SECOND SECTION
\nCASE OF PETROVI\u0106 AND OTHERS v. MONTENEGRO
\n(Application no. 18116\/15)<\/p>\n
JUDGMENT
\nSTRASBOURG
\n17 July 2018<\/p>\n
FINAL
\n03\/12\/2018<\/p>\n
This judgment has become final under Article 44 \u00a7 2 of the Convention. It may be subject to editorial revision.<\/p>\n
In the case of Petrovi\u0107 and Others v. Montenegro,<\/strong><\/p>\n The European Court of Human Rights (Second Section), sitting as a Chamber composed of:<\/p>\n Robert Spano, President, Having deliberated in private on 26 June 2018,<\/p>\n Delivers the following judgment, which was adopted on that date:<\/p>\n PROCEDURE<\/strong><\/p>\n 1.\u00a0\u00a0The case originated in an application (no. 18116\/15) against Montenegro lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (\u201cthe Convention\u201d) by four Montenegrin nationals, Mr Bo\u017eidarPetrovi\u0107 (the first applicant), Ms Alma Kuzmanovi\u0107 (the second applicant), Ms Kristina Petrovi\u0107 (the third applicant) and Mr \u017deljkoPetrovi\u0107 (the fourth applicant), on 1 April 2015.<\/p>\n 2.\u00a0\u00a0The applicants were represented by Mr V. Vulekovi\u0107, a lawyer practising in Kotor. The Montenegrin Government (\u201cthe Government\u201d) were represented by their Agent, Ms V. Pavli\u010di\u0107.<\/p>\n 3.\u00a0\u00a0The applicants alleged that their land was de facto expropriated without any compensation, and that the courts\u2019 decisions in this respect were arbitrary.<\/p>\n 4.\u00a0\u00a0On 12 January 2017 the application was communicated to the Government.<\/p>\n THE FACTS<\/strong><\/p>\n I.\u00a0\u00a0THE CIRCUMSTANCES OF THE CASE<\/p>\n 5.\u00a0\u00a0The applicants were born in 1956, 1952, 1975, and 1980 respectively. The first applicant lives in Tivat and the second, third and fourth applicants live in Kotor.<\/p>\n 6.\u00a0\u00a0The facts of the case, as submitted by the parties, may be summarised as follows.<\/p>\n 7.\u00a0\u00a0On 1 September 2009 the first and second applicants and the father of the third and fourth applicants instituted civil proceedings against the State, seeking that they be recognised as owners of two plots of land in the coastal zone (u zonimorskog dobra). They submitted, in particular, that the land at issue had been lawfully owned by their father, but that without any legal basis the State appeared as the registered owner thereof in the Real Estate Registry, and that they should be declared owners as their father\u2019s legal successors (kaopravnisledbenici).<\/p>\n 8.\u00a0\u00a0On 2 March 2010 the Real Estate Administration in Tivat (Upravazanekretnine, podru\u010dnajedinicaTivat), acting upon the first applicant\u2019s request, issued a decision allowing the division into two of an adjacent plot of land, a forest in the coastal zone, the registered owner of which at the time was the Municipality. The Municipality remained registered as the owner of one part of it, whereas the other part was registered in the name of the applicants\u2019 predecessor (the father of the first and second applicants, and the grandfather of the third and fourth applicants).<\/p>\n 9.\u00a0\u00a0On 21 November 2011, after a remittal, the Court of First Instance (Osnovnisud) in Kotor ruled against the first and second applicants and the third and fourth applicants\u2019 father. The court found that the land at issue had indeed been owned by their predecessors, notably their father, grandfather and grand-grandfather, but that they had not proved that they had inherited it when their last predecessor had died in 1997. Notably, the court considered that the land at issue was in the coastal zone and thus State property pursuant to section 4 of the Coastal Zone Act of 1992 and \u201csection\u00a013 and other sections\u201d of the State Property Act (see paragraphs 21 and 24 below), and that the claimants could not claim the right to property in respect of such land. The court made no reference to section 30 of the Coastal Zone Act (see paragraph 22 below). As regards the State\u2019s submission that the land had been nationalised, the court noted that the contents of the decisions relied on by the State could not be clarified. Notably, the State Archive (Dr\u017eavniarhiv) informed the court, on 4 October 2010 and 26\u00a0August 2011, that the case files and decisions Dn 428\/90 and Dn 615\/92, referred to by the State, had not been found in that institution. Finally, the court considered that the Real Estate Administration decision of 2\u00a0March 2010 (see paragraph 8 above) was \u201cof no particular influence\u201d (bez\u00a0posebnoguticaja) given that it related to a different plot of land which was not the subject of these proceedings.<\/p>\n 10.\u00a0\u00a0In their appeal the first and second applicants and the third and fourth applicants\u2019 father confirmed that the said land had not been in their predecessor\u2019s estate when he died, which was exactly the reason why they had initiated these proceedings. They also submitted that: (a) section 30 of the Coastal Zone Act had never been complied with even though it was indisputable that their predecessor had lawfully owned the land; and (b) the relevant legislation did not prohibit private ownership of land in the coastal zone, and referred to section 4 of the Coastal Zone Act and section 20 of the Property Act 2009 (see paragraphs 21 and 19 below). They reiterated that the adjacent plot of land, also a forest in the coastal zone, was privately owned, by them, and submitted the decision of the Real Estate Administration of 2\u00a0March 2010. They maintained that the first-instance court\u2019s reasoning that the said decision was of no influence indicated legal uncertainty, given that the same legal issue was treated differently without any explanation in that regard.<\/p>\n 11.\u00a0\u00a0On 6 April 2012 the High Court (Vi\u0161isud) upheld the first-instance judgment. It found that the land at issue was indisputably forest in the coastal zone, that it was State property pursuant to section 13 of the State Property Act and that the claimants therefore could not claim ownership. The court further held that even assuming that the claimants had had ownership of these plots of land, they had lost it \u201cin accordance with the State Property Act and the Coastal Zone Act. In support of this was also section 30 of the Coastal Zone Act, relied upon by the claimants, which provided that the owners of land in the coastal zone, who had obtained it in a lawful manner before that Act entered into force and which was duly registered in the Real Estate Register as private property, were entitled to compensation in case of an expropriation\u201d. The High Court made no reference to the decision of 2\u00a0March 2010 and the status of the adjacent plot of land, or as to whether the claimants could have inherited the land.<\/p>\n 12.\u00a0\u00a0On 11 October 2012 the Supreme Court (Vrhovnisud) upheld the previous judgments. The court made no explicit reference to the adjacent plot of land and the decision of 2\u00a0March 2010. It held as follows:<\/p>\n \u201cAs the real estate at issue is in the coastal zone regime \u2013 common resource (dobro od op\u0161teginteresa), the lower courts correctly applied the substantive law when they ruled in the said way. Notably, pursuant to section 4 of the Coastal Zone Act, which had been in force until State Property Act entered into force (Official Gazette of Montenegro no. 21.09), coast is owned by the State and could not be object of the private property.<\/p>\n The claimants were wrong to consider that the issue was to be resolved by means of section 30 of the Coastal Zone Act. That provision regulated the rights of the owners of land in the coastal zone who had obtained the property thereof before that Act entered into force by providing that they were entitled to compensation in case of an expropriation […]. That means that the land did not remain in the private property regime, but became State property by the law itself.<\/p>\n Likewise, section 20(2) of the Property Act 2009 is inapplicable to the present case as it cannot be retroactively applied to relations which had arisen before it came into force. Exceptionally, the right to property over a coastal zone can be acquired only after it entered into force.\u201d<\/p>\n 13.\u00a0\u00a0On 25 December 2012 the first and second applicants and the third and fourth applicants\u2019 father lodged a constitutional appeal. They submitted, inter alia, that it was not true that land in the coastal zone could not be privately owned, as numerous plots of land in that zone were private property, including the plot of land adjacent to the one at issue, which was owned by them. They invoked the right to a fair trial and the right to property, and reiterated the importance of legal certainty.<\/p>\n 14.\u00a0\u00a0On 23 July 2014 the Constitutional Court dismissed the constitutional appeal. It held that the lower courts\u2019 assessment \u201cwas based on a correct application of substantive law and a constitutionallyacceptable interpretation thereof, in accordance with Article 6 of the Convention\u201d. As regards Article 1 of Protocol No. 1 the court held that a claim which had been dismissed because the claimants did not meet statutory conditions was not considered a possession that could constitute property rights, and thus there could be no violation of such a right either. This decision was served on 13 October 2014 at the earliest.