FIRST SECTION
DECISION
Application no. 4819/10
Dušan VOJNOVIĆ and Dragica VOJNOVIĆ
against Croatia
The European Court of Human Rights (First Section), sitting on 26 June 2012 as a Chamber composed of:
Anatoly Kovler, President,
Nina Vajić,
Elisabeth Steiner,
Mirjana Lazarova Trajkovska,
Julia Laffranque,
Linos-Alexandre Sicilianos,
Erik Møse, judges,
and Søren Nielsen, Section Registrar,
Having regard to the above application lodged on 7 January 2010,
Having deliberated, decides as follows:
THE FACTS
1. The applicants, Mr Dušan Vojnović and Ms Dragica Vojnović, are Croatian nationals who were born in 1935 and 1946 respectively and live in Belgrade.
The circumstances of the case
2. The facts of the case, as submitted by the applicants, may be summarised as follows.
3. The applicants are of Serbian origin. They had a specially protected tenancy on a flat in Zagreb in which the first applicant lived until 1991 and the second applicant until 1992, when they left Croatia and went to live in Serbia.
1. Civil proceedings for termination of the applicants’ specially protected tenancy
4. On 10 April 1995 the Zagreb Municipal State Attorney’s Office (Općinsko državno odvjetništvo u Zagrebu), on behalf of the Republic of Croatia, brought a civil action against the applicants in the Zagreb Municipal Court (Općinski sud u Zagrebu), seeking termination of their tenancy on the grounds that the applicants had been absent from the flat for a period exceeding six months without any justified reason, and that their address was unknown.
5. After an attempt to serve a summons on the applicants failed, the Zagreb Municipal Court appointed lawyer Z.B. to represent them before the court.
6. On 15 November 1995 the Zagreb Municipal Court terminated the applicants’ specially protected tenancy by a judgment which became final on 19 January 1996.
7. On 7 December 1998 the applicants lodged a request for the reopening of the proceedings with the Zagreb Municipal Court. On 13 November 2000 the Municipal Court granted the request and set aside its judgment of 15 November 1995.
8. On 12 April 2002 that court again terminated the applicants’ specially protected tenancy, finding that the applicants had failed to provide a convincing explanation for leaving the flat at issue and for remaining passive for three years before trying to seek information about the status of their tenancy. The applicants lodged an appeal with the Zagreb County Court (Županijski sud u Zagrebu), which upheld the first-instance judgment on 25 November 2003.
9. On 23 July 2004 the applicants lodged a constitutional complaint before the Constitutional Court (Ustavni sud Republike Hrvatske) about the termination of their specially protected tenancy and claiming that they had been discriminated against. On 7 February 2007 the Constitutional Court dismissed their constitutional complaint as ill-founded. The decision of the Constitutional Court was served on the applicants on 27 November 2007.
2. The applicants’ request for housing
10. On 19 November 2004 the applicants lodged a request for housing with the Ministry for Regional Development, Forestry and Water Management (Ministarstvo regionalnog razvoja, šumarstva i vodnog gospodarstva) and were granted a flat in Zagreb measuring 49.89 square metres.
11. The applicants complained about the size of the flat. On 30 October 2009 they were granted another flat in Sesvete, near Zagreb, measuring 74.78 square metres, but they again refused to accept it.
12. In the meantime, on 25 June 2007 the applicants lodged a civil action in the Zagreb Municipal Court against the Republic of Croatia, seeking damages and asking that their right to occupy and to acquire ownership of the flat on which they had had the specially protected tenancy be established.
13. On 25 November 2009 the applicants complained before the Constitutional Court about the length of the proceedings. On 28 December 2009 the Constitutional Court instructed the applicants that the complaints about the length of the proceedings fell within the competence of the lower courts and the Supreme Court (Vrhovni sud Republike Hrvatske).
14. On 19 March 2010 the applicants complained to the Zagreb County Court about the length of the proceedings before the Zagreb Municipal Court. On 13 May 2010 the Zagreb County Court declared their complaint inadmissible on the ground that they had failed to appoint a representative to receive mail on their behalf in Croatia, as required under the relevant domestic rules of procedure, since they lived abroad.
15. The civil proceedings before the Zagreb Municipal Court are still pending.
3. The applicants’ previous applications to the Court
16. On 19 January 2004 the applicants lodged an application with the Court complaining about the termination of their specially protected tenancy and the fairness of the proceedings before the Zagreb Municipal Court. They relied on Article 8 of the Convention and Article 1 of Protocol No. 1, taken alone and in conjunction with Article 14 of the Convention. They also relied on Article 6 § 1 of the Convention.
17. On 18 November 2005 a committee of three judges of the Court declared the applicant’s application inadmissible as incompatible with the provisions of the Convention ratione temporis.
