CEDH · CASELAW;COMMUNICATEDCASES;ENG — 12 avril 2013

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They are represented before the Court by Mr Đ. Radović, an advocate practising in Biograd na Moru. A.     The circumstances of the case The facts of the case, as submitted by the applicants, may be summarised as follows. On 18 February 1985 a commercial bank in Zadar (hereafter “the bank”) awarded the first applicant a specially protected tenancy ( stanarsko pravo ) of a flat in Benkovac with a surface area of 77.12 square metres. She thus became holder of the tenancy. Pursuant to the relevant legislation, the second applicant, as her husband, automatically became a co-holder of the specially protected tenancy of the flat. In October 1991 the war broke out in Croatia. In the period between 1991 and August 1995 the town of Benkovac was controlled by the armed forces of the “Republic of Serbian Krajina”, a self-proclaimed entity established by rebel Serbs on the territory of Croatia. The applicants had remained living in their flat until 5 August 1995, when, following the military operation “Storm” by which Croatia had regained control over almost its entire territory, they left Benkovac and went to live in Serbia. The applicants submit that they had to leave because the armed forces of the Republic of Serbian Krajina forced them to. After having obtained relevant Croatian documents (identity cards and passports), the applicants returned to Benkovac in September 1997. Meanwhile, on 29 February 1996 the bank, as the provider and owner of the flat, brought a civil action against the applicants in the Benkovac Municipal Court ( Općinski sud u Benkovcu ) seeking termination of their specially protected tenancy of the flat in question. The bank based its action on section 99 of the Housing Act, arguing that the applicants had been absent from the flat for more than six months without justified reasons. The applicants responded that the reasons for their absence had been justified because: (a) they had obtained the necessary travel documents from the Croatian authorities only in the beginning of 1997 and thus could not have returned to Croatia before September that year, and (b) the flat had been assigned to and occupied by a certain Mr D.P., an employee of the bank. By a judgment of 15 April 2003 the Municipal Court terminated the applicants’ specially protected tenancy, finding that they had indeed been absent from the flat for more than six months without justified reasons. The relevant part of that judgment reads as follows: “After leaving the flat and the territory of the Republic of Croatia, the defendant Anica Stolić came to Croatia for the first time in September 1997. From the time they had left the flat until their return to Croatia in September 1997 the defendants had not contacted any competent authority of the Republic of Croatia or the owner of the flat ... whose employee the first applicant had been before the war. On the basis of the evidence taken, [it follows] that the defendants had not used the flat since August 1995 and thus had not used it for more than six months, without a justified reason. The statutory requirements for termination of the defendant’s specially protected tenancy of the flat at issue ... provided for in section 99(1) of the Housing Act have therefore been met. The defendants’ arguments that they ... could not obtain the [relevant] documents from the Croatian authorities after they had left Croatia, is not a justified reason for not using the flat at issue. The defendants did not either directly (not even in writing, which was possible given that the postal services between the Republic of Croatia and the Federal Republic of Yugoslavia were operational) or indirectly contact the owner of the flat with a view to informing him of their intention to return to Croatia. In the above-mentioned period between [August] 1995 and September 1997 the defendants made no attempts to protect their flat ... ... the defendants’ attempts to contact the person to whom the flat was assigned are not sufficient because they were first undertaken at a time when all statutory time-limits for either the purchase of the flat or acquisition of the status of a protected lessee had expired. [Therefore,] this court does not accept any of the defendants’ arguments concerning the reasons for not using the flat at issue as it considers them irrelevant in view of section 99(2) of the Housing Act.” By a judgment of 9 March 2006 the Zadar County Court ( Županijski sud u Zadru ) dismissed an appeal by the applicants and upheld the first-instance judgment. The relevant part of the second-instance judgment reads as follows: “In the proceedings before the first-instance court it was established (and undisputed between the parties), that the defendants had left the flat in question and the Republic of Croatia