FIRST SECTION
DECISION
Application no. 24546/09
Khouri ZAHI
against Croatia
The European Court of Human Rights (First Section), sitting on 18 March 2014 as a Chamber composed of:
Isabelle Berro-Lefèvre, President,
Mirjana Lazarova Trajkovska,
Julia Laffranque,
Paulo Pinto de Albuquerque,
Linos-Alexandre Sicilianos,
Erik Møse,
Ksenija Turković, judges,
and Søren Nielsen, Section Registrar,
Having regard to the above application lodged on 22 April 2009,
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
1. The applicant, Mr Khouri Zahi, is a Croatian and Syrian national, who was born in 1964 and lives in Zagreb. He was represented before the Court by Ms K. Ferdelji, a lawyer practising in Zagreb.
2. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
1. Background to the case
4. In 1961 a flat, measuring a total of 57.28 square metres and located in Zagreb city centre (hereinafter: “the flat”), was nationalised from its previous owners D.B. and S.N.
5. M.M., who was subsequently granted a specially protected tenancy of the flat, lived there with her heir G.B. The latter, however, left to study in the United States but stayed in the flat during her visits to Croatia.
6. In an unspecified period in early 1990, M.M. was treated in the Sestre Milosrdnice Clinical Hospital Centre (Klinički bolnički centar Sestre milosrdnice) where the applicant worked as a trainee physician and his wife, N.Z., worked as a nurse. In these circumstances they came to meet M.M.
7. On an unspecified date in 1990 M.M. died.
8. After the breakout of the armed conflict in Croatia in 1991, N.Z.’s family (her mother A.P., her brother Jo.P. and sister I.P.) came to live in Zagreb as displaced persons coming from an occupied territory of Croatia. It appears that upon their arrival in Zagreb they were provided with accommodation by the local refugee agencies. When the conflict ended, A.P. and her children submitted a request for reconstruction of their family home in the former occupied territory which had been damaged in the conflict. The request was granted and the house was renovated in 2001, after which they lost their right to accommodation as provided for in section 1 of the Temporary Accommodation Act (Zakon o privremenom korištenju stanova) (see paragraph 42 below).
9. On 6 November 1991 the applicant, who was living at the time with N.Z. in a city near Zagreb that was not in a part of the country affected by the armed conflict, entered the flat by breaking a window and the front door. The neighbours immediately informed the police, who attended at the scene on the same day where they found the applicant, N.Z. and her mother A.P., as well as the tenant of the flat G.B. (see paragraph 5 above) and another person accompanying her. The applicant argued that the late M.M. had promised to leave the flat to him and the police left without taking any further action at the scene.
10. The next day, the police informed Zagreb Municipal Council (Grad Zagreb) that the applicant and his family had forcefully entered the flat. A council official who came to the scene found that the applicant and his family had entered the flat without having any legal right to be there and therefore ordered him to vacate the flat. The applicant ignored these orders, requesting a written decision on the matter. The eviction was disrupted after the civil defence siren signalled an attack on Zagreb.
11. On 26 November 1991 Zagreb Municipal Council ordered the applicant and his family (his wife N.Z., and her relatives A.P., I.P. and Jo.P.) to vacate the flat within three days. This decision was made enforceable on 3 December 1991, which was later confirmed on appeal on 7 February 1992.
12. An attempt to evict the applicant from the flat was made on 6 December 1991. Zagreb Municipal Council offered the applicant the opportunity to move to another flat where he could live with his family free of charge but he refused that accommodation, stating that he would only move out of the flat if the council provided him with accommodation in one of the most expensive hotels in Zagreb.
13. A further attempt to evict the applicant from the flat was made on 10 December 1991 but again to no avail, because the applicant refused to move and his wife was now pregnant.
