Deprivation: de facto and de iure

Deprivation of property occurs in principle only when an owner is deprived of all his rights in accordance with the law or by application of a legal authorization with the same effects.¹⁸⁹⁷ If the owner has his ownership right de iure but he is practically prevented from using his land, since the State uses it for some other purposes (for example, as a military training polygon) then it is de facto deprivation.¹⁸⁹⁸ Therefore, de facto deprivation does not require any formal act on deprivation but covers all State authorities’ measures which entail the same legal consequences as those of formal deprivation of property because of their strong effects.¹⁸⁹⁹ De facto deprivation is an act whereby the State interferes with one’s property in the general interest – or authorises third persons to do so. If, for example, a court decides to allocate an apartment with a common occupancy right to one of the divorced spouses, then it is not (de facto) deprivation, since the court does not work in the public interest but the court gives, in the (private) interest of one spouse, the priority right to the spouse whom it considers more important.¹⁹⁰⁰ Interference with the property right is possible only if the applicable legislation deprives a spouse of his/her property in an arbitrary and unfair manner (in this case: the apartment and occupancy right). If there is still a certain factual use of the property and justified faith in the future use of that property despite the State intervention, then it is not de facto deprivation but the control of use.¹⁹⁰¹

Examples of de facto deprivation:

■ The court’s unlawful standpoint that it does not have jurisdiction over the matter, the consequence of which is the fact that the owner cannot take possession of his property through the procedure of repossession of the property he abandoned;¹⁹⁰²

■ Declaration of the apartment as “abandoned” and forcible eviction of occupants although a legal remedy against deprivation of property, which has no suspensive effect, has been filed;¹⁹⁰³

■ Lawful prohibition of the enforcement of legally binding decisions for long years and failure to re-regulate the legal status of the injured party;¹⁹⁰⁴

■ Adjournment of enforcement of repossession of the apartment with an occupancy right, which has been ordered by a court, despite the time limits provided for by law;¹⁹⁰⁵

Examples of de iure deprivation:

■ Lawful taking of possession of a land/real property;¹⁹⁰⁶

■ Retroactive annulment of a labour relationship, entailing the cessation of all related rights;¹⁹⁰⁷

■ Allocation of a priority right to build;¹⁹⁰⁸

■ Declaration of retroactive invalidity of purchase contracts;¹⁹⁰⁹

■ Loss due to inflation while waiting for collection of an amount from the public institution, if the loss is not compensated by the appropriate interest;¹⁹¹⁰

■ Imposition of fines;¹⁹¹¹

■ Lawful deprivation of the right to interest for a certain period of time;¹⁹¹²

■ Lawful prevention of enforcement of a judgment relating to the compensation for damage;¹⁹¹³

■ Unlawful dismissal of a claim for damages;¹⁹¹⁴

■ Confiscation of a car which was imported in an unlawful manner;¹⁹¹⁵ confiscation of means of transportation and goods for alleged evasion of payment of customs duty;¹⁹¹⁶

■ Deprivation of the right to dispose and use socially owned building land intended for a certain purpose according to the urban development plan;¹⁹¹⁷

■ Confiscation of land appropriated in an unlawful manner;¹⁹¹⁸

■ Refusal to return an apartment over which the appellant does not have formal occupancy right but which he possesses lawfully, in which he had lived before the war, in respect of which he had paid utility bills on a regular basis, where the state authorities allowed him, despite the lack of contract on the use of apartment, to live in the apartment for years;¹⁹¹⁹

■ Consideration of a claim for payment of pension in erroneous proceedings (within the meaning of the subject-matter competence);¹⁹²⁰

■ Disturbance of possession, which was established in judicial proceedings, and the failure to comply with an order imposing the restoration to a previous state provided for by the law;¹⁹²¹

■ Enforcement of a judicial decision on enforcement relating to marital property although the wife’s debt established in accordance with the law was not joint and several;¹⁹²²

■ Imposition of the payment of legal interest;¹⁹²³

■ Failure to enforce a decision of the CRPC despite the fact that there were not legal obstacles to it,¹⁹²⁴ i.e., incomplete enforcement of a decision on the return of an abandoned apartment;¹⁹²⁵

■ Prevention of the exercise of minority rights of the shareholders;¹⁹²⁶

■ De facto suspension of payment of disability pension;¹⁹²⁷

■ Dismissal of a claim for damages caused by the violation of the rights over non-monetary assets;¹⁹²⁸

■ Unconstitutional failure to regulate property status (foreign currency deposits).¹⁹²⁹