SECOND SECTION
CASE OF PETAR MATAS v. CROATIA
(Application no. 40581/12)
JUDGMENT
STRASBOURG
4 October 2016
This judgment will become final in the circumstances set out in Article44 §2 of the Convention. It may be subject to editorial revision.
PETAR MATAS v. CROATIA JUDGMENT 13
In the case of Petar Matas v. Croatia,
The European Court of Human Rights (Second Section), sitting as a Chamber composed of:
Işıl Karakaş, President,
Nebojša Vučinić,
Paul Lemmens,
Valeriu Griţco,
Ksenija Turković,
Stéphanie Mourou-Vikström,
Georges Ravarani, judges,
and Stanley Naismith, Section Registrar,
Having deliberated in private on 30 August 2016,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.The case originated in an application (no. 40581/12) against the Republic of Croatia 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, Mr Petar Matas (“the applicant”), on 14 June 2012.
2.The applicant was represented by Ms M. Mešin, a lawyer practising in Split. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik.
3.The applicant complained of an allegedly unlawful and unreasonable restriction of his property rights in respect of a commercial building by the application of measures of preventive protection relating to cultural heritage, contrary to Article 1 of Protocol No. 1.
4.On 9 February 2015 the above complaint was communicated to the Government, and the remainder of the application was declared inadmissible, pursuant to Rule 54 § 3 of the Rules of Court.
THE FACTS
I.THE CIRCUMSTANCES OF THE CASE
5.The applicant was born in 1953 and lives in Split.
6.The applicant is the owner of a commercial building in Split, which he uses as a car repair workshop. The building in issue was bought from the State in 2001. At the time of purchase, no limitation on its use was registered or apparent.
7.On 28 March 2003 the Split Department for the Conservation of Cultural Heritage (Ministarstvo kulture, Uprava za zaštitu kulturne baštine, Konzervatorski odjel u Splitu, hereafter “the Split Department”) ordered a measure of preventive protection relating to cultural heritage with regard to the applicant’s building, pending the final evaluation of its cultural value. It explained that the building, which was being used as a car repair workshop at that point, appeared to be a rare example of early industrial architecture in Split, and therefore this warranted a measure limiting its use by the applicant. Under section 10 of the Protection and Preservation of Cultural Heritage Act (Zakon o zaštiti i očuvanju kulturnih dobara, hereafter “the Cultural Heritage Act”) the measure would remain in place for a period of three years, and, in accordance with section 11 of the same Act, would afford the same protection as a final protective measure (see paragraph 21 below).
8.The decision ordering the preventive protection was not transmitted to the applicant. It was forwarded to the land registry of the Split Municipal Court (Općinski sud u Splitu) and duly registered in the land register.
9.On 10 January 2007, after the expiry of the three-year period, the Split Department again ordered a measure of preventive protection with regard to the applicant’s commercial building, reiterating the same grounds as those specified in its previous decision.
10.The applicant was not informed of the above decision relating to the second measure of preventive protection in respect of his building. On 3September 2007 the measure was registered in the land register.
11.On 16 October 2007, after becoming aware of the second measure of preventive protection following an enquiry with the land registry, the applicant challenged the extended application of that measure before the Ministry of Culture (Ministarstvo culture, hereafter “the Ministry”). He contended, in particular, that he had not been informed of the decision ordering the preventive protection, and that the protection could no longer be ordered, since the maximum duration of such a measure under the Cultural Heritage Act was three years. The applicant also enquired about compensation in respect of the pecuniary damage he had sustained as a result of the measure of preventive protection.
12.On 8 January 2008 the Split Department forwarded the applicant’s appeal to the Ministry. It stressed that the decision of 10 January 2007 extending the preventive protection after the expiry of the first three-year period had been necessary, owing to the fact that it had not been possible to obtain an excerpt from the land register from the Split Municipal Court, and that the building represented an important example of early industrial architecture in Split.
13.On 31 January 2008 the Ministry dismissed the applicant’s appeal as unfounded, on the grounds that there was nothing in the law preventing the competent authority from applying the measure twice for periods of three years, and that the measure of preventive protection had not limited the applicant’s ownership rights. It also pointed out that it was necessary to extend the preventive protection in respect of the building, as the determination of its heritage value required further comprehensive assessment.
14.On 9 March 2008 the applicant lodged an administrative action in the Administrative Court (Upravni sud Republike Hrvatske), challenging the lawfulness and reasonableness of the measure of preventive protection, and emphasising the passivity of the competent authorities in finally resolving the matter. He also contended that the decisions of the lower authorities had been arbitrary. He pointed out that, contrary to what the Ministry had stated, his ownership rights had been significantly limited, as his freedom to deal with the property as he wished had been restricted. In particular, his several attempts to sell the building and set up another business cooperation had failed, owing to the existing preventive protection. The applicant also asked the Administrative Court to award him 200,000 euros (EUR) in respect of the damage he had sustained as a result of the conduct of the administrative authorities.
15.Meanwhile, the Split Department found that the applicant’s building should not be registered as an object of cultural heritage. On 15 April 2010, after the expiry of the measure of preventive protection, the Split Municipal Court ordered that the entry concerning the measure be deleted from the land register.
16.On 18 May 2011 the Administrative Court dismissed the applicant’s administrative action as unfounded, endorsing the reasoning of the lower authorities. In particular, it pointed out that there had been solid evidence suggesting that the building was an important object of cultural heritage, and that the measure of preventive protection was therefore justified given the need to carry out further assessments. Moreover, the Administrative Court considered that nothing in the relevant domestic law prevented the adoption of the second decision on preventive protection following the expiry of the first three-year time-limit.
