In the meantime, the applicant lodged a civil action in the Županja Municipal Court (Općinski sud u Županji) asking it to establish her share in the house and the plot of land. She also asked that her share in the ownership of a jointly owned car be established.

9.  During the proceedings, the Županja Municipal Court commissioned an expert report to establish the total value of the house and the plot of land. The expert submitted her report on 17 March 2009, finding that the total value of the house and the plot of land was 55,158.48 euros (EUR). She also found that the parties’ proportions in the total investments were 66:34 in favour of G.Z.

10.  Since G.Z. did not contest the applicant’s claim, on 8 May 2009 the Županja Municipal Court established that the applicant was the owner of one-third and G.Z. of two-thirds of the house and the plot of land. It also established that they owned their car in equal shares and ordered G.Z. to pay the applicant 3,045.50 Croatian kunas (HRK) on that account. This judgment became final and the applicant and G.Z. registered their shares of the house and the plot of land in the land registry of the Vinkovci Municipal Court (Općinski sud u Vinkovcima).

11.  On 28 August 2009 G.Z. lodged a request with the Vinkovci Municipal Court for partition of the house. He proposed to buy out the applicant’s share or, alternatively, to have the house partitioned by judicial sale.

12.  At a hearing on 6 October 2009 the applicant did not object to the proposal for partition in the proportions established, but she asked for an adjournment of the hearing so she could prepare her observations concerning the proposed partition model.

13.  On 14 October 2009 the applicant opposed the proposed partition model asking the Vinkovci Municipal Court to order partition in kind. She argued that she and G.Z. had already been living in separate parts of the house for some years and that it had amounted to a de facto partition. She further submitted that she had brought a civil action against G.Z. in the Vinkovci Municipal Court in which she had claimed a refund of her previous contributions to the construction of the house. These proceedings were at the time still pending.

14.  On 2 November 2009 G.Z. submitted his reply to the applicant’s observations. He argued that he and the applicant had actually been living in the same space and sharing the same living area, apart from bedrooms. He considered that partition in kind was not technically possible, given their shares in the house and the plot of land. As regards the applicant’s civil action for refund of contributions, he pointed out that they had already had their shares established by a final judgment, and that her civil action had no bearing on the proceedings at issue.

15.  Another hearing before the Vinkovci Municipal Court was scheduled for 23 November 2009 at 9 a.m.

16.  On the day of the hearing, the applicant’s representative informed the Vinkovci Municipal Court that she was not able to attend because she had some undisclosed health issues. She asked for the hearing to be adjourned. The Vinkovci Municipal Court dismissed the request for adjournment of the hearing, on the grounds that the applicant’s representative had not provided any evidence about her health, and that she had not asked for the adjournment in due time. The hearing was held and the Vinkovci Municipal Court decided to commission an expert report in order to establish whether partition in kind was possible and also the market value of the property at issue.

17.  On 26 November 2009 the Vinkovci Municipal Court commissioned an expert report from S.Ž.

18.  On 4 December 2009 the applicant complained to the Vinkovci Municipal Court that she had not been allowed to participate in the choice of the expert and that the decision to commission the report had been adopted in her absence.

19.  On 4 January 2010 S.Ž. submitted his expert report. He estimated the market value of the property at EUR 55,674. As regards the possibility of partition in kind, S.Ž. established that it was not possible because the house was a single unit. He found that the house had one entrance, which led to a hallway from where it was possible to access all the other rooms in the house. He also found that the house had a building permit only for the ground floor although in reality it consisted of two levels, and that the house did not have a use permit.

20.  At a hearing held on 17 February 2010 the applicant objected to the findings of the expert report. She maintained that partition in kind was possible, and pointed out that the expert had not examined the possibility of creating two separate flats, and that his findings as to the value of the property and the existence of the use permit were unclear.

21.  The Vinkovci Municipal Court adjourned the hearing and summoned the expert for questioning concerning the applicant’s objections.

22.  At a hearing held on 8 March 2010 the Vinkovci Municipal Court, in presence of the parties and their representatives, heard expert S.Ž., who reiterated his previous findings. He explained that creating two separate flats would only have been possible if there had been two single units with separate entrances. Since this was not the case with the house at issue it was not possible to establish two separate flats without further significant investment. In particular, it would be necessary to obtain a new building permit, which meant instituting a new set of administrative proceedings, and to carry out the necessary construction work. The expert further explained that he had never seen a use permit and therefore he had made his report as though it did not exist. In any event, the existence of a use permit would not significantly influence his findings, because it could always be obtained without any particular difficulties. As regards the market value of the property at issue, he explained that it had been assessed in line with the relevant market data.

23.  The parties had no questions for the expert. The applicant objected to the part of the report which stated that partition in kind was not possible. She asked for a new report to be commissioned from another expert.

24.  On 22 April 2010 the Vinkovci Municipal Court dismissed the applicant’s request, on the grounds that all the relevant facts had been established, and concluded the proceedings.

25.  On the same day the Vinkovci Municipal Court, relying on the expert report, ordered the sale of the house and the plot of land. The relevant part of the decision reads:

“This court did not accept the respondent’s request for the proceedings to be stayed until termination of the proceedings under no. P-1151/09. The court considers that the outcome of those civil proceedings is not a preliminary issue which could influence these partition proceedings, especially since the respondent did not object to the partition itself and the established shares, which is the decisive prerequisite for partition ...

The court did not accept the respondent’s objection that the expert had been appointed without having her opinion heard, as provided under Article 251 § 2 of the Code of Civil Procedure.

At a hearing held on 23 November 2009 the court decided to commission an expert report. The respondent’s representative was duly summoned to this hearing, but she informed the court, on the same day just before the hearing ..., that she could not attend for health reasons, without submitting any evidence of health problems.

The claimant objected to the adjournment, and the hearing was held in the absence of the respondent and her representative ...

In any event, although it is true that the parties are allowed to express their opinion as to the choice of the expert, it is for the court to choose an expert, irrespective of whether the parties agree ...

