CEDH · CASELAW;CLIN;ENG — 7 mai 2015

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Croatia - 13712/11 Judgment 7.5.2015 [Section I] Article 1 of Protocol No. 1 Positive obligations Failure of the state to protect the property rights of minors under a real-estate swap agreement: violation Facts – In 1997 the applicants, two minor sisters represented by their mother, purchased a villa for EUR   60,000. The mother and Z.L., who was the applicants’ legal guardian and the second applicant’s father, invested EUR   40,000 in the renovation of the property. In October 2001 Z.L. was sentenced to six years’ imprisonment and the family experienced financial difficulties. Z.L.’s defence lawyer requested authorisation from the Social Welfare Centre for a real estate swap agreement under which the villa would be transferred to the lawyer’s mother-in-law in exchange for a flat worth about EUR   55,000. The applicants were also to receive EUR   5,000 as compensation for the difference in value between the properties. The Centre granted the authorisation – which was required because the applicants, who owned the villa, were still minors – after interviewing the mother. The properties were exchanged in December 2001. Subsequently, the applicants initiated a civil action for annulment of the swap agreement on the grounds that the Social Welfare Centre had failed to take into account the value of the properties and the nature of their family circumstances, particularly Z.L.’s detention and the mother’s drug abuse. That action and the applicants’ subsequent appeals were dismissed on the grounds that the Centre’s decision could only be challenged in administrative proceedings. Law – Article 1 of Protocol No. 1: The Court was called upon to determine whether the State had failed to adequately take into account the best interests of the applicant children and to protect their property rights. The initial concern related to the actual relative value of the exchanged properties since the domestic courts had failed to explain how the value of the villa (EUR   100,000) could have corresponded to that of the flat (EUR   55,000). As regards the conduct of the Social Welfare Centre, the only action it had taken to assess the circumstances of the case was to question the mother. None of the other legal guardians were interviewed or informed about the draft swap agreement. Furthermore, the Centre could reasonably have been expected to assess the actual condition or value of the exchanged properties, but had failed to do so. Likewise, despite being aware of Z.L.’s imprisonment and the family’s financial problems, it had not treated the applicants’ family situation with the necessary diligence in terms of assessing whether the applicants’ proprietary interests were adequately protected against malevolent and/or negligent actions on the part of their parents. The Centre had made no attempt to get more information on the family situation or to assess whether a special guardian should be appointed to protect the applicants’ interests. In sum, it had failed to evaluate whether the swap agreement was in the applicants’ best interests as children. In addition, the only recourse available to the applicants had been to lodge a claim before the civil courts. However, the civil courts had failed to examine the particular circumstances of the case and had dismissed the applicants’ civil action solely on the grounds that the Centre’s decision authorising the swap agreement had not been challenged in the administrative proceedings. In so doing, they ignored the evidence concerning a possible conflict of interest, the applicants’ family and financial circumstances and the allegations that the Centre had failed to protect the applicants’ best interests, when it had been incumbent on them under the domestic law to examine the allegations carefully in accordance with the principle of the best interests of the child. The domestic authorities had thus failed to take the necessary measures to safeguard the proprietary interests of the applicants, as children, in the impugned real estate swap agreement and to afford them a reasonable opportunity to effectively challenge the measures interfering with their rights guaranteed by Article   1 of Protocol No.   1. Conclusion : violation (unanimously). Article 41: reserved. (See also Lazarev and Lazarev v. Russia (dec.), 16153/03, 24   November 2005, Information Note   80 )   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes