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FIRST
SECTION
CASE OF
BREZOVEC v. CROATIA
(Application
no. 13488/07)
JUDGMENT
STRASBOURG
29 March
2011
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Brezovec v.
Croatia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Anatoly
Kovler,
President,
Nina
Vajić,
Peer
Lorenzen,
Khanlar
Hajiyev,
George
Nicolaou,
Mirjana
Lazarova Trajkovska,
Julia
Laffranque,
judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 8 March 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 13488/07) 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 Ivan Brezovec (“the
applicant”), on 10 January 2007.
- The
applicant was represented by Mr S. RoZman, Mrs M.
Oredić, Mr D. Bartolac and Mr H. RoZman, all from the
Law Firm RoZman & Oredić, advocates practising in
Karlovac. The Croatian Government (“the Government”) were
represented by their Agent, Ms Š. StaZnik.
- The
applicant alleged, in particular, that by refusing his claim for the
purchase of the flat at issue the domestic authorities had violated
his right to the peaceful enjoyment of his possessions.
- On
25 November 2008 the President of the First Section decided to
communicate the complaint concerning the right to peaceful enjoyment
of possessions to the Government.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1941 and lives in Vojnić.
- In
1980 the applicant became the holder of a specially protected tenancy
(stanarsko pravo) of a flat in Vojnić. He lived in the
flat with his family until 1 October 1991 when Vojnić was
occupied. He then fled the occupying forces and went to live in
Karlovac.
- The
applicant found a job in Karlovac and, as an internally displaced
person, on 30 January 1992 he was awarded a flat there on a temporary
basis. In July 1996 the competent authorities terminated his status
as an internally displaced person. Following a civil action by Mr
T.M., the applicant was forced to leave the flat in Karlovac on 21
January 1999.
- The
applicant claimed that – following the military operation
“Storm” by which Croatia regained control of almost its
entire territory in August 1995 – on 8 October 1995 he had
visited Vojnić, where he had found the flat in respect of which
he had the specially protected tenancy uninhabitable and in a very
bad state of repair. This had been confirmed on 4 March 1996 by
the findings of the Commission for the Assessment of War Damage. He
further submitted that he had immediately commenced rebuilding work
on the flat with a view to moving into it.
- However,
on 23 August 1996, while the applicant was working in Karlovac, the
local authorities, accompanied by the police, entered into the flat,
made a list of personal belongings, changed the locks and gave the
keys of the flat to a certain Z.H., a local policeman. Five days
later the Commission for Temporary Takeover and Use of Certain
Property of the Municipality of Vojnić (Komisija za
privremeno preuzimanje i korištenje određene
imovine Općine Vojnić – “the Sequestration
Commission”) issued a decision letting the flat to Z.H. and his
family on a temporary basis.
- On
20 December 1996 the applicant and his wife made a request for the
purchase of the flat to the Municipality of Vojnić. In doing so
they relied on the Specially Protected Tenancies (Sale to Occupier)
Act, which entitled holders of specially protected tenancies of flats
in social or state ownership to purchase their flats under favourable
conditions (see paragraph 29 below). They received no reply.
- On
7 August 1998 the Ministry of Reconstruction and Development
(Ministarstvo razvitka i obnove) adopted a decision letting
the flat to Z.H. and his family for their use.
- On
16 October 2000 the Municipality of Vojnić issued a decision
allowing the applicant to live in the flat. The applicant has been
living in the flat ever since.
- Meanwhile,
on 12 May 2000, the applicant and his wife brought a civil action
against the State in the Vojnić Municipal Court (Općinski
sud u Vojniću) with a view to obtaining a judgment which
would allow them to purchase the flat in accordance with the
Specially Protected Tenancies (Sale to Occupier) Act. On 9 January
2001 the court dismissed their action. It found that the applicant's
flat was owned by the State and not the Municipality of Vojnić
and that therefore the plaintiffs should have directed their request
for its purchase to the State and not to the Municipality. Following
an appeal by the applicant and his wife, on 26 September 2001 the
Karlovac County Court (Zupanijski sud u Karlovcu) quashed the
first-instance judgment and remitted the case. It found, inter
alia, that the fact that the plaintiffs had made their request
for the purchase of the flat to the Municipality and not the State
should not have been held against them.
- In
the resumed proceedings, on 11 September 2003 the Vojnić
Municipal Court again dismissed the plaintiffs' action. The court
first determined, as a preliminary issue, whether the plaintiffs had
retained their specially protected tenancy of the flat in Vojnić,
the existence of that tenancy being a statutory precondition for
buying the flat under the Sale to Occupier Act. In this respect the
court found that: (a) the plaintiffs had left the flat in October
1991 and (b) in the period between 5 August 1995, when Vojnić
was liberated, and 23 August 1996, when the flat was awarded to
Z.H., they had been living in Karlovac and had only occasionally
visited and used the flat in Vojnić. That being so, the court
concluded that since they had not used their flat permanently for
living purposes, the plaintiffs' specially protected tenancy had been
terminated. Consequently, they were not entitled to purchase the flat
in question.
- On
18 February 2004 the Karlovac County Court dismissed the plaintiffs'
appeal and upheld the first-instance judgment, which thereby acquired
the force of res judicata. Relying on the finding of the
first-instance court that the plaintiffs had left the flat in 1991
and had not used it in the period between 5 August 1995 and
23 August 1996, the second-instance court expressly referred to
section 2 of the Act on the Lease of Flats on the Liberated Territory
(see paragraph 19 below) in holding that the plaintiffs' specially
protected tenancy had been terminated ex lege because after
the Act's entry into force they had not used their flat for a period
longer than ninety days. As a result, they had no right to purchase
it.