<\/p>\n 15.\u00a0\u00a0On 16 December 2014 the third and fourth applicants\u2019 father died, leaving the third and fourth applicants as his heirs.<\/p>\n 16.\u00a0\u00a0On 27 May 2015 the Supreme Court issued a general legal opinion (na\u010delnipravnistav) relating to the use of land in the coastal zone. In reaching this opinion, the Supreme Court analysed the relevant domestic legislation, including the Constitution, the Coastal Zone Act 1992, the Property Act and the State Property Act. It found, inter alia, that section\u00a020(2) of the Property Act provided that exceptionally coastal zone can be privately owned, while at the same time section 22(3) of the same Act provided that the coast cannot be privately owned. It also found that the conditions under which the coastal zone can be privately owned are not provided for by law (nisuzakonomodre\u0111eni), \u201cwhich leaves open numerous questions on practical implementation\u201d. The court concluded that \u201cby\u00a0analysing [the relevant legislation] it can be concluded that acquiring private property rights in respect of the coastal zone is not possible save in exceptional cases which are not defined by legislation. It can also be concluded that the issue of lawfully acquired rights in respect of the coastal zone is not regulated in a precise and clear manner…\u201d, but that it was a fact that there were lawfully acquired property rights over the coastal zone, as indicated by section 30 of the Coastal Zone Act.<\/p>\n II.\u00a0\u00a0RELEVANT DOMESTIC LAW<\/p>\n A.\u00a0\u00a0Constitution of Montenegro 2007 (UstavCrne Gore; published in the Official Gazette of Montenegro – OGM – no. 01\/07)<\/strong><\/p>\n 17.\u00a0\u00a0Article 58 guarantees the right to property. In particular, it provides that natural resources and resources in public use (prirodnabogatstvai dobra u op\u0161tojupotrebi) are the property of the State.<\/p>\n B.\u00a0\u00a0Property Act 1980 (Zakon o osnovamasvojinsko-pravnihodnosa; published in the Official Gazette of the Socialist Federal Republic of Yugoslavia nos. 006\/80 and 036\/90; the Official Gazette of Socialist Republic of Yugoslavia no. 029\/96; and OG RM no.\u00a0052\/04)<\/strong><\/p>\n 18.\u00a0\u00a0This Act regulated property rights in detail. Section 20 provided that property could be acquired ex lege, through a legal transaction, by means of inheritance, or on the basis of a decision issued by a State body in accordance with the law.<\/p>\n C.\u00a0\u00a0Property Act 2009 (Zakon o svojinsko-pravnimodnosima; published in the OGM no. 19\/09)<\/strong><\/p>\n 19.\u00a0\u00a0The Property Act 2009 repealed the previous Act. Section 20(2) provides that common resources (dobra odop\u0161teginteresa), including forests and forest land, and exceptionally coastal zone, can be privately owned. Section 22(3) provides that natural resources, including the coast (prirodnabogatstva (morskaobala)), cannot be privately owned.\u00a0Section 28 provides that property can be acquired ex lege, through a legal transaction, by means of inheritance, or on the basis of a decision issued by the State in accordance with the law.<\/p>\n 20.\u00a0\u00a0Section 91 provides that the deceased\u2019s property will be transferred ex lege to the legal heirs at the moment of death.<\/p>\n D.\u00a0\u00a0Coastal Zone Act (Zakon o morskomdobru; published in the OG RM nos. 014\/92, 059\/92, 027\/94, OGM nos. 051\/08, 021\/09, 073\/10, 040\/11)<\/strong><\/p>\n 21.\u00a0\u00a0Section 3 defined the coastal zone (morskodobro) as a strip of coast up to the line reached by the biggest waves in the stormiest weather (do kojedopirunajve\u0107italasizavrijemenajja\u010degnevremena) and at least 6 metres beyond that. The Parliament could declare land beyond also as coastal zone. Section 4 provided that the coastal zone was the property of the State, but that exceptionally land beyond the 6 metre line that was declared coastal zone by the Parliament could be privately owned.<\/p>\n 22.\u00a0\u00a0Section 30 provided, inter alia, that the owners of land in the coastal zone who had obtained the property thereof lawfully before this Act entered into force and which was duly registered in the Real Estate Registry as private property, were entitled to compensation in case of its expropriation, pursuant to the provisions on expropriation.<\/p>\n 23.\u00a0\u00a0This Act entered into force on 11 April 1992.<\/p>\n E.\u00a0\u00a0State Property Act (Zakon o dr\u017eavnojimovini; published in the OGM nos. 021\/09 and 040\/11)<\/strong><\/p>\n 24.\u00a0\u00a0This Act entered into force on 28 March 2009 and thereby repealed section 4 of the 1992 Coastal Zone Act. Sections 9, 10 and 13 thereof, taken together, provide, inter alia, that forests, forest land and land in the coastal zone are common resources which are managed (kojimaraspola\u017ee) by Montenegro.<\/p>\n F.\u00a0\u00a0Civil Procedure Act (Zakon o parni\u010dnompostupku; published in the OG RM nos. 22\/04, 28\/05 and 76\/06, and the OGM no. 73\/10, 47\/15, 48\/15, 51\/17, and 75\/17)<\/strong><\/p>\n 25.\u00a0\u00a0Section 2 provides that the court shall rule within the limits of the claim.<\/p>\n THE LAW<\/strong><\/p>\n I.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 TO THE CONVENTION<\/p>\n 26.\u00a0\u00a0The applicants complained under Article 1 of Protocol No. 1 to the Convention that their plots of land had been de facto expropriated without any compensation being paid therefor. Article 1 of Protocol No. 1 reads as follows:<\/p>\n \u201cEvery 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.<\/p>\n 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.\u201d<\/p>\n 27.\u00a0\u00a0The Government contested that argument.<\/p>\n A.\u00a0\u00a0The parties\u2019 submissions<\/strong><\/p>\n 28.\u00a0\u00a0The Government submitted that the complaint was inadmissible on various grounds, including that it was incompatible rationetemporis and rationemateriae.\u00a0In particular, the Government maintained that the land at issue had been nationalised in 1990, which was before the death of the applicants\u2019 predecessor and thus was not part of his estate when he died.\u00a0Given that taking away of land is an instantaneous act and that the nationalisation had taken place before the Convention entered into force in respect of Montenegro, the applicants\u2019 complaint was incompatible rationetemporis. Since Article 1 of Protocol No. 1 does not guarantee the right to acquire property their complaint was also incompatible rationemateriae. The Government relied on Kopeck\u00fd v. Slovakia [GC], no.\u00a044912\/98, \u00a7 35, ECHR 2004\u2011IX.<\/p>\n 29.\u00a0\u00a0The applicants contested the Government\u2019s submissions.\u00a0In particular, the land at issue had never been nationalised, and the Government had provided no evidence to the contrary.\u00a0The applicants admitted that their predecessor had not been registered as the owner of the land when he had died, but that was precisely why they had initiated civil proceedings. Had he been registered as the owner there would have been no need for any court proceedings as they would have been declared his heirs in the inheritance proceedings.<\/p>\n B.\u00a0\u00a0The Court\u2019s conclusion<\/strong><\/p>\n 30.\u00a0\u00a0The relevant principles in this regard are set out, for example, inKopeck\u00fd, cited above, \u00a7 35. The Court reiterates,\u00a0in particular, that it can examine complaints only to the extent that they relate to events which occurred after the Convention entered into force with respect to the relevant Contracting Party. It also reiterates that a deprivation of ownership or of another right in rem is in principle an instantaneous act and does not produce a continuing situation of \u201cdeprivation of a right\u201d (see Malhous v.\u00a0the Czech Republic (dec.) [GC], no.\u00a033071\/96, ECHR 2000\u2011XII, with further references).<\/p>\n 31.\u00a0\u00a0Turning to the present case, the Court notes that the land at issue was lawfully owned by the applicants\u2019 predecessors, as was established by the domestic courts (see paragraph 9 above).\u00a0The domestic courts, however, also found that the land was not part of the applicants\u2019 last predecessor\u2019s estate when he died in 1997, which was confirmed by the applicants (see paragraph 29 above). Even though no decision on transferring the ownership was procured it is clear that the land at issue had been assigned to the State on an unspecified date by 1997, that is long before 3 March 2004, which is when the Convention and its Protocols entered into force in respect of the respondent State. As a deprivation of ownership is an instantaneous act and does not produce a continuing situation of \u201cdeprivation of a right\u201d, the Court considers that the applicants\u2019 complaint under Article\u00a01 of Protocol No. 1 is incompatible rationetemporis with the provisions of the Convention within the meaning of Article 35 \u00a7 3 (a).