14. On an unspecified date the police lodged a criminal complaint against the applicant and his wife with the Zagreb Municipal State Attorney’s Office. The Zagreb Municipal State Attorney’s Office rejected the criminal complaint on 26 March 1992, finding that while it had been undoubtedly established that the applicant had broken into the flat unlawfully, given his personal circumstances and particularly the fact that he had a pregnant wife and a small child, a criminal prosecution was not necessary since the eviction proceedings would in any event settle the issue.
15. Parallel to the administrative eviction proceedings, on 3 December 1991 G.B. lodged a civil action in the Zagreb Municipal Court (Općinski sud u Zagrebu) seeking the applicant’s eviction from the flat. The claim was granted on 3 November 1992 and this decision became final on 21 June 1993.
16. On 23 September 1993 the Zagreb Municipal Court issued a writ of execution ordering the applicant and his family to vacate the flat.
17. This decision of the Zagreb Municipal Court was never enforced because for a while the applicant could not be reached, and on 11 April 1994 the eviction was postponed after it was determined that no alternative accommodation had been found for the applicant’s two small children. In this regard an attempt was made on 12 July 1994 to find accommodation for the applicant and his family, but the only possibility which existed at the time was to accommodate them outside Zagreb. A further attempt was made by G.B. to settle the dispute, but the applicant also refused her offer. Eventually, on 11 March 2005 the enforcement proceedings were discontinued after G.B. withdrew her enforcement request.
2. The circumstances of the applicant’s purchase of the flat
18. On 9 December 1991 the applicant, his wife N.Z. and her relatives lodged a request with the Zagreb Municipal Council asking that they be granted temporary accommodation in the flat under the Temporary Accommodation Act, which was enacted on 4 December 1991 and came into force on 9 December 1991 with a view to solving the problem of accommodation of refugees – internally displaced persons by providing them with accommodation in publicly-owned lodgings (see paragraph 42 below).
19. On 1 April 1992 Zagreb Municipal Council’s housing department granted the applicant’s wife, N.Z., and her family (mother A.P., brother Jo.P. and sisters I.P. Ja.P.) temporary accommodation in the flat after having found that they could be considered refugees – internally displaced persons within the meaning of the Temporary Accommodation Act. The applicant was not granted temporary accommodation.
20. The decision stated that the accommodation was granted for six months and that upon the expiry of that period the occupants were obliged to vacate the flat. It also stated that by being provided with temporary accommodation the occupants did not obtain, nor could they obtain, a specially protected tenancy of the flat.
21. In the period between September 1992 and May 1996 the applicant requested several times that he and his family be given the opportunity to purchase the flat, relying on his personal situation and the status of his family.
22. In a letter of 6 October 1992 Zagreb Municipal Council indicated that temporary accommodation in the flat had been granted to the applicant’s family even though they had omitted to reveal in their application that they had unlawfully entered the flat. Therefore, they had no legal right to stay in the flat. In two letters of 8 December 1995 and 6 May 1996 Zagreb Municipal Council stressed that if the applicant’s application for housing was given priority it would be acting contrary to the domestic law establishing priority lists for housing allocation. It also emphasised that the only reason why the eviction had never been carried out was the fact that the applicant’s family were not able to return to their home.
23. On 29 March 1997 the applicant applied to Zagreb Municipal Council for the right to purchase the flat on favourable terms. He relied on the decision to grant temporary accommodation and his status as a disabled war veteran, since he had in the meantime served the Croatian army and obtained the status of disabled war veteran.
24. On 3 March 1998 Zagreb Municipal Council granted the applicant’s request and sold him the flat. On 4 March 1998 a copy of the purchase contract was submitted to the State Attorney’s Office, which gave its approval. The applicant paid the price of 21,432 Crotian kunas (HRK) and registered his ownership with the land registry.
25. In May 1999 Zagreb Municipal Council discovered that the applicant was in fact not on the list granting disabled war veterans, who had been allocated flats for temporary accommodation, the right to purchase flats owned by the Municipal Council on favourable terms, and that the applicant had therefore had no legal right to be granted the right to purchase the flat on such terms.
