FRLAN v. CROATIA
Inadmissible
Jon Fridrik Kjølbro;Julia Laffranque;Paul Lemmens;Georges Ravarani;Ksenija Turković
1. The applicant, Mr Nikola Frlan, is a Croatian national who was born in 1961 and lives in Zagreb. He was represented before the Court by Mr A. Korljan, a lawyer practising in Zadar. 2. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. On 28 February 1995 the applicant took out a loan with Z. bank (hereinafter “the bank”) of 193,400 deutschmarks (DEM). He used his house as security, allowing the bank to register a charge against it. 5. On 6 November 2000 the bank instituted enforcement proceedings against the applicant in the Zagreb Municipal Court (Općinski sud u Zagrebu), for the seizure and sale of his house. It was argued that he had failed to repay the loan. 6. On 14 February 2001 the Zagreb Municipal Court granted the bank’s request and issued an enforcement order against the applicant. He appealed, arguing that the enforcement order had been declared invalid and that the interest rate on the loan had been miscalculated. 7. On 16 May 2006 the Zagreb County Court (Županijski sud u Zagrebu) dismissed the applicant’s appeal as being without merit, finding that the statutory conditions for enforcement had been met. 8. On 8 March 2011 the Zagreb Municipal Civil Court (Općinski građanski sud u Zagrebu – “the Zagreb Civil Court”) held a second public auction for the sale of the house. There was only one bidder, M. The court granted title to the applicant’s house to him, on condition that he paid 471,000 kunas (HRK) as the purchase price, which was half of the estimated market value. The decision became final on 30 March 2011, after M. paid the purchase price. 9. On 20 May 2011 the Zagreb Civil Court ordered that the house be transferred to M. The decision was not amenable to appeal. 10. On 21 January 2013 the applicant requested that the enforcement proceedings be stayed until the outcome of criminal proceedings he had instituted against his former representative was known. 11. On an unspecified date the Zagreb Civil Court scheduled the applicant’s eviction for 28 February 2013. 12. On 13 February 2013 the applicant requested that the enforcement proceedings be stayed until the dispute with his bank had been settled. He argued that his daughter would have to interrupt her studies in the middle of the academic year and that she was a carer for other members of the household. 13. On 28 February 2013 the Zagreb Civil Court declared the applicant’s application inadmissible, finding that the statutory conditions for adjournment had not been met and that he had lost his right to possession of the house when he had received the decision of 20 May 2011. In addition, the court referred to a statement he had given to the court bailiff on 19 November 2012 promising to move out of the house before 1 February 2013 without lodging any further appeal. 14. On 1 March 2013 the judge in charge of the enforcement proceedings held a meeting with the parties’ lawyers, the court bailiff and the police. The applicant’s representatives were informed that there would be no further announcements regarding the eviction date, but that it would not take place before 11 March 2013. They were also informed that there would be no further adjournments, and the police were instructed to better prepare themselves. 15. On 6 March 2013 the applicant applied to the Zagreb Civil Court for the judge in charge of the enforcement proceedings to be withdrawn from the case, arguing that he was preparing a “secret eviction”. 16. On 2 April 2013 the President of the Civil Court refused that request. 17. On 9 April 2013 the Zagreb Civil Court scheduled the applicant’s eviction for 16 April 2013, ordering the court bailiff to execute it. The applicant lodged a constitutional complaint against that decision. 18. On 16 April 2013 the applicant and his family were evicted. 19. On 20 June 2013 the Constitutional Court declared the applicant’s constitutional complaint inadmissible as it did not have jurisdiction. 20. On an unspecified date the applicant brought a claim against M. before the Zagreb Civil Court to determine ownership of a garage and some land adjacent to the house. He argued that in the enforcement proceedings M. had bought only the house, not the garage and land. 21. On 29 November 2013 the Zagreb Civil Court dismissed the applicant’s claim, arguing that M. had bought the property in its entirety in good faith at the court’s public auction. 22. On 9 December 2013 the applicant lodged an appeal against that judgment, which is still pending. 23. The relevant provisions of the Obligations Act (Zakon o obveznim odnosima, Official Gazette nos. 35/2005, 41/2008, 125/2011) read as follows: “(1) A contract that is contrary to the Constitution, mandatory rules or morals shall be declared null and void (ništetan) unless the purpose of the breached rule indicates some other sanction or the law in a particular case provides otherwise. (2) If the conclusion of a contract is prohibited only to one party, the contract shall remain valid, unless the law in a particular case provides otherwise, and the party that has breached the statutory prohibition shall bear the relevant consequences.” “A contract is voidable (pobojan) if a party to it had no legal capacity or entered into the contract under duress (mane volje) at the time when it was concluded or where the contract is voidable under this Act or another statute.”