CASE OF ZRILIĆ v. CROATIA

FIRST SECTION

CASE OF ZRILIĆ v. CROATIA

(Application no. 46726/11)

JUDGMENT

STRASBOURG

3 October 2013

FINAL

20/01/2014

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Zrilić v. Croatia,

The European Court of Human Rights (First Section), sitting as a Chamber composed of:

Isabelle Berro-Lefèvre, President,
Elisabeth Steiner,
Khanlar Hajiyev,
Linos-Alexandre Sicilianos,
Erik Møse,
Ksenija Turković,
Dmitry Dedov, judges,
and Søren Nielsen, Section Registrar,

Having deliberated in private on 10 September 2013,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 46726/11) 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, Ms Slavica Zrilić (“the applicant”), on 21 July 2011.

2. The applicant was represented by Ms V. Šnur, a lawyer practising in Vinkovci. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik.

3. The applicant alleged in particular that her rights to respect for her home and to peaceful enjoyment of her possessions under Article 8 of the Convention and Article 1 of Protocol No. 1 had been violated by the national courts’ order for the partition of the house she had jointly owned with her former husband.

4. On 3 October 2011 the applicant’s complaints concerning the right to respect for her home and peaceful enjoyment of her possessions under Article 8 of the Convention and Article 1 of Protocol No. 1 were communicated to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1958 and lives in Vinkovci.

6. In 1992 the applicant and her former husband G.Z. built a family house in Vinkovci. The house measured 176.42 square metres on two levels, each consisting of two rooms, bathroom, hallway, dining-room and a kitchen. It was placed on a plot of land measuring in total 455 square metres. The applicant and her former husband lived on the ground floor while the upper level was left in a rough stage of construction.

7. In May 2005 the applicant and G.Z. divorced, but continued to live in the same house.

8. In the meantime, the applicant lodged a civil action in the Županja Municipal Court (Općinski sud u Županji) asking it to establish her share in the house and the plot of land. She also asked that her share in the ownership of a jointly owned car be established.

9. During the proceedings, the Županja Municipal Court commissioned an expert report to establish the total value of the house and the plot of land. The expert submitted her report on 17 March 2009, finding that the total value of the house and the plot of land was 55,158.48 euros (EUR). She also found that the parties’ proportions in the total investments were 66:34 in favour of G.Z.

10. Since G.Z. did not contest the applicant’s claim, on 8 May 2009 the Županja Municipal Court established that the applicant was the owner of one-third and G.Z. of two-thirds of the house and the plot of land. It also established that they owned their car in equal shares and ordered G.Z. to pay the applicant 3,045.50 Croatian kunas (HRK) on that account. This judgment became final and the applicant and G.Z. registered their shares of the house and the plot of land in the land registry of the Vinkovci Municipal Court (Općinski sud u Vinkovcima).

11. On 28 August 2009 G.Z. lodged a request with the Vinkovci Municipal Court for partition of the house. He proposed to buy out the applicant’s share or, alternatively, to have the house partitioned by judicial sale.

12. At a hearing on 6 October 2009 the applicant did not object to the proposal for partition in the proportions established, but she asked for an adjournment of the hearing so she could prepare her observations concerning the proposed partition model.

13. On 14 October 2009 the applicant opposed the proposed partition model asking the Vinkovci Municipal Court to order partition in kind. She argued that she and G.Z. had already been living in separate parts of the house for some years and that it had amounted to a de facto partition. She further submitted that she had brought a civil action against G.Z. in the Vinkovci Municipal Court in which she had claimed a refund of her previous contributions to the construction of the house. These proceedings were at the time still pending.

14. On 2 November 2009 G.Z. submitted his reply to the applicant’s observations. He argued that he and the applicant had actually been living in the same space and sharing the same living area, apart from bedrooms. He considered that partition in kind was not technically possible, given their shares in the house and the plot of land. As regards the applicant’s civil action for refund of contributions, he pointed out that they had already had their shares established by a final judgment, and that her civil action had no bearing on the proceedings at issue.

