FIRST SECTION
Application no. 23682/13
Joško GUBERINA
against Croatia
lodged on 28 March 2013
STATEMENT OF FACTS
The applicant, Mr Joško Guberina, is a Croatian national, who was born in 1969 and lives in Samobor. He is represented before the Court by Ms V. Terhaj, a lawyer practising in Zagreb.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant owned a flat in Zagreb situated in a residential building on the third floor where he lived with his wife and two children.
In 2003, three years after he had bought the flat, the applicant’s wife gave birth to their third child. The child was born with multiple physical and mental disabilities. In April 2008 it was diagnosed with cerebral palsy, grave mental retardation and epilepsy. In September 2008 the social services declared the child 100 percent disabled.
In the meantime, in October 2006, the applicant bought a house in Samobor, and in October 2008 he sold his flat. According to the applicant, the reason for buying a house was the fact that the building in which his flat was situated had no lift and as such did not meet the needs of his child and his family. In particular, it was very difficult to take the child out of the flat to see a doctor, or to take him to physical therapy, to kindergarten or school, and to meet other needs for the normal life and functioning of the child.
On 19 October 2006, after he had bought the house in Samobor, the applicant submitted a tax exemption request with the tax authorities. He relied on section 11 § 1 (9) of the Real Property Transfer Tax Act which provided a possibility of tax exemption to a person who was buying a flat or a house in order to solve his housing issue, and if he, or his family members, did not have another flat or house meeting their housing needs. The same provision specified that any real property equipped with basic infrastructure and which met hygiene and technical requirements was to be considered a flat or house meeting the housing needs. In his request the applicant argued that the flat he owned did not meet the housing needs of his family since it was very difficult, and in fact becoming impossible, to take his invalid child out of the flat.
On 6 May 2009 the Samobor Tax Office (Ministarstvo Financija – Porezna uprava, Područni ured Zagreb, Ispostava Samobor) dismissed the applicant’s request on the grounds that the applicant’s flat was sufficiently large for his family and had all necessary infrastructure such as water, electricity and other public utilities. It made no reference concerning the absence of lift. The applicant was ordered to pay 83,594.25 Croatian kunas in tax.
Against the above decision the applicant appealed to the Finance Ministry (Ministarstvo Financija, Samostalna služba za drugostupanjski upravni postupak; hereinafter: the “Ministry”), and on 6 July 2009 the Ministry dismissed his appeal as ill-founded, endorsing the reasoning of the Samobor Tax Office.
On 7 September 2009 the applicant lodged an administrative action in the Higher Administrative Court (Visoki upravni sud Republike Hrvatske) arguing that the lower bodies ignored his particular family situation and therefore erroneously applied the relevant domestic law.
On 21 March 2012 the Higher Administrative Court dismissed the applicant’s administrative action as ill-founded, endorsing the reasoning of the lower administrative bodies.
On 25 May 2012 the applicant lodged a constitutional complaint before the Constitutional Court (Ustavni sud Republike Hrvatske) contending that he had been discriminated against in the application of the relevant tax legislation.
On 26 September 2012 the Constitutional Court dismissed the applicant’s constitutional complaint as ill-founded, endorsing the reasoning of the lower bodies.
The decision of the Constitutional Court was served on the applicant’s representative on 11 October 2012.
B. Relevant domestic law
The relevant provision of, at the time relevant, Real Property Transfer Tax Act (Zakon o porezu na promet nekretnina, Official Gazette nos. 69/1997, 26/2000, 127/2000, 153/2002) reads:
Section 11
“The tax shall not pay:
...
9. citizen who is buying his first real property (flat or a house) by which he is solving his housing needs if:
...
9.5. the citizen himself, or members of his immediate family, do not have another real property (flat or a house) which meets their housing needs. The real property (flat or a house) which meets the housing needs shall be considered any such accommodation which has basic infrastructure and satisfies hygiene and technical requirements. ... “
COMPLAINTS
The applicant complains, under Article 1 of Protocol No. 1, about the unfair application of the domestic tax legislation and that he was discriminated against in that respect.
The applicant also complains, under Article 1 of Protocol No. 12, that he was discriminated against by the manner of application of the tax legislation which failed to distinguish his situation from the general situation falling under the relevant provisions on tax exemption.
QUESTIONS TO THE PARTIES
1. Has there been an interference with the applicant’s peaceful enjoyment of possessions, within the meaning of Article 1 of Protocol No. 1?
If so, was that interference 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?
In particular, did that interference impose an excessive individual burden on the applicant in view of his complaint that the domestic authorities failed to examine his individual situation properly, particularly his arguments as to the absence of lift (see Immobiliare Saffi v. Italy, [GC], no. 22774/93, § 59, ECHR 1999-V)?
2. Has the applicant suffered discrimination in the enjoyment of his Convention rights in connection with his family situation, contrary to Article 14 of the Convention read in conjunction with Article 1 of Protocol No. 1?
3. In view of the applicant’s family situation, has he suffered discrimination in the application of the relevant domestic tax provisions, contrary to Article 1 of Protocol No. 12?
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