JAKUSIC v. CROATIA
Inadmissible
Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Khanlar Hajiyev;Sverre Erik Jebens
The applicant, Ms Antonija Jakušić, is a Croatian national who was born in 1950 and lives in Zlatar Bistrica. She was represented before the Court by Mr N. Perišić, an advocate practising in Zagreb. The Croatian Government (“the Government”) were represented by their Agent, Mrs Š. Stažnik. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant was born in 1950 and lives in Zlatar Bistrica. In 1979 the applicant’s mother, together with other heirs, inherited twenty plots of land from her husband. She thereby became a co-owner of various proportions of that property. On 29 August 1989 the applicant and her sister signed a contract of lifelong care (ugovor o doživotnom uzdržavanju) with their mother before the Zlatar Municipal Court (Općinski sud u Zlataru), stipulating that the daughters were to provide for their mother until her death while the mother transferred the ownership of all her immovable property, that is, her share of the above twenty plots of land, to the daughters after her death. On 23 March 1992 the parties amended the above contract so that the applicant and her sister, at the moment of signing of the amendment to the contract, became the co-owners of their mother’s share of the above twenty plots of land. On the basis of the above amendment of 23 March 1992, on 24 April 1992 the applicant was recorded in the land register as the co-owner of those twenty plots of land in various proportions. Meanwhile, on 27 February 1990 the applicant’s aunt B.J. brought a civil action in the Zlatar Municipal Court against the applicant’s mother, with a view to being declared the owner of part of the above property. After the death of the applicant’s mother in May 1992, in October 1992 the applicant and her sister became parties to the proceedings. On 26 June 2000 the Zlatar Municipal Court adopted a judgment. However, that judgment was quashed on 24 March 2004 by the Zlatar County Court (Županijski sud u Zlataru) and the case was remitted to the first-instance court for fresh proceedings. On 29 March 2004 the applicant and her sister lodged a constitutional complaint under section 63 of the Constitutional Court Act, complaining about the length of the civil proceedings. On 4 November 2004 the Constitutional Court (Ustavni sud Republike Hrvatske) found a violation of their constitutional right to a hearing within a reasonable time, awarded them each 7,250 Croatian kuna (HRK) in compensation and ordered the Zlatar Municipal Court to adopt a decision in their case in the shortest time possible but no later than ten months from the publication of its decision in the Official Gazette. The Constitutional Court’s decision was published on 22 November 2004. On 19 July 2005 the Zlatar Municipal Court dismissed the plaintiff’s action. That judgment was upheld by the Zlatar County Court on 21 December 2005 and thereby became final, with the consequence that all concerned remained, as before, co-owners of the twenty plots of land. On 13 July 2006 the applicant instituted non-contentious proceedings before the Zlatar Municipal Court against the other co-owners B.J., Ž.J. and I.J., seeking partition of the co-ownership of six of the above twenty plots of land. At the hearing held on 18 September 2006 the applicant appeared before the court but the defendants failed to appear. An on-site visit was carried out on 9 November 2006 in the presence of the judge assigned to hear the case, the parties and an expert. The expert submitted his opinion and a drawing of the site the same day. The next on-site visit, scheduled for 27 March 2007, was adjourned because the defendants did not attend. During the following on-site visit, on 26 April 2007, the defendants prevented the experts present from taking the necessary measurements The subsequent on-site visit, scheduled for 22 May 2007, was adjourned and the parties agreed to arrange for the measurements to be taken again. The next on-site visit, scheduled for 2 April 2008, was adjourned because the defendants did not attend. At a hearing held on 9 May 2008 the parties reached a settlement whereby they remained co-owners of one plot of land, the defendants B.J., Ž.J. and I.J. became co-owners of one third of three plots of land and the applicant became the sole owner of two plots of land. On 28 May 2008 the applicant approached the Land Registry Division of the Zlatar Municipal Court seeking to enforce the above in-court settlement of 9 May 2008 by recording the partition of co-ownership in the land register. On 30 May 2008 the Land Registry Division of the Zlatar Municipal Court dismissed the applicant’s request. It found that the changes stipulated in the in-court settlement of 9 May 2008 could not be recorded in the land register because the share of the property in question belonging to Ž.J. was subject to enforcement proceedings instituted in 2006 and 2007 by his creditors before the same court, after which it was not allowed, under the Enforcement Act, to record any changes in ownership or other rights in rem in respect of that property in the land register. On 18 June 2008 the applicant appealed against that decision to the Zlatar County Court. On 25 November 2009 the Zlatar County Court in part upheld and in part quashed the first-instance decision. It held that while the Enforcement Act indeed did not allow the changes stipulated in the in-court settlement of 9 May 2008 to be recorded in respect of Ž.J.’s share of the property, they could be recorded in respect of B.J. and I.J.’s share of the property. Due to the outcome of the civil proceedings for annulment (see below), it appears that no further steps were taken with a view to recording the changes stipulated in the in-court settlement of 9 May 2008 in the land register. On 4 July 2008 the applicant brought a civil action in the Zlatar Municipal Court against B.J., Ž.J. and I.J. seeking to annul the above in-court settlement of 9 May 2008 because at the time it had been entered into Ž.J. had concealed the fact that enforcement proceedings had been pending in respect of his share of the property. On 24 March 2009 the court delivered a judgment whereby it annulled the in-court settlement, with the effect that all concerned remained, as before, co-owners of the six plots of land in question. On 26 March 2009 the applicant instituted a second set of non-contentious proceedings against B.J., Ž.J. and I.J. for partition of co-ownership before the Zlatar Municipal Court. This time she sought partition of the co-ownership of four plots of land. On 4 November 2009 the court issued a decision ordering the partition of the co-ownership by sale of the four plots of land in question at a public auction and distribution of the proceeds of the sale to the co-owners in proportion to their shares. It held that partition in kind (geometrijska dioba) was not feasible and therefore ordered partition by auction (civilna dioba). The applicant and B.J. appealed as they both objected to partition by auction and sought partition in kind. It would appear that the case is currently pending before the Zlatar County Court. The relevant part of the Ownership and Other Rights In Rem Act (Zakon o vlasništvu i drugim stvarnim pravima, Official Gazette nos. 91/1996, 73/2000, 114/2001, 79/2006, 141/2006, 146/2006, 38/2009 and 153/2009), which entered into force on 1 January 1997, reads as follows: “(1) A co-owner has the right to partition of co-ownership if that is practicable and permissible. That right is not subject to statute of limitations. (2) A co-owner may require partition at any time, except when that would be detrimental to the interests of other co-owners ...” “Partition may not be detrimental to the rights of third persons ...”