<\/p>\n 32.\u00a0\u00a0In view of this conclusion, it is not necessary for the Court to examine the Government\u2019s further objections related to the admissibility of this complaint.<\/p>\n II.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION<\/p>\n 33.\u00a0\u00a0The applicants complained that the domestic courts\u2019 decisions were arbitrary in view of a different status of the adjacent plot of land, in which respect the domestic courts failed to provide any reasoning, and which in their opinion led to legal uncertainty. They relied on Article 6 of the Convention, which reads as follows:<\/p>\n \u201cIn the determination of his civil rights and obligations … everyone is entitled to a fair … hearing … by [a] … tribunal …\u201d<\/p>\n 34.\u00a0\u00a0The Government contested that argument.<\/p>\n A.\u00a0\u00a0The parties\u2019 submissions<\/strong><\/p>\n 35.\u00a0\u00a0The Government submitted that it was not up to the Court to assess how the national courts applied the national law, nor was it its function to deal with errors of fact or law unless these violated rights and freedoms protected by the Convention. While Article 6 obliged the courts to give reasons for their decisions, that could not be understood as requiring a detailed answer to every argument. The Government agreed that land in the coastal zone could be privately owned in certain circumstances. However, Article 2 of the Civil Proceedings Act provided that the courts would rule only within the limits of the claim, and the applicants\u2019 claim had been aimed at their being recognised as the owners of the land on the basis of inheritance. The courts had rejected their claim, finding that at the time of his death their last predecessor had not been the owner of the land at issue and hence they could not have inherited it either. Other circumstances and facts were thus not relevant for ruling on their claim. The applicants therefore had a fair trial and their complaint was manifestly ill-founded.<\/p>\n 36.\u00a0\u00a0The applicants reaffirmed their complaint. They maintained that their predecessor indeed had not been registered as the owner of the land at the time of his death, but that was exactly why they had initiated the proceedings. The courts dismissed their claim on the grounds that the land at issue was in the coastal zone, and as such could not be privately owned, whereas the Supreme Court confirmed in its general legal opinion that private property was possible even within that zone.<\/p>\n B.\u00a0\u00a0The Court\u2019s conclusion<\/strong><\/p>\n 1.\u00a0\u00a0Admissibility<\/em><\/p>\n 37.\u00a0\u00a0The relevant principles with regard to the applicability of Article 6 are set out in, for example, Lupeni Greek Catholic Parish and Others v.\u00a0Romania [GC], no. 76943\/11, \u00a7 71, ECHR 2016 (extracts), and K\u00e1roly Nagy v. Hungary [GC], no. 56665\/09, \u00a7\u00a7 60-63, ECHR 2017. In particular, by \u201crights and obligations\u201d in Article\u00a06 are meant rights and obligations which can be said, at least on arguable grounds, to be recognised under domestic law, irrespective of whether they are protected under the Convention (see Boulois v. Luxembourg [GC], no. 37575\/04, \u00a7 90, ECHR\u00a02012). The requirement, however, is only that the applicant has a \u201ctenable\u201d argument, not that he will necessarily win (see Neves e Silva v. \u00a0Portugal, 27 April 1989, \u00a7 37, Series A no. 153\u2011A).<\/p>\n 38.\u00a0\u00a0Article 6 \u00a7 1 does not guarantee any particular content for (civil) \u201crights and obligations\u201d in the substantive law of the Contracting States: the Court may not create by way of interpretation of Article 6 \u00a7 1 a substantive right which has no legal basis in the State concerned. The starting-point must be the provisions of the relevant domestic law and their interpretation by the domestic courts. This Court would need strong reasons to differ from the conclusions reached by the superior national courts by finding, contrary to their view, that there was arguably a right recognised by domestic law (see Boulois, cited above, \u00a7 91). In carrying out this assessment, it is necessary to look beyond the appearances and the language used and to concentrate on the realities of the situation (see Boulois, cited above, \u00a7\u00a092).\u00a0Other criteria which may be taken into consideration by the Court include the fact that the domestic courts examined the merits of the applicant\u2019s request (see VilhoEskelinen and Others v. Finland [GC], no.\u00a063235\/00, \u00a7 41, ECHR 2007\u2011II).