TRIFUNOVIC v. CROATIA

FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 34162/06
by Milka TRIFUNOVIĆ
against Croatia

The European Court of Human Rights (First Section), sitting on 6 November 2008 as a Chamber composed of:

Christos Rozakis, President,
Nina Vajić,
Khanlar Hajiyev,
Dean Spielmann,
Sverre Erik Jebens,
Giorgio Malinverni,
George Nicolaou, judges,
and Søren Nielsen, Section Registrar,

Having regard to the above application lodged on 18 July 2006,

Having regard to the decision to examine the admissibility and merits of the case together (Article 29 § 3 of the Convention).

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mrs Milka Trifunović, is a national of Bosnia and Herzegovina who was born in 1941 and currently lives in Munich. She was represented before the Court by Mr Č. Prodanović, a lawyer practising in Zagreb. The Croatian Government (“the Government”) were represented by their Agent, Mrs Š. Stažnik.

A. The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

1. Background to the case

The applicant’s husband, V.T., was an officer serving in the Yugoslav Peoples’ Army (“the YPA”). In 1984 the YPA awarded him, and he became the holder of, a specially protected tenancy (stanarsko pravo) of a flat in Zagreb. Pursuant to the relevant legislation, the applicant as his wife automatically became a co-holder of the specially protected tenancy of the flat in issue.

After a trial in absentia, on 16 March 1993 the Varaždin County Court (Okružni sud u Varaždinu) found V.T. guilty of a war crime against the civilian population and sentenced him to fifteen years’ imprisonment. The judgment was upheld on appeal by the Supreme Court on 12 January 1994. The courts found that in the period between 15 and 22 September 1991, during the siege of the YPA’s military barracks in the town of Varaždin, V.T. as a commander of the 32nd (Varaždin) corps of the YPA had ordered indiscriminate attacks on civilian targets in the town.

2. The termination of the applicant’s tenancy

On 7 July 1994 the State brought a civil action against V.T. and the applicant in the Zagreb Municipal Court (Općinski sud u Zagrebu) seeking termination of their specially protected tenancy and the applicant’s eviction. The plaintiff relied on section 102a of the Housing Act.

On 9 June 2000 the Municipal Court ruled for the plaintiff. It terminated the tenancy of V.T. and his wife and ordered the applicant (the wife) to vacate the flat within fifteen days. In the reasons given for its decision the court referred to the State’s obligation stipulated in paragraph 2 of section 102a of the Housing Act (see below). V.T. and his wife appealed.

On 28 May 2002 the Zagreb County Court (Županijski sud u Zagrebu) dismissed the appeal and upheld the first-instance judgment.

On 2 August 2002 the applicant lodged a constitutional complaint against the second-instance judgment alleging violations of her constitutional right to equality before the law, the right to be presumed innocent and the right to respect and protection of personal and family life, dignity, reputation and honour.

On 25 January 2006 the Constitutional Court dismissed the applicant’s complaint. It held that the lower courts’ judgments were not a result of the arbitrary interpretation or application of relevant substantive law and that therefore her constitutional right to equality before the courts had not been breached. Moreover, since the outcome of the proceedings the applicant had complained about did not involve the determination of her criminal liability, her right to be presumed innocent could not have possibly been breached in such proceedings.

3. The purchase of the flat

On 19 June 1991 the Specially Protected Tenancies (Sale to Occupier) Act entered into force. It entitled holders of specially protected tenancies of flats in social ownership (društveno vlasništvo) to purchase their flats under favourable conditions.

On 17 August 1995 the Amendments to the Act entered into force extending the right of purchase to holders of specially protected tenancies of flats in state ownership (državno vlasništvo).

The applicant never filed a request with the competent authorities with a view to purchasing her flat because she considered that she could not have done so while the proceedings for termination of her specially protected tenancy were pending.

B. Relevant domestic law and practice

1. The Housing Act

(a) Relevant provisions

The Housing Act (Zakon o stambenim odnosima, Official Gazette nos. 51/1985, 42/1986, 22/1992 and 70/1993), as in force at the material time, provided as follows:

Section 64

“2. If a specially protected tenancy was acquired by one spouse who lives with the other, the other shall also be considered as having acquired it..

3. If one of the spouses dies or permanently ceases to use the flat, the other spouse shall retain the tenancy, unless otherwise provided for by this Act.”

Section 102a

“1. A specially protected tenancy of those who participated or participate in enemy activities against the Republic of Croatia shall be terminated.

2. Following the court decision on the termination, the owner of the flat shall provide either the same flat or other appropriate lodging for use by the [other] members of the household.”

Section 105

“1. The provider of the flat shall terminate a specially protected tenancy by bringing an action in the competent court.

2....

3. The judgment ordering eviction shall not be enforced if the person to be evicted is not provided with another flat or basic accommodation [nužni smještaj], when that is required by this Act.

4. Another flat shall be secured by the provider of the flat at the latest by the end of the main hearing in the proceedings for the termination of the specially protected tenancy, unless otherwise provided for by this Act.”

5. Basic accommodation shall be secured in enforcement proceedings.”

Section 108

“The duty of the tenant to vacate the flat extends to other users of that flat, unless otherwise provided for by this Act.”

(b) The case-law of the Supreme Court

According to the Supreme Court’s jurisprudence, the specially protected tenancy was terminated as soon as the court’s judgment, upholding the claim of the provider of the flat to that end, became res judicata (see, inter alia, the Supreme Court’s decision no. Rev-1009/1993-2 of 15 June 1994).

In its decisions nos. Gzz-11/1996-2 of 27 November 1996, Rev-211/1996-2 of 28 January 1997, Rev-935/1995-2 of 23 September 1997, Gzz-7/1996-2 and Gzz-35/1996-2 of 7 September 1999 the Supreme Court held that where a spouse acquired a specially protected tenancy on the basis of section 64 of the Housing Act, his or her right was to be considered derived from that of the other spouse to whom the flat had originally been awarded (that is, the original holder of the tenancy). Consequently, when the specially protected tenancy of the original holder was terminated, the tenancy of the other spouse derived from it was to be considered terminated as well.

In its opinion no. Su-IV-482/2002 of 17 May 2002 and decisions nos. Rev-431/1998-2 and Gzz-46/01- 2 of 10 January 2002, Gzz-33/00-2 of 19 November 2002, Gzz-36/1999-2 of 26 March 2003, Gzz-81/2003-2 of 7 May 2003 and Gzz-35/2000 of 6 October 2004 the Supreme Court held that in a judgment terminating the specially protected tenancy of the original holder, and consequently that of the spouse, on the basis of section 102a (1) of the Housing Act, a court was entitled to order the eviction of the original holder but not of the spouse whose tenancy was derived from it. This was so because the spouse was entitled to remain in the flat in the capacity of a household member, pursuant to section 102a (2) of the Housing Act, until the provider of the flat either gave him or her the same flat for use or provided him or her with other appropriate lodging. Only in circumstances where the requisite alternative accommodation was secured for the spouse and other household members, but they nevertheless continued to occupy the flat, was the provider of the flat entitled to bring a separate civil action for their eviction. However, in the above mentioned decision no. Gzz-36/1999-2 of 26 March 2003 the Supreme Court upheld a judgment in which, apart from terminating the specially protected tenancy of both spouses under section 102a (1) of the Housing Act, the lower court also ordered their eviction but made that order in respect of the wife – a household member – conditional upon providing her with alternative accommodation. The Supreme Court upheld the judgment because, as it was formulated, it was not detrimental for the wife as the household member.

(c) The case-law of the Constitutional Court

In its decisions nos. U-I-116/1992 of 24 June 1992, U-III-326/1995 of 24 February 1999, U-III-435/2000 of 17 May 2000 and U-III-457/2000 of 13 December 2000 the Constitutional Court held that section 102a of the Housing Act did not introduce the principle of collective guilt because its paragraph 2 obliged the State to provide for the household members by meeting their housing needs. Nor did it violate the constitutional right to be presumed innocent because, properly interpreted, that provision could only be applied to those holders of specially protected tenancies who had been convicted by a final judgment delivered in criminal proceedings.

2. The Specially Protected Tenancies (Sale to Occupier) Act

(a) Relevant provisions

The Specially Protected Tenancies (Sale to Occupier) Act (Zakon o prodaji stanova na kojima postoji stanarsko pravo, Official Gazette no. 27/1991 with subsequent amendments – “the Sale to Occupier Act”), which entered into force on 19 June 1991, entitled the holder of a specially protected tenancy (“the tenant”) of a socially-owned flat to purchase it from the provider of the flat under favourable conditions. The members of the tenant’s household were also entitled to do so upon his or her approval (section 6 paragraph 1). Where both spouses were holders of the specially protected tenancy of a flat, they could buy it either jointly or individually with the consent of the other (section 6 paragraph 2).

