FIRST SECTION
Application no. 43569/13
Zorislav SEKUL
against Croatia
lodged on 25 June 2013
STATEMENT OF FACTS
The applicant, Mr Zorislav Sekul, is a Croatian national, who was born in 1936 and lives in Supetar.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant and his wife moved to Croatia from Australia in 1997 and bought a flat in Supetar. There was no written agreement on the flat purchase, but the applicant did pay the full price and moved in the flat. He soon after realised that, due to the major construction flaws, the flat had been unliveable. He had to move out and consequently he and his wife were forced to separate. The applicant now lives in the retirement home in Supetar and his wife lives in the nursing home in Nerežišća. Both are of old age and suffer from serious illnesses.
1. Civil proceedings
On 18 January 1999 the applicant brought an action in the Supetar Municipal Court (Općinski sud u Supetru) against B.M. and D.M., seeking the execution of the sale and purchase agreement.
On 10 May 1999 the Supetar Municipal Court accepted the applicant’s action.
On 4 October 2002 the Split County Court (Županijski sud u Splitu) quashed the first-instance judgment and remitted the case.
In the resumed proceedings, on 14 January 2003 the applicant, represented by Z.I., a lawyer practicing in Split, amended his action and sought the award of title of ownership over the flat and the performance of certain construction works. On the other hand, B.M. and D.M. brought a counter-claim against the applicant, requesting the court to terminate the oral sale and purchase agreement.
On 22 August 2003 the Supetar Municipal Court accepted the applicant’s action, awarded him the title of ownership over the flat and ordered B.M. and D.M. to perform construction works. On the other hand, it dismissed the defendants’ counter-claim. It argued that the transaction between the parties had contained the required elements of the sale and purchase agreement and that the defendants had had no legal basis to request the termination of the agreement.
On 9 June 2005 the Split County Court upheld the first-instance judgment concerning the title of ownership, quashed the first-instance decision concerning the performance of construction works and remitted the case in that part.
In the resumed proceedings the applicant was represented by J.A.M., a lawyer practicing in Supetar. The Supetar Municipal Court partially accepted and partially dismissed the applicant’s action on 30 January 2009. In deciding on which construction works to order, the Municipal Court relied on the opinion of the court expert for civil engineering.
This judgment was upheld by the Split County Court on 21 January 2010.
2. Enforcement proceedings against B.M. and D.M.
On 25 November 2011 the applicant, represented by D.R., a lawyer practising in Supetar, instituted enforcement proceedings against B.M. and D.M. The applicant requested the performance of construction works and the payment of penalty, namely 500 Croatian kunas for each day of delay. The applicant argued that the defendants had failed to comply with the final judgment of the Supetar Municipal Court.
On 27 December 2011 the applicant requested B.M. and D.M. to reach a friendly settlement.
On 5 July 2012 the Supetar Municipal Court accepted the applicant’s request and ordered the defendants to perform construction works. It also ordered the payment of daily penalties if the defendants would not comply with the enforcement order within 15 days.
On 10 July 2012 the applicant reiterated his request for a friendly settlement.
On 12 July 2012 the defendants requested the Supetar Municipal Court to delay the enforcement and simultaneously lodged an appeal against the enforcement order.
On 10 May 2013 the Supetar Municipal Court dismissed the defendant’s request for delay as without merit.
On 23 May 2013 the defendants requested the applicant to immediately allow the performance of the construction works, arguing that such works were not allowed during the tourist season (i.e. from 15 June until 15 September).
On 28 May 2013 the applicant replied to the defendants, arguing that they should have first requested quotes from the construction firms.
On 22 July 2013 the applicant requested the Supetar Municipal Court to issue a provisional measure and prohibit the defendants from leasing the apartments in their building.
The enforcement is still pending.
3. Enforcement proceedings against the applicant
On 24 October 2008 the notary public B.J., practicing in S., issued an enforcement order on the applicant’s property (općenito na imovini ovršenika), upon the request of Z.I., the former applicant’s representative. It appears that this enforcement order became final.
On 3 February 2011 the Supetar Municipal Court set the value of the applicant’s flat to 84,000 Croatian kunas and ordered the sale of the flat on public auction. It scheduled the auction for 13 April 2011.
It appears that the sale of the applicant’s flat has not yet happened.
4. Other proceedings
On 23 July 2007 the applicant lodged a complaint with the Split County Court about the length of the civil proceedings mentioned above.
On 25 January 2008 the Split County Court found a violation of the applicant’s right to a hearing within a reasonable time, awarded him 7,000 Croatian kunas (HRK) in compensation and ordered the Supetar Municipal Court to decide the case within six months of service of its decision.
On 11 September 2012 the Supetar Department of the Tax Authority’s Regional Office Split (Porezna uprava, Područni ured Split, Ispostava Supetar) issued an enforcement order against the applicant, on account of the unpaid real estate tax. The applicant appealed against that order. It appears that the appeal proceedings are still pending.
On 22 July 2013 the applicant requested the Supetar State Administration Office (Ured državne uprave u Splitsko-dalmatinskoj županiji – ispostava Supetar) to annul the license for lease of apartments issued to B.M. and D.M. He argued that, as the co-owner of the building, he had never agreed with the performance of such business activity. It appears that the administrative proceedings are still pending.
COMPLAINTS
The applicant complains about the inability to enforce the final judgment in his favour.
The applicant further complains, under Article 8 of the Convention, about the prolonged inability to live with his wife in the flat he had purchased in 1997.
The applicant also complains, under Article 1 of Protocol No. 1 to the Convention, that the enforcement of his flat, requested by his former representative, was unlawful.
QUESTIONS TO THE PARTIES
1. Did the applicant have a fair hearing in the determination of his civil rights and obligations, in accordance with Article 6 § 1 of the Convention? In particular, is the period in which the applicant is unable to enforce a final judgment in his favour, given the particular circumstances of the case, excessive?
2. 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 the interference with the applicant’s peaceful enjoyment of possessions, within the meaning of Article 1 of Protocol No. 1, based in law, did it pursue a legitimate aim and if so was it proportionate to the aim pursued? In particular, did that interference impose an excessive individual burden on the applicant?
3. Has there been a violation of the applicant’s right to respect for his family life, contrary to Article 8 of the Convention?
The Government are requested to submit two copies of the entire case file in the civil proceedings the applicant instituted against Božidar Maričić and Damira Maričić Erdenberger, in the subsequent enforcement proceedings, and in the enforcement proceedings Zoran Iviš instituted against the applicant (initial case number Ovrv-2172/08).
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