26. On 14 May 1999 Zagreb Municipal Council invited the applicant to settle the existing situation amicably by agreeing to the voluntary annulment of the contract and repayment of the purchase price. After the applicant ignored that offer, the Municipal Council referred the case to the Zagreb Municipal State Attorney’s Office.
27. On 29 September 1999 the Zagreb Municipal State Attorney’s Office, on behalf of Zagreb Municipal Council, lodged a civil action in the Zagreb Municipal Court seeking to have the purchase contract between the applicant and Zagreb Municipal Council declared null and void on the grounds that the applicant had had no legal right to buy the flat on favourable terms. It pointed out that the applicant himself had never been granted temporary accommodation in the flat and that he had not been on Zagreb Municipal Council’s list of disabled war veterans who had the right to purchase a flat on favourable terms.
28. The applicant defended the civil action and lodged a counterclaim seeking damages in the amount of HRK 824,356. His counterclaim was severed into a separate case, and those proceedings were discontinued on 27 May 2010 due to the applicant’s procedural inactivity.
29. During the proceedings concerning the annulment of the purchase contract the applicant contended that his wife had been granted temporary accommodation in the flat, which had given her the right to buy the flat under section 1a of the Specially Protected Tenancies (Sale to the Occupier) Act. He also considered that the civil action had been lodged outside the relevant statutory time-limit of one year after the contract had been concluded, as provided under the Specially Protected Tenancies (Sale to the Occupier) Act (see paragraph 43 below).
30. On 18 February 2004 the Zagreb Municipal Court declared the purchase contract for the flat null and void. It explained that the applicant had not been granted temporary accommodation in the flat and that therefore he had never satisfied the requirements of applicable domestic law for the purchase of the flat on favourable terms. The relevant part of the judgment reads:
“Section 1a of the Specially Protected Tenancies (Sale to the Occupier) Act provides that disabled Homeland War [veterans], as well as the spouses, parents and children, adopted children, father’s or mother’s spouses and adoptive parents of a deceased, incarcerated or missing Homeland War veteran have the right, on the terms provided in this Act, to purchase a flat in which they were temporarily accommodated under the Temporary Accommodation Act and the Homeland War Veterans Act [Zakon o pravima hrvatskih branitelja iz domovinskog rata]...
Bearing in mind the above provision, this court notes that temporary accommodation in the flat in question was granted to N.[Z.] as a refugee, while the defendant is not one of the individuals who was provided with temporary accommodation under the Temporary Accommodation Act.
This court finds that the purchase contract was concluded contrary to section 1a of the Specially Protected Tenancies (Sale to the Occupier) Act, since the defendant had not been granted temporary accommodation under the Temporary Accommodation Act or the Homeland War Veterans Act and therefore, under section 103 of the Obligations Act, the claim should be accepted and the contract declared null and void.
Furthermore, the argument that the civil action was lodged outside of the relevant statutory time-limit is unfounded given that, under section 110 of the Civil Obligations Act, the right to claim nullity [of a contract] cannot be extinguished. ...”
31. The applicant lodged an appeal against the first-instance judgment before the Zagreb County Court (Županijski sud u Zagrebu) on 2 March 2004 in which he reiterated his previous arguments.
32. On 15 February 2005 the Zagreb County Court dismissed the applicant’s appeal as without merit and upheld the first-instance judgment.
33. On 30 June 2005 the applicant lodged a constitutional complaint before the Constitutional Court (Ustvani sud Republike Hrvatske), reiterating his arguments before the lower courts.
34. The Constitutional Court dismissed the applicant’s constitutional complaint on 1 October 2008, endorsing the reasoning of the lower courts. In particular, it noted:
“The reasoning of the impugned judgments is based on a correct interpretation of the relevant law and can be accepted from the perspective of constitutional rights. The Constitutional Court finds that the lower courts, based on the established facts, provided sufficient reasons in their judgments and that their reasoning does not disclose any arbitrariness in the application of the law.”