- The
applicant then lodged a constitutional complaint alleging, inter
alia, infringements of his constitutional rights to equality
before the law, to property and to a fair hearing.
- On
29 June 2006 the Constitutional Court (Ustavni sud Republike
Hrvatske) dismissed the constitutional complaint and served its
decision on the applicant on 20 July 2006. The relevant part of the
Constitutional Court's decision reads as follows:
“The [ordinary] courts established that the flat
at issue in Vojnić had on 28 August 1996 been awarded to
[Z.H.] for temporary use, and that the plaintiffs had in the period
between August 1995 and 28 August 1996 only occasionally visited the
flat, which could not be considered use of the flat. The
first-instance court therefore dismissed the plaintiff's action in
accordance with section 2 of the Act on the Lease of Flats on the
Liberated Territory, according to which the specially protected
tenancy of flats located in the previously occupied, now liberated,
territory of the Republic of Croatia was to be terminated by the
operation of law if the holder of the specially protected tenancy
left the flat and did not use it for a period exceeding 90 days
following the Act's entry into force. The court established that the
complainant had not used the flat between August 1995 and 28 August
1996 and that his specially protected tenancy had [therefore] been
terminated by the operation of law. Given that his specially
protected tenancy had been terminated by the operation of law after
5 January 1996, the complainant could no longer be considered
the holder of a specially protected tenancy and therefore was not
entitled to make a request for the purchase of the flat.
The County Court found that the first-instance judgment
was correct and had been rendered on the basis of correctly and
completely established facts and the correct application of the
substantive law.
Assessing the arguments raised in the constitutional
complaint in the light of Article 14 paragraph 2 of the Constitution,
the Constitutional Court has found that the complainant's
constitutional right to equality before the law was not breached by
the contested judgments.
The legal views expressed in the contested judgments are
based on the correct application of the relevant substantive law and
on the constitutionally acceptable interpretation of that law. The
Constitutional Court finds that the [ordinary] courts, relying on the
facts established in the proceedings, gave reasons for their views
expressed in the contested decisions, which undoubtedly do not result
from the arbitrary interpretation or application of the relevant
substantive law.
...
The content of the constitutional right to a fair
hearing guaranteed by Article 29 paragraph 1 of the Constitution
is limited to procedural guarantees of a fair hearing. Therefore,
assessing the arguments raised in the constitutional complaint in the
light of that constitutional right, as well as other constitutional
rights guaranteed by Article 29 of the Constitution, the
Constitutional Court examines possible procedural breaches in the
proceedings before the courts and, on that basis and looking at the
proceedings as a whole, ascertains whether the proceedings were
conducted in a manner which secured a fair hearing to the
complainant.
Having examined the contested decisions and the
first-instance case file, the Constitutional Court finds that the
complainant's constitutional right guaranteed by Article 29
paragraph 1 of the Constitution has not been breached.
As regards the complainant's argument concerning the
breach of the constitutional right of ownership guaranteed by Article
48 paragraph 1 of the Constitution, it has to be noted that the
Constitutional Court, on the basis of Article 48 of the Constitution,
protects the right of ownership at the constitutional level in such a
manner that it prevents restriction or taking of that right by the
state authorities, unless a restriction or taking is provided for by
law.
The Constitutional Court finds that the contested
judgments are based on the relevant legislation and are well
reasoned, and that the complainant's right of ownership guaranteed by
Article 48 of the Constitution has not been breached.”
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. The Constitution
- The
relevant provisions of the Constitution of the Republic of Croatia
(Ustav Republike Hrvatske, Official Gazette of the Republic of
Croatia, nos. 56/1990, 135/1997, 8/1998 (consolidated text),
113/2000, 124/2000 (consolidated text), 28/2001 and 41/2001
(consolidated text), 55/2001 (corrigendum) and 76/2010) read as
follows:
Article 14(2)
“All shall be equal before the law.”
Article 29(1)
“In the determination of his rights and
obligations or of any criminal charge against him, everyone is
entitled to a fair hearing within a reasonable time by an independent
and impartial court established by law.”
Article 48(1)
“The right of ownership shall be guaranteed.”
B. The Act on the Lease of Flats on the Liberated
Territory
1. Relevant provisions
- The
Act on the Lease of Flats on the Liberated Territory (Zakon o
davanju u najam stanova na oslobođenom teritoriju, Official
Gazette no. 73/95), which was in force between 27 September 1995
and 5 August 1998 provided, in its relevant part, as follows:
Section 1(1)
“This Act regulates the lease of flats of which
the specially protected tenancy ... has been terminated pursuant to
the provisions of this Act, and which are located in the previously
occupied, now liberated, territory of the Republic of Croatia.”
Section 2(1)
“The specially protected tenancy of the flats
referred to in section 1 of this Act shall be terminated by the
operation of law [i.e. ex lege] if the holder of the specially
protected tenancy leaves the flat and does not use it for a period
exceeding 90 days following this Act's entry into force.”
Section 3(1) and (2)
“(1) Flats referred to in section 1 of
this Act which are in state ownership shall be let by the Ministry of
Reconstruction and Development.
(2) Other flats [i.e. those in social
ownership] shall be let by the [Sequestration] Commission established
on the basis of the Temporary Takeover and Administration of Certain
Property Act.”
