CEDH · CASELAW;DECISIONS;ADMISSIBILITYCOM;ENG — 5 mars 2019

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s2EF17D91 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s7E985A65 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; font-size:1pt } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sB9D5CABB { width:28.35pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s72C8F48C { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; page-break-inside:avoid; page-break-after:avoid } .sA20670C4 { margin-top:12pt; margin-left:48.75pt; margin-bottom:6pt; text-indent:-17pt; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sE5273FBD { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:center; font-size:10pt } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .sAADB120E { margin-top:6pt; margin-left:28.35pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .s34D46E87 { margin-top:12pt; margin-bottom:6pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s3710E110 { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; widows:0; orphans:0 } .s393990F0 { margin-top:12pt; margin-left:14.2pt; margin-bottom:0pt; widows:0; orphans:0 } .s5F897A7E { margin-top:12pt; margin-left:14.2pt; margin-bottom:0pt } .sF7A4323 { margin-top:36pt; margin-bottom:0pt; text-align:left } .s6DD35890 { width:19.77pt; display:inline-block } .sA3A3221 { width:129.09pt; display:inline-block } .sAFF36EC2 { width:18.78pt; display:inline-block } .s1B61D60 { width:156.43pt; display:inline-block }     FIRST SECTION DECISION Application no. 42353/13 Vitomir and Marija ELEZOVIĆ against Croatia   The European Court of Human Rights (First Section), sitting on 5 March 2019 as a Committee composed of:   Krzysztof Wojtyczek, President,   Ksenija Turković,   Armen Harutyunyan, judges, and Renata Degener, Deputy Section Registrar , Having regard to the above application lodged on 20 May 2013, Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants, Having deliberated, decides as follows: THE FACTS 1.     The applicants, Mr Vitomir Elezović and Ms Marija Elezović, are Croatian nationals, who live in Pula. They are represented before the Court by Mr A. Zanetti, a lawyer practising in Pula. A.     The circumstances of the case 2.     The facts of the case, as submitted by the applicants, may be summarised as follows. 1.     Background to the case 3.     On 3 March 1983 the Yugoslav People’s Army (hereafter “the YPA”) awarded the first applicant, then a serviceman, a specially protected tenancy of a flat in Pula with a surface area of 51 sq. m. On the basis of the relevant legislation, the second applicant – his wife – automatically became a co ‑ holder of the specially protected tenancy of the flat at issue. 4.     The first applicant retired from active military service in 1990. 5.     In March 1991, after learning that the first applicant’s mother had fallen seriously ill, the applicants and their two children temporarily moved to Breza, Bosnia and Herzegovina, to take care of her. They left all their personal belongings in the flat, left the keys with a neighbour and asked him to pay the bills and to take care of the flat until their return. 6.     With the outbreak of war in Croatia, and later in Bosnia and Herzegovina, the first applicant voluntarily joined the armed forces of Bosnia and Herzegovina on 13 March 1992 (by that time his mother had recovered and was no longer in need of constant care). 7.     It would appear that in May or June 1992 the children went to live with the second applicant’s mother in Trogir, Croatia, and that the second applicant joined them in November 1992. They claimed that, owing to the escalation of the war, they had been unable to return to Croatia earlier. 8.     On 6 July 1992 the relevant commission of the Croatian Ministry of Defence established under the Temporary Use of Flats Act (see   paragraphs   30-35 below) allocated the flat in Pula, of which the applicants held the specially protected tenancy, to a certain Mr   S.K. and his daughter, internally displaced persons, for temporary use. 9.     In November 1992 the second applicant went to visit the flat in Pula only to realise that it had been occupied by third persons. The second applicant and their children therefore decided to stay with her mother in Trogir. 10.     Before 5 April 1993, when he definitively returned to Croatia, the first applicant had visited them on two occasions between 14 December 1992 and 5   January 1993 and for a couple of days in March 1993. 11.     On 17 November 1993 the Ministry of Defence set aside its decision of 6 July 1992 (see paragraph 8 above) and ordered S.K.’s daughter to vacate the flat. The Ministry established that S.K. owned another flat in Pula and was no longer living in the flat in question. 2.     Civil proceedings 12.     Meanwhile, on 8 October 1993 the applicants brought a civil action in the Pula Municipal Court ( Općinski sud u Puli ) against S.K. and the State seeking repossession of the flat in Pula. In those proceedings a default judgment, which became final on 23 May 1994, was delivered against S.K. and the proceedings continued only against the State. That default judgment was enforced on 27 December 2002 when S.K.’s daughter was evicted and the keys of the flat handed over to the applicants’ lawyer. 13.     