<\/p>\n 39.\u00a0\u00a0Turning to the present case, the Court firstly notes that the domestic courts examined the merits of the applicants\u2019 claim. Secondly, even though in the proceedings initiated by the applicants the courts considered that land in the coastal zone could not be privately owned, the applicants provided evidence to the contrary, notably a relevant decision of 2 March 2010 relating to the adjacent plot of land, also in the coastal zone. Lastly, the Supreme Court itself held that, even though some statutory provisions relating to the ownership of land in the coastal zone were contradictory and the conditions under which the coastal zone could be privately owned were not provided for by law, acquiring private property rights in the coastal zone was possible in exceptional cases. In view of this, the Court considers that the applicants\u2019 had, at least on arguable grounds, a claim under domestic law, thus making Article 6 applicable.<\/p>\n 40.\u00a0\u00a0The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 \u00a7 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.<\/p>\n 2.\u00a0\u00a0Merits<\/em><\/p>\n 41.\u00a0\u00a0The relevant principles concerning the provision of reasons by courts are set out in details in\u00a0Perez v.\u00a0France [GC] (no. 47287\/99, \u00a7\u00a7 80-83, ECHR 2004\u2011I).\u00a0In particular, the Court reiterates that Article 6 obliges the courts to give reasons for their judgments but cannot be understood as requiring a detailed answer to every argument (see Van de Hurk v.\u00a0the\u00a0Netherlands, 19 April 1994, \u00a7 61, Series A no. 288). The extent to which this duty to give reasons applies may vary according to the nature of the decision. It is moreover necessary to take into account, inter alia, the diversity of the submissions that a litigant may bring before the courts and the differences existing in the Contracting States with regard to statutory provisions, customary rules, legal opinion and the presentation and drafting of judgments. That is why the question whether a court has failed to fulfill the obligation to state reasons, deriving from Article 6, can only be determined in the light of the circumstances of the case. If, however, a submission would, if accepted, be decisive for the outcome of the case, it may require a specific and express reply by the court in its judgment (see Hiro Balani v.\u00a0Spain, 9 December 1994, \u00a7\u00a7 27-28, Series A no. 303\u2011B, and Ruiz Torija v.\u00a0Spain, 9 December 1994, \u00a7\u00a7 29-30, Series A no. 303\u2011A).<\/p>\n 42.\u00a0\u00a0Turning to the present case, the Court notes that the applicants had sought in the first place to be recognised as the owners of the land at issue on the basis of inheritance. However, as was duly explained by the Court of First Instance (see paragraph 9 above), the applicants\u2019 last predecessor was not registered as the owner of the property at issue at the time of his death in 1997. The Court further notes that during the proceedings the applicants explicitly referred to the different status of the adjacent plot of land. They argued that it would be arbitrary to reject their claim, and that the existence of different statuses would lead to legal uncertainty. Before the Court they argued that the domestic courts did not reply to this specific argument. The Court notes, however, that the Court of First Instance made a reference to the applicants\u2019 submission by considering that the Real Estate Administration decision of 2 March 2010 was of no particular influence because it did not relate to the land which was the subject of the examination in the domestic proceedings (ibid.). The High Court, while not referring to the decision of 2 March 2010 or to the status of the adjacent plot of land, explained why the applicants could not claim ownership over the land at issue. It specified that, assuming that they had had ownership, they had in any event lost it in accordance with the Coastal Zone Act 1992 and the State Property Act 2009 (see paragraph 11 above). Insofar as the High Court referred to the Coastal Zone Act 1992, its reasoning was thus based on the legal framework in force before the death of the applicants\u2019 predecessor in 1997. For its part, the Supreme Court upheld the judgment of the High Court, clarifying that it was indeed pursuant to the Coastal Zone Act 1992 that the coast could not be the object of private property. It accepted that private property in the coastal zone was possible under the Property Act 2009, but only if the property right was granted after the entry into force of that Act, which was not the applicants\u2019 case (see paragraph 12 above).