FIRST SECTION
PARTIAL DECISION
AS TO THE ADMISSIBILITY OF
Application no. 15579/04
by Milka GRLICA
against Croatia
The European Court of Human Rights (First Section), sitting on 16 November 2006 as a Chamber composed of:
MrC.L. Rozakis, President,
MrL. Loucaides,
MrsF. Tulkens,
MrsN. Vajić,
MrA. Kovler,
MrsE. Steiner,
MrK. Hajiyev, judges,
and Mr S. Nielsen, Section Registrar,
Having regard to the above application lodged on 7 April 2004,
Having deliberated, decides as follows:
THE FACTS
The applicant, Ms Milka Grlica, is a Croatian national who was born in 1936 and lives in Belgrade. She is represented before the Court by Ms Lj. Landup, a lawyer practising in Belgrade.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant and her husband lived in Rajić, Croatia, in a flat on which they had specially protected tenancy. In August 1991 the applicant and her husband left Croatia.
The applicant’s specially protected tenancy on the flat was terminated in judicial proceedings, but the applicant does not specify any dates and has not submitted any decisions thereof.
Meanwhile, the husband died and the applicant inherited a house, also situated in Rajić.
On 27 September 1995 the Temporary Takeover and Managing of Certain Property Act (“the Takeover Act”) entered into force. The Takeover Act provided that all property of persons who left Croatia was to be taken into care and controlled by the State. It also entitled local authorities (takeover commissions) to temporarily accommodate other persons in such property.
Pursuant to the Takeover Act, on 24 March 1997, the Novska Municipality Commission for Temporary Takeover and Use of Property (Komisija za privremeno preuzimanje i korištenje imovine na području grada Novske - “the Novska Takeover Commission”) gave the applicant’s house for temporarily use to the V. family
In June 1998 Parliament adopted the Programme for the Return of Refugees and Displaced Persons (“the Programme for Return”), regulating the principles for their return and repossession of their property.
In August 1998 the Act on Termination of the Takeover Act (“the Termination Act”) entered into force. It incorporated and gave legal force to the provisions of the Programme for Return providing that those persons, whose property had during their absence from Croatia been given for accommodation of others, had to apply for repossession of their property with the competent local authorities – the housing commissions.
On 6 August 1998 the applicant filed a request for return to Croatia and for the Croatian documents with the Croatian Embassy in Belgrade and in February 2000 obtained a travel document.
After her return to Croatia the applicant filed a request with the Novska Takeover Commission on 25 February 2000 seeking repossession of her house and eviction of the V. family On 24 May 2000 the Commission ordered eviction of the V. family, allowing them however to use the house until they were provided with alternative accommodation by the State. The Novska Housing Commission also set aside the decision of 24 March 1997.
Since the occupiers did not leave the house, the applicant on 16 July 2001 filed an appeal with the Novska Municipal Court (Općinski sud u Novskoj) as the second instance authority, which on 7 November 2001 ordered eviction of the V. family within 15-days, after the alternative accommodation had been found.
Since the occupiers did not vacate the house because they had not been provided with alternative accommodation, the applicant filed an appeal with the Sisak County Court (Županijski sud u Sisku) and at the same time instituted proceedings before the Administrative Court (Upravni sud Republike Hrvatske).
On 16 January 2002 the Administrative Court dismissed her action because it had no jurisdiction in the matter at issue.
On 29 August 2002 the Sisak County Court dismissed the applicant’s appeal as inadmissible also finding that it had no jurisdiction.
On 1 October 2002 the Amendments to the Act on Areas of Special State Care (“the 2002 Amendments”) entered into force. They transferred the jurisdiction in the matter from the housing commissions (which were abolished) to the Ministry of Public Works, Reconstruction and Construction (Ministarstvo za javne radove, obnovu i graditeljstvo – “the Ministry”).
The applicant filed a constitutional complaint on 30 October 2002 against the Sisak County Court’s decision of 29 August 2002, submitting that her right to an appeal and her right to property were violated.
The applicant repossessed her house on 19 April 2004.
The Constitutional Court (Ustavni sud Republike Hrvatske) dismissed the applicant’s complaint on 14 February 2005.
Meanwhile, on 20 November 2001 the applicant brought a civil action with the Novska Municipal Court against the State and the City of Novska, seeking compensation for the use of her house from July 1998 on.