35. On 27 April 2006 the applicant’s wife lodged a civil action against Zagreb Municipal Council in the Zagreb Municipal Court, seeking the right to purchase the flat. This civil action was dismissed on 17 June 2008 on the grounds that the process of privatisation of the flat had been started in the meantime (see paragraph 38 below) and therefore that the flat was no longer able to be sold by the Municipal Council but rather belonged to a special privatisation fund. This judgment was appealed against, but it was upheld by the Zagreb County Court on 12 May 2009.
36. Meanwhile, on 16 July 2008, the Municipal Council repaid the applicant the purchase price of HRK 21,432 together with statutory default interest in the amount of HRK 47,729.85.
3. Other relevant facts
37. On 2 May 2005 the applicant opened a private medical practice in gynecology and obstetrics in the flat, while in June 2004 his family moved to another flat which he had bought in Zagreb.
38. On 20 July 2006, as part of the privatisation process, the ownership of one half of the flat was returned to D.N., a successor of the original owners.
39. On 12 November 2008 D.N. sold his ownership in the flat to the applicant.
40. Throughout the period to date, the applicant has been running his private medical practice in the flat.
B. Relevant domestic law
1. Constitution
41. The relevant provisions of the Constitution of the Republic of Croatia (Ustav Republike Hrvatske, Official Gazette nos. 56/1990, 135/1997, 8/1998 (consolidated text), 113/2000, 124/2000 (consolidated text), 28/2001 and 41/2001 (consolidated text), 55/2001 (corrigendum), 76/2010, 85/2010) read as follows:
Article 34
“The home is inviolable ...”
Article 35
“Everyone has a right to respect for and legal protection of his private and family life, dignity, reputation and honour.”
Article 48
“The right of ownership shall be guaranteed ...“
2. The Temporary Accommodation Act
42. The relevant provisions of the Temporary Accommodation Act (Zakon o privremenom korištenju stanova, Official Gazette no. 66/1991) read:
Section 1
“This Act provides for the terms and the manner of [the provision of] temporary accommodation in publicly-owned flats ... which are empty or abandoned, with a view to allocating refugees – internally displaced persons, and defenders of the Republic of Croatia and their families.”
Section 8
“Individuals who have been granted temporary accommodation and their family members are not [thereby] granted a specially protected tenancy nor can they obtain a specially protected tenancy of the flat in question.”
3. Specially Protected Tenancies (Sale to the Occupier) Act
43. The Specially Protected Tenancies (Sale to the Occupier) Act (Zakon o prodaji stanova na kojima postoji stanarsko pravo, Official Gazette nos. 43/1992, 69/1992, 25/1993, 48/1993, 2/1994, 29/1994, 44/1994, 58/1995, 11/1996, 68/1998 and 96/1999) regulates the conditions of sale of flats let under specially protected tenancies. The relevant part of this Act reads:
Section 1a
“Disabled Homeland War [veterans], as well as the spouses, parents and children, adopted children, father’s or mother’s spouses and adoptive parents of deceased, incarcerated or missing Homeland War veterans have the right, on the terms provided in this Act, to purchase a flat in which they have been temporarily accommodated under the Temporary Accommodation Act and the Homeland War Veterans Act, if no other person has a specially protected tenancy of the flat in question.”
Section 21
“The seller shall submit the sale contract for approval to the competent State Attorney within eight days.
If the State Attorney finds that the statutory conditions for entering into such a contract have not been met or that the price stipulated in it is lower than that established by this Act, he or she shall disapprove of the sale.
If the State Attorney finds after a sale contract has been concluded that the statutory conditions for entering such contract had not been met, he or she shall seek the annulment of that contract within one year after the contract has been concluded.”
4. Obligations Act
44. The relevant provisions of the Obligations Act (Zakon o obveznim odnosima, Official Gazette, nos. 53/91, 73/91, 3/94, 7/96 and 112/99), as then in force, provided:
III [LEGAL] BASIS
Permissible [legal] basis
Section 51
“(1) Each contractual obligation shall have a permissible [legal] basis [causa].