The respondent asked for a new report to be commissioned from another expert.

Answering the respondent’s objections at a hearing held on 8 March 2010, expert [S.Ž.] reiterated his findings both as to the market value of the property and the possibility of partition in kind.

According to the expert, in order to form a single unit such as an apartment, there would have to be a cohesive group of rooms suitable as living accommodation, which would form a unit and would have a separate entrance. A single unit, according to the expert, could not be formed from one or more rooms which do not meet the aforementioned criteria.

The parties’ house does not meet the criteria by which single units could be formed, since it would imply significant costs, particularly for the new building permit, the relevant administrative proceedings and eventually the construction work.

The expert also explained that he had determined the market value taking into account the fact that the house had no use permit, although obtaining one would not entail significant costs.

Even after the expert had reiterated his findings at the hearing, the respondent insisted on her objection to his finding that partition in kind would not be possible, and requested that a new expert report be commissioned.

This court did not accept the respondent’s request for a new expert report because it found S.Ž.’s report objective and well drafted.

Namely, throughout the proceedings the respondent maintained that partition in kind was possible, as she and the claimant had been sharing the same space as physically divided parts.

However, this court considers that the fact that the parties live separately in the same house does not mean in itself that partition in kind is possible, since it would require each party to be allocated a single unit which could be entered in the land register and which would be in proportion with their respective shares.

The expert explicitly stated that partition in kind would not be possible since it would require additional construction work, special permits and more.

Given that the central question in proceedings relating to partition of property is to establish whether at the relevant time the property at issue could be physically partitioned, it follows that the respondent’s objections are ill-founded, and consequently the expert’s report was accepted.”

26.  On 17 May 2010 the applicant lodged an appeal before the  (Županijski sud u Vukovaru) challenging the first-instance decision. She maintained that the fact that she and G.Z. both lived in the house amounted to de facto partition and that, in any event, it had been necessary to stay the partition proceedings pending the outcome of the civil proceedings in which she had claimed reimbursement of her previous contributions in the construction of the house. She further challenged the fact that the expert had been chosen without her having the opportunity to make any observations in that respect. Furthermore, the applicant considered that it was possible to form two single units and thus a building with two separate flats. Since the expert had found differently it was necessary to commission another report; the first-instance court had refused to do this without giving any relevant reasons.

27.  On 17 February 2011 the  dismissed the applicant’s appeal as ill-founded. It found the expert report well drafted and convincing and therefore dismissed all the applicant’s arguments in that respect. The Vukovar County Court found that the fact that the applicant had not been heard when the first-instance court had decided to commission the report had had no bearing on the overall fairness of the proceedings. It also pointed out that the expert had been heard during the proceedings and that he had convincingly defended his findings. Finally, the Vukovar County Court endorsed the findings of the first-instance court that partition in kind was not possible, and held that the pending civil proceedings for refund of the applicant’s contributions to the construction of the house had not warranted staying the proceedings, since the parties’ shares in the house had already been established by a final judgment.

28.  On 22 March 2011 the Vinkovci Municipal Court opened enforcement proceedings for judicial sale of the house and the plot of land.

29.  The applicant lodged an appeal against the above decision before the Vukovar County Court on 4 April 2011.

30.  On 7 April 2011 the applicant lodged a constitutional complaint before the  (Ustavni sud Republike Hrvatske) arguing that there had been a violation of her right to a fair trial under Article 29 of the Constitution and Article 6 of the Convention, alone and in conjunction with Article 13 of the Convention. She also considered that there had been a violation of the principle of lawfulness, equality before the law, right to respect for private and family life and the right of ownership, under Articles 5, 14, 35 and 48 of the Constitution respectively. The applicant reiterated her previous arguments concerning the choice of the expert and the findings of the expert report. She maintained that she and G.Z. had both been living in the house for years and that they had already created de facto partition. Thus she considered that partition in kind was the only possible solution. The applicant also asked the  to stay the enforcement proceedings.

31.  On 12 May 2011 the  declared the applicant’s constitutional complaint inadmissible as manifestly ill-founded and dismissed her request for staying of the enforcement proceedings.

32.  On 10 October 2011 the  dismissed the applicant’s appeal against the decision of the Vinkovci Municipal Court instituting the enforcement proceedings (see paragraphs 28 and 29 above).

33. On 18 September 2012 the Vinkovci Municipal Court, the house and the plot of land had been sold to G.Z., by court order, awarded the applicant HRK 135,333.34 as her share.

34.  On the same day the Vinkovci Municipal Court ordered the applicant to vacate the house.

II.  RELEVANT DOMESTIC LAW AND PRACTICE

A.  Relevant domestic law

1.  Constitution

35.  The relevant provisions of the Constitution of the  (Ustav Republike Hrvatske, Official Gazette nos. 56/1990, 135/1997, 8/1998 (consolidated text), 113/2000, 124/2000 (consolidated text), 28/2001 and 41/2001 (consolidated text), 55/2001 (corrigendum), 76/2010, 85/2010) read as follows:

Article 14

“Everyone in the  shall enjoy rights and freedoms regardless of their race, colour, sex, language, religion, political or other belief, national or social origin, property, birth, education, social status or other characteristics.

All shall be equal before the law.”

Article 34

“The home is inviolable ... “

Article 35

“Everyone has a right to respect for and legal protection of his private and family life, dignity, reputation and honour.”

Article 48

“The right of ownership shall be guaranteed ...“

Act

36.  The relevant part of section 62 of the Constitutional Court Act (Ustavni zakon o Ustavnom sudu Republike Hrvatske, Official Gazette no. 49/2002) reads as follows:

Section 62

“1. Anyone 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 with public authority, concerning his or her rights and obligations, or a suspicion or an accusation of a criminal act, has violated his or her human rights or fundamental freedoms or his or her right to local and regional self-government guaranteed by the Constitution (hereinafter: a constitutional right) ...

2. If another legal remedy exists in respect of the violation of the constitutional right [complained of], a constitutional complaint may be lodged only after that remedy has been used.”