Section 4 (2) provided that a written request for purchase (the first request) had to be made within one year of the date of the Act’s entry into force (this time-limit was by subsequent amendments to the Act extended until 31 December 1995), and a further request for the actual conclusion of the purchase contract (the second request) within the two years following the first request.

(b) The case-law of the Supreme Court

In its decision no. Rev-944/99-2 of 13 August 2002 the Supreme Court interpreted section 4 (2) of the Specially Protected Tenancies (Sale to Occupier) Act as follows:

“Since the plaintiff did not make a request for purchase of the flat to the respondents in written form until 31 December 1995, as provided by law, [...], the lower-instance courts correctly assessed that the plaintiff had lost his right to request the conclusion of the purchase contract.”

3. The 1995 Amendments to the Sale to Occupier Act

(a) Relevant provisions

The Amendments to the Sale to Occupier Act (Zakon o izmjenama i dopunama Zakona o prodaji stanova na kojima postoji stanarsko pravo, Official Gazette no. 58/1995 – “the 1995 Amendments”), which entered into force on 17 August 1995, extended the right of purchase to the holders of specially protected tenancies of state-owned flats.

Section 16 read as follows:

(1) Holders of specially protected tenancies [...] shall have the right to purchase their flats in state ownership.

(2) The provisions of section 6 of [the Sale to Occupier Act] shall not apply to the purchase of flats in state ownership.

(3) The following persons shall not be entitled to purchase, or transfer the right to purchase, a flat in state ownership:

- those sentenced by a final judgment for crimes against humanity and international law,

- those sentenced by a final judgment for crimes against the Republic of Croatia,

- those against whom criminal proceedings for crimes against humanity and international law or crimes against the Republic of Croatia have been instituted, until the judgment becomes final,

- those who participated or participate in enemy activities against the Republic of Croatia,

- those who have evaded conscription,

- those against whom proceedings for termination of a specially protected tenancy or termination of a lease agreement in respect of a flat have been instituted, until the end of those proceedings,

- those owning a dwelling house or flat in the same place [village, town or city],

- those who have left the Republic of Croatia or have moved to the occupied territories and have not used the flat for more than six months.

Section 20 (1 and 2) of the 1995 Amendments provided that a written request to purchase a state-owned flat (the first request) had to be made within sixty days of the date of the 1995 Amendments’ entry into force (paragraph 1), after the expiry of which the tenant lost his or her right to purchase the flat (paragraph 2).

Section 20 (3) provided that the seller had to conclude the purchase contract with the buyer within one year after the expiry of the time-limit referred to in paragraph 1 (this time-limit was by subsequent amendments extended until 31 December 1998).

Section 20 (4) provided that if the seller, at the request of the buyer, failed to conclude the contract within the time-limit referred in paragraph 3, the buyer had a right to bring a civil action in the competent court with a view to obtaining a judgment entirely substituting the contract.

(b) The Constitutional Court’s decision of 29 January 1997

Following 37 petitions to review the constitutionality of the 1995 Amendments, on 26 June 1996 the Constitutional Court accepted the initiative and instituted proceedings to that end. On 29 January 1997 it delivered decision no. U-I-697/1995 abrogating a number of provisions of the 1995 Amendments as being unconstitutional. In particular, the Constitutional Court abrogated paragraphs 1 and 2 of sections 16 and 20. It further abrogated paragraph 3 of section 16 in the part relating to the transfer of the right to purchase but held that this abrogation did not relate to sub-paragraphs 6 and 7. Sub-paragraphs 4, 5 and 8 of paragraph 3 of the same section were also abrogated.

It observed that paragraph 2 of section 16, as it read, in fact entitled only the holder of the specially protected tenancy of a state-owned flat to purchase it, thereby effectively excluding the spouse and other members of the household from doing so, an option otherwise available to them under section 6 of the Sale to Occupier Act in respect of socially-owned flats. The Constitutional Court held that the exclusion of that option in respect of state-owned flats was unwarranted and thus amounted to constitutionally impermissible discrimination. In particular, the Constitutional Court held that this discrimination adversely affected, inter alia, a spouse who had acquired a specially protected tenancy by operation of section 64 of the Housing Act but whose tenancy was subsequently terminated as a consequence of the termination of the tenancy of the original holder pursuant to section 102a (1) of that Act.