Section 4(2) and (3)
“(2) The Ministry of Reconstruction and
Development or the [Sequestration] Commission shall issue a decision
... on the lease of a flat.
(3) Against the Commission's decision
referred to in the preceding paragraph one may lodge an appeal to the
[competent] Ministry ... within eight days.
(4) The appeal does not suspend the
enforcement of the decision.”
2. The case-law of the Constitutional Court
- On
3 June 2003 the Constitutional Court adopted a decision in case
no. U-III-1701/2000 (published in Official Gazette no. 122/2003
of 30 July 2003) where the complainant, the holder of the
specially protected tenancy of a flat in Benkovac, brought an action
against the local authorities in order to be allowed to purchase the
flat in question. The second-instance court ruled against him,
finding that his specially protected tenancy had been terminated ex
lege because he had left the flat in 1991 when the town had come
under the control of the occupying forces, and had returned to it
only after the expiry of the time-limit set forth in section 2(1) of
the Act on the Lease of Flats on the Liberated Territory. It found
that he was therefore not entitled to purchase the flat at issue. The
Constitutional Court ruled for the complainant and quashed the
contested judgment. In so doing it held as follows:
“... [T]he Act on the Lease of Flats on the
Liberated Territory refers to persons who left the previously
occupied territory of the Republic of Croatia after the liberation in
1995.
The complainant did not leave Benkovac after its
liberation in 1995 but was expelled therefrom in 1991. Therefore, in
the view of the Constitutional Court, the complainant does not belong
to the category of persons to which the Act on the Lease of Flats on
the Liberated Territory applies.
The second-instance court erroneously applied to the
complainant's particular legal situation ... the Act on the Lease of
Flats on the Liberated Territory. Consequently, that court wrongly
held in the contested judgment that the complainant's specially
protected tenancy of the flat in Benkovac was terminated by the
operation of section 2(1) of the Act on the Lease of Flats on the
Liberated Territory after the expiry of the ninety-day time-limit
following its entry into force (that is, on 5 January 1996).
For these reasons, the complainant's constitutional
right to equality before the law guaranteed by Article 14 paragraph 2
of the Constitution, as well as his constitutional right to a fair
hearing guaranteed by Article 29 paragraph 1 of the Constitution, was
violated by the contested judgment.”
- On
9 December 2004 the Constitutional Court adopted a decision in case
no. U-III-1451/2004 (published in Official Gazette no. 187/2004 of
29 December 2004) where the complainant, the holder of the
specially protected tenancy of a flat in Petrinja, brought an action
against the local authorities in order to be allowed to purchase the
flat in question. The ordinary courts ruled against her, finding that
her specially protected tenancy had been terminated ex lege
because she had left the flat and gone to live abroad in August 1995
when the Croatian authorities regained control of Petrinja following
the military operation “Storm”, and had returned to
Croatia only in 2001, that is, after the expiry of the time-limit set
forth in section 2(1) of the Act on the Lease of Flats on the
Liberated Territory. It found that she was therefore not entitled to
purchase the flat at issue. The Constitutional Court firstly referred
to its interpretation of the Act on the Lease of Flats on the
Liberated Territory provided in decision no. U-III-1701/2000 of
3 June 2003 (see the preceding paragraph), according to which
that Act applied:
“... to persons who left the previously
occupied territory of the Republic of Croatia after the liberation in
1995.”
Having
established that the complainant had indeed left her flat in Petrinja
in August 1995 and had returned to Croatia only in 2001, the
Constitutional Court dismissed her constitutional complaint.
- On
6 May 2005 the Constitutional Court adopted a decision in case no.
U-III-2174/2002 (published in Official Gazette no. 65/2005 of 25 May
2005) where the complainant, the holder of the specially protected
tenancy of a flat in Pakrac, brought an action against the local
authorities in order to be allowed to purchase the flat in question.
The ordinary courts ruled against her, finding that her specially
protected tenancy had been terminated ex lege because she had
left the flat in 1991 when Pakrac had come under the control of the
occupying forces, and had returned to it only in spring 1996, that
is, after the expiry of the time-limit set forth in section 2(1) of
the Act on the Lease of Flats on the Liberated Territory. They found
that she was therefore not entitled to purchase the flat at issue.
The Constitutional Court ruled for the complainant and quashed the
contested judgments of the ordinary courts. In so doing it held as
follows:
“... [T]he Act on the Lease of Flats on the
Liberated Territory refers to persons who left the previously
occupied territory of the Republic of Croatia after the liberation in
1995.
The complainant left the flat in Pakrac in August 1991.
Therefore, in the view of the Constitutional Court, the complainant
does not belong to the category of persons to which the Act on the
Lease of Flats on the Liberated Territory applies.
The [ordinary] courts erroneously applied to the
complainant's particular legal situation ... the Act on the Lease of
Flats on the Liberated Territory. Consequently, the [ordinary] courts
in the contested judgments wrongly held that the complainant's
specially protected tenancy of the flat in Pakrac was terminated by
the operation of section 2(1) of the Act on the Lease of Flats on the
Liberated Territory after the expiry of the ninety-day time-limit
following its entry into force (that is, 5 January 1996).
For these reasons, the complainant's constitutional
right to equality before the law guaranteed by Article 14 paragraph 2
of the Constitution, as well as his constitutional right to a fair
hearing guaranteed by Article 29 paragraph 1 of the Constitution ...,
was violated by the contested judgments.”
C. The Housing Act
1. Relevant provisions
- The
Housing Act (Zakon o stambenim odnosima, Official Gazette nos.