3.  Relevant property legislation

37.  The relevant provisions of the Property Act (Zakon o vlasništvu i drugim stvarnim pravima, Official Gazette nos. 91/96, 68/98, 137/99, 22/00, 73/00, 129/00, 114/01, 79/06, 141/06, 146/08, 38/09, 153/09) reads:

CO-OWNERSHIP

The right to termination

Section 47

“(1) Co-owners have the right to terminate co-ownership if that is possible and permissible; such a right is not subject to any prescription.

(2) Co-owners may require termination at any time, except when such termination would be detrimental to the interests of other co-owners; however, such a requirement may be made even at such a time if in view of the circumstances it cannot be reasonably expected that the circumstance will change soon to the extent that the termination would not be detrimental to the interests of other co-owners. The court with jurisdiction for the termination proceedings shall decide on any objection to the termination ... “

Termination through court proceedings

Section 50

“(1) In court termination, the court is primarily bound by strict statutory provisions, and subsidiarily by a valid agreement existing between the parties on the method of termination, if any, and if possible and permissible, as well as by the right to terminate by payment to which a co-owner would be entitled based on a legal transaction or law.

(2) If the court is not bound regarding the method of termination within the meaning of paragraph 1 of this Article, the court shall order partition in kind ...

(4) If the partition under paragraph 2 of this Article is not possible without adverse substantial effects on the value of the property, the court shall order judicial sale and divide the proceeds according to the relevant shares (civil termination).

Termination by creating separate premises

Section 53

“If co-owners agree to limit their rights instead of partitioning the real property by establishing separate premises within it in accordance with their own shares, that shall be considered their decision on termination ... “

CONDOMINIUM

Condominium property

Section 67

(1) Part of a co-owned real property, representing a single unit suitable for independent exercise of co-ownership, such as a flat or other single unit, may transform the property into a condominium ... “

38.  What constitutes a flat is defined under the Lease of Flats Act (Zakon o najmu stanova, Official Gazette nos. 91/1996, 48/1998, 66/1998, 22/2006) in the following terms:

Section 2

“(1) A flat is a group of rooms suitable for living accommodation and their ancillary premises, which form a single unit and have a separate entrance ... “

B.  Relevant Constitutional Court practice

39.  In its decision no. U-III-46/2007 of 22 December 2010 the Constitutional Court, referring to the Court’s case-law in Ćosić v. , no. 28261/06, 15 January 2009, examined an appellant’s complaint concerning her eviction from a flat, under the right to home provided in Article 34 § 1 of the Constitution, although the appellant had not cited that provision. In this respect the  noted:

“The appellant complained of a violation of her constitutional rights under Articles 14 and 18 and 3 and 5 of the Constitution. It is to be noted that in substance the appellant complained of a violation of her right to home provided in Article 34 § 1 of the Constitution, and the right to respect for her home provided in Article 8 of the Convention ...

Under Article 62 § 1 of the Constitutional Court Act anyone may lodge a constitutional complaint with the Constitutional Court if he or she deems that the individual act of a state body, concerning his or her rights and obligations, has violated his or her human rights or fundamental freedoms (a constitutional right).

Therefore, the Constitutional Court, in the proceedings upon a constitutional complaint, and in view of the relevant arguments, protects the appellants only from violations of their constitutional rights.”

40.  The  followed the same approach in its decision no. U-III-405/2008 of 21 February 2012, concerning the eviction of an appellant from her flat, in which she cited Article 14 § 2 (equality before the law) of the Constitution, but the Constitutional Court considered that her case opened the issue of her right to home. It therefore examined her complaints under Article 34 § 1 (right to home) of the Constitution in conjunction with Articles 35 (right to respect for private and family life) and 16 (restrictions of the Constitution rights) of the Constitution and Article 8 of the Convention.

THE LAW

I.  ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL No. 1

41.  The applicant complained that the national courts’ order for the partition of the house she had jointly owned with her former husband by judicial sale had violated her right to respect for her home and her right to peaceful enjoyment of her possessions. The applicant relied on Article 8 of the Convention, which reads as follows:

“1.  Everyone has the right to respect for his private and family life, his home and his correspondence.

2.  There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

The applicant also cited Article 1 of Protocol No. 1, which provides:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

A.  Admissibility

1.  The parties’ arguments

42.  The Government submitted that the applicant had failed to complain about the violation of her right to respect for her home and peaceful enjoyment of her possessions during the proceedings before the domestic authorities. In her constitutional complaint, which had been an effective domestic remedy concerning her complaints, the applicant had not cited the relevant provision of the Constitution or otherwise complained of a violation of her right to respect for her home and peaceful enjoyment of her possessions. Furthermore, the applicant had failed to lodge an appeal on points of law with the Supreme Court, which was also an effective domestic remedy.

43.  The applicant disagreed with the Government, arguing that she had exhausted all available and effective domestic remedies.

2.  The Court’s assessment

44.  The Court reiterates that under Article 35 § 1 of the Convention it may only deal with an application after all domestic remedies have been exhausted. The purpose of Article 35 is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Court (see, for example, Mifsud v. France (dec.) [GC], no. 57220/00, § 15, ECHR 2002-VIII). The obligation to exhaust domestic remedies requires an applicant to make normal use of remedies which are effective, sufficient and accessible in respect of his Convention grievances. To be effective, a remedy must be capable of resolving directly the impugned state of affairs (see Balogh v. Hungary, no. 47940/99, § 30, 20 July 2004).

45.  The rule of exhaustion of domestic remedies normally requires that complaints intended to be made subsequently at the international level should have been raised before the domestic courts, at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law. The object of the rule on exhaustion of domestic remedies is to allow the national authorities (primarily the judicial authorities) to address an allegation that a Convention right has been violated and, where appropriate, to afford redress before that allegation is submitted to the Court. In so far as there exists at national level a remedy enabling the national courts to address, at least in substance, any argument as to an alleged violation of a Convention right, it is that remedy which should be used (see Azinas v. Cyprus [GC], no. 56679/00, § 38, ECHR 2004III).

