FIRST SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 71549/01
by Nevenka CVIJETIĆ
against Croatia
The European Court of Human Rights (First Section), sitting on 3 April 2003 as a Chamber composed of
MrC.L. Rozakis, President,
MrG. Bonello,
MrP. Lorenzen,
MrsN. Vajić,
MrsS. Botoucharova,
MrA. Kovler,
MrsE. Steiner, judges,
and Mr S. NIELSEN, Deputy Section Registrar,
Having regard to the above application lodged on 3 April 2001,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
The applicant, Ms Nevenka Cvijetić, is a Croatian citizen, who was born in 1950 and lives in Split, Croatia. She is represented before the Court by Mr Toni Vukičević, a lawyer practising in Split. The respondent Government are represented by their Agent Ms Lidija Lukina-Karajković.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant and her husband were holders of a specially protected tenancy on a flat in Split where they lived. On 23 December 1993 they divorced and the husband left.
On 5 February 1994 I.Š. threw the applicant out of the flat and moved in.
On 9 February 1994 the applicant filed an action against I.Š. for disturbance of her possessions with the Split Municipal Court (Općinski sud u Splitu).
In separate proceedings before the same court, on 7 March 1994, the applicant obtained a judgment declaring her the sole holder of the specially protected tenancy on the flat.
In the proceedings against I.Š. on 11 November 1994 the applicant’s claim was granted and the court ordered I.Š. to vacate the flat within eight days from the date when the decision became final. The decision became final on 27 February 1995.
Given that I.Š. did not comply with the court’s order to vacate the flat, on 1 March 1995 the applicant applied for the execution of the decision to the Split Municipal Court. The execution order was issued on 8 March 1995.
On 10 August 1995 the Split Municipal Court invited the applicant to pay an advance for the costs of eviction. On 31 August 1995 the applicant informed the court that she had paid the costs.
The court ordered the eviction for 26 November 1996. However, on that date the execution officer of the court established that family B.B. occupied the flat.
On 29 November 1996 the applicant again asked the court to carry out the eviction order. The court scheduled eviction for 15 October 1997. However, the eviction was adjourned because the applicant did not appear.
On 30 November 1998 the applicant again asked the court to carry out the eviction order.
On 5 February 1999 the court invited the applicant to pay an advance for the costs of eviction.
On 1 February 2000 the applicant bought the flat and became its owner.
On 2 March 2000 the applicant informed the court that she had paid the costs.
On 16 May 2000 the applicant asked the court to speed up the proceedings.
The court scheduled eviction for 23 October 2000.
However, on 21 September and 8 October 2000, respectively the Association of the Homeland War Invalids (Hrvatska udruga vojnih invalida domovinskog rata) and the Ministry of the Homeland War Veterans (Ministarstvo hrvatskih branitelja Domovinskog rata) asked the court to adjourn the eviction.
When on 23 October 2000 an eviction officer of the Split Municipal Court attempted to carry out the eviction order he found a number of war veterans obstructing his attempt. Despite the presence of the police the eviction order was not carried out.
On 8 May 2001 the court invited the applicant to once more pay an advance for the costs for eviction.
On 18 May 2001 the applicant informed the court that she had paid the costs.
The next attempt to carry out the eviction order was scheduled for 8 June 2001, but it failed because a physician invited to assist did not appear.
On 26 October 2001 the court scheduled the date for eviction for 20 November 2001. However, the parties agreed that family B.B. vacate the premises before 20 March 2002.
On 21 March 2002 the family B.B. left the flat and the applicant moved in.
COMPLAINTS
1. The applicant complains that the prolonged inability to re-possess her flat in Split violated her rights under Article 6 § 1 and Article 8 of the Convention and Article 1 of Protocol No. 1.
2. The applicant also invokes Articles 14 and 15 of the Convention
THE LAW
1. The applicant firstly complains about the length of the execution proceedings. She also complains that her inability to live in her flat for more than eight years violated her right to respect for her home and her right to peaceful enjoyment of her possessions. She relies on Article 6 § 1 and Article 8 of the Convention and Article 1 of Protocol No. 1, the relevant parts of which read as follows:
Article 6
“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”
Article 8
“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.”
Article 1 of Protocol No. 1
“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 firstly object as to the Court’s competence ratione temporis arguing that the Court may only examine the facts occurred after 5 November 1997 when the Convention entered into force in respect of Croatia.
The Court recalls that execution of a final decision given by any court must be regarded as an integral part of the ‘trial’ (Hornsby v. Greece judgment of 19 March 1997, p. 511, § 40).
