Communicated on 28 May 2014
FIRST SECTION
Application no. 58630/11
Prek LJASKAJ
against Croatia
lodged on 8 September 2011
STATEMENT OF FACTS
The applicant, Mr Prek Ljaskaj, is a Croatian national of Albanian origin, who was born in 1942 and lives in Kutina. He is represented before the Court by Mr D. Pedić, an advocate practising in Popovača.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
By a judgment of the Kutina Municipal Court (Općinski sud u Kutini) of 20 May 1994, which became final on 30 November 1994, the applicant was ordered to pay to certain Ms M.A., Mr J.A. and Mr Z.A. (hereinafter: “the creditors”) the counter-value of 17,000 German marks in domestic currency together with the accrued statutory default interest running from 15 December 1989 and the costs of proceedings.
In the subsequent enforcement proceedings instituted in 2003 against the applicant by the creditors the same court issued a writ of execution (rješenje o ovrsi) by seizure and sale of his immovable property, in particular his house, in satisfaction of the creditors’ claim which at that time amounted to some 107,974.40 Croatian kunas (HRK).
During the enforcement proceedings a court-appointed expert assessed the value of the applicant’s house at HRK 384.197.
After two unsuccessful attempts to sell it, the court sold the house at the third public auction for HRK 70,000 to a certain Mr D.D.
Accordingly, by a decision of 3 June 2009 the court awarded the applicant’s house to D.D. The applicant appealed against that decision by arguing that his house had been sold for less than 1/5 of its value which had not even been sufficient to satisfy the creditors’ claim in full.
On 20 December 2010 the Sisak County Court (Županijski sud u Sisku) dismissed the applicant’s appeal and upheld the first-instance decision.
The applicant then lodged a constitutional complaint alleging, inter alia, a violation of his constitutional right of ownership. In so doing he repeated, in substance, the arguments raised in his appeal.
On 19 May 2011 the Constitutional Court (Ustavni sud Republike Hrvatske) declared the applicant’s constitutional complaint inadmissible as manifestly ill-founded and served its decision on his representative on 6 June 2011.
B. Relevant domestic law
Section 163 of the Enforcement Procedure Act (Zakon o izvršnom postupku, Official Gazette of the Socialist Federal Republic of Yugoslavia, no. 20/78 with subsequent amendments, and Official Gazette of the Republic of Croatia nos. 53/91 and 91/92), which Act was in force between 1 October 1978 and 10 August 1996, provided that immovable property could not be sold in enforcement proceedings for less than 2/3 of its value established by a court appointed expert.
Section 97 of the Enforcement Act of 1996 (Ovršni zakon, Official Gazette, no. 57/96 with subsequent amendments), which Act was in force between 11 August 1996 and 14 October 2012, originally provided that immovable property could not be sold in enforcement proceedings for less than half of its value established by a court appointed expert.
In the period between the entry into force of the 1999 Amendments to the Enforcement Act on 3 April 1999 and the coming into force of the 2005 Amendments thereto on 27 July 2005, section 97 of that Act provided no limit below which immovable property could not be sold in enforcement proceedings.
With the entry into force of the 2005 Amendments that limit was again reintroduced, and so at 1/3 of the value of the immovable property, as established by a court appointed expert. Those Amendments in its transitional provisions did not provide whether section 97 of the Enforcement Act, as amended by those Amendments, immediately applied to ongoing enforcement proceedings or not.
Section 102 of the Enforcement Act (Official Gazette, nos. 112/12 and 25/13), which Act entered into force on 15 October 2012, provides that immovable property cannot not be sold in enforcement proceedings for less than half of its value established by a court appointed expert.
COMPLAINT
The applicant complains under Article 1 of Protocol No. 1 to the Convention that his house was sold in the enforcement proceedings for less than 1/5 of its value.
QUESTIONS TO THE PARTIES
1. Which version of section 97 of the Enforcement Act of 1996 was applicable to the enforcement proceedings complained of?
2. Was the decision to sell the applicant’s house in those enforcement proceedings for less than 1/5 of its value unlawful under the domestic law, arbitrary or manifestly unreasonable, and thus in breach of his right to peaceful enjoyment of his possessions, guaranteed by Article 1 of Protocol No. 1 to the Convention?
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