Communicated on 18 May 2016
FOURTH SECTION
Application no. 16990/15
Vladislav NIKOLIĆ
against Slovenia
lodged on 7 April 2015
STATEMENT OF FACTS
The applicant, Mr Vladislav Nikolić, is a French national, who was born in 1936 and lives in Clermont-Ferrand.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 12 July 1982 the applicant, as a holder of specially protected tenancy, concluded a tenancy agreement in respect of a socially-owned flat. On an unspecified date at the end of the 1980’s the applicant left Slovenia to live in France where he obtained French citizenship. On 9 November 1991 he lodged a request for the purchase of the abovementioned flat under favourable terms. However, on 23 December 1991 the Ljubljana Municipality (“the Municipality”) informed him that he could not purchase the flat as he did not have Slovenian citizenship. On 28 July 1992 the applicant concluded a tenancy agreement with the Municipality for the flat at issue.
In 2004 the applicant resubmitted his request for the purchase of the flat on the basis of the Agreement on Succession Issues. On an unspecified date the Municipality allegedly dismissed the request on the ground that the applicant had not used the flat for more than six months.
On 6 February 2009 the applicant lodged a civil action against the Municipality before the Ljubljana District Court, claiming the conclusion of a purchase contract for the flat at issue. Referring to Article 2 of Annex G of the Agreement on Succession Issues, the applicant maintained that his specially protected tenancy and the right to purchase under favourable terms should have been reinstated under the terms of the said Agreement.
In its statement of defence, the Municipality stated that in 1991 the applicant no longer had specially protected tenancy as he had not been occupying the flat for more than six months at the end of the 1980’s and beginning of the 1990’s. Moreover, after the Municipality dismissed his claim on 23 December 1991, the applicant failed to contest that decision before the civil courts as required by the Housing Act.
On 2 April 2009 the court dismissed the applicant’s claim. The court, firstly, addressed the issue of applicability of the Agreement on Succession Issues, finding that it did not provide for the reinstatement of specially protected tenancy. The court pointed out that the Municipality was correct in dismissing the applicant’s request for the purchase of the flat on 23 December 1991 as the applicant did not fulfil the condition of citizenship as provided for in Section 16 (2) of the Constitutional Act Implementing the Basic Constitutional Charter on the Independence and Sovereignty of the Republic of Slovenia (“the Constitutional Act”). The court further pointed out that the two-year limitation time-limit set in the Housing Act for requesting the purchase under favourable terms had expired and could not be extended, regardless of an applicant’s circumstances. However, the court could not accept the Municipality’s contention that the applicant had lost his specially protected tenancy in 1991 due to non-occupation of the flat as this issue had not arisen at the relevant time. Neither did the court accept that the failure to contest the Municipality’s decision of 23 December 1991 before a civil court within the time-limit provided for in the Housing Act resulted in the loss of specially protected tenancy, as this time-limit was non-mandatory.
The applicant appealed, complaining that he had been discriminated against on the ground of citizenship contrary to Article 6 of Annex G to the Agreement on Succession Issues.
On 14 September 2009 the Ljubljana Higher Court dismissed the appeal and upheld the first-instance judgment. The court reiterated that Article 6 of Annex G of the Agreement on Succession Issues had not obliged the successor States to reinstate specially protected tenancy, but only to apply national legislation without discrimination. The court further held that in 1991 when the Housing Act had entered into force the applicant no longer lived in the country and, thus, he no longer had a specially protected tenancy.
The applicant lodged an appeal on points of law, reiterating his previous complaint. On 5 May 2011 the Supreme Court quashed the second-instance judgment and remanded the case back for re-examination. In the Supreme Court’s view, the higher court did not provide sufficient reasons for the conclusion that the applicant had lost his specially protected tenancy in 1991.
On 8 December 2011 the Higher Court again upheld the first-instance judgment. The court did not accept the applicant’s argument that he had been discriminated against as in its view the Agreement on Succession Issues could not be interpreted as entitling persons who did not fulfil the citizenship requirement to purchase socially-owned flats.