The Court notes that the decision to be executed became final in February 1995 while the Convention entered into force in respect of Croatia on 5 November 1997. It recalls that that the concept of a "continuing situation" refers to a state of affairs which involves continuous activities by or on the part of the State (Eur. Comm. HR, Nos. 11192/84, dec. 14.5.87, D.R. 52 p. 227, 12015/86, D.R. 57 p. 108 and 24841/94 dec. 30.11.94).
In the present case the enforcement proceedings continued after the ratification date and were concluded on 21 March 2002. During the period thus delimited, there was the necessary continuity in the applicant’s situation for the Court to have its competence ratione temporis established (see, mutatis mutandis, Phocas v. France, judgment of 23 April 1996, Reports of Judgments and Decisions 1996-II, p. 541, § 49).
In these circumstances the Court does not find that it is prevented ratione temporis from examining the complaints made and accordingly dismisses the Government’s objection in this respect.
The Government submit further that the present application is incompatible ratione personae with the provisions of the Convention insofar as the applicant is no longer a victim of the violation of the Convention as she regained the possession of her flat in Split on 21 March 2002.
The Court recalls that, according to its constant case-law, the application is incompatible ratione personae with the provisions of the Convention in the case when it is directed against a State which is not a party to the Convention or against a private person or when the applicant fails to show that he might be a victim of a violation of the Convention rights.
The Court notes, however, that the present application is directed against a State that has ratified the Convention and against a failure of the domestic authorities to enforce the eviction order in due time.
Furthermore, the Court notes that the applicant lived in the flat in question and that she was forcefully thrown out of the flat in 1994. Although she subsequently obtained an eviction order, it was not enforced until 21 March 2002. The applicant therefore, may claim to be a victim of a violation of the rights guaranteed by the Convention, in the period which does fall within the Court’s competence ratione temporis as stated above, because she alleges that the fact that she was prevented from living in her home for more than eight years violates Article 6 § 1 and Article 8 of the Convention as well as Article 1 of Protocol No. 1.
Therefore, the objection of incompatibility ratione personae of the application must be dismissed.
As to the issue under Article 6 of the Convention, the Government submit that, unlike the situation in the case of Immobiliare Saffi (see Immobiliare Saffi v. Italy, [GC], no. 22774/93, § 59, ECHR 1999-V), in the present case there has never been any legislative intervention to the effect that it would prevent the applicant from re-possessing her flat. To the contrary, the domestic authorities have showed due diligence to assist the applicant in carrying out the eviction order against the persons who occupied her flat. Firstly, the Split Municipal Court granted the applicant’s claim to have I.Š. evicted from the flat. As to the enforcement proceedings, the Government maintain that the same court attempted many times to carry out the eviction order. It was, however, prevented from doing so promptly due to a number of circumstances, such as the presence of the war veterans, the failure of a physician to assist the eviction of family B.B. and also due to the applicant’s failure to pay an advance for the costs of the eviction in due time on two occasions.
The applicant insists that the proceedings lasted unreasonably long and that the reasons set forth by the Government could not justify such a length of proceedings.
With respect to the Article 8 issue, the Government submit that there was no arbitrary interference with the applicant’s right to respect for her home on the part of the domestic authorities. Furthermore, they complied with their positive obligations to ensure the applicant the right in question since they enabled her to re-possess the flat.
The applicant argues that the state authorities failed in their positive obligation to ensure her re-possession of her flat in due time.
As to Article 1 of Protocol No. 1 the Government stress that the applicant was able to purchase the flat in question under very favourable conditions, that there was no interference with the applicant’s right to peaceful enjoyment of her possessions on the part of the domestic authorities and that the judicial authorities enabled the applicant to regain possession of the flat.
The Government conclude that Article 1 of Protocol No. 1 was not applicable to the present case and that thus, there has been no violation of the Convention.
The applicant disagrees with the Government.
The Court considers, in the light of the parties’ submissions, that this part of the application raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.
2. The applicant also complains that she belongs to a small category of persons who are obstructed in enjoyment of their rights and that the decisions of the domestic authorities have been inefficient. She invokes Articles 14 and 15 of the Convention.
The Court notes that in the light of all the material in its possession, and in so far as the matters complained of are within its competence, it finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.
It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Declares admissible, without prejudging the merits, the applicant’s complaints concerning the length of the enforcement proceedings, her right to respect for her home as well as her right to peaceful enjoyment of her possessions;
Declares inadmissible the remainder of the application.
Søren NIELSENChristos Rozakis
Deputy RegistrarPresident
Full & Egal Universal Law Academy