<\/p>\n 43.\u00a0\u00a0In view of the above, in particular in light of the reasoning adopted by the Supreme Court, explaining that the applicants could not claim ownership because of the Coastal Zone Act 1992, the Court considers that it was not necessary for the domestic courts to reply to the argument based on ownership with respect to a different plot of land, which stemmed from a decision taken in 2010, after the entry into force of the Property Act 2009. In other words, the Court considers that the domestic courts provided in their judgments specific and explicit reasons for the dismissal of the applicants\u2019 claim, which rendered irrelevant the latter\u2019s argument based on the status of an adjacent plot. There has accordingly been no violation of Article 6 \u00a7 1 of the Convention.<\/p>\n FOR THESE REASONS, THE COURT<\/strong><\/p>\n 1.\u00a0\u00a0Declares, unanimously, the complaint under Article 1 of Protocol No. 1 inadmissible;<\/p>\n 2.\u00a0\u00a0Declares, unanimously, the complaint under Article 6 admissible;<\/p>\n 3.\u00a0\u00a0Holds, by four votes to three,that there has been no\u00a0violation of Article 6 of the Convention.<\/p>\n Done in English, and notified in writing on 17 July 2018, pursuant to Rule\u00a077\u00a0\u00a7\u00a7\u00a02 and 3 of the Rules of Court.<\/p>\n Stanley Naismith\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Robert Spano ________________<\/p>\n In accordance with Article\u00a045 \u00a7\u00a02 of the Convention and Rule\u00a074 \u00a7\u00a02 of the Rules of Court, the separate opinion of Judges Vu\u010dini\u0107, Gri\u0163co and Mourou-Vikstr\u00f6m is annexed to this judgment.<\/p>\n R.S. JOINT DISSENTING OPINION OF JUDGES VU\u010cINI\u0106, GRI\u0162CO AND MOUROU-VIKSTR\u00d6M<\/strong><\/p>\n To our regret, we cannot agree with the majority\u2019s finding that there has been no violation of Article 6 \u00a7 1 of the Convention in the present case. The reasons, explaining our point of view, are the following.<\/p>\n 1.\u00a0\u00a0According to the Court\u2019s established case-law, it is well known that Article 6 obliges the courts to give reasons for their judgments, but it cannot be understood as requiring a detailed answer to every argument, nor is the European Court called upon to examine whether arguments are adequately met (see Van de Hurk v. the Netherlands, \u00a7 61, 19 April 1994, Series A no.\u00a0288). The extent to which this duty to give reasons applies may vary according to the nature of the decision and must be determined in the light of the circumstances of the case (see Garc\u00eda Ruiz v. Spain [GC], no.\u00a030544\/96, \u00a7 26, ECHR 1999-I). It is, moreover, necessary to take into account, inter alia, the diversity of the submissions that a litigant may bring before the courts and the differences existing in the Contracting States with regard to statutory provisions, customary rules, legal opinion and the presentation and drafting of judgments. That is why the question whether a court has failed to fulfil the obligation to state reasons, deriving from Article\u00a06, can only be determined in the light of the circumstances of the case. If, however, a submission would, if accepted, be decisive for the outcome of the case, as has been the applicants\u2019 situation in the present case, it may require a specific and express reply by the court in its judgment (see Hiro Balani v. Spain, 9 December 1994, \u00a7\u00a027, Series A no.\u00a0303-B, and Ruiz Torija v. Spain, 9 December 1994, \u00a7 29, Series A no. 303-A).<\/p>\n 2.\u00a0\u00a0In the case at hand, the applicants\u2019 claim was dismissed on the ground that the land at issue was in the coastal zone and as such was State property which could not be privately owned. In the course of the proceedings the applicants consistently and explicitly maintained that land in the coastal zone could be privately owned and referred to the different status of the adjacent plot of land, also in the coastal zone, owned by them. The applicants\u2019 objection, if it had been accepted, could have been decisive for the outcome of their case, and as such required a specific and express reply of the domestic courts. The Court of First Instance dismissed the argument as \u201cof no particular influence\u201d without providing any further explanation in that regard, and neither the High Court nor the Supreme Court made any reference to it whatsoever. That being so, the domestic courts failed to provide a specific and express reply to submissions of fundamental importance made by the applicants.