51/1985, 42/1986, 22/1992 and 70/1993), which was in force between 25
December 1985 and 5 November 1996 provided, in its relevant part, as
follows:
Section 97
“1. The provider of the flat may
terminate the specially protected tenancy... [inter alia] if
the tenant does not pay the rent or the utility charges for three
consecutive months, or for three months over the last twelve months.
2. Termination of the specially protected
tenancy for the reasons enunciated in paragraph 1 may be effected if
the tenant does not pay the rent or the utility charges due... within
a reasonable time after being warned by registered mail to do so.”
Section 99
“1. A specially protected tenancy may
be terminated if the tenant [...] ceases to occupy the flat for an
uninterrupted period exceeding six months.
2. A specially protected tenancy shall not be
terminated under the provisions of paragraph 1 of this section in
respect of a person who does not use the flat on account of
undergoing medical treatment, performance of military service or
other justified reasons.
3. It shall also be considered that the flat
has not been used for an uninterrupted period when the tenant only
occasionally visits the flat ...”
- Under
section 105(1) the provider of the flat had to bring a civil action
in order to terminate the specially protected tenancy.
2. The case-law of the Supreme Court
- In
its decision no. Rev-616/1988 of 11 October 1988 the Supreme Court
interpreted section 99 of the Housing Act in the following way:
“The specially protected
tenancy is not lost ex lege
by the mere fact of non-use of the flat for a period exceeding six
months. Rather, that is a ground for termination of a specially
protected tenancy that can be terminated only by the provider of the
flat.”
- The
tenancy was terminated as soon as the court's judgment upholding the
claim of the provider of the flat became res judicata (see,
inter alia, the Supreme Court's decision no. Rev-1009/1993-2
of 15 June 1994).
- In
a series of decisions (for example, in cases nos. Rev-152/1994-2 of
23 February 1994, Rev-1780/1996-2 of 10 March 1999, Rev-1606/00-2 of
1 October 2003, Rev-998/03-2 of 4 December 2003, and Rev-590/03-2 of
17 December 2003) starting with decision no. Rev-155/1994-2
of 16 February 1994, the Supreme Court interpreted
another aspect of section 99(1) of the Housing Act as follows:
“The fact that a flat that is not being used by
its tenant is illegally occupied by a third person does not, per
se, make the non-use [of the flat by the tenant] justified. In
other words, if the tenant fails to take the appropriate steps to
regain possession of the flat within the statutory time-limits set
forth in section 99(1) of the Housing Act ..., then the [illegal
occupation of the flat by a third person] is not an obstacle to the
termination of the specially protected tenancy.”
D. The Lease of Flats Act
- The
Lease of Flats Act (Zakon o najmu stanova, Official Gazette
no. 91/1996 of 28 October 1996), which entered into force on
5 November 1996, abolished the specially protected tenancy as
such (section 30 paragraph 1) but provided that proceedings
instituted under the Housing Act should be concluded under the
provisions of that Act (section 52 paragraph 1).
E. The Specially Protected Tenancies (Sale to Occupier)
Act
- The
Specially Protected Tenancies (Sale to Occupier) Act (Zakon o
prodaji stanova na kojima postoji stanarsko pravo, Official
Gazette no. 27/91 with subsequent amendments – “the
Sale to Occupier Act”), which entered into force on 19 June
1991, entitled the holder of the specially protected tenancy of a
flat in social or state ownership to purchase it from the provider of
the flat under favourable conditions.
- Section
4(2) provided that a written request for the purchase of a flat had
to be made within one year of the date of the Act's entry into force
(this time-limit was by subsequent amendments to the Act extended
until 31 December 1996 for the flats located on the liberated
territory).
F. The Civil Procedure Act
- The
relevant part of the Civil Procedure Act (Zakon o parničnom
postupku, Official Gazette of the Socialist Federal Republic of
Yugoslavia nos. 4/1977, 36/1977 (corrigendum), 36/1980, 69/1982,
58/1984, 74/1987, 57/1989, 20/1990, 27/1990 and 35/1991, and Official
Gazette of the Republic of Croatia nos. 53/1991, 91/1992, 58/1993,
112/1999, 88/2001, 117/2003, 88/2005, 2/2007, 84/2008 and 123/2008)
provides as follows:
Reopening of proceedings following a final judgment
of the European Court of Human Rights in Strasbourg finding a
violation of a fundamental human right or freedom
Section 428a
“(1) When the European Court of Human Rights has
found a violation of a human right or fundamental freedom guaranteed
by the Convention for the Protection of Human Rights and Fundamental
Freedoms or additional protocols thereto ratified by the Republic of
Croatia, a party may, within thirty days of the judgment of the
European Court of Human Rights becoming final, file a petition with
the court in the Republic of Croatia which adjudicated in the first
instance in the proceedings in which the decision violating the human
right or fundamental freedom was rendered, to set aside the decision
by which the human right or fundamental freedom was violated.
(2) The proceedings referred to in paragraph 1 of this
section shall be conducted by applying, mutatis mutandis, the
provisions on the reopening of proceedings.
(3) In the reopened proceedings the courts are required
to respect the legal opinions expressed in the final judgment of the
European Court of Human Rights finding a violation of a fundamental
human right or freedom.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO THE
CONVENTION
- The
applicant complained that in refusing his claim to purchase the flat
the domestic authorities had infringed his right to peaceful
enjoyment of his possessions. He relied on Article 1 of Protocol No.
1, which reads as follows:
“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.”
- The
Government contested that argument.