Paragraphs 1 and 2 of section 20 were also abrogated because of an unwarranted distinction as regards the time-limits for making a request to purchase the flat between the holders of specially protected tenancies of state-owned flats and those of socially-owned flats. The Constitutional Court noted that the holders of specially protected tenancies of state-owned flats had been obliged to make their request within only sixty days following the entry into force of the 1995 Amendments whereas the holders of tenancies of socially-owned flats had had to do so within one year following the entry into force of the Sale to Occupier Act, which time-limit had been extended several times (eventually until 31 December 1995).

(c) The case-law of the Supreme Court

In its decision no. Rev-1256/02-2 of 14 July 2004 the Supreme Court interpreted the relationship between the Sale to Occupier Act (in particular its section 4) and the 1995 Amendments as follows:

“The plaintiff made a request for purchase of the flat to the respondent on 18 October 1996, that is, after the expiry of the prescribed time-limit (31 December 1995), so the courts [ruled] correctly [when they] dismissed her claim. The time-limit in question is preclusive, meaning that after its expiry a holder of a specially protected tenancy loses his or her right to make a request to purchase the flat ...

The fact that the proceedings for termination of the specially protected tenancy – that ended by the first-instance judgment [...] of 16 April 1996, which became final on 11 July 1996 – were pending between the parties at the time when the time-limit expired (31 December 1995) is not relevant. [...][Those proceedings] did not prevent the plaintiff from making a request to purchase the flat. ...

The provisions of section 16 of the 1995 Amendments on which the plaintiff relies, and which concern the so-called state-owned flats, did not extend the time-limit for making the request to purchase the flat. Under [section 16 of the 1995 Amendments] the persons, against whom the proceedings for termination of the specially protected tenancy ... have been instituted, could not, until the end of those proceedings, buy a state-owned flat. That means, in particular, that the plaintiff could not have concluded a contract of sale in respect of the flat until 11 July 1996, when the proceedings for the termination of the specially protected tenancy ended ... On that day that impediment ceased to exist ... [H]owever making a written request to purchase the flat before the expiry of the prescribed time-limit is a precondition for the conclusion of the contract [of sale]. Since the plaintiff had not made such a request before the time-limit had expired (31 December 1995) she had lost the right to make the request and the respondent was not obliged to sell her the flat on the basis of the request made after the expiry of the time-limit (18 October 1996). The proceedings for termination of the specially protected tenancy were an impediment to buying the flat (for the conclusion of a contract), but not to making a request to purchase the flat. The existence of the [pending] proceedings does not extend the time-limit for making a request to purchase the flat.

The Constitutional Court’s decision U-I-697/1995 of 29 January 1997 abrogating, inter alia, section 20 paragraphs 1 and 2 of the 1995 Amendments is of no relevance to the outcome of these proceedings. Those abrogated provisions provided that the request ... to purchase the state-owned flat had to be made within sixty days following the entry into force of the 1995 Amendments and that after the expiry of that time-limit the applicant lost the right to buy the flat. [Those provisions] placed the holders of specially protected tenancies of state-owned flats in an unequal position compared to the holders of such tenancies of flats not owned by the State, because for them the considerably shorter preclusive time-limit for making their request to purchase the flat was prescribed (the prescribed time-limit of sixty days expired on 16 October 1995). By the Constitutional Court’s decision the buyers of state-owned flats were put in the same position as other buyers, but they were not given a privileged status so that the prescribed time-limit for making a request to purchase the flat (31 December 1995), valid for all other buyers, would not apply to them.”

4. The Lease of Flats Act

The Lease of Flats Act (Zakon o najmu stanova, Official Gazette no. 91/1996 of 28 October 1996), which entered into force on 5 November 1996, abolished the specially protected tenancy as such (section 30 paragraph 1) but provided that proceedings instituted under the Housing Act should be concluded under the provisions of that Act (section 8 paragraph 1).

The Lease of Flats Act regulates the legal relationship between landlord and tenant with respect to the lease of flats. It recognises a special category of tenants, namely those who were previously holders of specially protected tenancies of privately-owned flats or those who did not purchase their flats under the Sale to Occupier Act. That category is subject to a number of protections, for instance, an obligation on the owners that a contractual lease should last for an unlimited period of time; payment of a protected rent (zaštićena najamnina), the amount of which is to be prescribed by the Government, as well as limited reasons for the termination of the lease.