<\/p>\n 3.\u00a0\u00a0More precisely, the applicants have put before the domestic courts two substantial arguments in support of their applications for recognition of property rights: (i) the adjacent plot of land also located in a coastal area was the subject of a private possession; and (ii) section 4 of the Coastal Zone Act of 1992 allows the possibility for individuals to own coastal land privately, even if this possibility remains exceptional. In spite of the fact that these arguments were decisive for the outcome of the litigation, the domestic courts failed to give an answer in this respect. In our opinion, the domestic courts should have decided in a clear and explicit manner about the reasons why \u2013 and the conditions upon which \u2013 the disputed land did not benefit from the same legal status as the adjacent plot of land and why so\u2011called \u201cexceptional circumstances\u201d could not be applied as regards the land in dispute.<\/p>\n 4.\u00a0\u00a0In similar situations, when domestic courts had not addressed the main arguments which had crucial importance for the applicants, the Court has found a violation of Article 6 \u00a7 1 of the Convention (see Mitrofan v.\u00a0the\u00a0Republic of Moldova,no. 50054\/07, \u00a7\u00a7 42-55, 15 January 2013; Kuznetsov and Others v. Russia, no. 184\/02, \u00a7 84, 11 January 2007; Pronina v.\u00a0Ukraine, no.\u00a063556\/00, \u00a7 25,18 July 2006).<\/p>\n 5.\u00a0\u00a0Under Article 6 \u00a7 1 of the Convention, a party to judicial proceedings can also expect reasoning to be given by the courts in order to understand the reasons on which their decisions are based, together with a specific and express reply to those submissions which are decisive for the outcome of the proceedings in question (see Ruiz Torija, cited above, \u00a7 29). It can hardly be said that the domestic courts fulfilled this obligation in the present case.<\/p>\n 6.\u00a0\u00a0Furthermore, on 27 May 2015 the Supreme Court of Montenegro issued a general legal opinion relating to the use of land in the coastal zone. It analysed the relevant domestic legislation, including the Constitution, the Coastal Zone Act 1992, the Property Act and the State Property Act. It found, inter alia, that section 20(2) of the Property Act provided that exceptionally a coastal zone could be privately owned, while at the same time section 22(3) of the same Act provided that the coast could not be privately owned. It also found that the conditions under which the coastal zone could be privately owned were not provided for by law, \u201cwhich [left] open numerous questions on practical implementation\u201d. The Supreme Court stated as follows:<\/p>\n \u201cby analysing the relevant legislation it can be concluded that acquiring private property rights in respect of the coastal zone is not possible save in exceptional cases which are not defined in legislation. It can also be concluded that the issue of lawfully acquired rights in respect of the coastal zone is not regulated in precise and clear manner …\u201d<\/p>\n Nevertheless, it was a fact that there were lawfully acquired rights in respect of the coastal zone, as indicated by section 30 of the Coastal Zone Act.<\/p>\n 7.\u00a0\u00a0In this context it is to be noted that the Supreme Court, while it recognised the legal lacuna and a lack of precise regulation in the domain of interpretation and implementation of the Coastal Zone Act 1992, it did nothing to regulate the matter, thus leaving room for different and unequal decisions regarding the same or similar factual situations within that domain, which is what happened in the applicants\u2019 case.<\/p>\n 8.\u00a0\u00a0Thus, the combined effects of the above-mentioned shortcomings in the judgments of the Montenegrin courts, the lack of a clear response to the applicants\u2019 main submissions, the absence of proper reasoning and the inability of the Supreme Court of Montenegro to establish legal security and clarity in the field of interpretation and implementation of the Coastal Zone Act 1992, have convinced us that the applicants\u2019 case was not heard in accordance with the requirements of a fair trial, and that accordingly there has been a violation of Article 6 \u00a7 1 of the Convention.<\/p>\n
\nLedi Bianku,
\nNeboj\u0161a Vu\u010dini\u0107,
\nPaul Lemmens,
\nValeriu Gri\u0163co,
\nJon Fridrik Kj\u00f8lbro,
\nSt\u00e9phanie Mourou-Vikstr\u00f6m, judges,
\nand Stanley Naismith, Section Registrar,<\/p>\n
\nRegistrar\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 President<\/p>\n
\nS.H.N.<\/p>\n