FIRST SECTION
Application no. 13712/11
S.L. and J. L.
against Croatia
lodged on 7 January 2011
STATEMENT OF FACTS
The applicants, Ms S. L. and Ms J. L. are sisters. They are Croatian nationals, who were born in 1987 and 1992 respectively and live in Pula. They are represented before the Court by Ms L. Štok, a lawyer practising in Pula.
A. The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
In 1997 the applicants became the owners of a 174 m² sea-side villa and the adjacent 624 m² courtyard in the elite part of Pula.
In 2001, the applicants’ mother V. was a registered drug addict. The father of the second applicant and V.’s husband Z. was in prison.
On 6 December 2001 V. executed a real estate swap agreement (ugovor o zamjeni nekretnina) with D.M., on behalf of the applicants. On basis of that agreement, the applicants exchanged their real property for a 78 m² apartment and a garage in Pula.
Since the applicants were minors, the swap agreement could not enter into force without the consent of the competent Social Care Centre.
On an unspecified date the applicants’ parents, represented by. M.I., a lawyer practising in Pula, requested the Pula Social Care Centre (Centar za socijalnu skrb Pula) for its consent to the swap agreement.
On 13 November 2001 the Pula Social Care Centre accepted the request of the applicants’ parents. It found that the applicants’ house was unfinished and therefore unliveable, and that it was unlikely that their parents would have been able to finish the house since they were unemployed. The Social Care Centre did not perform an in situ inspection of the house. It based its findings about the living conditions in the house on a sale and purchase pre-agreement of 2 June 1997. It did not request an expert opinion or an estimation of the market value of the exchanged real property.
In the criminal proceedings against Z., M.I. acted as his defence counsel. M.I. also represented the applicants’ parents before the Social Welfare Centre. He is a son-in-law of D.M.
On an unspecified date, after Z. had been released, he lodged a criminal complaint against the employees of the Pula Social Care Centre on account of official malfeasance (nesavjestan rad u službi). His criminal complaint was declared inadmissible due to the statute of limitations.
Proceedings for declaring the swap agreement null and void
On 16 November 2004 the applicants, represented by Z., brought an action in the Pula Municipal Court (Općinski sud u Puli) against D.M., requesting that court to declare the swap agreement null and void (utvrđenje ništavosti ugovora o zamjeni nekretnina).
On 15 April 2005 the Pula Municipal Court dismissed the applicants’ claim. It argued that none of the three conditions for a contract to be declared null and void, as provided by the Obligations Act, had been met. It also argued that the decision of the Pula Social Welfare Centre could have been challenged only in the administrative proceedings.
On 19 March 2007 the Pula County Court (Županijski sud u Puli) dismissed the applicants’ appeal and upheld the first-instance judgment. It argued that the swap agreement is voidable, but not null and void.
On 19 December 2007 the Supreme Court (Vrhovni sud Republike Hrvatske) dismissed the applicants’ appeal on points of law, endorsing the findings of the Pula County Court. It argued that the agreement could have been challenged only as voidable, within time-limits set by law.
On 9 June 2010 the Constitutional Court (Ustavni sud Republike Hrvatske) declared the applicants’ constitutional complaint inadmissible as manifestly ill-founded.
B. Relevant domestic law
Civil Obligations Act
The relevant part of the Civil Obligations Act (Zakon o obveznim odnosima, Official Gazette, nos. 53/91, 73/91, 3/94, 7/96 and 112/99) provided as follows:
Section 103 of the Civil Obligations Act provided that a contract was considered null and void if it was contrary to the Constitution, peremptory rules, or morals.
Section 110 provided that a right to have a contract declared null and void could not extinguish.
On 1 January 2006 new Civil Obligations Act (Zakon o obveznim odnosima, Official Gazette, nos. 35/2005, 41/08, 125/11) entered into force. Its sections 322 and 328 contain the same provisions as sections 103 and 110 of the former Civil Obligations Act.
Family Act
The relevant part of the Family Act (Obiteljski zakon, Official Gazette no. 162/1998), in force at the relevant time, provided as follows:
Section 265
“(1) Subject to the consent of the competent Social Care Centre, parents may alienate or burden the property of a minor child for purposes of the child’s maintenance, medical treatment, upbringing, schooling, education or for other important needs of a child.
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COMPLAINT
The applicants complain, under Article 1 of Protocol No. 1 to the Convention, that they were deprived of their property as minors through an unlawful and immoral contract, approved by the State.
QUESTIONS TO THE PARTIES
1. Were the authorities under an obligation, as established in substance under Article 1 of Protocol No. 1, to take measures for the protection of the applicants’ property while they were minors?
2. If so, have the authorities complied with their positive obligation to protect that property?
The Government are requested to submit two copies of the entire case file in the proceedings before the Social Welfare Centre and in the civil proceedings instituted by the applicants.
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