15. Another hearing before the Vinkovci Municipal Court was scheduled for 23 November 2009 at 9 a.m.

16. On the day of the hearing, the applicant’s representative informed the Vinkovci Municipal Court that she was not able to attend because she had some undisclosed health issues. She asked for the hearing to be adjourned. The Vinkovci Municipal Court dismissed the request for adjournment of the hearing, on the grounds that the applicant’s representative had not provided any evidence about her health, and that she had not asked for the adjournment in due time. The hearing was held and the Vinkovci Municipal Court decided to commission an expert report in order to establish whether partition in kind was possible and also the market value of the property at issue.

17. On 26 November 2009 the Vinkovci Municipal Court commissioned an expert report from S.Ž.

18. On 4 December 2009 the applicant complained to the Vinkovci Municipal Court that she had not been allowed to participate in the choice of the expert and that the decision to commission the report had been adopted in her absence.

19. On 4 January 2010 S.Ž. submitted his expert report. He estimated the market value of the property at EUR 55,674. As regards the possibility of partition in kind, S.Ž. established that it was not possible because the house was a single unit. He found that the house had one entrance, which led to a hallway from where it was possible to access all the other rooms in the house. He also found that the house had a building permit only for the ground floor although in reality it consisted of two levels, and that the house did not have a use permit.

20. At a hearing held on 17 February 2010 the applicant objected to the findings of the expert report. She maintained that partition in kind was possible, and pointed out that the expert had not examined the possibility of creating two separate flats, and that his findings as to the value of the property and the existence of the use permit were unclear.

21. The Vinkovci Municipal Court adjourned the hearing and summoned the expert for questioning concerning the applicant’s objections.

22. At a hearing held on 8 March 2010 the Vinkovci Municipal Court, in presence of the parties and their representatives, heard expert S.Ž., who reiterated his previous findings. He explained that creating two separate flats would only have been possible if there had been two single units with separate entrances. Since this was not the case with the house at issue it was not possible to establish two separate flats without further significant investment. In particular, it would be necessary to obtain a new building permit, which meant instituting a new set of administrative proceedings, and to carry out the necessary construction work. The expert further explained that he had never seen a use permit and therefore he had made his report as though it did not exist. In any event, the existence of a use permit would not significantly influence his findings, because it could always be obtained without any particular difficulties. As regards the market value of the property at issue, he explained that it had been assessed in line with the relevant market data.

23. The parties had no questions for the expert. The applicant objected to the part of the report which stated that partition in kind was not possible. She asked for a new report to be commissioned from another expert.

24. On 22 April 2010 the Vinkovci Municipal Court dismissed the applicant’s request, on the grounds that all the relevant facts had been established, and concluded the proceedings.

25. On the same day the Vinkovci Municipal Court, relying on the expert report, ordered the sale of the house and the plot of land. The relevant part of the decision reads:

“This court did not accept the respondent’s request for the proceedings to be stayed until termination of the proceedings under no. P-1151/09. The court considers that the outcome of those civil proceedings is not a preliminary issue which could influence these partition proceedings, especially since the respondent did not object to the partition itself and the established shares, which is the decisive prerequisite for partition ...

The court did not accept the respondent’s objection that the expert had been appointed without having her opinion heard, as provided under Article 251 § 2 of the Code of Civil Procedure.

At a hearing held on 23 November 2009 the court decided to commission an expert report. The respondent’s representative was duly summoned to this hearing, but she informed the court, on the same day just before the hearing ..., that she could not attend for health reasons, without submitting any evidence of health problems.

The claimant objected to the adjournment, and the hearing was held in the absence of the respondent and her representative ...

In any event, although it is true that the parties are allowed to express their opinion as to the choice of the expert, it is for the court to choose an expert, irrespective of whether the parties agree ...

The respondent asked for a new report to be commissioned from another expert.

Answering the respondent’s objections at a hearing held on 8 March 2010, expert [S.Ž.] reiterated his findings both as to the market value of the property and the possibility of partition in kind.