A. Admissibility
- The
Government disputed the admissibility of this complaint on three
grounds. They argued that it is incompatible ratione temporis
and ratione materiae with the provisions of the Convention,
and that the applicant had failed to exhaust domestic remedies.
1. Compatibility ratione
temporis and ratione
materiae
(a) The arguments of the parties
(i) The Government
- The
Government, firstly, argued that the applicant's complaint under
Article 1 of Protocol No. 1 was incompatible ratione temporis
because he had lost his specially protected tenancy before the entry
into force of the Convention in respect of Croatia.
- The
Government explained that, unlike in the Blečić and
Mrkić cases (see Blečić v. Croatia [GC],
no. 59532/00, ECHR 2006 III, and Mrkić v. Croatia
(dec.), no. 7118/03, 8 June 2006), where the judgments terminating
the specially protected tenancy, based on section 99 of the Housing
Act, had had a constitutive effect, the court judgments in the
instant case had been of a declaratory nature because they had been
based on the Act on the Lease of Flats on the Liberated Territory,
which had provided for ex lege termination of the specially
protected tenancy if its holder had not used the flat for a period
exceeding ninety days following the Act's entry into force.
Therefore, the applicant in the present case had lost his
specially protected tenancy by the operation of law on 5 January
1996, that is, before the Convention had entered into force in
respect of Croatia on 5 November 1997. In other words, the
applicant's tenancy had not been terminated by the subsequent court
judgments applying the Act on the Lease of Flats on the Liberated
Territory, but ipso jure, when the period of ninety days
following the Act's entry into force had expired.
- The
Government further argued that the complaint was incompatible ratione
materiae with the provisions of the Convention. Relying on the
Gaćeša case (see Gaćeša v. Croatia
(dec.), no. 43389/02, 1 April 2008), they averred that the
applicant's right to purchase the flat was a “claim”
rather than an “existing possession” within the meaning
of Article 1 of Protocol No. 1 to the Convention and the Court's
case-law. However, in their view, the applicant could not have had a
legitimate expectation that his claim would be granted, that is, that
he would have become the owner of the flat, as he had lost his
specially protected tenancy ex lege before making the request
for the purchase of the flat.
(ii) The applicant
- The
applicant submitted that under the case-law of the Constitutional
Court the Act on the Lease of Flats on the Liberated Territory
applied only to those persons who had left the previously occupied
territory of Croatia after the liberation in 1995 (see paragraphs
20-22 above). Since he had left Vojnić in 1991 in order to flee
the occupying forces and had returned in October 1995, the
legislation in question could not have applied to him and his
specially protected tenancy could not have been terminated ex
lege. That being so, and given that he had made the request for
the purchase of the flat within the time-limit stipulated in section
4(2) of the Sale to Occupier Act (see paragraphs 10 and 30 above), he
had had a legitimate expectation that his claim for the purchase of
the flat would be granted.
(b) The Court's assessment
- The
Court reiterates that an applicant may allege a violation of Article
1 of Protocol No. 1 only in so far as the impugned decisions relate
to his or her “possessions” within the meaning of that
provision. “Possessions” can be “existing
possessions” or claims that are sufficiently established to be
regarded as “assets”. Where, as in the present case, a
proprietary interest is in the nature of a claim, it may be regarded
as an “asset” only if there is a sufficient basis for
that interest in national law (for example, where there is settled
case-law of the domestic courts confirming it), that is, when the
claim is sufficiently established to be enforceable (see Kopecký
v. Slovakia [GC], no. 44912/98, §§ 48-49
and 52, ECHR 2004 IX, and Stran Greek Refineries and Stratis
Andreadis v. Greece, 9 December 1994, § 59, Series A
no. 301 B).
- The
Court notes that persons wishing to purchase a flat under the Sale to
Occupier Act had to satisfy two conditions: (a) they had to submit
their request for purchase of the flat within the time-limit fixed in
section 4(2) of that Act, and (b) they had to be holders of the
specially protected tenancy of the flat they wanted to buy, that is,
their tenancy should not have been terminated before the expiry of
that time-limit (see paragraphs 29-30 above).
- Turning
to the present case, the Court first notes that the domestic courts
dismissed the applicant's claim for purchase of the flat because they
found that his specially protected tenancy – the existence of
which was a statutory precondition for buying the flat under the Sale
to Occupier Act – had been terminated. In particular, the
second-instance court, in its judgment of 18 February 2004,
expressly referred to section 2 of the Act on the Lease of Flats on
the Liberated Territory and held that the applicant's specially
protected tenancy had been terminated ex lege because after
the Act's entry into force he had not used his flat for a period
longer than ninety days (see paragraph 15 above).
- However,
the Court further notes that in its decisions nos. U-III-1701/2000 of
3 June 2003, U-III-1451/2004 of 9 December 2004 and U-III-2174/2002
of 6 May 2005 the Constitutional Court held that the Act on the Lease
of Flats on the Liberated Territory applied only to those holders of
a specially protected tenancy who had left the previously occupied
territory of Croatia after the liberation in 1995 (see paragraphs
20-22 above). Having found in two of those cases (no. U-III-1701/2000
of 3 June 2003 and no. U-III-2174/2002 of 6 May 2005) that the
complainants, who were the holders of a specially protected tenancy,
had left that territory in 1991, the Constitutional Court held that
the Act in question could not be applied to them (see paragraphs 20
and 22 above).