On 9 August 1995 the State brought a separate civil action against the applicants in the same court with a view to terminating the applicants’ specially protected tenancy of the flat in question. It would appear that the court conducted the proceedings in absentia and in a judgment of 19   December 1995, which became final on 19 January 1996, ruled for the State. 14.     However, following the applicants’ application for the reopening of the proceedings, in a decision of 13 March 2000 the Pula County Court ( Županijski sud u Puli ) set aside that judgment and reopened those proceedings. 15.     On 18 July 2000 the Pula Municipal Court decided to join the two sets of proceedings (those for repossession instituted by the applicants and the reopened proceedings for termination of their tenancy instituted by the State). 16.     By a judgment of 7 December 2000 the Municipal Court ruled for the applicants. However, that judgment was subsequently quashed on appeal by the Pula County Court on 16 June 2003 and the case was remitted. 17.     In the resumed proceedings, by a judgment of 7 November 2007 the Municipal Court ruled for the State and terminated the applicants’ tenancy. 18.     The court accepted as genuine and justified the reasons for which the applicants had moved to Breza in March 1991 and had been unable to return before November (the second applicant) and December 1992 (the first applicant). However, before 8 October 1993, when they had brought their civil action for repossession, they had taken no steps to regain possession of their flat even though by November 1992 they had already learned that third   persons were living in it (see paragraph 9 above). Relying on section 99 of the Housing Act (see paragraph 29 below), the Municipal Court held that the applicants’ failure to take steps to regain possession of the flat for more than six months in the period after November 1992 (or even after 5 April 1993, when the first applicant definitively returned to Croatia, see paragraph   10 above) rendered their absence from the flat in that period unjustified. 19.     The applicants appealed. They argued, inter alia , that they could not have brought their action for repossession earlier because it had taken them some time to identify the person occupying the flat. 20.     On 20 October 2008 the Pula County Court dismissed the applicants’ appeal and upheld the first-instance judgment which thereby became final. In reply to their argument, the court held that the applicants could have learned the identity of the person living in their flat though an enquiry with the police. 21.     The applicants then lodged a constitutional complaint, alleging violations of their constitutional rights to equality and equality before the courts, their right to respect for their home, and their right to respect for their personal and family life. 22.     By a decision of 14 November 2012 the Constitutional Court ( Ustavni sud Republike Hrvatske ) dismissed the applicants’ constitutional complaint. It served its decision on their lawyer on 26 November 2012. 23.     In the meantime, the State applied to the Pula Municipal Court for enforcement of that court’s judgment of 7 November 2007 (see   paragraph   17 above). On 31 March 2009 the court issued a writ of execution ( rješenje o ovrsi ) and on 28   January 2010 the State took possession of the flat. 3.     Other relevant facts 24.     On 19 June 1991 the Specially Protected Tenancies (Sale to Occupier) Act entered into force. It entitled holders of specially protected tenancies of socially-owned flats to purchase the flats in respect of which they held such a tenancy under favourable conditions. 25.     On 3 October 1991 the Government of Croatia 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. 26.     On 17 August 1995 the Amendments to the Specially Protected Tenancies (Sale to Occupier) Act entered into force extending the right of purchase to holders of specially protected tenancies of flats in State ownership, including the flats which had become State property by the Government decree of 3 October 1991 (see the previous paragraph). 27.     On 29 September 1995 the first applicant lodged a request to purchase the flat under 1995 Amendments with the Ministry of Defence. 28.     By a letter of 20 October 2010 the Ministry of Defence informed the first applicant that it could not meet his request because his specially protected tenancy had been terminated by a final court judgment in the above civil proceedings (see paragraphs 17 and 20 above). B.     Relevant domestic law and practice 1.     Relevant legislation (a)     The Housing Act 29.     The Housing Act ( Zakon o stambenim odnosima , Official Gazette of the Socialist Republic of Croatia nos. 51/85 and 42/86, and Official Gazette of the Republic of Croatia nos. 22/92 and 70/93), which was in force between 25 December 1985 and 4 November 1996, provided as follows: Section 99   “1.     A specially protected tenancy may be terminated if the tenant and the members of his household ... cease to use the flat for an uninterrupted period exceeding six   months. 2.     A specially protected tenancy shall not be terminated under the provisions of paragraph 1 of this section in respect of a person who does not use the flat on account of undergoing medical treatment, performance of military service or other justified reasons.” (b)     Temporary Use of Flats Act 30.     