According to the expert, in order to form a single unit such as an apartment, there would have to be a cohesive group of rooms suitable as living accommodation, which would form a unit and would have a separate entrance. A single unit, according to the expert, could not be formed from one or more rooms which do not meet the aforementioned criteria.

The parties’ house does not meet the criteria by which single units could be formed, since it would imply significant costs, particularly for the new building permit, the relevant administrative proceedings and eventually the construction work.

The expert also explained that he had determined the market value taking into account the fact that the house had no use permit, although obtaining one would not entail significant costs.

Even after the expert had reiterated his findings at the hearing, the respondent insisted on her objection to his finding that partition in kind would not be possible, and requested that a new expert report be commissioned.

This court did not accept the respondent’s request for a new expert report because it found S.Ž.’s report objective and well drafted.

Namely, throughout the proceedings the respondent maintained that partition in kind was possible, as she and the claimant had been sharing the same space as physically divided parts.

However, this court considers that the fact that the parties live separately in the same house does not mean in itself that partition in kind is possible, since it would require each party to be allocated a single unit which could be entered in the land register and which would be in proportion with their respective shares.

The expert explicitly stated that partition in kind would not be possible since it would require additional construction work, special permits and more.

Given that the central question in proceedings relating to partition of property is to establish whether at the relevant time the property at issue could be physically partitioned, it follows that the respondent’s objections are ill-founded, and consequently the expert’s report was accepted.”

26. On 17 May 2010 the applicant lodged an appeal before the Vukovar County Court (Županijski sud u Vukovaru) challenging the first-instance decision. She maintained that the fact that she and G.Z. both lived in the house amounted to de facto partition and that, in any event, it had been necessary to stay the partition proceedings pending the outcome of the civil proceedings in which she had claimed reimbursement of her previous contributions in the construction of the house. She further challenged the fact that the expert had been chosen without her having the opportunity to make any observations in that respect. Furthermore, the applicant considered that it was possible to form two single units and thus a building with two separate flats. Since the expert had found differently it was necessary to commission another report; the first-instance court had refused to do this without giving any relevant reasons.

27. On 17 February 2011 the Vukovar County Court dismissed the applicant’s appeal as ill-founded. It found the expert report well drafted and convincing and therefore dismissed all the applicant’s arguments in that respect. The Vukovar County Court found that the fact that the applicant had not been heard when the first-instance court had decided to commission the report had had no bearing on the overall fairness of the proceedings. It also pointed out that the expert had been heard during the proceedings and that he had convincingly defended his findings. Finally, the Vukovar County Court endorsed the findings of the first-instance court that partition in kind was not possible, and held that the pending civil proceedings for refund of the applicant’s contributions to the construction of the house had not warranted staying the proceedings, since the parties’ shares in the house had already been established by a final judgment.

28. On 22 March 2011 the Vinkovci Municipal Court opened enforcement proceedings for judicial sale of the house and the plot of land.

29. The applicant lodged an appeal against the above decision before the Vukovar County Court on 4 April 2011.

30. On 7 April 2011 the applicant lodged a constitutional complaint before the Constitutional Court (Ustavni sud Republike Hrvatske) arguing that there had been a violation of her right to a fair trial under Article 29 of the Constitution and Article 6 of the Convention, alone and in conjunction with Article 13 of the Convention. She also considered that there had been a violation of the principle of lawfulness, equality before the law, right to respect for private and family life and the right of ownership, under Articles 5, 14, 35 and 48 of the Constitution respectively. The applicant reiterated her previous arguments concerning the choice of the expert and the findings of the expert report. She maintained that she and G.Z. had both been living in the house for years and that they had already created de facto partition. Thus she considered that partition in kind was the only possible solution. The applicant also asked the Constitutional Court to stay the enforcement proceedings.

31. On 12 May 2011 the Constitutional Court declared the applicant’s constitutional complaint inadmissible as manifestly ill-founded and dismissed her request for staying of the enforcement proceedings.

32. On 10 October 2011 the Vukovar County Court dismissed the applicant’s appeal against the decision of the Vinkovci Municipal Court instituting the enforcement proceedings (see paragraphs 28 and 29 above).