18. On 8 January 2008 the applicants again lodged an application with the Court, complaining under Article 8 of the Convention about the termination of their tenancy. They also complained under Article 1 of Protocol No. 1 that by terminating their tenancy the domestic authorities had prevented them from purchasing the flat at issue on favourable terms. The applicants further complained under Article 14 of the Convention, taken in conjunction with Article 8 of the Convention and Article 1 of Protocol No. 1, that their tenancy had been terminated because of their Serbian origin. Lastly, the applicants complained under Articles 6 and 13 of the Convention about the outcome of the civil proceedings in respect of the termination of their specially protected tenancy before the Zagreb Municipal Court.
19. On 29 May 2009 a committee of three judges of the Court declared the applicant’s application inadmissible as incompatible ratione materiae in the part concerning the applicant’s property complaint, and substantively the same in the part concerning their other complaints.
4. Proceedings before the Human Rights Committee
20. On 23 January 2006 the first applicant, acting on his own behalf and on behalf of the second applicant and their son Milan Vojnović, submitted a communication to the Human Rights Committee in Geneva under the First Optional Protocol to the International Covenant on Civil and Political Rights. He complained that the termination of the specially protected tenancy had, inter alia, violated their rights under Articles 14 (the right to equality before the courts and to a fair hearing), 17 (the right to a home), and 26 (prohibition of discrimination) of the Covenant. He also invoked Article 2 of the Covenant (respect for human rights and effective domestic remedy).
21. On 30 March 2009 the Human Rights Committee in Geneva set out its views in communication no. 1510/2006. It found that the termination of the applicants’ specially protected tenancy amounted to a violation of Article 14 § 1 taken in conjunction with Article 2 § 1, and Article 17 taken in conjunction with Article 2 § 1 of the Covenant, and that there was no need to consider the question of a separate violation of Article 26 of the Covenant.
COMPLAINTS
22. The applicants complained under Article 6 of the Convention about the fairness and outcome of the civil proceedings terminating their specially protected tenancy, and the fairness and length of the proceedings they had instituted before the Zagreb Municipal Court claiming damages and the right to housing.
23. The applicants also complained under Article 8 of the Convention about the termination of their specially protected tenancy.
They further complained, under Article 1 of Protocol No. 1, that they had not been able to purchase the apartment on which they had held the specially protected tenancy.
24. The applicants also invoked Articles 13, 14 and 17 of the Convention, complaining that they had been discriminated against in the termination of their specially protected tenancy and did not have an effective domestic remedy.
25. Finally, they complained under Article 3 of the Convention that their son, Milan Vojnović, had been ill-treated before they left Zagreb in 1991, and that there had never been any investigation in that connection.
THE LAW
1. Termination of the applicants’ specially protected tenancy
26. The Court notes at the outset that all the applicants’ complaints in respect of the termination of their specially protected tenancy of a flat in Zagreb concern complaints which the applicants have already brought before the Court, on 19 January 2004 and 8 January 2008, and which were declared inadmissible by committees of three judges of the Court on 18 November 2005 and 29 May 2009 respectively.
27. The Court also notes that on 23 January 2006 the applicants brought the same complaints before the Human Rights Committee in Geneva and that on 30 March 2009 the Human Rights Committee found that the termination of the applicants’ specially protected tenancy amounted to a violation of Article 14 § 1 taken in conjunction with Article 2 § 1 (the right to equality before the courts and to a fair hearing) and Article 17 taken in conjunction with Article 2 § 1 of the Covenant (the right to a home), and that there was no need to consider the question of a separate violation of Article 26 (prohibition of discrimination) of the Covenant.
28. In this context, the Court firstly reiterates the criteria established in its case-law concerning Article 35 § 2 (b), according to which an application is to be declared inadmissible if it “is substantially the same as a matter that has already been examined by the Court ... and contains no relevant new information”. The Court must therefore ascertain whether the two applications brought before it by the applicants relate essentially to the same persons, the same facts and the same complaints (see, mutatis mutandis, Pauger v. Austria, no. 24872/94, Commission decision of 9 January 1995; DR 80-A, Folgerø and Others v. Norway (dec.), no. 15472/02, 14 February 2006; Verein gegen Tierfabriken Schweiz (VgT) v. Switzerland (no. 2) [GC], no. 32772/02, § 63, ECHR 2009; and Fédération hellénique des syndicats des employés du secteur bancaire v. Greece (dec.), no. 72808/10, 6 December 2011).
29. The Court also reiterates that it is against the letter and spirit of the Convention if the same matter is simultaneously submitted to two international institutions. Article 35 § 2 (b) of the Convention is aimed at avoiding the plurality of international procedures concerning the same case. In considering this issue, it is necessary to verify whether the applications to the different institutions concern substantially the same persons, facts and complaints (see Pauger v. Austria, cited above).