The Temporary Use of Flats Act ( Zakon o privremenom korištenju stanova , Official Gazette no. 66/91 and 77/93) entered into force on   9   December 1991. It laid down conditions for temporary use of empty, vacated or abandoned flats in social and State ownership and those in private ownership of companies and other legal entities, with a view to providing accommodation for internally displaced persons, refugees and of Croatian Army servicemen and their families. 31.     Section 2 provided that the Act applied to empty flats not subject to a specially protected tenancy or a lease contract, and to flats let under specially protected tenancy if it had been established that the tenants and the members of their household had either (a) left the flat and removed their personal belongings (vacated flats), or (b) had permanently left the flat (abandoned flats). 32.     Sections 3 and 7 provided that the State and the local authorities had to establish commissions for temporary use of flats whose task was to issue decisions allocating flats for temporary use. The decisions of those commissions were not open to appeal but could have been challenged before the Administrative Court by bringing an action for judicial review. 33.     Section 8 provided that the persons to whom a flat had been allocated for temporary use had to pay the rent and the charges and could not acquire the specially protected tenancy of that flat. 34.     Section 10 provided that the tenant could lodge an application for reopening against the commission’s decision allocating his or her flat for temporary use. The commission had to decide on such an application within three days. If the commission decided to reopen the case and set aside its earlier decision it had to order the temporary occupant to vacate the flat within fifteen days. 35.     Section 14 provided that, unless the Temporary Use of Flats Act provided otherwise, the provisions of the General Administrative Procedure Act applied, mutatis mutandis . 2.     Relevant practice 36.     Under the case-law developed in the application of section 99 of the Housing Act (see paragraph 29 above), in situations where the holder of a specially protected tenancy did not use the flat awarded to him or her because it was occupied by a third person, the bringing of legal proceedings in order to evict the occupant was relevant for demonstrating an intention to live in the flat, that is to say preventing the tenant’s absence from being considered unjustified and resulting in the termination of the tenancy. However, it was important to act within six months since the tenant could not rely on any subsequent legal action in order to demonstrate an intention to live in the flat. In particular, in decisions nos. Rev-155/1994-2 of 16   February 1994, Rev-152/1994-2 of 23   February 1994, Rev-1780/1996-2 of 10 March 1999, Rev-1606/00-2 of 1   October 2003, Rev-998/03-2 of 4   December 2003 and Rev-590/03-2 of 17   December 2003 the Supreme Court ( Vrhovni sud Republike Hrvatske ) held as follows: “The fact that a flat that is not being used by its tenant is illegally occupied by a third person does not, per se , make the non-use [of the flat by the tenant] justified. In other words, if the tenant fails to take the appropriate steps to regain possession of the flat within the statutory time-limits set forth in section 99(1) of the Housing Act ..., then the [illegal occupation of the flat by a third person] is not an obstacle to the termination of the specially protected tenancy.” 37.     The Government submitted that these decisions reflect earlier case ‑ law. In support of their argument they referred to the decision of the Zagreb District Court ( Okružni sud u Zagrebu ) no. Gž-3517/76 of 7   September 1976 and the judgment of the Supreme Court no.   Rev ‑ 645/1991-2 of 16   April 1991. The District Court in its decision dismissed the civil action by the provider of the flat seeking to terminate the special protected tenancy, finding that the tenant’s non-use of the flat had been justified under the terms of section 99 of the Housing Act because the flat had been occupied by third persons and the tenant had sought judicial protection. The Supreme Court in its judgment upheld the judgments of the lower-instance courts whereby they, citing section 99 of the Housing Act, had terminated the specially protected tenancy of the tenant because he had not brought a civil action for eviction against the persons occupying in the flat of which he held such a tenancy. 38.     The Government also referred to the judgment of the Administrative Court ( Upravni sud Republike Hrvatske ) no. Us-12005/1993 of 12 January 1994 in which that court held that after the decision allocating a flat for temporary use had been set aside, the owner could seek eviction of the occupant before ordinary courts. COMPLAINTS 39.     The applicants complained under Article 8 of the Convention and Article 1 of Protocol No. 1 thereto that by terminating their specially protected tenancy of the flat in question the domestic courts had violated their rights to respect for their home and to peaceful enjoyment of their possessions. THE LAW 40.     The applicants complained that the termination of their specially protected tenancy had been in breach of their right to respect for their home and their right to the peaceful enjoyment of their possessions. They relied on Article 8 of the Convention and Article 1 of Protocol No. 1 thereto, which in the relevant part read as follows: Article 8 (right to respect for private and family life)   “1.     