33. On 18 September 2012 the Vinkovci Municipal Court, the house and the plot of land had been sold to G.Z., by court order, awarded the applicant HRK 135,333.34 as her share.

34. On the same day the Vinkovci Municipal Court ordered the applicant to vacate the house.

II. RELEVANT DOMESTIC LAW AND PRACTICE

A. Relevant domestic law

1. Constitution

35. The relevant provisions of the Constitution of the Republic of Croatia (Ustav Republike Hrvatske, Official Gazette 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), 76/2010, 85/2010) read as follows:

Article 14

“Everyone in the Republic of Croatia shall enjoy rights and freedoms regardless of their race, colour, sex, language, religion, political or other belief, national or social origin, property, birth, education, social status or other characteristics.

All shall be equal before the law.”

Article 34

“The home is inviolable ... “

Article 35

“Everyone has a right to respect for and legal protection of his private and family life, dignity, reputation and honour.”

Article 48

“The right of ownership shall be guaranteed ...“

2. Constitutional Court Act

36. The relevant part of section 62 of the Constitutional Court Act (Ustavni zakon o Ustavnom sudu Republike Hrvatske, Official Gazette no. 49/2002) reads as follows:

Section 62

“1. Anyone may lodge a constitutional complaint with the Constitutional Court if he or she deems that an individual act of a state body, a body of local and regional self-government, or a legal person with public authority, concerning his or her rights and obligations, or a suspicion or an accusation of a criminal act, has violated his or her human rights or fundamental freedoms or his or her right to local and regional self-government guaranteed by the Constitution (hereinafter: a constitutional right) ...

2. If another legal remedy exists in respect of the violation of the constitutional right [complained of], a constitutional complaint may be lodged only after that remedy has been used.”

3. Relevant property legislation

37. The relevant provisions of the Property Act (Zakon o vlasništvu i drugim stvarnim pravima, Official Gazette nos. 91/96, 68/98, 137/99, 22/00, 73/00, 129/00, 114/01, 79/06, 141/06, 146/08, 38/09, 153/09) reads:

CO-OWNERSHIP

The right to termination

Section 47

“(1) Co-owners have the right to terminate co-ownership if that is possible and permissible; such a right is not subject to any prescription.

(2) Co-owners may require termination at any time, except when such termination would be detrimental to the interests of other co-owners; however, such a requirement may be made even at such a time if in view of the circumstances it cannot be reasonably expected that the circumstance will change soon to the extent that the termination would not be detrimental to the interests of other co-owners. The court with jurisdiction for the termination proceedings shall decide on any objection to the termination ... “

Termination through court proceedings

Section 50

“(1) In court termination, the court is primarily bound by strict statutory provisions, and subsidiarily by a valid agreement existing between the parties on the method of termination, if any, and if possible and permissible, as well as by the right to terminate by payment to which a co-owner would be entitled based on a legal transaction or law.

(2) If the court is not bound regarding the method of termination within the meaning of paragraph 1 of this Article, the court shall order partition in kind ...

(4) If the partition under paragraph 2 of this Article is not possible without adverse substantial effects on the value of the property, the court shall order judicial sale and divide the proceeds according to the relevant shares (civil termination).

Termination by creating separate premises

Section 53

“If co-owners agree to limit their rights instead of partitioning the real property by establishing separate premises within it in accordance with their own shares, that shall be considered their decision on termination ... “

CONDOMINIUM

Condominium property

Section 67

(1) Part of a co-owned real property, representing a single unit suitable for independent exercise of co-ownership, such as a flat or other single unit, may transform the property into a condominium ... “

38. What constitutes a flat is defined under the Lease of Flats Act (Zakon o najmu stanova, Official Gazette nos. 91/1996, 48/1998, 66/1998, 22/2006) in the following terms:

Section 2

“(1) A flat is a group of rooms suitable for living accommodation and their ancillary premises, which form a single unit and have a separate entrance ... “