46.  The Court notes that the case at issue concerns partition of the house which the applicant built together with her former husband and in which they lived for years, including after their divorce. Throughout the domestic proceedings the applicant opposed partition of the house by judicial sale, arguing that she and her former husband had already been living in separate parts of the house for years and that this amounted to de facto partition. Thus she maintained her bid for partition in kind, making it clear to the domestic authorities that she did not want to leave the house.

47.  When the lower courts refused to accept the request for partition in kind, the applicant lodged a constitutional complaint whereby she pursued the same complaints as to the effects of partition by judicial sale. In this respect the Court notes that, contrary to the Government’s arguments, the relevant materials from the case file disclose that the applicant did expressly rely on the Constitution provision guaranteeing the right of ownership. In any event, irrespective of the provision the applicant cited, it was open to the  to examine the substance of her complaints (see paragraphs 39 and 40 above).

48.  Therefore the Court considers that, by complaining in substance about the effects of the partition on her right to respect for her home and peaceful enjoyment of her possessions, the applicant made normal use of the domestic remedies, as required by Article 35 § 1 of the Convention, before bringing the same complaints before the Court (see, inter alia, Tarbuk v. , no. 31360/10, § 32, 11 December 2012).

49.  As to the Government’s argument that the applicant failed to lodge an appeal on points of law with the Supreme Court, the Court notes that the Constitutional Court did not declare the applicant’s constitutional complaint inadmissible for non-exhaustion of domestic remedies, but held that her complaint was in substance manifestly ill-founded. By doing so the  implicitly accepted that the applicant’s constitutional complaint satisfied formal criteria. The Court sees no reason to hold otherwise (see Bjedov v. , no. 42150/09, § 48, 29 May 2012).

50.  Against the above background, the Court considers that the Government’s objection must be rejected. The Court further notes that the applicant’s complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It also notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B.  Merits

1.  The parties’ arguments

51.  The applicant argued that in the house at issue she had developed sufficient links with her private and family life. She had built the house with her former husband and had lived there for a number of years. After their divorce, the applicant and her former husband had both continued to live in the house. She therefore considered that this had amounted to de facto physical partition and that there had been no reason for partition by judicial sale. The applicant contended that the amount she had received from the judicial sale of the house had not been sufficient for her to buy a suitable flat where she could live. In this respect she contested the findings of the expert report both as to the possibility of partition in kind and the value of her share.

52.  The Government submitted that the house at issue had not been the applicant’s home within the meaning of the Convention. They pointed out that the applicant had divorced her husband in 2005 but that from 2004 she had been using only one room on the ground floor of the house. The house had been a single unit and the applicant should have known that it was not possible for her to have a private and family life in that house. Therefore, at least from the moment when the parties’ shares in the house had been established by a final judgment, the applicant’s stay in the house had had a temporary character, which had prevented the applicant from creating sufficient and continuous links with the house.

53.  The Government further argued that the partition of the house had been based on the relevant statutory law, namely the Property Act and the Code of Civil Procedure, and the relevant case-law of the domestic courts. It had pursued the legitimate aim of “the protection of the rights of others” within the meaning of Article 8 § 2 of the Convention, since the applicant’s former husband had also had a right to peaceful enjoyment of his possessions and the partition of co-owned property. Finally, the Government considered that the interference by partition of the house had been “necessary in a democratic society”. The Government pointed out that the domestic courts had been confronted with two opposing views as to the best means of partition of the house. They had therefore commissioned an expert report and afforded the parties sufficient opportunity to present all their arguments.

54.  As regards the applicant’s complaint under Article 1 of Protocol No. 1, the Government pointed out that, according to the Court’s case-law, the State’s responsibility in property disputes between private parties had been limited to providing an effective remedy.  had discharged its obligation in that respect and therefore there had been no interference with the applicant’s rights. In any event, the Government considered that the alleged interference with the applicant’s property rights had been based on the Property Act and the Code of Civil Procedure, that it had pursued the legitimate aim of public interest and that it had been proportionate in the circumstances of the case.

2.  The Court’s assessment

55.  Having regard to all the circumstances of the present case, and the applicant’s complaints, the Court considers it appropriate to examine first the applicant’s complaint under Article 8 of the Convention.

(a)  Whether a right protected by Article 8 is in issue

56.  The first question the Court has to address is whether the applicant may arguably claim that she had a right protected by Article 8 and – more specifically in the present case – whether the house in question may be considered the applicant’s home.

57.  The Court reiterates that the concept of “home” has autonomous meaning under the Convention. Whether or not a particular premises constitutes a “home” which attracts the protection of Article 8 § 1 will depend on the factual circumstances, namely the existence of sufficient and continuous links with a specific place (see, amongst many others, Gillow v. the United Kingdom, 24 November 1986, § 46, Series A no. 109; Buckley v. the United Kingdom, 25 September 1996, §§ 52-54, Reports of Judgments and Decisions 1996IV; and Bjedov, cited above, § 57).

58.  The Court notes that it is undisputed between the parties that the applicant, with her former husband G.Z., built the house at issue in 1992, and that they both lived in the house even after their divorce in 2005. The applicant was ordered to vacate the house only in September 2012 and throughout that period she had no other home or place of residence. In such circumstances, the Court finds that the applicant had sufficient and continuing links with the house at issue for it to be considered her “home” for the purposes of Article 8 of the Convention.

(b)  Whether there has been an interference with the applicant’s right to respect for her home

59.  The Court observes that there is no dispute between the parties that the partition of the applicant’s house and the order to vacate it amounted to an interference with the right to respect for her home. The Court sees no reason to hold otherwise.