- Having
regard to the fact that the domestic courts established that the
applicant had left Vojnić on 1 October 1991 (see paragraphs
14-15 above), the Court is of the view that he was entitled to
consider, in the light of the case-law of the Constitutional Court
(see paragraphs 20-22 above), that he retained his specially
protected tenancy because the Act on the Lease of Flats on the
Liberated Territory, according to the interpretation provided by that
court, did not apply to him.
- Furthermore,
given that the applicant made the request for the purchase of the
flat on 20 December 1996 (see paragraph 10 above), that is, within
the statutory time-limit set forth in section 4(2) of the Sale to
Occupier Act (see paragraph 30 above), it follows that all the
conditions for acquiring the right to purchase the flat were met in
the applicant's case.
- The
Court therefore considers that, in contrast to the Gaćeša
case relied on by the Government (see Gaćeša,
cited above), on the day of the Convention's entry into force in
respect of Croatia on 5 November 1997, the applicant's claim to
purchase the flat in the present case had a sufficient basis in
national law to qualify as an “asset” and therefore a
“possession” protected by Article 1 of Protocol No. 1 to
the Convention.
- It
follows that the Government's objections as to incompatibility
ratione temporis and ratione materiae must be
dismissed.
2. Non-exhaustion of domestic remedies
(a) The arguments of the parties
- The
Government noted that the applicant had argued that he was unable to
use the flat in question, inter alia, because Z.H. had broken
into it. However, they pointed out that the applicant had not availed
himself of any remedies in order to challenge Z.H.'s right to use the
flat in question and/or to seek his eviction.
- The
applicant replied that he had not been a party to the administrative
proceedings leading to the decision of 28 August 1996 (see paragraph
9 above) whereby the Sequestration Commission had let the flat to
Z.H. and his family on a temporary basis. That decision had never
been served on him and therefore he had not been able to use any
remedies against it.
(b) The Court's assessment
- The
Court reiterates that the domestic courts found that the applicant's
specially protected tenancy had been terminated ex lege by the
application of section 2(1) of the Act on the Lease of Flats on the
Liberated Territory because had not used the flat at issue in the
period between 5 August 1995 and 23 August 1996 (see
paragraph 15 above), that is, in the period before the local
authorities had entered into his flat on the last-mentioned date and
allocated it to Z.H. on 28 August 1996 (see paragraph 9 above).
The Court therefore does not see how resorting to available domestic
remedies with a view to contesting Z.H.'s right to use the flat
and/or seeking his eviction could have prevented or remedied the
termination of the applicant's specially protected tenancy.
- It
follows that the Government's objection concerning non-exhaustion of
domestic remedies must also be dismissed.
- The
Court further notes that this complaint is not manifestly ill-founded
within the meaning of Article 35 § 3 of the Convention. It also
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. Whether there was an interference with the peaceful
enjoyment of “possessions”
- Relying
on their above argument that the applicant's specially protected
tenancy had been terminated ex lege before the entry into
force of the Convention in respect of Croatia, (see paragraph 36),
the Government submitted that the subsequent domestic court judgments
refusing his claim to purchase the flat could not have amounted to an
interference with his right to peaceful enjoyment of his possessions
because at the time they were rendered he did not have a sufficient
proprietary interest to constitute a “possession” within
the meaning of Article 1 of Protocol No. 1 to the Convention.
- The
applicant did not make any specific comments on this issue. However,
it follows from his submissions that he considered that there had
been an interference with his right to the peaceful enjoyment of his
possessions.
- In
the light of its above finding that the applicant's claim for the
purchase of the flat was sufficiently established to qualify as an
“asset” attracting the protection of Article 1 of
Protocol No. 1 (see paragraphs 39-46 above), the Court considers that
the refusal of the domestic courts to grant that claim undoubtedly
constituted an interference with his right to the peaceful enjoyment
of possessions. This interference occurred on 18 February 2004
when the Karlovac County Court upheld the first-instance judgment of
the Vojnić Municipal Court of 11 September 2003, which
thereby acquired the force of res judicata.
- The
Court must further examine whether that interference was justified,
that is, whether it was provided for by law, whether it was in the
public or general interest and whether it was proportional.
2. Whether the interference was “provided for by
law”
(a) The arguments of the parties
(i) The Government
- The
Government submitted that it was undisputed that the domestic courts'
decisions were based on law, in particular the Act on the Lease of
Flats on the Liberated Territory.
- They
further argued that in its decision of 29 June 2006, delivered
following the applicant's constitutional complaint, the
Constitutional Court had not departed from the previous case-law
established by its decision U-III-1701/2000 of 3 June 2003 (see
paragraph 20 above). In the last-mentioned decision the
Constitutional Court had also held that the Act on the Lease of Flats
on the Liberated Territory, including section 2 of that
Act, which had provided for the ex lege termination of
specially protected tenancies, applied to all persons who had left
the previously occupied territory of Croatia after its liberation in
1995, that is, to those holders of a specially protected tenancy who
had not used their flats for a period exceeding ninety days following
the Act's entry into force. In the present case, the Constitutional
Court had found that the applicant had not used the flat in Vojnić
in the period between August 1995 and August 1996, that is, after the
liberation of the previously occupied territory. Therefore, the Act
on the Lease of Flats on the Liberated Territory was applicable to
him. The Constitutional Court had taken the same view in its decision
no. U-III-1451/2004, by which it had dismissed a constitutional
complaint in a case that was factually and legally identical to that
of the applicant (see paragraph 21 above).
(ii) The applicant
- The
applicant reiterated his arguments (see paragraph 38 above) that the
Act on the Lease of Flats on the Liberated Territory could not be
applied to him.