(2) A basis is not permissible if it contravenes the Constitution, fundamental principles of law, or morals.
...”
Null and void contract on the ground of its [legal] basis
Section 52
“Where there is no [legal] basis [for a contract] or where its [basis] is not permissible, the contract is null and void.”
Nullity
Section 103
“A contract which is contrary to the Constitution, fundamental principles of law, or morals is null and void, unless there is some other [applicable] sanction or the law provides differently in a particular case.”
Unlimited right to plead nullity
Section 110
“The right to plead nullity shall be inextinguishable.”
5. Other relevant domestic legislation
45. The relevant provisions of the Enforcement Act (Ovršni zakon, Official Gazette nos. 57/1996, 29/1999, 42/2000, 173/2003, 194/2003, 151/2004, 88/2005, 121/2005 and 67/2008) provide:
Section 20
“A court shall order enforcement only on the basis of a final and enforceable instrument, unless otherwise provided under this Act.”
Section 23
“A decision by which a court has ordered the fulfilment of a claim through payment or performance shall be enforceable when it is final and if the period for voluntary compliance with that decision has elapsed. ... “
Section 26
“An enforcement instrument may be [used as a basis for] execution only if the creditor and debtor, and the nature, type, scope and time of the obligation are set out [in the relevant decision]. ... “
COMPLAINTS
46. The applicant complained that by the annulment of the purchase contract he and his family had lost their home and would be forced to leave the flat, contrary to Article 8 of the Convention.
47. He also complained, under Article 1 of Protocol No. 1, that his right to the peaceful enjoyment of his possessions had been violated.
THE LAW
48. The applicant relied on Article 8 of the Convention, which reads as follows:
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
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 applicant also cited Article 1 of Protocol No. 1, which provides:
“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.”
A. The parties’ arguments
49. The applicant contended that after having sold him the flat, it had been incumbent on the domestic authorities to accept the existing situation and not to seek the annulment of the purchase contract, particularly given that the purchase had been approved by the State Attorney’s Office. As to the circumstances in which he and his family had occupied the flat, the applicant pointed out that he had been prompted to seek alternative accommodation by the escalating conflict in Croatia and the unsuitability of his previous lodging to accommodate him, his wife and his wife’s family. In these circumstances he had learned that the flat had been empty and had decided to occupy it. The State had never offered them appropriate accommodation although they had requested it, and therefore they had not been in a position to vacate the flat. In the applicant’s view, the relevant domestic law was clear to the effect that he had had the ability to purchase the flat and that the State could not seek the annulment of the purchase after the expiry of the time-limit established by section 21 of the Specially Protected Tenancies (Sale to the Occupier) Act. Lastly, the applicant pointed out that although it was true that he had opened a private medical practice in the flat in 2005, and that his family had vacated the flat around that period, he had been spending most of his time in the flat. Therefore, he had always considered it to be not only his place of work but also his home, with which the domestic authorities had unjustifiably interfered.
50. The Government considered that the applicant had lost his victim status in 2005, as no measures had been taken after then to evict him from the flat. Furthermore, he had not been using the flat as a dwelling but rather to run a private business and at present he was the owner of a one half share in the flat. The Government further considered that the applicant had abused his right of individual application, as in his application he had failed to disclose to the Court all of the circumstances in which he had occupied the flat. In any event, given that he had never had a legal right to occupy the flat and that the purchase price had been fully repaid to him, the applicant had not suffered any significant disadvantage. The Government also submitted that the applicant had failed to use available domestic remedies as regards his right to respect for his home, as he had failed to raise that issue before the domestic authorities. In any event, he had lodged his application with the Court after the expiry of the six-month time-limit, given that he had no longer been living in the flat after 2004. In the Government’s view the applicant’s complaints of deprivation of property were of a fourth-instance nature and thus manifestly ill-founded.