30. The Court notes that the first and second applicants in the present case have already brought two applications before the Court, on 19 January 2004 and 8 January 2008, complaining about the termination of their specially protected tenancy of a flat in Zagreb, and in which they presented the same facts and raised the same complaints as in the present application. The Court also notes that their applications were examined and declared inadmissible by committees of three judges of the Court on 18 November 2005 and 29 May 2009 respectively.
31. The Court further notes that the first applicant, acting on his own behalf and on behalf of the second applicant, lodged essentially the same complaints as regards the termination of their specially protected tenancy with the Human Rights Committee, and that their complaints were examined before that body, which constitutes a procedure of international settlement within the meaning of Article 35 § 2 (b) of the Convention (see Leoncio Calcerrada Fornieles and Luis Cabeza Mato v. Spain, no. 17512/90, Commission decision of 6 July 1992, Decisions and Reports (DR) No. 73, p. 214).
32. Therefore, the Court considers that this part of the application must be rejected as being substantially the same as a matter that has already been examined by the Court and that has already been submitted to another procedure of international investigation or settlement and contains no relevant new information, pursuant to Article 35 §§ 2(b) and 4 of the Convention.
2. Proceedings concerning the applicants’ request for housing
33. The Court notes that the applicants have lodged their request for housing with the domestic administrative bodies and that they have also instituted civil proceedings before the domestic courts with the same request. The Court also notes that those proceedings are still pending.
34. The Court further notes that the applicants complained to the Constitutional Court about the length of the civil proceedings and that the Constitutional Court instructed them that the complaints about the length of the proceedings fell within the competence of the lower courts and the Supreme Court. The Court also notes that the applicants complained about the length of the proceedings before the Zagreb County Court but that they failed to appoint a representative in order that documents could be served on them, and thus that complaint was rejected.
35. In this regard the Court reiterates that the machinery for the protection of fundamental rights established by the Convention is subsidiary to the national systems safeguarding human rights. The Convention does not lay down for the Contracting States any given manner for ensuring within their internal law the effective implementation of the Convention. The choice as to the most appropriate means of achieving this is in principle a matter for the domestic authorities, who are in continuous contact with the vital forces of their countries and are better placed to assess the possibilities and resources afforded by their respective domestic legal systems (see Swedish Engine Drivers’ Union v. Sweden, 6 February 1976, § 50, Series A no. 20; Chapman v. the United Kingdom [GC], no. 27238/95, § 91, ECHR 2001-I; and Sisojeva and Others v. Latvia [GC], no. 60654/00, § 90, ECHR 2007‑II).
36. The Court also reiterates that, in accordance with Article 35 § 1 of the Convention, it may only deal with an issue after all domestic remedies have been exhausted. The purpose of Article 35 is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Court (see, for example, Hentrich v. France, 22 September 1994, § 33, Series A no. 296-A, and Remli v. France, 23 April 1996, § 33, Reports 1996-II). Thus, the complaint submitted to the Court must first have been made to the appropriate national courts, at least in substance, in accordance with the formal requirements of domestic law and within the prescribed time-limits. To hold otherwise would mean duplicating the domestic process by proceedings before the Court, which would hardly be compatible with the subsidiary character of the Convention (see Gavril Yosifov v. Bulgaria, no. 74012/01, § 42, 6 November 2008).
37. As to the fairness of the civil proceedings concerning the applicants’ claim for housing and damages, the Court notes that those proceedings are still pending before the domestic courts. Therefore, the Court considers that any complaint in respect of their fairness is premature.
38. As to the length of the civil proceedings concerning the applicants’ claim for housing and damages, the Court notes that the applicants have failed to comply with the formal requirements of the domestic law in respect of these complaints.
39. Against the above background, the Court considers that this part of the application must be rejected for non-exhaustion of domestic remedies, in accordance with Article 35 §§ 1 and 4 of the Convention.
3. Alleged ill-treatment of the applicants’ son
40. The Court notes that the applicants complained about the alleged ill-treatment of their son in 1991, and lack of an effective investigation in that regard. However, these complaints concern the applicant’s son only. Therefore, the applicants cannot claim to be victims of the alleged violations of Article 3 of the Convention (see, a contrario, Çakıcı v. Turkey [GC], no. 23657/94, §§ 98-99, ECHR 1999‑IV; Timurtaş v. Turkey, no. 23531/94, §§ 95-96, ECHR 2000‑VI; and Çiçek v. Turkey, no. 25704/94, §§ 172-174, 27 February 2001).
41. It follows that this part of the application is incompatible ratione personae with the provisions of the Convention and must be declared inadmissible in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Søren NielsenAnatoly Kovler
RegistrarPresident
Full & Egal Universal Law Academy