(b) The Court's assessment
- The
Court reiterates that the first and most important requirement of
Article 1 of Protocol No. 1 is that any interference by a public
authority with the peaceful enjoyment of possessions should be lawful
(see Iatridis v. Greece [GC], no. 31107/96, § 58,
ECHR 1999 II). In this connection, the Court agrees with the
Government that the decisions of the domestic courts in the present
case had a legal basis in domestic law as their refusal to grant the
applicant's claim for purchase of the flat was based on section 2 of
the Act on the Lease of Flats on the Liberated Territory.
- However,
the Court further reiterates that the existence of a legal basis is
not in itself sufficient to satisfy the principle of lawfulness. When
speaking of “law”, Article 1 of Protocol No. 1 alludes to
a concept which comprises statutory law as well as case-law and
implies qualitative requirements, notably those of accessibility and
foreseeability (see, for example, Mullai and Others v. Albania,
no. 9074/07, § 113, 23 March 2010; Špaček,
s.r.o. v. the Czech Republic, no. 26449/95, § 54, 9 November
1999; and Carbonara and Ventura v. Italy, no. 24638/94, §
64, ECHR 2000 VI).
- In
this connection, the Court first notes that the application by the
ordinary courts of the Act on the Lease of Flats on the Liberated
Territory to the applicant's case was not in line with the
interpretation and practice of the Constitutional Court, according to
which that Act could not be applied to situations similar to that of
the applicant (see paragraphs 20 and 22 above).
- The
Court further notes that, following the applicant's constitutional
complaint, the Constitutional Court had an opportunity to quash the
judgments of the ordinary courts, which were contrary to its previous
decisions. However, it did not do so. Instead, it dismissed the
applicant's constitutional complaint.
- Therefore,
in the applicant's case not only the judgments of the ordinary courts
but also the decision of the Constitutional Court itself were
contrary to that court's earlier case-law.
- At
this juncture the Court finds it appropriate to address the
Government's argument that in dismissing the applicant's
constitutional complaint the Constitutional Court did not depart from
its previous case-law established in decisions nos. U-III-1701/2000
of 3 June 2003, U-III-1451/2004 of 9 December 2004 and
U-III-2174/2002 of 6 May 2005. The Court notes that in those
decisions the Constitutional Court clearly stated that the Act on the
Lease of Flats on the Liberated Territory applied only to those
holders of a specially protected tenancy who had left the previously
occupied territory of Croatia after August 1995. Therefore, in two of
those cases the Constitutional Court held that the legislation in
question could not be applied to the complainants, as they had left
their flats before 1995. It thus allowed their constitutional
complaints (see paragraphs 20 and 22 above). In the remaining case it
dismissed the constitutional complaint because it found that the
complainant in that case, unlike the applicant in the present case,
had left her flat in August 1995 (see paragraph 21 above). Having
regard to the fact that in the applicant's case the ordinary courts
established that the applicant had left Vojnić on 1 October
1991 (see paragraphs 14-15 above), which finding was not contested by
the Constitutional Court, the Court does not find that his case was
different from those mentioned above. Accordingly, the Court cannot
accept the Government's argument that the Constitutional Court's
decision in the applicant's case was consistent with that court's
previous case-law.
- The
Court further notes that in its decision dismissing the applicant's
constitutional complaint the Constitutional Court did not attempt to
distinguish the applicant's case from its previous decisions, nor did
it indicate its intention to depart from its interpretation of the
Act on the Lease of Flats on the Liberated Territory. What is more,
the Government did not furnish any relevant decisions that would
indicate a change in the Constitutional Court's practice or otherwise
enable the Court to ascertain why the applicant's case was decided
differently. Therefore, it cannot be discerned whether in the
applicant's case the Constitutional Court simply neglected its
previous jurisprudence or whether it consciously departed from it
and, if so, why.
- The
Court has already held, in the context of Article 6 § 1 of
the Convention, that the Contracting States have an obligation to
organise their legal system so as to avoid the adoption of discordant
judgments (see Vrioni and Others v. Albania, no. 2141/03, §
58, 24 March 2009, and Mullai and Others, cited above,
§ 86), and that conflicting decisions in similar cases stemming
from the same court which, in addition, is the court of last resort
in the matter, may, in the absence of a mechanism which ensures
consistency, breach the principle of legal certainty inherent in that
Article (see, for example, Beian v.
Romania (no. 1), no.
30658/05, §§ 36-39, ECHR 2007 XIII; Tudor Tudor v.
Romania, no. 21911/03, § 29, 24 March 2009; and
Iordan Iordanov and Others v. Bulgaria, no. 23530/02, §§
47-53, 2 July 2009).
- The
Court has also held that where such manifestly conflicting decisions
interfere with the right to peaceful enjoyment of possessions and no
reasonable explanation is given for the divergence, such
interferences cannot be considered lawful for the purposes of Article
1 of Protocol No. 1 to the Convention because they lead to
an inconsistent case-law which lacks the required precision to enable
individuals to foresee the consequences of their actions (see
Carbonara and Ventura, cited above, § 65; Mullai
and Others, cited above, §§ 115-117; and Saghinadze
and Others v. Georgia, no. 18768/05, §§
116-118, 27 May 2010).