51. As to the merits of the applicant’s complaints, the Government pointed out that the applicant had unlawfully occupied the flat and had been avoiding eviction for a considerable number of years, even though he had been offered appropriate alternative accommodation by the domestic authorities. This had resulted in him using the flat ever since 1991, when he had unlawfully occupied it, without any real restrictions. However, at present the flat was being used as his business premises and not as his home. The applicant had taken improper advantage of all of the well-intended actions of the domestic authorities by which they, having regard to his family situation, had not pursued the eviction orders. In the Government’s view, the applicant had had no legal right to purchase the flat, as he had not been on the list of disabled war veterans having an entitlement to purchase the flat on favourable terms and the legal basis on which his wife had occupied the flat had ceased to exist six months after she had been temporarily accommodated in the flat in April 1992. Therefore, at the time when he had lodged an application to purchase the flat, in which he had notably omitted to reveal all aspects of the case, he had known: that his wife could never be granted the right to purchase the flat; that he had been ordered to vacate the flat and offered alternative accommodation; that he had not been on the list of disabled war veterans who had the right to purchase the flat on favourable terms; and that he could not have obtained ownership of the flat based on a null and void purchase contract. The Government thus considered that all the decisions of the domestic authorities had been based on applicable domestic law providing for the nullity of contracts and that those decisions had pursued the legitimate aim of upholding the rule of law. In view of all these circumstances, and the fact that the applicant had been fully repaid the purchase price, the Government considered that the applicant had not had an excessive or disproportionate burden placed on him.
B. The Court’s assessment
52. The Court finds it unnecessary to address all of the Government’s objections, as the complaints are in any event inadmissible for the following reasons.
1. Article 8 of the Convention
53. The Court notes at the outset that in May 2005 the applicant opened his private medical practice in the flat, while his family had already moved in June 2004 to another flat which he had bought in Zagreb (see paragraph 37 above). The civil proceedings for the annulment of the purchase contract complained of by the applicant ended on 15 February 2005, when the Zagreb County Court upheld the first-instance judgment of the Zagreb Municipal Court of 18 February 2004 (see paragraph 32 above). The proceedings then continued before the Constitutional Court, which dismissed the applicant’s constitutional complaint on 1 October 2008 (see paragraph 34 above). It follows that at the time of the alleged interference arising from the annulment of the purchase contract the applicant’s family no longer resided in the flat. Thus it cannot be said that the alleged interference complained of raises any issue of respect for their home (see, by contrast, Paulić v. Croatia, no. 3572/06, § 34, 22 October 2009).
54. As regards the applicant himself, the Court reiterates that it has consistently held that interpreting the word “home” as including certain professional or business premises would be consonant with the essential object and purpose of Article 8, namely to protect the individual against arbitrary interference by the public authorities (see, amongst many others, Niemietz v. Germany, 16 December 1992, § 31, Series A no. 251‑B; and Hartung v. France (dec.), 10231/07, 3 November 2009). The Court therefore accepts that the flat in question, in which the applicant resided until 2005 and subsequently carried out his business activity, amounted to his “home” within the meaning of Article 8 of the Convention.
55. The Court notes, however, that the annulment of the purchase contract did not in any manner interfere with the applicant’s possession of the flat, since in its civil action for the annulment of the contract Zagreb Municipal Council made no eviction request. Therefore the judgment by which the contract was annulled could not itself serve as grounds for the applicant’s eviction (see paragraph 45 above; and compare, by contrast, Stanková v. Slovakia, no. 7205/02, § 57, 9 October 2007; Ćosić v. Croatia, no. 28261/06, § 18, 15 January 2009; Paulić, cited above, § 38; Orlić v. Croatia, no. 48833/07, § 59, 21 June 2011; Bjedov v. Croatia, no. 42150/09, § 62, 29 May 2012; and Brežec v. Croatia, no. 7177/10, § 40, 18 July 2013). Not only was it impossible for an eviction order to be issued based on the final domestic court judgment in the proceedings in question, the domestic authorities did not institute possession proceedings seeking the applicant’s eviction from the flat after they had obtained the nullification of the contract (see, by contrast, McCann v. the United Kingdom, no. 19009/04, § 47, ECHR 2008). In any event, the applicant is presently the owner of a one half share in the flat, and since 2005 has been running his private medical practice in the flat without any interference by the domestic authorities.