Section 37 provides that if none of the persons living in the flat held the specially protected tenancy at the moment of the Act’s entry into force (for example, the household members) they could institute proceedings before the competent court to obtain the status of lessees under a lease agreement with protected rent.

5. The Decree on Takeover of the YPA’s property

On 3 October 1991 the Government adopted a decree (Uredba o preuzimanju sredstava JNA i SSNO na teritoriju Republike Hrvatske u vlasništvo Republike Hrvatske) whereby it took all the YPA’s property in Croatia into state ownership.

COMPLAINTS

1. The applicant complained under Article 8 of the Convention about the termination of her specially protected tenancy and the resultant risk of eviction from the flat that she considered as her home. In particular, she claimed that the domestic courts had ordered her to vacate the flat even though she had not been provided with a place to stay.

2. She further complained under Article 1 of Protocol No. 1 to the Convention that, as a result of the termination of her tenancy, she had been unable to purchase and become the owner of her flat.

3. The applicant complained under Article 6 § 2 and Article 7 of the Convention that by terminating her specially protected tenancy the domestic courts had extended the legal consequences of her husband’s conviction, for the war crime against the civilian population, to her as if she herself had committed the offence. She also complained under Article 6 § 1 that their decisions had not been sufficiently reasoned.

4. She also complained under Article 6 § 1 and Article 13 taken in conjunction with Article 8 of the Convention that she had not had the legal means to make the State honour its obligation to give her the flat for her use or to provide her with other suitable accommodation pursuant to section 102a (2) of the Housing Act.

5. Lastly, the applicant complained under Article 1 of Protocol No. 12 that she had been discriminated against in the enjoyment of her specially protected tenancy and the right to purchase the flat on the basis of her husband’s conviction.

THE LAW

A. Alleged violation of Article 8 of the Convention

The applicant complained under Article 8 of the Convention about the termination of her tenancy and the ensuing order to vacate the flat because of which she was facing eviction from her home. Article 8 in its relevant part reads as follows:

“1. Everyone has the right to respect for his ... his home ...

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

The Government disputed the admissibility of this complaint on two grounds. They argued that the applicant had failed to exhaust domestic remedies and that, in any event, this complaint was manifestly ill-founded.

1. The arguments of the parties

(a) Non-exhaustion of domestic remedies

The Government argued that the applicant had never complained about the violation of her right to respect for her home before the domestic authorities. In her constitutional complaint, the applicant alleged a violation of Article 35 of the Constitution, which guarantees respect for personal and family life, dignity, reputation and honour whereas the right to a home is safeguarded in Article 34 of the Constitution. That being so, and given that according to the Court’s established case-law an applicant must for the purposes of Article 35 § 1 of the Convention raise, at least in substance, his or her Convention complaint during the domestic proceedings, the Government deemed that the applicant had failed to exhaust domestic remedies regarding her right to respect for her home.

The applicant replied that throughout the domestic proceedings and in her appeal she had pleaded against the termination of her specially protected tenancy and against the eviction. Moreover, in her constitutional complaint she had not relied on Article 34 of the Constitution because that Article provided for the protection of her home only against unauthorised entries and searches by the police. Its scope was therefore narrower than the scope of Article 8 of the Convention. The Constitution did not contain a provision whose scope of protection would be comparable to that of Article 8 of the Convention. Therefore, the applicant had relied on Article 35 of the Constitution whose scope of protection was the closest to the one of Article 8 of the Convention as the former Article provided for respect of personal and family life, whereas the latter provided for respect of the home, and of private and family life. Thus, by relying on Article 35 of the Constitution and thereby complaining about the violation of her constitutional rights to respect for her personal and family life, the applicant argued that she had, in substance, complained about the violation of her right to respect for her home.

(b) Whether the complaint is manifestly ill-founded

The Government further submitted that there had been no interference with the applicant’s right to respect for her home. Firstly, even though a final judgment terminating the applicant’s tenancy had been rendered, it was beyond dispute that she had never been evicted from the flat. Secondly, in the proceedings leading to the termination of her tenancy, it had been established that the applicant had already left the flat in 1992 in order to join her husband who had left the flat in 1991. There was no indication that after voluntarily leaving the flat, she had had any intention to return and live in it. Therefore, the Government deemed that the flat in question could not be considered as the applicant’s home within the meaning of Article 8 of the Convention. Thirdly, as the flat was currently being occupied by the applicant’s daughter and her family (whose eviction had not been ordered), the Government considered that the applicant, who did not live in the flat, could not claim that she was at constant risk of eviction.