17.On 10 September 2011 the applicant lodged a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske), complaining of a violation of his property rights under Article 48 of the Constitution with regard to the allegedly unlawful and unreasonable application of the measure of preventive protection in respect of his property.
18.On 14 December 2011 the Constitutional Court declared the applicant’s constitutional complaint inadmissible as manifestly ill-founded.
II.RELEVANT DOMESTIC LAW
A.Constitution
19.The relevant provision of the Constitution of the Republic of Croatia (Ustav Republike Hrvatske, Official Gazette nos. 56/1990, 135/1997, 8/1998, 113/2000, 124/2000, 28/2001, 41/2001, 55/2001, 76/2010, 85/2010 and 5/2014) reads:
Article 48
“The right of ownership shall be guaranteed ... ”
B.The Cultural Heritage Act
20.The relevant provisions of the Protection and Preservation of Cultural Heritage Act (Zakon o zaštiti i očuvanju kulturnih dobara, Official Gazette, nos. 69/1999, 151/2003 and 157/2003) provide:
Preventive protection
Section 10
“Objects presumed capable of being of cultural benefit may be the subject of provisional decisions ordering preventive protection. ...
The period of preventive protection runs until the adoption of the [decision finally determining the status of an object of cultural heritage], but may not last longer than three years, ...
If, by the expiry of the time-limit referred to in paragraph 3 of this section, the decision determining the [heritage] status of a cultural object has not been adopted, the decision ordering preventive protection ceases to be valid. ...”
Section 11
“This Act, and all the provisions concerning the protection of objects of cultural heritage, are applicable to [matters relating to] an object which is under the preventive protection. ...”
21.The Cultural Heritage Act further provides for different obligations on the part of owners of objects of cultural heritage; in particular, the duty of care, protection and maintenance, and the duty to allow free access and the taking of further measurements in relation to the research and assessment of the objects (section 20). The owner of such an object is obliged to bear all expenses relating to the protection and preservation of the object, save for possible extraordinary expenses, which may be claimed from the Ministry (section 22). An owner who duly complies with the requirements of the Cultural Heritage Act may claim compensation for the restriction of his or her property rights, different tax and customs benefits and expert guidance concerning the use of the object of cultural heritage (sections 24-26).
22.The specific restrictions on property rights in respect of objects relevant to cultural heritage which may be imposed under the Cultural Heritage Act are enumerated in sections 27-42. These restrictions include:
(a) restrictions with regard to possession, particularly with regard to the duty to allow free access to the object for the purpose of research and assessment, where compensation may be claimed only if it can be proven that damage has been sustained;
(b) restrictions with regard to the use of objects, and in particular the obligation on the part of the owner to seek prior permission for any change in the nature of use of the object; and
(c) restrictions with regard to the transfer of property where the State has a right of pre-emption. An object of cultural heritage may also be expropriated in the interests of the State (section 41).
THE LAW
I.ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION
23.The applicant complained of an allegedly unlawful and unreasonable restriction of his property rights in respect of a commercial building by the application of measures of preventive protection relating to cultural heritage. He relied on Article 1 of Protocol No. 1, which reads:
“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
24.The Government argued that the applicant had failed to ask the Ministry to award him compensation for the restriction of his property rights by the application of the measure of preventive protection, as set out in the Cultural Heritage Act (see paragraphs 21-22 above). He had therefore failed to avail himself of an effective legal avenue whereby the question of the reasonableness of the restriction of his property rights could have been assessed.
25.The applicant maintained that he had properly exhausted the domestic remedies by pursuing his complaints before the administrative and judicial authorities concerning the application of the measure of preventive protection with regard to his building.
2.The Court’s assessment
26.The Court reiterates that the rule on exhaustion of domestic remedies under Article 35§1 of the Convention requires that complaints intended to be made subsequently in Strasbourg should have been made to the appropriate domestic body, at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law (seeVučković and Others v. Serbia (preliminary objection) [GC], nos.17153/11 and 29 others, § 72, 25 March 2014).
27.With regard to the case in issue, the Court notes that the central tenet of the applicant’s complaint is the allegedly unlawful and unjustified interference with his property rights by the application of the measure of preventive protection with regard to his building. In respect of that complaint, the applicant duly pursued all available legal remedies before the administrative and judicial authorities, and he also lodged a constitutional complaint with the Constitutional Court (see paragraphs 11, 14 and 16 above). Moreover, contrary to what the Government have asserted, the applicant asked for compensation for the pecuniary damage he had sustained as a result of the application of the measure of preventive protection, before both the Ministry and the Administrative Court (seeparagraphs 11 and 14 above).
28.In view of the above, the Court finds that the applicant properly exhausted the domestic remedies. The Government’s objection should therefore be rejected.
29.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
(a)The applicant
30.The applicant contended that, whereas he could have accepted that the first measure of preventive protection had been necessary in order to assess the value of his building with regard to cultural heritage, the second measure had been unlawful and unjustified. In particular, in his view, the second decision to apply the measure had been adopted contrary to section 10 of the Cultural Heritage Act, which clearly provided for the possibility of applying a measure of preventive protection for a period of only three years. In his case, the measure had been applied for two three-year periods, which had been contrary to the relevant domestic law, and also unnecessary and disproportionate. The applicant further contended that the application of the measure of preventive protection had imposed a number of restrictions on his property rights. It had also discouraged investors from investing in his projects concerning the reconstruction of the building. In that connection, the applicant provided outlines of the projects which had apparently been abandoned owing to the application of the measure of preventive protection.