56. In these circumstances, the Court considers that, without any request for eviction and any possibility to issue an eviction order, no interference with the applicant’s right to respect for his home under Article 8 of the Convention arose from the annulment of the purchase contract. Accordingly, the applicant’s complaints are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
2. Article 1 of Protocol No. 1
57. The Court observes that in 1998 the applicant concluded the purchase contract with Zagreb Municipal Council and by paying the purchase price and registering his ownership with the land registry he became the owner of the property (see Gashi v. Croatia, no. 32457/05, § 27, 13 December 2007). By virtue of the judgment of the Zagreb Municipal Court of 18 February 2004 (see paragraph 30 above) the applicant’s title to the flat in question was nullified, which leaves no doubt as to the existence of an interference. However, the Court finds that the complexity of the legal situation in the present case prevents it from placing the nature of that interference in a precise category. It therefore considers that the situation complained of should be examined in the light of the general rule (see Gladysheva v. Russia, no. 7097/10, § 71, 6 December 2011).
58. In this respect, the Court refers to its established case-law on the structure of Article 1 of Protocol No. 1 and the manner in which the three rules contained in that provision are to be applied (see, among many other authorities, Vistiņš and Perepjolkins v. Latvia [GC], no. 71243/01, § 93, 25 October 2012).
59. In order to be compatible with the general rule of Article 1 of Protocol No. 1, an interference must comply with the principle of lawfulness and pursue a legitimate aim by means reasonably proportionate to the aim sought to be realised (see, for example, Beyeler v. Italy [GC], no. 33202/96, §§ 108-114, ECHR 2000-I). To that end it must strike a “fair balance” between the demands of the public or general interest of the community and the requirements of the protection of the individual’s fundamental rights (see, amongst many others, Gladysheva, cited above, § 66).
60. In the present case the Court notes that the applicant’s title to the property was declared null and void by the national courts under section 103 of the Obligations Act (see paragraphs 30 and 44 above). The Court, noting that its power to review compliance with domestic law is limited (see, among other authorities, Allan Jacobsson v. Sweden (no. 1), 25 October 1989, § 57, Series A no. 163), is thus satisfied that the nullification of the applicant’s title to the property was in accordance with domestic law (compare Gashi, cited above, § 29). It also finds that the impugned measure was aimed at restoring justice and securing the respect for the rule of law in the sphere of housing and was thus in the public interest.
61. As to the proportionality of the interference, in the circumstances of the present case in which the applicant’s title to the property was annulled as a result of the correction of an error in the State’s administration of housing matters, the Court considers that it must assess the conditions under which the disputed property was acquired, in particular whether the applicant acquired the property from the State in good faith, as well as the applicant’s personal and social situation, and any compensation which the applicant received in exchange for his title (see Gashi, cited above, §§ 36-43; Pavlinović and Tonić v. Croatia (dec.), no. 17124/05 and 17126/05, 3 September 2009; and Gladysheva, cited above, §§ 78-82). In this regard the Court also emphasises that its task is not to call into question the right of a State to enact laws aimed at securing the rule of law by providing for nullification of defective contracts contravening fundamental principles of law, but, in accordance with its supervisory powers under the Convention is rather to review the manner in which these laws were applied in the applicant’s case and whether the decisions taken by the relevant domestic authorities complied with the principles enshrined in Article 1 of Protocol No. 1 (see Gashi, cited above, § 32).