The applicant replied that the fact that she had not been evicted from the flat in question did not mean that there was no interference with her right to respect for her home. The mere existence of a final judgment terminating her tenancy and ordering her to vacate the flat, in itself constituted interference because the domestic authorities could, on the basis of that judgment, at any time institute enforcement proceedings seeking her eviction. For that reason, and because the domestic authorities – despite their obligation to do so – had not resolved her status in respect of the flat or otherwise satisfied her housing needs, she was in constant risk of eviction. She further submitted that she had not abandoned the flat – which she considered her home – but merely left it temporarily for justified reasons: she had gone to help her husband against whom the Serbian authorities had instituted criminal proceedings for undermining the military and defensive power of the country. As proof that she still considered the flat in question to be her home, the applicant submitted that whenever possible she had visited the flat and her daughter’s family and that she still kept her personal belongings in it.

2. The Court’s assessment

The Court does not find it necessary to examine the Government’s objection based on the applicant’s failure to exhaust domestic remedies because this complaint is in any event inadmissible for the following reasons.

The Court first notes that the Zagreb Municipal Court in the operative part of its judgment of 9 June 2000 ordered the applicant to vacate the flat. However, notwithstanding that order, in the reasons given for its judgment the Municipal Court underlined the duty of the State to secure the applicant’s accommodation as stipulated in section 102a (2) of the Housing Act. The Court also notes that the domestic authorities have so far not attempted to enforce that judgment and actually evict the applicant.

The Court considers it undisputed between the parties that ever since 1992 the applicant has not been living in the flat at issue, which is currently occupied by the applicant’s daughter and her family. On the one hand, it takes due account of the Government’s argument that in those circumstances the applicant cannot complain that she is at constant risk of eviction as she cannot be evicted from a flat in which she does not live. On the other hand, the Court has due regard of the applicant’s claim that she occasionally visits the flat – which she still considers as her home – and keeps her personal belongings in it.

The Court however notes that under section 108 of the Housing Act the duty of the tenant to vacate the flat extends to other users of that flat (see above), in the present case, the applicant’s daughter and her family. Thus, the potential eviction of the applicant’s daughter and her family in an attempt to enforce the above judgment of 9 June 2000 would effectively prevent the applicant from visiting the flat and returning to it. Therefore, assuming that the applicant retained “sufficient and continuous links” with the flat for it to be considered her “home” for the purposes of Article 8 of the Convention (see Mckay-Kopecka v. Poland (dec.), no. 45320/99, 19 September 2006), the Court considers that the Zagreb Municipal Court’s judgment of 9 June 2000 terminating the applicant’s specially protected tenancy and ordering her to vacate the flat is in itself sufficient to amount to an interference with ‘her right to respect for her home (see, Stanková v. Slovakia, no. 7205/02, § 57, 9 October 2007).

That interference was lawful as the Municipal Court’s judgment was based on the Housing Act and the Supreme Court’s jurisprudence developed in respect of that Act. According to the Supreme Court’s practice, a specially protected tenancy of a spouse acquired on the basis of section 64 of the Housing Act was to be considered derived from that of the other spouse who was the original holder of the tenancy. Consequently, when the specially protected tenancy of the original holder was terminated, the tenancy of the other spouse derived from it was to be considered terminated as well (see above under the Relevant domestic law). This rule applied irrespective of the reasons that led to the termination of tenancy of the original holder (non-use of the flat without a valid reason, termination of the employment relationship in respect of which the tenancy had been awarded, participation in enemy activity, etc.). It was adopted to prevent abuses since allowing a spouse to retain the tenancy in situations where the tenancy of the original holder was justifiably terminated would effectively allow the original holder to remain living in the flat, which would frustrate the very purpose of termination.

For the same reason, the State authorities could not allow family members of persons whose specially protected tenancy was terminated on the basis of section 102a (1) of the Housing Act to remain completely unaffected by that termination. On the other hand, those authorities were aware that they had to meet the family members’ housing needs. In order to reconcile these two considerations the Croatian legislator opted for a solution envisaged in section 102a (2) of the Housing Act, which prescribed that the owner of the flat had to provide the members of the former tenant’s household either with the same flat or with other appropriate housing.