at the time of the military operation ‘Storm’ in the beginning of August 1995, that they had returned to the Republic of Croatia in September 1997 and that in the meantime they had not undertaken any steps with a view to returning to the flat which the plaintiff had [in the meantime] assigned to its employee D.P. for temporary use. In the opinion of this second-instance court, the first-instance court therefore correctly found that the defendants and the members of their household (a son and a daughter) had stopped using the flat for an uninterrupted period exceeding six months, but not for justified reasons as argued by the defendants, and that the statutory requirements for termination of the specially protected tenancy of the flat in dispute provided for in section 99(1) of the Housing Act were therefore met.” On 8 April 2006 the applicants lodged a constitutional complaint contesting the judgments of the ordinary courts and complaining about the length of the proceedings. In so doing they relied on Article 14, paragraph 2 (equality before the law), Article 26 (equality before the courts), Article 29, paragraph 1 (right to a fair hearing), and Article 48, paragraph 1 (guarantee of ownership), of the Constitution. By a decision of 15 January 2009 the Constitutional Court ( Ustavni sud Republike Hrvatske ) dismissed the applicants’ constitutional complaint in so far as it concerned the impugned judgments of the ordinary courts. By the same decision it declared their constitutional complaint inadmissible to the extent that it concerned the length of proceedings finding that such a complaint could be lodged only while the proceedings complained of were still pending. The Constitutional Court’s decision was served on the applicants’ representative on 17   February 2009. B.     Relevant domestic law and practice 1.     The Constitution The relevant provisions of the Constitution of the Republic of Croatia ( Ustav Republike Hrvatske , Official Gazette of the Republic of Croatia, 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) and 76/2010) read as follows: Article 14(2) “All shall be equal before the law.” Article 26 “All citizens of the Republic of Croatia and foreigners shall be equal before the courts and other State or public authorities.” Article 29(1) “In the determination of his rights and obligations or of any criminal charge against him, everyone is entitled to a fair hearing within a reasonable time by an independent and impartial court established by law.” Article 34(1) “The home is inviolable.” Article 48(1) “The right of ownership shall be guaranteed.” 2.     The Housing Act (a)     Relevant provisions The relevant part of the Housing Act (Official Gazette nos. 51/85, 42/86, 22/1992 and 70/93) reads: Section 99 “1. A specially protected tenancy may be terminated if the tenant ... ceases to occupy 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.” Section 94 provided for a duty on the housing authority to issue, at the request of an interested person or of its own motion, a decision ordering the eviction of a person who had moved into the flat without valid legal grounds. The housing authority had to proceed without delay and issue a decision within fifteen days at the latest. An appeal against the decision did not suspend its enforcement. The first-instance decision had to be forwarded to the State Attorney with a view to instituting criminal proceedings. The provider of the flat and the tenant had a right to compensation for damage resulting from the failure by the housing authority to take action to evict a person who had moved into the flat without valid legal grounds. The housing authority had exclusive jurisdiction in the matter. (b)     Relevant practice In decisions nos. Rev-3839/93-2 of 19 January 1994, Rev-2276/00-2 of 21 November 2000 and Rev-590/03-2 of 17 December 2003, the Supreme Court interpreted section 99(1) of the Housing Act as follows: “War events per se , without any particular reasons rendering use of the flat impossible, do not constitute a justified reason for not using it.” In a series of decisions (for example, in cases nos. 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), starting with decision no. Rev-155/1994-2 of 16   February 1994, the Supreme Court interpreted section 99(1) of the Housing Act 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 ..., the [illegal occupation of the flat by a third person] shall not be an obstacle to terminating the specially protected tenancy.” 3.     