Everyone has the right to respect for ... 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.” Article 1 of Protocol No. 1 (protection of property) “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 1.     The Government 41.     The Government disputed the admissibility of the application on several grounds. They submitted that neither Article 8 nor Article 1 of Protocol No. 1 was applicable. They further argued that, if Article 1 of Protocol   No.   1 was applicable, the complaint under it was inadmissible for non-exhaustion of domestic remedies. Lastly, they averred that the entire application was, in any event, manifestly ill-founded. 42.     The Government submitted that, if the Court were to consider that there had been an interference with the applicants’ rights to respect for their home and to the peaceful enjoyment of their possessions, the interference had been justified. Specifically, the interference in question had been lawful, had pursued the legitimate aim of promoting the economic well ‑ being of the country and had been proportional to that aim. 43.     The Government pointed out that the domestic courts had terminated the applicants’ specially protected tenancy because the applicants had not taken legal action to repossess the flat in question. The decision to terminate the applicants’ tenancy had been in line with the case-law of the Supreme Court developed in the application of section 99 of the Housing Act (see   paragraph 29 above). Under that case-law (see paragraph 36 above), if the tenants had not been using the flat for living purposes for a period exceeding six months because third persons had occupied it, the tenants had been required to institute relevant proceedings against the occupants within those six months in order to demonstrate that their non-use of the flat had been justified within the meaning of section 99 of the Housing Act. That view had been expressed by the Supreme Court as early as in April 1991 (see paragraph 37 above). The applicants in the present case, who had been represented by a lawyer, thus ought to have been aware of it. Consequently, it could not be said that the interpretation adopted by the domestic courts in their case had been unforeseeable for the applicants. 44.     In the present case the applicants’ flat had been temporarily allocated to a third person under the Temporary Use of Flats Act by a decision of 6   July 1992 (see paragraph 8 above). As specifically provided in that Act that decision could have been set aside upon the tenant’s application for reopening – a remedy that had been available to the applicants. If the relevant authority had set aside its own decision of 6 July 1992, it would have simultaneously ordered the temporary occupant to vacate the applicants’ flat within fifteen days (see paragraph 34 above). In addition, after that decision had been set aside, the applicants would have been able to bring a civil action before a court seeking repossession of the flat and eviction of the temporary occupant (see paragraph 38 above). 45.     Had the applicants resorted to these remedies within the six months they would have demonstrated their intention to resume using the flat for living purposes and would have retained their specially protected tenancy. 46.     Against that background, the Government considered that the reasons advanced by the domestic courts for terminating the applicants’ specially protected tenancy were relevant and sufficient. The applicants’ failure to use legal remedies in a timely manner to protect their specially protected tenancy suggested that they no longer needed the flat for living purposes. In such a situation the protection of economic interests of the country had warranted the termination of their tenancy – a measure that had been in the given circumstances proportionate to that legitimate aim. 2.     The applicants 47.     The applicants submitted that they could not have taken the steps suggested by the Government before 8 October 1993, when they had brought their civil action for repossession (see paragraph 12 above), because before that date they had not known the identity of the person occupying their flat. B.     The Court’s assessment 48.     The Court does not find it necessary to examine the Government’s inadmissibility objection based on inapplicability of Article 8 of the Convention and Article 1 of Protocol No. 1 thereto, or the one based on non-exhaustion of domestic remedies see paragraph 41 above). 49.     Even assuming those Articles are applicable, and that the Pula Municipal Court’s judgment of 7 December 2000 terminating the applicants’ specially protected tenancy constituted an interference with the their rights to respect for their home and to peaceful enjoyment of their possessions, the Court considers that this interference was justified. 50.     In this connection the Court firstly notes that the applicants’ tenancy was terminated because for more than six months they had taken no steps to repossess their flat even though already in November 1992 they had learned that third persons were occupying in it (see paragraph 18 above). 51.     