(c)  Whether the interference was prescribed by law and pursued a legitimate aim

60.  The partition of the house in question and the order to the applicant to vacate the house were adopted by the national courts under Croatian laws regulating co-ownership, which allow any co-owner to seek termination of the co-ownership. The Court, noting that its power to review compliance with domestic law is limited (see, among other authorities, Allan Jacobsson v. Sweden (no. 1), 25 October 1989, Series A no. 163, p. 17, § 57), is satisfied that the national courts’ decisions had a basis in the relevant domestic law. Furthermore, the interference in question pursued the legitimate aim of the “protection of the rights of others”, namely G.Z.’s right to seek termination of the co-ownership of the house at issue.

(d)  Whether the interference was ‘”necessary in a democratic society”

61.  The central question in this case is therefore whether the interference was “necessary in a democratic society”.

62.  The Court reiterates that an interference will be considered “necessary in a democratic society” for a legitimate aim if it answers a “pressing social need” and, in particular, if it is proportionate to the legitimate aim pursued. While it is for the national authorities to make the initial assessment of necessity, the final evaluation as to whether the reasons cited for the interference are relevant and sufficient remains subject to review by the Court for conformity with the requirements of the Convention (see Connors v. the United Kingdom, no. 66746/01, § 81, 27 May 2004, and Buckley, cited above, § 74).

63.  The Court observes that in the case at issue the domestic courts were confronted with the problem of finding a fair balance between the applicant’s and G.Z’s private interests in partition of their family house. These interests involved their rights under Article 8 of the Convention and therefore, by the nature of the dispute, there was an inevitable interference by the domestic courts’ decisions with the rights of one of the parties guaranteed under that provision. In such circumstances, the Court must examine whether the decision-making process leading to measures of interference was fair and was such as to afford due respect to the interests safeguarded to the individual by Article 8 (see Zehentner v. Austria, no. 20082/02, § 58, 16 July 2009).

64.  The Court notes that when G.Z. brought his action in the Vinkovci Municipal Court seeking termination of his and the applicant’s co-ownership of the house at issue by buying out the applicant’s share or partition of the house by judicial sale, the applicant did not object to the proposal for partition (see paragraph 12 above), thus removing the question of the necessity and legitimacy of such a request from any dispute. The applicant rather objected to the proposed partition model, seeking partition in kind (see paragraph 13 above); a proposal which was objected to by G.Z. (see paragraph 14 above).

65.  Such a disagreement between the applicant and G.Z. required the domestic courts to seek a partition model which would be feasible and appropriate in the circumstances of the case. In this connection the Court reiterates that any person at risk of an interference with his right to home should in principle be able to have the proportionality and reasonableness of the measure determined by an independent tribunal in the light of the relevant principles under Article 8 of the Convention (see, mutatis mutandis, Orlić v. , no. 48833/07, § 65, 21 June 2011). This requirement applied equally both to the applicant’s and G.Z.’s relevant interests.

66.  On 26 November 2009 the Vinkovci Municipal Court commissioned an expert report in order to establish whether partition in kind was possible and also the market value of the house and the plot of land. The expert report of 4 January 2010 found that partition in kind was not possible, since the house was a single unit with one entrance and a hallway leading to all the other rooms in the house (see paragraph 19 above). These findings were further elaborated by the expert at a court hearing held on 8 March 2010. The expert explained that partition in kind by establishing separate flats for the applicant and G.Z. was not possible without further significant investment, such as instituting new administrative proceedings, obtaining a new building permit, and carrying out the necessary construction work (see paragraph 22 above).

67.  The Court notes that the applicant had no questions for the expert, although she was given every opportunity to confront the expert with her position and to put the relevant questions concerning his findings. The applicant merely maintained that partition in kind was possible (see paragraph 23 above). The Vinkovci Municipal Court accepted the expert report, finding it sufficiently reasoned and convincing, and ordered partition by judicial sale. The decision of the Vinkovci Municipal Court is sufficiently reasoned and does not disclose any arbitrary or manifestly unreasonable conclusions, particularly having in mind the provisions of the relevant domestic law. They stipulate that the court shall order partition by judicial sale if partition in kind is not possible without adverse effects on the value of the property (see paragraph 37 above, sections 50 § 4 and 67 of the Property Act) and that a “flat” requires a separate entrance (see paragraph 38 above).

68.  The Court therefore, having in mind that it cannot substitute its own findings of fact for that of the domestic courts, which are better placed to assess the evidence adduced before them, is satisfied that the decision-making process leading to measures of interference with the applicant’s rights was fair and such as to afford due respect to the interests safeguarded by Article 8.

69.  Finally, the Court notes that although the applicant raised a relevant argument before it, namely that she would not be able to buy another suitable flat with the money awarded by judicial sale, which could play an important role in balancing of interests also in terms of the relevant domestic law (see paragraph 37 above – section 47 § 2 of the Property Act); she had never raised that argument before the domestic authorities. Having in mind that the domestic authorities duly examined the applicant’s objection as to the partition model, the Court sees no reason to doubt that they would have examined the applicant’s argument as to whether it would be possible for her to buy another flat. However, without having that issue raised at the national level, the Court cannot substitute itself for the national authorities, since that would take it beyond its subsidiary role.

70.  Therefore, the Court finds that there has been no violation of Article 8 of the Convention.

71.  In view of the above considerations, the Court also finds no basis on which to conclude that any of the decisions of the domestic courts were affected by any element of arbitrariness or were otherwise manifestly unreasonable and thus in violation of the applicant’s property rights under Article 1 of Protocol No. 1. (see, mutatis mutandis, Anheuser-Busch Inc. v. Portugal [GC], no. 73049/01, § 86, ECHR 2007I).

72.  This allows the Court to conclude, without further examination, that there has been no violation of Article 1 of Protocol No. 1.

II.  OTHER ALLEGED VIOLATIONS OF THE CONVENTION

73.  Lastly, the applicant complained, under Article 6 § 1 of the Convention, that the domestic courts lacked impartiality, and under Article 14 of the Convention that she was discriminated against, but without any further substantiation.