The Act on the Lease of Flats on the Liberated Territory The Act on the Lease of Flats on the Liberated Territory ( Zakon o davanju u najam stanova na oslobođenom teritoriju , Official Gazette no.   73/95), which was in force between 27 September 1995 and 5 August 1998 provided, in its relevant part, as follows: Section 1(1) “This Act regulates the lease of flats of which the specially protected tenancy ... has been terminated pursuant to the provisions of this Act, and which are located in the previously occupied, now liberated, territory of the Republic of Croatia.” Section 2(1) “The specially protected tenancy of flats referred to in section 1 of this Act shall be terminated by the operation of law if the holder of the specially protected tenancy leaves the flat and does not use it for a period exceeding 90 days following the entry into force of this Act.” Section 3(1) and (2) “(1)     Flats referred to in section 1 of this Act which are in State ownership shall be let by the Ministry of Reconstruction and Development. (2)     Other flats [those in social ownership] shall be let by the [Sequestration] Commission established on the basis of the Temporary Takeover and Administration of Certain Property Act.” Section 4(2) and (3) “(2)     The Ministry of Reconstruction and Development or the [Sequestration] Commission shall issue a decision ... on the lease of a flat. (3)     An appeal to the [competent] Ministry against the Commission’s decision referred to in the preceding paragraph may be lodged... within eight days. (4)     The appeal does not suspend enforcement of the decision.” 4.     The Specially Protected Tenancies (Sale to Occupier) Act The Specially Protected Tenancies (Sale to Occupier) Act (Official Gazette nos. 27/91, 33/92, 43/92, 69/92, 25/93, 26/1993, 48/93, 2/94, 44/94, 47/1994, 58/95, 11/96, 11/97 and   68/98, Zakon o prodaji stanova na kojima postoji stanarsko pravo – “the Sale to Occupier Act”), which entered into force on 19 June 1991, entitled the holder of the specially protected tenancy of a flat in social or State ownership to purchase it from the provider of the flat under favourable conditions. Section 4(2) provided that a written request for the purchase of a flat had to be made within one year of the date of the Act’s entry into force (this time-limit was extended, by subsequent amendments to the Act, to 31   December 1996 for flats located on the liberated territory). 5.     Property Act Sections 75-81 of the Property Act ( Zakon o osnovnim vlasničkopravnim odnosima , Official Gazette no. 53/91) entitled a possessor to bring a civil action against any person who disturbed his possession or dispossessed him in order to put an end to the disturbance or recover possession ( actio possessoria ). The action had to be brought within 30 days of the possessor learning of the disturbance and the perpetrator, but, at the latest, within one year following the disturbance. The possessor was required to prove only that he had been in possession before the disturbance occurred, and not that he was entitled to possession. The possessor’s action was dealt with in summary proceedings (sections   438-44 of the Civil Procedure Act). Apart from an action for disturbance of possessions, section 81 of the Property Act entitled a possessor to institute regular civil proceedings in order to protect his possession ( actio petitoria ). In these proceedings the possessor was required to prove his entitlement to possession, that is, ownership, tenancy, and so forth. COMPLAINTS 1.     The applicants complain under Article 6 § 1 of the Convention about the termination of their specially protected tenancy and about the length of the aforementioned civil proceedings. 2.     The applicants also complain, under Article 1 of Protocol No. 1 to the Convention, that, as a result of the termination of their tenancy, they were unable to purchase and become the owners of the flat in question.   QUESTIONS TO THE PARTIES     1.     Why the domestic courts in the applicants’ case did not apply the Act on the Lease of Flats on the Liberated Territory?   2.     Did the termination of the applicants’ specially protected tenancy in the present case constitute a violation of their right to respect for their home, contrary to Article 8 of the Convention? In particular, would informing the provider and the owner of the flat of their intention to continue living in the flat or taking legal action against the person occupying it, have rendered the applicants’ absence from the flat “justified” in terms of section 99(2) of the Housing Act and thus enable them to retain their tenancy given that at the relevant period (5 August 1995 – 5 January 1996) the Act on Lease of Flats on the Liberated Territory as lex specialis was in force, which did not envisage that the absence from a flat could be “justified”, as the Housing Act did?   3.     The Government is also invited to provide the Court with the entire case-file of the civil proceedings that resulted in the termination of the applicants’ tenancy, as well as with all decisions adopted in respect of the flat in question (decisions awarding the flat for a temporary use to third persons, decision allowing the purchase of the flat, etc.)