B. Relevant Constitutional Court practice

39. In its decision no. U-III-46/2007 of 22 December 2010 the Constitutional Court, referring to the Court’s case-law in Ćosić v. Croatia, no. 28261/06, 15 January 2009, examined an appellant’s complaint concerning her eviction from a flat, under the right to home provided in Article 34 § 1 of the Constitution, although the appellant had not cited that provision. In this respect the Constitutional Court noted:

“The appellant complained of a violation of her constitutional rights under Articles 14 and 18 and 3 and 5 of the Constitution. It is to be noted that in substance the appellant complained of a violation of her right to home provided in Article 34 § 1 of the Constitution, and the right to respect for her home provided in Article 8 of the Convention ...

Under Article 62 § 1 of the Constitutional Court Act anyone may lodge a constitutional complaint with the Constitutional Court if he or she deems that the individual act of a state body, concerning his or her rights and obligations, has violated his or her human rights or fundamental freedoms (a constitutional right).

Therefore, the Constitutional Court, in the proceedings upon a constitutional complaint, and in view of the relevant arguments, protects the appellants only from violations of their constitutional rights.”

40. The Constitutional Court followed the same approach in its decision no. U-III-405/2008 of 21 February 2012, concerning the eviction of an appellant from her flat, in which she cited Article 14 § 2 (equality before the law) of the Constitution, but the Constitutional Court considered that her case opened the issue of her right to home. It therefore examined her complaints under Article 34 § 1 (right to home) of the Constitution in conjunction with Articles 35 (right to respect for private and family life) and 16 (restrictions of the Constitution rights) of the Constitution and Article 8 of the Convention.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL No. 1

41. The applicant complained that the national courts’ order for the partition of the house she had jointly owned with her former husband by judicial sale had violated her right to respect for her home and her right to peaceful enjoyment of her possessions. The applicant relied on Article 8 of the Convention, which reads as follows:

“1. Everyone has the right to respect for his private and family life, 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.”

The applicant also cited Article 1 of Protocol No. 1, which provides:

“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.”

A. Admissibility

1. The parties’ arguments

42. The Government submitted that the applicant had failed to complain about the violation of her right to respect for her home and peaceful enjoyment of her possessions during the proceedings before the domestic authorities. In her constitutional complaint, which had been an effective domestic remedy concerning her complaints, the applicant had not cited the relevant provision of the Constitution or otherwise complained of a violation of her right to respect for her home and peaceful enjoyment of her possessions. Furthermore, the applicant had failed to lodge an appeal on points of law with the Supreme Court, which was also an effective domestic remedy.

43. The applicant disagreed with the Government, arguing that she had exhausted all available and effective domestic remedies.

2. The Court’s assessment

44. The Court reiterates that under Article 35 § 1 of the Convention it may only deal with an application after all domestic remedies have been exhausted. The purpose of Article 35 is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Court (see, for example, Mifsud v. France (dec.) [GC], no. 57220/00, § 15, ECHR 2002-VIII). The obligation to exhaust domestic remedies requires an applicant to make normal use of remedies which are effective, sufficient and accessible in respect of his Convention grievances. To be effective, a remedy must be capable of resolving directly the impugned state of affairs (see Balogh v. Hungary, no. 47940/99, § 30, 20 July 2004).

45. The rule of exhaustion of domestic remedies normally requires that complaints intended to be made subsequently at the international level should have been raised before the domestic courts, at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law. The object of the rule on exhaustion of domestic remedies is to allow the national authorities (primarily the judicial authorities) to address an allegation that a Convention right has been violated and, where appropriate, to afford redress before that allegation is submitted to the Court. In so far as there exists at national level a remedy enabling the national courts to address, at least in substance, any argument as to an alleged violation of a Convention right, it is that remedy which should be used (see Azinas v. Cyprus [GC], no. 56679/00, § 38, ECHR 2004‑III).

46. The Court notes that the case at issue concerns partition of the house which the applicant built together with her former husband and in which they lived for years, including after their divorce. Throughout the domestic proceedings the applicant opposed partition of the house by judicial sale, arguing that she and her former husband had already been living in separate parts of the house for years and that this amounted to de facto partition. Thus she maintained her bid for partition in kind, making it clear to the domestic authorities that she did not want to leave the house.