On 13 February 2001 the Novska Municipal Court decided in the applicant’s favour concerning the period between November 2002 and January 2004 dismissing the remainder of her action and awarded the applicant for that period a monthly sum of Croatian Kunas (HRK) 540.
The subsequent applicant’s appeal was dismissed by the Sisak County Court on 22 January 2004.
At the applicant’s request the Novska Municipal Court issued an enforcement order on 10 August 2004 in respect of the amounts due to the applicant pursuant to the judgment of 13 February 2001, but since the order proved to be inoperative, the Municipal Court issued a new enforcement order on 18 March 2005. On 3 May 2005 the court issued a decision stating that the judgment had been enforced.
Upon her return to Croatia the applicant also asked to receive her pension. On 20 May 2000 the Croatian Pension Fund, Sisak Office (Republički fond mirovinskog i invalidskog osiguranja radnika Hrvatske, Područna služba u Sisku), acknowledged the applicant’s right to pension from 1 March 2000. The applicant did not appeal against that decision.
B. Relevant domestic law and practice
1.The Takeover Act
The Takeover Act (Zakon o privremenom preuzimanju i upravljanju određenom imovinom, Official Gazette nos. 73/1995 and 7/1996) in its relevant part provided as follows:
Section 2 provided that the property situated in the previously occupied territories and belonging to persons who had left Croatia was to be taken into care of and controlled by the State.
Section 5, inter alia, authorised the takeover commissions to give the property from Section 2 for temporary use to refugees, displaced persons and persons whose property had been destroyed in the war.
Section 7 obliged the temporary occupants to use the property with the care of a prudent administrator (bonus paterfamilias) and forbade them to sell it or to create any charge thereon.
2.The Property Act
The Property Act (Zakon o vlasništvu i drugim stvarnim pravima, Official Gazette nos. 91/1996, 73/2000 and 114/2001) in its relevant part provides as follows:
Section 161(1) of entitles the owner of property to recover it against anyone who possesses it.
Section 163(1) provides that the possessor may refuse to deliver the property to its owner if he or she has a right which authorises him to possess it (the right to possession).
Section 164(1) provides that a possessor in good faith who is nevertheless not authorised to possess the property shall deliver it to its owner but is not obliged to compensate the owner for its use, the benefits drawn therefrom, or the damage resulting from its loss or deterioration.
3.The Programme for Return and the Termination Act
Section 9 of the Programme for Return (Program povratka i zbrinjavanja prognanika, izbjeglica i raseljenih osoba, Official Gazette no. 92/1998) provided as follows:
“Persons with Croatian documents, who are owners of property in Croatia where other persons are temporarily accommodated, may apply to the municipal housing commissions and seek repossession of their property. The commission shall inform the owner within five days about the status of his property. Relying on the proof of ownership, the commission shall set aside any previous decision allowing temporary accommodation of other persons and order the persons accommodated to vacate the premises. The commission shall serve a written decision on the owner and the temporary occupant within seven days. The decision shall contain a time-limit for eviction and an offer of an alternative lodging for the temporary occupant in a house or a flat in state ownership.
...
“If a temporary occupant does not vacate the premises within the fixed time, the commission shall institute eviction proceedings in the competent municipal court within seven days. The court shall apply the provisions concerning the civil summary proceedings. The court’s decision is immediately enforceable. An appeal does not interfere with the enforcement proceedings or the re-possession of the property by the owner.”
Section 2(3) and 2(4) of the Termination Act (Zakon o prestanku važenja Zakona o privremenom preuzimanju i upravljanu određenom imovinom, Official Gazette no. 101/1998) provided that the Programme for Return applied to proceedings concerning temporary use, management and control of the property of persons who left Croatia and that these proceedings were to be conducted by the housing commissions in the first instance and by the municipal courts in the second instance. They had to apply the Administrative Procedure Act.
4.The Act on the Areas of Special State Concern and pertaining subordinate legislation
Sections 8, 9 and 17 of the Act on the Areas of Special State Concern (Zakon o područjima od posebne državne skrbi, Official Gazette nos. 44/96, 57/96 (errata), 124/1997, 73/2000, 87/2000 (errata), 69/2001, 94/2001, 88/2002, 26/2003 (consolidated text), 42/2005), as amended by the 2002 Amendments, provide that a temporary occupant has a right to housing.
Section 18(1) provides that a temporary occupant, whose right to housing is to be satisfied by providing him with construction material, shall vacate the house or the flat given for temporary use within 90 days of the final shipment of the construction material.