74.  In the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court considers that this part of the application does not disclose any appearance of a violation of the Convention. It follows that it is inadmissible under Article 35 § 3 as manifestly ill-founded, and must be rejected pursuant to Article 35 § 4 of the Convention.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1.  Declares the complaint concerning the alleged violation of the applicant’s right to respect for her home and the peaceful enjoyment of her possessions admissible and the remainder of the application inadmissible;

2.  Holds that there has been no violation of Article 8 of the Convention;

3.  Holds that there has been no violation of Article 1 of Protocol No. 1 to the Convention.

Done in English, and notified in writing on 3 October 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.


PROCEDURE

1.  The case originated in applications against Russia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on the various dates indicated in the appended table.

2.  The applications were communicated to the Russian Government (“the Government”).

THE FACTS

3.  The list of applicants and the relevant details of the applications are set out in the appended table.

4.  The applicants complained of the excessive length of their pre-trial detention. In application no. 53125/17, the applicant also raised a complaint under Article 5 § 4 of the Convention.

THE LAW

I.  JOINDER OF THE APPLICATIONS

5.  Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.

II.  ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION

6.  The applicants complained principally that their pre-trial detention had been unreasonably long. They relied on Article 5 § 3 of the Convention, which read as follows:

“3.  Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”

7.  The Court observes that the general principles regarding the right to trial within a reasonable time or to release pending trial, as guaranteed by Article 5 § 3 of the Convention, have been stated in a number of its previous judgments (see, among many other authorities, Kudła v. Poland [GC], no. 30210/96, § 110, ECHR 2000XI, and McKay v. the United Kingdom [GC], no. 543/03, §§ 41-44, ECHR 2006X, with further references).

8.  In the leading case of Dirdizov v. Russia, no. 41461/10, 27 November 2012, the Court already found a violation in respect of issues similar to those in the present case.

9.  Having examined all the material submitted to it, including the Government’ argument of non-exhaustion related to application no. 49998/17, the Court has not found any fact or argument capable of persuading it to reach a different conclusion on the admissibility and merits of these complaints. Having regard to its case-law on the subject, including that concerning exhaustion of domestic remedies in the length-of-detention cases (see Polonskiy v. Russia, no. 30033/05, §§ 131-32, 19 March 2009), the Court dismisses the Government’s objection and considers that in the instant case the length of the applicants’ pre-trial detention was excessive.

10.  These complaints are therefore admissible and disclose a breach of Article 5 § 3 of the Convention.

III.  OTHER ALLEGED VIOLATIONS UNDER WELL-ESTABLISHED CASE-LAW

11.  In application no. 53125/17, the applicant also submitted a complaint under Article 5 § 4 of the Convention. This complaint is not manifestly illfounded within the meaning of Article 35 § 3 (a) of the Convention, nor is it inadmissible on any other ground. Accordingly, it must be declared admissible. Having examined all the material before it, the Court concludes that it also discloses a violation of the Convention in the light of its findings in Zubkov and Others v. Russia, nos. 29431/05 and 2 others, §§ 146-149, 7 November 2017, dealing with the lack of speedy review of the detention matters.

IV.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

12.  Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

13.  Regard being had to the documents in its possession and to its caselaw (see, in particular, Pastukhov and Yelagin v. Russia, no. 55299/07, 19 December 2013), the Court considers it reasonable to award the sums indicated in the appended table.

14.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1.  Decides to join the applications;

2.  Declares the applications admissible;

3.  Holds that these applications disclose a breach of Article 5 § 3 of the Convention concerning the excessive length of pre-trial detention;

4.  Holds that there has been a violation of the Convention as regards the other complaint raised under well-established case-law of the Court (see appended table);

5.  Holds

(a)  that the respondent State is to pay the applicants, within three months, the amounts indicated in the appended table, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.

Done in English, and notified in writing on 26 July 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.


PROCEDURE

1.  The case originated in an application (no. 31549/96) against Romania lodged with the European Commission of Human Rights (“the Commission”) under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by three Romanian nationals, Mrs Irina Margaret Popovici, Mrs Sanda Popovici and Mrs Maria Margareta Dumitrescu (“the applicants”), on 5 April 1996. Following the death of Mrs Maria Margareta Dumitrescu on 10 November 1997, her heir, Mrs Maria Cristina Mauc Dumitrescu, a French and Romanian national, expressed her wish, on 9 May 2000, to continue the proceedings.

2.  The Romanian Government (“the Government”) were represented by their Agent, Mrs C. Tarcea, of the Ministry of Justice.

3.  The applicants alleged, in particular, that the Braşov Court of Appeal's finding, on 20 September 1995, that the courts had no jurisdiction to determine an action for recovery of possession and the change in the case-law following the decision of the Supreme Court of Justice were contrary to Article 6 § 1 of the Convention. The applicants also complained that the judgment had had the effect of infringing their right to peaceful enjoyment of their possessions as guaranteed by Article 1 of Protocol No. 1.

4.  The application was referred to the Court on 1 November 1998, when Protocol No. 11 to the Convention came into force (Article 5 § 2 of Protocol No. 11).

5.  By a decision of 10 October 2000, the Court (First Section) declared the application partly admissible.

6.  On 1 November 2001 the Court changed the composition of its Sections (Rule 25 § 1 of the Rules of Court). This case was assigned to the newly composed Second Section (Rule 52 § 1).

7.  The applicants and the Government each filed observations on the merits (Rule 59 § 1).

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

8.  The first two applicants are Romanian nationals who were born in 1930 and 1932 respectively and live in . The third applicant, a Romanian and French national, lives in VillebonsurYvette, France.

9.  In 1934 S.D, the father of the first two applicants, bought a parcel of land in Predeal, . In 1937 S.D. built a house on the land.

10.  On 30 August 1946 the State requisitioned a room in the house, pursuant to a requisition order of Predeal Town Council, on the ground that it was needed by a third person, M.A.

11.  On 22 May 1948, following an application by the Ministry of the Interior (MAI), the  prefect ordered the property to be returned to the owner, S.D.

12.  On 13 September 1965, as can be seen from the judgments delivered in the present case, the State nationalised the house.

