Individual Application

The Facts

In 1998, the co-owners of an immovable property in which the applicants’ deceased predecessor had held a share since 1985 instituted proceedings for the dissolution of co-ownership. During the relevant proceedings, notifications were served on the predecessor as though he were still alive, and the proceedings were concluded accordingly. The immovable property was subsequently sold by auction on 19 June 2000.

More than ten years after the sale, the applicants lodged an appeal, seeking the quashing of the judgment on the ground that the property had been sold following the proceedings without the proper participation of all interested parties. Examining the appeal, the incumbent chamber of the Court of Cassation quashed the decision on 19 January 2011, finding that the applicants’ predecessor had died before the proceedings had been instituted and that the decision had been rendered without involving the applicants in the proceedings. During the subsequent retrial, expert reports concluded that the amount determined for the share of the immovable property inherited by the applicants should be paid to them. The magistrate’s court, however, held that there was no ground to render a decision on the merits, indicating that the parties had been duly involved in the proceedings, that the parcel at issue had been subdivided and removed from the land register, and that the appellants had already received their share of the sale proceeds. The applicants appealed against the decision, arguing that no decision had been rendered on the merits -as required by the quashing process- and that a decision should have been rendered on the basis of the amount specified in the expert report. The appeal was examined by a different chamber of the Court of Cassation, which upheld the decision as being lawful.

The Applicants’ Allegations

The applicants maintained that their right to an effective remedy in conjunction with right to property had been violated, indicating that the damage they had sustained as a result of the sale of the immovable property without ensuring the duly involvement of the parties in the proceedings regarding the dissolution of co-ownership had not been compensated, and that the incumbent court had held that there was no ground to render a decision.

The Court’s Assessment

In the present case, the applicants became aware of the proceedings regarding the dissolution of co-ownership as well as the sale of the immovable property only approximately ten years later and were therefore able to challenge the decision through the available legal remedies only after the said period. Upon appeal, the Court of Cassation quashed the first-instance decision as being procedurally flawed, thereby removing the legal basis for the auction sale.

Nevertheless, following the quashing decision, the magistrate’s court did not render a fresh decision concerning the request for dissolution of co-ownership. Although the applicants had been formally involved as parties in the relevant proceedings, the claims and objections they had raised had no effect on the merits of the case. Accordingly, although the legal basis for the sale was removed following the quashing of the original decision, the decision rendered after the retrial failed in practice to remedy the applicants’ grievance.

Undoubtedly, the State’s positive obligations cannot be construed as imposing an obligation to ensure that proceedings result in a favourable outcome for a party. However, establishing appropriate legal mechanisms that enable individuals to participate as parties in judicial proceedings and that ensure the resolution of disputes through the decisions ultimately rendered, as well as securing the effective operation of such mechanisms in practice, constitutes a requirement of the State’s positive obligations.

Proceedings for the dissolution of co-ownership are, in principle, capable of providing an effective remedy for terminating co-ownership in terms of jointly owned properties. However, in the present case, the impugned property had been sold after notifications had been served on the deceased predecessor as though he were still alive. Both the judicial proceedings and the sale process had been completed without affording the applicants any opportunity to object to the proceedings or the sales process. Moreover, the quashing decision delivered in favour of the applicants produced no tangible outcome. Furthermore, although it was asserted that the applicants’ immovable property had been sold and the sale proceeds had been deposited into an account, without the applicants being informed of or involved in the proceedings, the authorities failed to establish that the applicants had actually received those proceeds by the time they lodged an appeal. Consequently, the applicants were not only deprived of the opportunity to submit their claims and objections, in their capacity as parties to the proceedings, but were also prevented from collecting the sale proceeds in a timely manner. Thus, although proceedings for the dissolution of co-ownership are, in theory, capable of providing an effective remedy in relation to jointly owned immovable properties, that legal avenue offered the applicants no prospect of obtaining redress for the damage they had sustained.

Consequently, the Court has found a violation of the right to an effective remedy, in conjunction with the right to property.