- Having
regard to the foregoing considerations, it follows that the
impugned interference in the form of the Vojnić Municipal
Court's judgment of 11 September 2003 was not foreseeable for the
applicant who, relying on the existing case-law of the Constitutional
Court, could reasonably have expected that his claim for the purchase
of the flat would be granted. The interference was therefore
incompatible with the principle of lawfulness and hence contravened
Article 1 of Protocol No. 1 to the Convention. This finding makes it
unnecessary to examine whether a fair balance has been struck between
the demands of the general interest of the community and the
requirements of the protection of the applicant's fundamental rights.
There
has, accordingly, been a violation of Article 1 of Protocol No. 1.
II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
- The
applicant further complained under Article 8 of the Convention that
by breaking into his flat and letting it to Z.H. the domestic
authorities had violated his right to respect for his home. Article 8
of the Convention reads as follows:
“1. Everyone has the right to respect
for ... his home and his correspondence.
2. There shall be no interference by a public
authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society in
the interests of national security, public safety or the economic
well-being of the country, for the prevention of disorder or crime,
for the protection of health or morals, or for the protection of the
rights and freedoms of others.”
- In
so far as the applicant may be understood to complain about the
actual entering into his flat on 23 August 1996 and the decision of
the Sequestration Commission of 28 August 1996 (see paragraph 9
above) whereby it let the flat to Z.H., the Court notes that these
events took place before the Convention entered into force in respect
of Croatia on 5 November 1997.
- To
the extent that the applicant complains of the decision of the
Ministry of Reconstruction and Development of 7 August 1998 (see
paragraph 11 above), the Court notes that the applicant could have
challenged it before the Administrative Court, but he did not do so.
- It
follows that this complaint is, in its respective aspects,
inadmissible as incompatible ratione temporis with the
provisions of the Convention within the meaning of Article 35 § 3
of the Convention and for non-exhaustion of domestic remedies under
Article 35 § 1 thereof and must therefore be rejected
pursuant to Article 35 § 4.
III. ALLEGED VIOLATIONS OF ARTICLES 6 § 1 AND 13 OF
THE CONVENTION
- Lastly,
the applicant complained under Articles 6 § 1 and 13 of the
Convention that he had not had access to a court nor an effective
remedy in order to challenge the forcible entry into his flat or the
domestic authorities' decisions of 28 August 1996 and 7 August
1998 to let his flat to Z.H. Articles 6 and 13 read as follows:
Article 6 § 1
“In the determination of his civil rights and
obligations ... everyone is entitled to a fair ... hearing ... by [a]
... tribunal ...”
Article 13
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
- The
Court refers to its above findings (see paragraphs 70-72), according
to which the applicant's complaint under Article 8 of the
Convention is inadmissible as incompatible ratione temporis
and for non-exhaustion of domestic remedies. It follows that in so
far as the applicant's complaints under Article 6 § 1
and 13 concern the alleged lack of access to a court and an effective
remedy in respect of the break-in of his flat on 23 August 1996,
and the decision of the Sequestration Commission of 28 August
1996, they are also inadmissible as incompatible ratione temporis
with the provisions of the Convention. To the extent that these
complaints concern the decision of the Ministry of Reconstruction and
Development of 7 August 1998 they are inadmissible as manifestly
ill-founded within the meaning of Article 35 § 3
of the Convention. They must therefore be rejected pursuant to
Article 35 § 4 of the Convention.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
- In
his application form the applicant claimed 50,000 euros (EUR) in
respect of non-pecuniary damage and EUR 1,200 in respect of costs and
expenses. However, he did not submit a just satisfaction claim, nor
did he resubmit (even by referring to them) the claims made in the
application form within the time-limit fixed for submission of his
Article 41 claims, that is, within the time-limit for submission of
his observations (Rule 60 § 3 of the Rules of Court). The
applicant failed to (re)submit the just satisfaction claims within
the time allowed even though he was reminded that he had to do so
even if he had indicated his wishes concerning just satisfaction at
an earlier stage of the proceedings.
- The
Government noted that the applicant had not submitted a claim for
just satisfaction in his observations but they nevertheless contested
the claims made in the application form.
- The
Court reiterates that a judgment in which it finds a breach imposes
on the respondent State a legal obligation to put an end to the
breach and make reparation for its consequences. If national law does
not allow – or allows only partial – reparation to be
made, Article 41 empowers the Court to afford the injured party such
satisfaction as appears to it to be appropriate (see Iatridis
v. Greece (just satisfaction) [GC], no. 31107/96,
§§ 32-33, ECHR 2000-XI). In this connection, the Court
notes that the applicant can now file a petition under section 428a
of the Civil Procedure Act (see paragraph 31 above) with the
Vojnić Municipal Court for the reopening of the civil
proceedings in respect of which the Court has found a violation of
Article 1 of Protocol No. 1 to the Convention.
- Given
the nature of the applicant's complaint and the reasons for which it
has found a violation of Article 1 of Protocol No. 1 to the
Convention, the Court considers that in the present case the most
appropriate form of redress would be to reopen the proceedings
complained of in due course (see, mutatis mutandis, Trgo
v. Croatia, no. 35298/04, § 75,
11 June 2009, and Vrbica v. Croatia, no. 32540/05, §§
83-85, 1 April 2010).
- Having
regard to the foregoing, and given that the applicant did not submit
a claim for just satisfaction at the time prescribed, the Court
considers that there is no call to award him any sum on that account.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint concerning the right to
peaceful enjoyment of possessions admissible and the remainder of the
application inadmissible;
- Holds that there has been a violation of Article
1 of Protocol No. 1 to the Convention.
Done in English, and notified in writing on 29 March 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Anatoly
Kovler
Registrar President