In the present case the applicant’s specially protected tenancy was terminated and she was ordered to vacate the flat because her tenancy was derived from that of her husband whose tenancy was terminated pursuant to section 102a (1) of the Housing Act as he had been convicted of a war crime against the civilian population during the war in Croatia. The rationale behind section 102a (1) of the Housing Act was to terminate the specially protected tenancy of those persons who during the war in Croatia had served in the enemy’s army as the State authorities could not have tolerated a situation in which such persons would be allowed to continue using flats which had been owned by the State (or other public authorities) they had fought against. That provision was therefore enacted in the interests of national security.

Against that background and having in mind in particular the State’s obligation, stemming from section 102a (2) of the Housing Act, to secure other appropriate lodging for the applicant and her daughter in case of eviction, the Court considers that it cannot be argued that in the present case the domestic authorities failed to discharge their obligation to strike a fair balance between the general interest involved and the protection of the applicant’s right to respect for her home. Consequently, the interference was necessary in a democratic society as it pursued a legitimate aim and was proportionate to it.

‘‘‘‘It follows that this complaint is inadmissible under Article 35 § 3 as manifestly ill-founded and must be rejected pursuant to Article 35 § 4 of the Convention.

B. Alleged violation of Article 1 of Protocol No. 1 to the Convention

The applicant also complained under Article 1 of Protocol No. 1 to the Convention that she had been unable to purchase her flat under favourable conditions – a possibility open to other holders of specially protected tenancies – because her tenancy had been terminated. Article 1 of Protocol No. 1 reads as follows:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems 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.”

The Court notes at the outset that the specially protected tenancy was abolished on 5 November 1996 when the Lease of Flats Act entered into force, that is exactly one year before 5 November 1997, the date on which the Convention entered into force in respect of Croatia. However, the Act also provided that the proceedings instituted under the provisions of the Housing Act, including those for termination of specially protected tenancies, had to be concluded under the terms of the latter Act.

The Court reiterates in this connection that, when examining the alleged violations of Article 1 of Protocol No. 1 to the Convention on account of the termination of a specially protected tenancy in proceedings that ended after Croatia’s ratification of the Convention, it has to examine whether the termination of that tenancy affected any of the rights derived from it – such as, for example, the right to purchase the flat under the Specially Protected Tenancies (Sale to Occupier) Act, and, more importantly, whether those derived rights could amount to a “possession” within the meaning of that provision (see Gaćeša v. Croatia (dec.), no. 43389/02, 1 April 2008).

The Court further reiterates that an applicant may allege a violation of Article 1 of Protocol No. 1 only in so far as the impugned decisions relate to his or her “possessions” within the meaning of that provision. “Possessions” can be “existing possessions” or assets, including claims, in respect of which an applicant can argue that he has at least a “legitimate expectation” that they will be realised, that is that he or she will obtain effective enjoyment of a property right (see, inter alia, Gratzinger and Gratzingerova v. the Czech Republic (dec.) [GC], no. 39794/98, ECHR 2002‑VII, § 69, and Kopecký v. Slovakia [GC], no. 44912/98, § 35, ECHR 2004‑IX). By way of contrast, the hope of recognition of a property right which it has been impossible to exercise effectively after the entry into force of Protocol No. 1 with regard to the State concerned cannot be considered a “possession” within the meaning of Article 1 of Protocol No. 1, nor can a conditional claim which lapses as a result of non-fulfilment of a statutory condition (see Slivenko v. Latvia (dec.) [GC], no. 48321/99, § 121, ECHR 2002‑II (extracts)).

Turning to the present case, the Court first takes the view that the applicant’s right to purchase the flat was a ‘claim’ rather than an ‘existing possession’. It further notes that under the case-law of the Supreme Court such a claim is considered extinguished upon the expiration of the statutory time-limit.

In this connection it is to be observed that neither the applicant nor her husband had ever made a request to purchase the flat and that the statutory time-limit for doing so had expired on 31 December 1995. It follows that the applicant’s claim was already extinguished on that date, which was before Croatia’s ratification of the Convention on 5 November 1997 (see Gaćeša v. Croatia (dec.), cited above).

Consequently, when the Convention entered into force in respect of Croatia, the applicant had no claim under domestic law to purchase the flat at issue. That being so, the termination of her specially protected tenancy could not amount to an interference with her property rights because at the time it occurred she did not have sufficient proprietary interest to constitute a “possession” within the meaning of Article 1 of Protocol No. 1 to the Convention (see Gaćeša v. Croatia (dec.), cited above, and, mutatis mutandis, Slivenko, cited above, § 122).