This reasoning was based on section 99 of the Housing Act and was in line with the case-law developed in the application of that provision (see   paragraphs 29 and 36 above). The evidence and arguments presented by the Government (see paragraph 37 and 43 above) suggest that this case ‑ law started developing before November 1992 when the domestic courts held that the above-mentioned six-month period had started running in the present case. The applicants thus ought to have been aware of that case-law at the relevant time. That being so, and given that the applicants did not claim otherwise, the Court considers that the application of that case-law to their case was foreseeable. 52.     The aim of section 99 of the Housing Act was to terminate specially protected tenancies held by individuals who no longer lived in flats allocated to them, with a view to subsequently redistributing such flats to others in need of accommodation. It was therefore intended to satisfy the housing needs of citizens and thus pursued the legitimate aims of promoting the economic well-being of the country and protecting the rights of others (see Bjedov v. Croatia , no. 42150/09, § 63, 29 May 2012). 53.     The Court further considers that, having regard to the wide margin of appreciation enjoyed by the States in housing matters (see, for example, Connors v. the United Kingdom , no. 66746/01, § 82, 27 May 2004), the case-law of the domestic courts requiring tenants to demonstrate their intention to continue using the flats awarded to them by bringing relevant proceedings for the protection of their specially protected tenancy within six   months, is not in itself disproportionate to the legitimate aim identified above (see paragraph 52 above). To find that requirement disproportionate would be even more difficult in circumstances such as those prevailing in the present case, that is to say in a time of war, where a large number of people were displaced and in need of accommodation. 54.     The applicants did not contest that requirement in itself but the way the domestic courts had applied it to their case. Specifically, they argued that they could not have instituted relevant proceedings earlier because before 8   October 1993, when they had brought their civil action for repossession (see paragraphs 12 and 47 above), they had not known the identity of the person occupying their flat. They had raised the same argument before the domestic courts, which established that the applicants could have learned the identity of the occupants though an enquiry with the police (see paragraphs 19-20 above). 55.     That being a question of fact, the Court reiterates that it is sensitive to the subsidiary nature of its role, and that it must be cautious in taking on the role of a first-instance tribunal of fact where this is not rendered unavoidable by the circumstances of a particular case. It is not the Court’s task to substitute its own assessment of the facts for that of the domestic courts, and as a general rule it is for those courts to assess the evidence before them. Although the Court is not bound by the findings of domestic courts, in normal circumstances it requires cogent elements to lead it to depart from the findings of fact reached by those courts (see, for example, Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, § 150, 20 March 2018). In the present case the Court finds no elements that would lead it to contradict the factual findings of the domestic courts. That is especially so because the applicants did not submit any evidence that they had in the relevant six-month period made enquires with the authorities or otherwise attempted to identify the persons occupying their flat. 56.     Lastly, the Court reiterates that it has adopted several judgments against Croatia finding a violation of the right to respect for home on the grounds that the national courts had ordered evictions solely because the applicants in those cases had had no right to occupy the flats at issue, without having carried out a proportionality test as to the measures taken against the applicants (see, for example, Ćosić v. Croatia , no. 28261/06, 15   January 2009; Paulić v. Croatia , no. 3572/06, 22 October 2009; Bjedov , cited above; and Brežec v.   Croatia , no. 7177/10, 18 July 2013). However, this cannot be said in the present case where the domestic courts, after having carefully analysed all the relevant circumstances, held that after November 1992 nothing had prevented the applicants from taking steps to protect their tenancy and that their failure to do so within six months had rendered their non-use of the flat unjustified (see paragraphs 18 and 20 above). 57.     The foregoing considerations are sufficient for the Court to conclude that the alleged interference with the applicants’ rights to respect for their home and to peaceful enjoyment of their possessions was justified as it was lawful, pursued a legitimate aim in the public or general interest and, being proportional to that aim, was necessary in a democratic society. 58.     It follows that the present application is inadmissible under Article   35   §   3   (a) of the Convention as manifestly ill-founded and must be rejected pursuant to Article   35   §   4 thereof. For these reasons, the Court, unanimously, Declares the application inadmissible. Done in English and notified in writing on 28 March 2019.   Renata Degener   Krzysztof Wojtyczek   Deputy Registrar   President