47. When the lower courts refused to accept the request for partition in kind, the applicant lodged a constitutional complaint whereby she pursued the same complaints as to the effects of partition by judicial sale. In this respect the Court notes that, contrary to the Government’s arguments, the relevant materials from the case file disclose that the applicant did expressly rely on the Constitution provision guaranteeing the right of ownership. In any event, irrespective of the provision the applicant cited, it was open to the Constitutional Court to examine the substance of her complaints (see paragraphs 39 and 40 above).

48. Therefore the Court considers that, by complaining in substance about the effects of the partition on her right to respect for her home and peaceful enjoyment of her possessions, the applicant made normal use of the domestic remedies, as required by Article 35 § 1 of the Convention, before bringing the same complaints before the Court (see, inter alia, Tarbuk v. Croatia, no. 31360/10, § 32, 11 December 2012).

49. As to the Government’s argument that the applicant failed to lodge an appeal on points of law with the Supreme Court, the Court notes that the Constitutional Court did not declare the applicant’s constitutional complaint inadmissible for non-exhaustion of domestic remedies, but held that her complaint was in substance manifestly ill-founded. By doing so the Constitutional Court implicitly accepted that the applicant’s constitutional complaint satisfied formal criteria. The Court sees no reason to hold otherwise (see Bjedov v. Croatia, no. 42150/09, § 48, 29 May 2012).

50. Against the above background, the Court considers that the Government’s objection must be rejected. The Court further notes that the applicant’s complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It also notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. The parties’ arguments

51. The applicant argued that in the house at issue she had developed sufficient links with her private and family life. She had built the house with her former husband and had lived there for a number of years. After their divorce, the applicant and her former husband had both continued to live in the house. She therefore considered that this had amounted to de facto physical partition and that there had been no reason for partition by judicial sale. The applicant contended that the amount she had received from the judicial sale of the house had not been sufficient for her to buy a suitable flat where she could live. In this respect she contested the findings of the expert report both as to the possibility of partition in kind and the value of her share.

52. The Government submitted that the house at issue had not been the applicant’s home within the meaning of the Convention. They pointed out that the applicant had divorced her husband in 2005 but that from 2004 she had been using only one room on the ground floor of the house. The house had been a single unit and the applicant should have known that it was not possible for her to have a private and family life in that house. Therefore, at least from the moment when the parties’ shares in the house had been established by a final judgment, the applicant’s stay in the house had had a temporary character, which had prevented the applicant from creating sufficient and continuous links with the house.

53. The Government further argued that the partition of the house had been based on the relevant statutory law, namely the Property Act and the Code of Civil Procedure, and the relevant case-law of the domestic courts. It had pursued the legitimate aim of “the protection of the rights of others” within the meaning of Article 8 § 2 of the Convention, since the applicant’s former husband had also had a right to peaceful enjoyment of his possessions and the partition of co-owned property. Finally, the Government considered that the interference by partition of the house had been “necessary in a democratic society”. The Government pointed out that the domestic courts had been confronted with two opposing views as to the best means of partition of the house. They had therefore commissioned an expert report and afforded the parties sufficient opportunity to present all their arguments.

54. As regards the applicant’s complaint under Article 1 of Protocol No. 1, the Government pointed out that, according to the Court’s case-law, the State’s responsibility in property disputes between private parties had been limited to providing an effective remedy. Croatia had discharged its obligation in that respect and therefore there had been no interference with the applicant’s rights. In any event, the Government considered that the alleged interference with the applicant’s property rights had been based on the Property Act and the Code of Civil Procedure, that it had pursued the legitimate aim of public interest and that it had been proportionate in the circumstances of the case.

2. The Court’s assessment

55. Having regard to all the circumstances of the present case, and the applicant’s complaints, the Court considers it appropriate to examine first the applicant’s complaint under Article 8 of the Convention.