It follows that this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected pursuant to Article 35 § 4.

C. Alleged violations of Article 6 §§ 1 and 2 and Article 7 of the Convention

The applicant further complained under Article 6 § 2 that, in extending to her the consequences of her husband’s conviction, the domestic courts had breached her right to be presumed innocent and her rights under Article 7 of the Convention. She also complained under Article 6 § 1 that their decisions had been insufficiently reasoned. Those Articles in their relevant part read as follows:

Article 6 §§ 1 and 2

“1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. ...

2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.

...”

Article 7

“1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.

2. This article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations.”

As regards the applicant’s complaint under Article 6 § 1 of the Convention that the decisions of the domestic courts were not sufficiently reasoned, the Court notes that these courts held that the termination of the applicant’s tenancy was a necessary consequence of the termination of her husband’s tenancy from which hers was derived. Against this background, the Court considers that the decisions complained of were duly reasoned.

As regards the applicant’s complaint under Article 6 § 2 of the Convention, the Court first reiterates that “the presumption of innocence will be violated if, without the accused having previously been proved guilty according to law and, notably, without his having had the opportunity of exercising his rights of defence, a judicial decision concerning him reflects an opinion that he is guilty. This may be so even in the absence of any formal finding; it suffices that there is some reasoning suggesting that the court regards the accused as guilty.” (see Minelli v. Switzerland, judgment of 25 March 1983, Series A no. 62, p. 18, § 37). In this connection the Court notes that the applicant’s tenancy was not terminated because she was found guilty of a criminal offence but because her tenancy was considered to be derived from that of her husband. Consequently, there is nothing to suggest that the decisions of the domestic courts reflect the opinion that the applicant was guilty of any criminal offence whatsoever.

For the same reason the Court considers that the case raises no issue under Article 7 of the Convention.

It follows that these complaints are inadmissible under Article 35 § 3 as manifestly ill-founded and must be rejected pursuant to Article 35 § 4 of the Convention.

D. Alleged violations of Article 6 § 1 of the Convention on account of the lack of access to a court and of Article 13 thereof

The applicant complained under Article 6 § 1 and Article 13 in conjunction with Article 8 that she had not had access to a court or an effective remedy in order to compel the State to deliver a decision either granting her the right to use the flat at issue or providing her with alternative accommodation pursuant to section 102a (2) of the Housing Act. Article 13 reads as follows:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

The Court observes that the Housing Act, including its section 102a (2), is no longer in force and that the applicant therefore cannot rely on it in order to regulate her legal status in respect of the flat. Instead, the proper way of doing so is indicated in section 37 of the Lease of Flats Act which provides that members of the household have a right to sue in order to obtain the status of lessees under the lease agreement with the protected rent. Against this background, it cannot be argued that the applicant did not have access to a court or an effective remedy to make the State honour its obligation to meet her housing needs.

It follows that these complaints are inadmissible under Article 35 § 3 as manifestly ill-founded and must be rejected pursuant to Article 35 § 4 of the Convention.

E. Alleged violation of Article 1 of Protocol No. 12 to the Convention

Lastly, the applicant complained under Article 1 of Protocol No. 12 to the Convention that she had been discriminated against in the enjoyment of her specially protected tenancy and the right to purchase the flat on account of her husband’s conviction. Article 1 of Protocol No. 12 reads as follows:

“1. The enjoyment of any right set forth by law shall be secured 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.

2. No one shall be discriminated against by any public authority on any ground such as those mentioned in paragraph 1.”

The Court notes that the applicant claimed that she had been discriminated against in the enjoyment of her right to a specially protected tenancy and her right to purchase the flat. That being so, interference with those rights, that in the applicant’s view also lead to her discriminatory treatment, could have possibly occurred only at the moment when her tenancy was terminated. This happened on 28 May 2002 when the second-instance court dismissed her appeal and upheld the first-instance judgment terminating her tenancy, which thereby became res judicata (see Mrkić v. Croatia (dec.), no. 7118/03, 8 June 2006, and, mutatis mutandis, Blečić v. Croatia [GC], no. 59532/00, § 84, to be published in ECHR 2006). However this was before 1 April 2005, the date of entry into force of Protocol No. 12.

It follows that this complaint is incompatible ratione temporis with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected pursuant to Article 35 § 4.

For these reasons, the Court unanimously

Declares the application inadmissible.

Søren NielsenChristos Rozakis
RegistrarPresident

Full & Egal Universal Law Academy