13.  On 17 August 1971 Braşov City Council (Consiliul Popular Judeţean Braşov) decided to transfer the administration of the property from the managing company of state-owned property (Intreprinderea de gospodărie locativă ) to the Romanian Intelligence Service (Consiliul securităţii statului).

14.  According to information provided by the applicants, in 1992 the property was transferred to the administration of the Romanian Intelligence Service (Serviciul Român de Informatii – “SRI”).

A. The first action for recovery of possession

15.  In 1992 the applicants, as heirs, lodged an application under Law no. 18/91 for the return of the land on which the house had been built. In a judgment of 25 November 1992 the Braşov Court of First Instance dismissed their application as ill-founded on the ground that they should have brought an action in the administrative courts in accordance with the provisions of Law no. 29/90.

16.  On 8 January 1993 the first two applicants and Maria Margareta Dumitrescu brought an action for recovery of possession against Military Command Centre no. 05024 of the Ministry of Defence in the Braşov Court of First Instance. They argued that they were the heirs of S.D., that he had owned land of 2,686 m² in Predeal, on which he had built a house, and that in 1946 a room in that house had been requisitioned but that the State had subsequently illegally appropriated the property. They sought to establish their title to the house and land as heirs.

17.  In a judgment of 25 May 1993 the court found that the house had belonged to S.D.; that a room had been requisitioned in 1946 for a specific period; that the house had subsequently been requisitioned in its entirety; and that since then the State had continued to occupy it despite the fact that the owner had protested at the requisition. Noting that the property claimed was now occupied by Command Centre no. 05007 of the SRI, and finding that the requisition order could not have had the effect of lawfully passing the property into the ownership of the State and that the house had been nationalised under Decree no. 92/1950, which had not been lawfully applied, the court held that the applicants were the legal owners of the house and adjoining land and ordered the State's property title to be struck out of the land register and the late S.D. to be registered as owner.

18.  The SRI appealed against that judgment, submitting that, pursuant to section 5 of the Real Property Act (Law no. 18/1991), the property in question had definitively become state-owned property. It submitted, in the alternative, that the house had been nationalised in 1965 pursuant to Decree no. 92/1950.

19.  On 9 December 1993 the  allowed the appeal, set aside the judgment of 25 May 1993 and dismissed the applicants' claim for recovery of possession on the merits.

20.  The applicants lodged an appeal against that decision. In a judgment of 7 June 1994 the Braşov Court of Appeal allowed the applicants' appeal, noted that there had been procedural flaws, quashed the earlier decision and decided to remit the case to the  for a rehearing of the appeal.

21.  On 21 December 1994 the , rehearing the appeal by the SRI, dismissed it as ill-founded. It considered that requisition was not a means of transferring title to property, but an act by which a right of use could temporarily be conferred. In addition, Decree no. 92/1950 was not applicable to the property of S.D., who, on account of his profession, did not fall into the category of persons whose property could be nationalised.

22.  The SRI appealed against the decision of 21 December 1994.

In a final judgment of 20 September 1995 the Braşov Court of Appeal allowed the appeal and dismissed the action for recovery of possession on the merits. It held that the courts had exceeded their jurisdiction when they had examined the lawfulness of the nationalisation of the house and that the matter could only be settled by legislation.

B. The second action for recovery of possession

23.  On 22 September 1999 the applicants brought a fresh action for recovery of possession against the Ministry of Finance, the SRI and Predeal Town Council.

24.  In a judgment of 5 May 2000 the  granted the applicants' claim, found that they were the lawful owners of the property and ordered the defendants to cease interfering with their enjoyment of their property right.

25.  According to information provided by the Government, an appeal by the SRI was dismissed as ill-founded in a decision of 14 November 2000 of the Braşov Court of Appeal.

26.  According to information provided by the applicants, in a judgment of 4 December 2001 the Supreme Court of Justice decided to allow the appeal by the SRI and to quash the earlier decisions and dismiss the applicants' action for recovery of possession.

C.  The application for restitution under Law no. 112/95

27.  On an unspecified date the applicant lodged an application for restitution with the administrative board established to deal with applications lodged with Braşov City Council pursuant to Law no. 122/95 (“the Administrative Board”).

28.  In an administrative decision of 29 June 1999 the Administrative Board granted the application and ordered the building to be returned to the applicants.

29.  On 10 September 1999 the SRI lodged an objection to that decision.

30.  In a judgment of 16 December 1999 the Braşov Court of First Instance dismissed the objection as ill-founded.

31.  On 9 May 2000 the  dismissed an appeal by the SRI as being ill-founded.

32.  According to information provided by the applicants, in a judgment of 2000 the Braşov Court of Appeal allowed the SRI's appeal and objection, thereby setting aside the decision ordering the return of the building.

II. RELEVANT DOMESTIC LAW AND PRACTICE

33.  The relevant domestic legislation and case-law are set out in the Brumărescu v. Romania judgment ([GC], no. 28342/95, §§ 31, 34, 35, 40-44, ECHR 1999-VII).

THE LAW

I. THE MERITS

A.  Alleged violation of Article 6 § 1 of the Convention concerning the right of access to a court

34.  According to the applicants, the Braşov Court of Appeal's judgment of 20 September 1995 infringed Article 6 § 1 of the Convention, which provides:

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] tribunal ...”

35.  In their memorial, the applicants submitted that the Court of Appeal's finding that the courts had no jurisdiction to determine an action for recovery of possession was contrary to the right of access to a court enshrined in Article 21 of the Romanian Constitution and Article 3 of the Romanian Civil Code, which deals with denial of justice.

36.  The Government admitted that the applicant had been denied access to a court, but submitted that this had been temporary and in any event justified by the need to ensure compliance with procedural rules and to preserve the principle of the separation of powers.

37.  The Court must therefore examine whether the judgment of 20 September 1995 infringed Article 6 § 1 of the Convention.

38.  The Court reiterates that in the aforementioned Brumărescu case (see §§ 61-62), it concluded that the Supreme Court of Justice's finding that the courts had no jurisdiction to decide disputes such as the action for recovery of possession in the instant case infringed Article 6 § 1 of the Convention.