Section 18(2) provides that in case a temporary occupant fails to observe the above time-limit, the State Attorney shall, within next 15 days following the lapse of the time-limit, institute civil proceedings for his eviction.
Section 18(5) provides that, regardless of whether or not the State Attorney has brought a civil action for eviction, the owner has an independent right to bring such an action for the protection of his ownership.
Section 27 provides that the Ministry shall compensate the damage incurred by the owner who applied for repossession of his or her property prior to 30 October 2002 but to whom the property was not returned by that date.
The Decision on the Level of Compensation to the Owners for the Damage Incurred (Odluka o visini naknade vlasnicima za pretrpljenu štetu, Official Gazette no. 68/2003) establishes the above compensation at seven Croatian kunas (HRK) per square metre.
E.The Supreme Court’s practice
In a series of decisions (for example, in cases nos. Rev-291/1999-2 of 11 September 2002, Rev-1157/02-2 of 21 November 2002 and Rev-1289/00-02 of 6 November 2003), starting, with decision no. Rev-574/02-2 of 23 April 2002 the Supreme Court interpreted the relationship between the Property Act and the Termination Act as follows:
The jurisdiction to decide on the owner’s application for repossession conferred on the administrative authorities under the Termination Act does not exclude the general court jurisdiction in the matter under the Property Act. Therefore, a civil action for repossession, based on section 161(1) of the Property Act and brought in a court against a temporary occupant by an owner whose property had been taken over under the Takeover Act, should be decided on its merits rather than declared inadmissible for lack of jurisdiction.
In its decisions nos. Rev-967/00-2 of 30 September 2004 and Rev-1444/02-2 of 29 June 2004 the Supreme Court gave further interpretation of the relationship between the Property Act and the Termination Act as well as the Programme for Return:
The temporary occupant’s right to use the owner’s property does not cease merely for the reason that a housing commission has set aside the decision allowing him or her to use it. This is so because the duty to return the property to its owner is conditioned by the duty of the State to provide alternative accommodation for the temporary occupant.
It follows that the temporary occupant is not obliged to compensate the owner for the use of his or her property since, before provided with alternative accommodation, he or she remains a possessor in good faith.
COMPLAINTS
1. The applicant firstly complains under Article 1 of Protocol No. 1 that her inability to re-possess her house for a prolonged period of time violated her property rights.
2. She further complains under Article 13 of the Convention that she has no effective remedy at her disposal for the protection of her property rights.
3. The applicant also complains under Article 3 of Protocol No. 4 claiming that the Croatian authorities prevented her from returning to Croatia until February 2000. She further complains that her specially protected tenancy was terminated contrary to Article 1 of Protocol No. 1 taken alone and in conjunction with Article 14 of the Convention. As to her pension, the applicant complains that her right to receive pension was acknowledged only from May 2000, while for the period between 1991 and May 2000 she had received no pension, which is, in her opinion, contrary to Article 1 of Protocol No. 1. The applicant also invokes Article 17 of the Convention without further substantiation.
THE LAW
1. The applicant complained that she had been prevented from repossessing her property for a prolonged period of time contrary to Article 1 of Protocol No. 1 which in the relevant part 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 Court considers that it cannot, on the basis of the case file, determine the admissibility of these complaints and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.
2. The applicant further complained that she had no effective remedy in respect of protection of her property, contrary to Article 13 of the Convention, which reads as follows:
“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 considers that it cannot, on the basis of the case file, determine the admissibility of these complaints and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government
3. The applicant also complained under Article 6 § 1 of the Convention about the length of the proceedings before the Constitutional Court and under Article 3 of the Protocol No. 4 that, until 2 February 2000, she had been deprived of her right to enter the territory of Croatia of which she was a national. She further complained, without invoking any specific provision of the Convention that she had been deprived of her right to obtain a pension for the period between August 1991 and March 2000 and that she had lost her specially protected tenancy on a flat in Rajić, due to her departure from Croatia in 1991. Finally, the applicant invoked Article 17 of the Convention without further substantiation.
In the light of all the material in its possession, and in so far as the matters complained of were within its competence, the Court considers that this part of the application does not disclose any appearance of a violation of any of the above Articles of the Convention. It follows that these complaints are 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
Decides to adjourn the examination of the applicant’s complaints concerning her right to peaceful enjoyment of her possessions and the lack of an effective remedy in this respect;
Declares the remainder of the application inadmissible.
Søren NielsenChristos Rozakis
RegistrarPresident
Full & Egal Universal Law Academy