(a) Whether a right protected by Article 8 is in issue

56. The first question the Court has to address is whether the applicant may arguably claim that she had a right protected by Article 8 and – more specifically in the present case – whether the house in question may be considered the applicant’s home.

57. The Court reiterates that the concept of “home” has autonomous meaning under the Convention. Whether or not a particular premises constitutes a “home” which attracts the protection of Article 8 § 1 will depend on the factual circumstances, namely the existence of sufficient and continuous links with a specific place (see, amongst many others, Gillow v. the United Kingdom, 24 November 1986, § 46, Series A no. 109; Buckley v. the United Kingdom, 25 September 1996, §§ 52-54, Reports of Judgments and Decisions 1996‑IV; and Bjedov, cited above, § 57).

58. The Court notes that it is undisputed between the parties that the applicant, with her former husband G.Z., built the house at issue in 1992, and that they both lived in the house even after their divorce in 2005. The applicant was ordered to vacate the house only in September 2012 and throughout that period she had no other home or place of residence. In such circumstances, the Court finds that the applicant had sufficient and continuing links with the house at issue for it to be considered her “home” for the purposes of Article 8 of the Convention.

(b) Whether there has been an interference with the applicant’s right to respect for her home

59. The Court observes that there is no dispute between the parties that the partition of the applicant’s house and the order to vacate it amounted to an interference with the right to respect for her home. The Court sees no reason to hold otherwise.

(c) Whether the interference was prescribed by law and pursued a legitimate aim

60. The partition of the house in question and the order to the applicant to vacate the house were adopted by the national courts under Croatian laws regulating co-ownership, which allow any co-owner to seek termination of the co-ownership. The Court, noting that its power to review compliance with domestic law is limited (see, among other authorities, Allan Jacobsson v. Sweden (no. 1), 25 October 1989, Series A no. 163, p. 17, § 57), is satisfied that the national courts’ decisions had a basis in the relevant domestic law. Furthermore, the interference in question pursued the legitimate aim of the “protection of the rights of others”, namely G.Z.’s right to seek termination of the co-ownership of the house at issue.

(d) Whether the interference was ‘”necessary in a democratic society”

61. The central question in this case is therefore whether the interference was “necessary in a democratic society”.

62. The Court reiterates that an interference will be considered “necessary in a democratic society” for a legitimate aim if it answers a “pressing social need” and, in particular, if it is proportionate to the legitimate aim pursued. While it is for the national authorities to make the initial assessment of necessity, the final evaluation as to whether the reasons cited for the interference are relevant and sufficient remains subject to review by the Court for conformity with the requirements of the Convention (see Connors v. the United Kingdom, no. 66746/01, § 81, 27 May 2004, and Buckley, cited above, § 74).

63. The Court observes that in the case at issue the domestic courts were confronted with the problem of finding a fair balance between the applicant’s and G.Z’s private interests in partition of their family house. These interests involved their rights under Article 8 of the Convention and therefore, by the nature of the dispute, there was an inevitable interference by the domestic courts’ decisions with the rights of one of the parties guaranteed under that provision. In such circumstances, the Court must examine whether the decision-making process leading to measures of interference was fair and was such as to afford due respect to the interests safeguarded to the individual by Article 8 (see Zehentner v. Austria, no. 20082/02, § 58, 16 July 2009).

64. The Court notes that when G.Z. brought his action in the Vinkovci Municipal Court seeking termination of his and the applicant’s co-ownership of the house at issue by buying out the applicant’s share or partition of the house by judicial sale, the applicant did not object to the proposal for partition (see paragraph 12 above), thus removing the question of the necessity and legitimacy of such a request from any dispute. The applicant rather objected to the proposed partition model, seeking partition in kind (see paragraph 13 above); a proposal which was objected to by G.Z. (see paragraph 14 above).

65. Such a disagreement between the applicant and G.Z. required the domestic courts to seek a partition model which would be feasible and appropriate in the circumstances of the case. In this connection the Court reiterates that any person at risk of an interference with his right to home should in principle be able to have the proportionality and reasonableness of the measure determined by an independent tribunal in the light of the relevant principles under Article 8 of the Convention (see, mutatis mutandis, Orlić v. Croatia, no. 48833/07, § 65, 21 June 2011). This requirement applied equally both to the applicant’s and G.Z.’s relevant interests.