The applicant lodged an appeal on points of law. On 27 September 2012 the Supreme Court dismissed the appeal and upheld the second-instance decision. Referring to Section 117 of the Housing Act, and to Article 16 of the Constitutional Act, the Supreme Court held that two requirements had to be met in order to exercise the right to purchase under favourable terms in accordance with the 1991 Housing Act, namely the existence of a specially protected tenancy and the Slovenian citizenship, whereas foreigners could acquire property only by way of inheritance and under the condition of reciprocity. These requirements were equally applicable to all persons interested in buying socially-owned flats. The Supreme Court acknowledged that the applicant had a specially protected tenancy over the flat at issue when the Housing Act entered into force in 1991, but not Slovenian citizenship. In the Supreme Court’s view, Article 6 of Annex G to the Agreement on Succession Issues could not be interpreted as conferring the right to purchase on favourable terms to persons who did not fulfil the statutory requirements for acquisition of property.
The applicant lodged a constitutional complaint. On 15 October 2014 the Constitutional Court dismissed the complaint, finding that it did not concern an important constitutional question or entail a violation of human rights which would have serious consequences for the applicant. On 22 October 2014 the Constitutional Court’s decision was served on the applicant.
B. Relevant domestic law
The historical and legal background concerning specially protected tenancy was explained by the Court in Berger-Krall and Others v. Slovenia, no. 14717/04, §§ 7-17, 12 June 2014.
On 19 October 1991 the Housing Act entered into force (Official Gazette of the RS no. 18/91). According to its provisions, specially protected tenancy was replaced ex lege with a normal lease contract (Section 141). The previous holders of “specially protected tenancies” or, in the event of their death, their family members living in the flats, were given, inter alia, the possibility of purchasing the flats on favourable terms, paying an administratively defined price which, as an average, amounted to 10 per cent of the market value (Sections 117-124). The right of purchase had to be exercised within two years form the entry into force of the Housing Act (Section 123). If the new owner refused to sell the flat, a holder of specially protected tenancy could request a civil court to rule on the issue within fifteen days from the refusal (Section 128).
Article 16 of the Constitutional Act Implementing the Basic Constitutional Charter on the Independence and Sovereignty of the Republic of Slovenia (Official Gazette of the RS no. 1/91) provides that natural persons who on the entry into force of this Act do not have citizenship of the Republic of Slovenia cannot acquire ownership rights to real estate, except on the basis of inheritance and on condition of actual reciprocity.
Article 2 of Annex G of the Agreement on Succession Issues provides that the rights to immovable property located in a successor State and to which citizens of the SFRY were entitled on 31 December 1990 shall be recognised, and protected and restored by that State in accordance with established standards and norms of international law and irrespective of the nationality, citizenship, residence or domicile of those persons. This shall include persons who, after 31 December 1990, acquired the citizenship of or established domicile or residence in a State other than a successor State. Article 6 of the same Annex further provides that domestic legislation of each successor State concerning specially protected tenancy shall be applied equally to persons who were citizens of the SFRY and who had such rights, without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.
COMPLAINT
The applicant complains that he was prevented from purchasing the flat at issue under favourable terms on the discriminatory ground of nationality in breach of Articles 6 and 14 of the Convention, Article 1 of Protocol No. 1, Article 1 of Protocol No. 12 and Article 3 of Protocol No. 7.
QUESTIONS TO THE PARTIES
1. Did the applicant, in the circumstances of the case, have any recognised right that gave rise to a “possession” within the meaning of Article 1 of Protocol No. 1 under the Slovenian law and/or the Agreement on Succession Issues?
2. Assuming that the applicant had a “possession”, has he suffered discrimination on the ground of his nationality, contrary to Article 14 of the Convention read in conjunction with Article 1 of Protocol No. 1, by reason of the application of the provision of Article 16 of the Constitutional Act Implementing the Basic Constitutional Charter on the Independence and Sovereignty of the Republic of Slovenia, which imposes the citizenship requirement for the purchase of real estate (see Stec and Others v. the United Kingdom (dec.) [GC], nos. 65731/01 and 65900/01, § 55, ECHR 2005‑X; and Andrejeva v. Latvia ([GC], no. 55707/00, ECHR 2009)?
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