62. The Court observes that in 1991 following the outbreak of the conflict in Croatia the applicant took advantage of the fact that the flat in question had been empty since M.M., who had had a specially protected tenancy of the flat, died the year before. As is evident from the documents submitted before the Court the situation was well known to the applicant who, without any legal right, entered the flat by breaking a window and the front door. The police intervention at the scene was futile, as the applicant claimed that M.M. had promised to leave him the flat, although he had no evidence to that effect and in the later proceedings before the domestic authorities he never pursued that argument any further (see paragraphs 5-9 above).
63. The Court is not persuaded by the applicant’s argument that his personal and family situation prompted him to break into the flat, even assuming that this argument is of any relevance at all. At that time the applicant was living in another flat outside Zagreb and his wife’s family, who had come to Zagreb, had been given appropriate accommodation by the local refugee agencies (see paragraphs 8 and 9 above). In addition, in the course of the eviction proceedings in 1991 the applicant was offered alternative accommodation free of any charge by Zagreb Municipal Council but he refused it, asking to be accommodated in one of the most expensive hotels in the city (see paragraph 12 above).
64. Furthermore, the Court notes that the domestic authorities’ decision of 1 April 1992 granting the applicant’s wife and her family temporary accommodation in the flat under the Temporary Accommodation Act made it clear that the accommodation was being granted for a period of six months and that they could not obtain a specially protected tenancy based on that decision. At the same time, the applicant was not granted temporary accommodation, although he had applied for it (see paragraphs 18-20 above). The facts of the case also show that the applicant was well aware that he was not listed on Zagreb Municipal Council’s priority housing list (see paragraph 22 above) and that the only reason why he was not evicted from the flat was a combination of the domestic authorities’ inability to carry out their activities due to the escalating conflict (see paragraph 10 above) and their understanding of the applicant’s personal and family situation (see paragraphs 13, 14, 17 and 22 above).
65. It appears, however, that this information was neither fully disclosed in the applicant’s application for temporary accommodation of his family in the flat, nor in his application to purchase the flat from the Municipal Council (see paragraphs 23 and 25 above). Therefore, when this information came to light, the domestic courts found that the applicant had never satisfied the conditions of section 1a of the Specially Protected Tenancies (Sale to the Occupier) Act to purchase the flat on favourable terms and accordingly declared the purchase contract null and void (see paragraph 30 above).
66. This makes the applicant’s situation distinct from the outset from the cases in which the Court has dealt with the annulment of the title to property of an individual who had acquired it in good faith (see, for example, Gashi, cited above, § 37; Gladysheva, cited above, § 79; and Pincová and Pinc v. the Czech Republic, no. 36548/97, § 59, ECHR 2002‑VIII). The Court also notes that Croatia was going through a post-conflict transition period in which the domestic authorities were faced with numerous social problems and demands (compare, mutatis mutandis, Velikovi and Others v. Bulgaria, nos. 43278/98, 45437/99, 48014/99, 48380/99, 51362/99, 53367/99, 60036/00, 73465/01 and 194/02, § 166, 15 March 2007).
67. Accordingly, in assessing whether the fair balance required by Article 1 of Protocol No. 1 was achieved, the Court finds it decisive that the applicant did not acquire the property in good faith and that he was reimbursed the full purchase price for the flat, including statutory default interest, and that throughout the period in question the applicant used the flat as a place to live, and from 2005 onwards for his private business activity (see paragraphs 36 and 37 above; and compare Velikovi and Others, §§ 198, 202 and 214, cited above; Yakimovi v. Bulgaria (dec.), 26560/05, 3 February 2009; Pavlinović and Tonić, cited above; and, by contrast, Gashi, cited above, § 42).
68. The foregoing considerations are sufficient to enable the Court to conclude that the interference with the applicant’s property rights in the present case was not disproportionate or otherwise contrary to Article 1 of Protocol No. 1 to the Convention.
69. 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.
For these reasons, the Court unanimously
Declares the application inadmissible.
Søren NielsenIsabelle Berro-Lefèvre
RegistrarPresident
Full & Egal Universal Law Academy