66. On 26 November 2009 the Vinkovci Municipal Court commissioned an expert report in order to establish whether partition in kind was possible and also the market value of the house and the plot of land. The expert report of 4 January 2010 found that partition in kind was not possible, since the house was a single unit with one entrance and a hallway leading to all the other rooms in the house (see paragraph 19 above). These findings were further elaborated by the expert at a court hearing held on 8 March 2010. The expert explained that partition in kind by establishing separate flats for the applicant and G.Z. was not possible without further significant investment, such as instituting new administrative proceedings, obtaining a new building permit, and carrying out the necessary construction work (see paragraph 22 above).

67. The Court notes that the applicant had no questions for the expert, although she was given every opportunity to confront the expert with her position and to put the relevant questions concerning his findings. The applicant merely maintained that partition in kind was possible (see paragraph 23 above). The Vinkovci Municipal Court accepted the expert report, finding it sufficiently reasoned and convincing, and ordered partition by judicial sale. The decision of the Vinkovci Municipal Court is sufficiently reasoned and does not disclose any arbitrary or manifestly unreasonable conclusions, particularly having in mind the provisions of the relevant domestic law. They stipulate that the court shall order partition by judicial sale if partition in kind is not possible without adverse effects on the value of the property (see paragraph 37 above, sections 50 § 4 and 67 of the Property Act) and that a “flat” requires a separate entrance (see paragraph 38 above).

68. The Court therefore, having in mind that it cannot substitute its own findings of fact for that of the domestic courts, which are better placed to assess the evidence adduced before them, is satisfied that the decision-making process leading to measures of interference with the applicant’s rights was fair and such as to afford due respect to the interests safeguarded by Article 8.

69. Finally, the Court notes that although the applicant raised a relevant argument before it, namely that she would not be able to buy another suitable flat with the money awarded by judicial sale, which could play an important role in balancing of interests also in terms of the relevant domestic law (see paragraph 37 above – section 47 § 2 of the Property Act); she had never raised that argument before the domestic authorities. Having in mind that the domestic authorities duly examined the applicant’s objection as to the partition model, the Court sees no reason to doubt that they would have examined the applicant’s argument as to whether it would be possible for her to buy another flat. However, without having that issue raised at the national level, the Court cannot substitute itself for the national authorities, since that would take it beyond its subsidiary role.

70. Therefore, the Court finds that there has been no violation of Article 8 of the Convention.

71. In view of the above considerations, the Court also finds no basis on which to conclude that any of the decisions of the domestic courts were affected by any element of arbitrariness or were otherwise manifestly unreasonable and thus in violation of the applicant’s property rights under Article 1 of Protocol No. 1. (see, mutatis mutandis, Anheuser-Busch Inc. v. Portugal [GC], no. 73049/01, § 86, ECHR 2007‑I).

72. This allows the Court to conclude, without further examination, that there has been no violation of Article 1 of Protocol No. 1.

II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

73. Lastly, the applicant complained, under Article 6 § 1 of the Convention, that the domestic courts lacked impartiality, and under Article 14 of the Convention that she was discriminated against, but without any further substantiation.

74. In the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court considers that this part of the application does not disclose any appearance of a violation of the Convention. It follows that it is inadmissible under Article 35 § 3 as manifestly ill-founded, and must be rejected pursuant to Article 35 § 4 of the Convention.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the complaint concerning the alleged violation of the applicant’s right to respect for her home and the peaceful enjoyment of her possessions admissible and the remainder of the application inadmissible;

2. Holds that there has been no violation of Article 8 of the Convention;

3. Holds that there has been no violation of Article 1 of Protocol No. 1 to the Convention.

Done in English, and notified in writing on 3 October 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Søren NielsenIsabelle Berro-Lefèvre
RegistrarPresident

Full & Egal Universal Law Academy