The Court observes that in the instant case the Braşov Court of Appeal took the same approach as the Supreme Court of Justice in the aforementioned Brumarescu case in that it found that the courts did not have jurisdiction to determine an action for recovery of possession.

39.  Moreover, the decision by the Braşov Court of Appeal, in its judgment of 20 September 1995, to exclude the applicants' action for recovery of possession from the courts' jurisdiction is in itself contrary to the right of access to a court guaranteed by Article 6 § 1 of the Convention.

40.  There has thus been a violation of Article 6 § 1 in this respect.

B. Alleged violation of Article 1 of Protocol No. 1 to the Convention

41.  The applicants complained that the Braşov Court of Appeal's judgment had had the effect of infringing their right to peaceful enjoyment of their possessions as guaranteed by Article 1 of Protocol No. 1, which provides:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

42.  The applicants submitted that that judgment, by which their property was held to belong to the State and the earlier judgments were set aside, had amounted to a deprivation of their right to peaceful enjoyment of their possessions.

43.  The Government reiterated their objection that the application was incompatible ratione materiae, which they had raised at the admissibility stage, and referred to the Ioana Asikis v. Greece decision (no. 48229/99, 22 June 2000) regarding the concept of “possession” within the meaning of Article 1 of Protocol No. 1 to the Convention. They submitted that only a final (and irrevocable) decision could be regarded as a possession for the purposes of the Convention and that the applicants did not have the benefit of such a decision.

44.  The Court reiterates that the applicants can only allege a violation of Article 1 of Protocol No. 1 in so far as the proceedings of which they complained related to “possessions”, within the meaning of that provision, purportedly belonging to them.

In the present case the applicants brought proceedings before the appropriate domestic authorities for recovery of possession of a house. In doing so they sought to establish a right of ownership over the property that had belonged to their father, but at the time of lodging the originating application was no longer the property of their father or of the applicants themselves. Consequently, the proceedings did not relate to an “existing possession” of the applicants (see Malhous v. the Czech Republic (dec.), [GC], no. 33071/96, p. 17).

45.  The Court reiterates that the power to determine a factual situation and apply domestic law falls first and foremost to the national courts. Since the Court cannot speculate as to what the outcome of the proceedings would have been if the domestic courts had determined the dispute, it follows that the applicants have failed to establish that they had a “legitimate expectation” regarding ownership of the property claimed.

46.  In these conditions the Court concludes that the applicants did not have title to a possession within the meaning of Article 1 of Protocol No. 1 cited above.

47.  Accordingly, the Court concludes that there has not been a violation of Article 1 of Protocol No. 1.

C. Application of Article 41 of the Convention

48.  Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

1.  Pecuniary damage

49.  As their main claim the applicants sought restitution of the property at issue. Should restitution not be granted, they claimed a sum equivalent to the current value of their property – namely, according to the expert report they submitted to the Court, 108,400 US dollars (USD) (130,208 euros (EUR)) for the house and USD 98,400 (EUR 93,687) for the adjoining land. They claimed USD 381,996 (EUR 363,701) in unpaid rent for the period between 1946 and 2000.

50.  The Government disputed those amounts and submitted that the true value of the building was USD 138,943 (EUR 132,288).

In respect of the unpaid rent the Government submitted that the amount was inflated and that, in any event, the Romanian State should not be held liable for measures taken prior to 20 June 1994, when the European Convention of Human Rights was ratified.

51.  The Court reiterates that it did not find a violation of Article 1 of Protocol No. 1 to the Convention (see paragraph 46 above). Accordingly, the claims for relief under this head must be refused.

2.  Non-pecuniary damage

52.  The applicants also sought USD 50,000 (EUR 47,605) for non-pecuniary damage sustained on account of the “serious, unbearable and immeasurable” suffering which the Braşov Court of Appeal had inflicted on them.

53.  The Government resisted that claim, submitting that no non-pecuniary damage could be taken into account. Furthermore, according to the Government, the applicants had not proved that they had suffered as stated or that there had been a causal link between that suffering and the alleged violations of the Convention.

54.  The Court considers that the events in question entailed serious interferences with the applicants' right to respect for their right of access to a court, in respect of which the sum of EUR 6,000 would represent fair compensation for the non-pecuniary damage sustained.

3.  Costs and expenses

55.  The applicants claimed reimbursement of USD 1,105 (EUR 1,052), which they broke down as follows in a detailed account they submitted:

(a)  USD 913 (EUR 869) for the expenses incurred in the domestic proceedings and the legal fees incurred in endeavouring to re-establish their property right;

(b)  USD 44 (EUR 41) for having the building valued;

(c)  USD 148 (EUR 140) for various expenses (telephone, photocopies, notary).

56.  The Government did not object to the reimbursement of the costs incurred, provided that vouchers were submitted. They submitted that the sum of USD 913 was not “credible”.

57.  The Court observes that the applicants produced vouchers only for the expert report, the notary fees and other expenses (postage, telephone). In the circumstances, the Court considers it appropriate to award the applicants jointly EUR 192 under this head.

4.  Default interest

58.  The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1.	Holds that there has been a violation of Article 6 § 1 of the Convention by reason of the refusal of the right of access to a court;

2.  Holds that there has been no violation of Article 1 of Protocol No. 1;

3.  Holds that the respondent State is to pay the applicants jointly, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, the following amounts:

(i)  EUR 6,000 (six thousand euros) for non-pecuniary damage;

(ii)  EUR 192 (one hundred and ninety-two euros) for costs and expenses; and

(iii)	 that these sums are to be converted into the national currency of the respondent State at the rate applicable on the date of settlement;

4.  Holds that, from the expiry of the above-mentioned three months until settlement, simple interest shall be payable on the amounts indicated under 3 (i) and (ii) at a rate equal to the marginal lending rate of the European Central Bank during that period, to which should be added three percentage points;

5.  Dismisses the remainder of the claim for just satisfaction.

Done in French, and notified in writing on 4 March 2003, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.