PETOLAS v. CROATIA
Inadmissible
Jon Fridrik Kjølbro;Julia Laffranque;Nebojša Vučinić;Paul Lemmens;Stéphanie Mourou-Vikström;Ksenija Turković
1. The applicant, Mr Zvonimir Petolas, is a Croatian national who was born in 1941 and lives in Zagreb. He was represented before the Court by Ms S. Budimir, an advocate practising in Zagreb. 2. The Croatian Government (“the Government”) were represented by their Agent, Mrs Š. Stažnik. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. On 22 December 1972 the applicant and his wife moved into a socially-owned flat in Zagreb with a floor area of approximately 34 square metres. 5. On 26 June 1975 the company S., as the flat provider, invited the applicant to come to its offices with a view to signing a contract for use of the flat (ugovor o korištenju stana) and to bring along the decision whereby he had been assigned the flat in question. 6. On 24 March 1980 the applicant was summoned to the offices of the Department of Housing Affairs of the Novi Zagreb Municipality (Općina Novi Zagreb) for the same reason. 7. Since the applicant had failed to react to either of those requests, on 7 June 1984 the Novi Zagreb Municipality (which was later succeeded by the City of Zagreb [Grad Zagreb], hereafter “the local authorities”), represented by the State Attorney’s Office, brought a civil action in the Zagreb Municipal Court (Općinski sud u Zagrebu), seeking eviction of the applicant and his wife on the grounds that they had been occupying the flat without being entitled to do so. 8. The applicant submitted that he had received the keys to the flat from company S., on whose waiting list for housing he had figured for ten years. He had moved into the flat at the same time as the other tenants had moved into their flats located in the same building. He claimed to have signed several copies of the contract with company S. for use of the flat, on which occasion he had been told that one of the copies would be sent to him by post. However, he had never received it. Over a period of two years he had several times enquired of the company if he might obtain a copy of the contract, but had been told that it had been misplaced. The company had later been dissolved without him ever receiving his copy. Since he had already signed the relevant contract, as explained above, he did not wish to sign another and had thus ignored both the above-mentioned requests. 9. In answer to the question why he had not paid any rent until he was eventually sued, the applicant replied that he had done so retrospectively. 10. By a judgment of 8 November 1984 the Zagreb Municipal Court ordered the applicant and his wife to vacate the flat. The court held that they had no right to occupy the flat in question. More specifically, the court held that (a) under the relevant legislation a written contract for use of a flat needed to be signed in order to acquire a specially protected tenancy (see section 14 of the 1962 Housing Act in paragraph 40 below), (b) it was against the law to move in to and occupy a flat without having signed such a contract beforehand (see section 6 of the 1962 Housing Act in paragraph 40 below), and (c) the applicant had not proved that he had ever signed such a contract. 11. By a judgment of 12 March 1985 the Zagreb District Court (Okružni sud u Zagrebu) dismissed an appeal lodged by the applicant and upheld the first-instance judgment, endorsing the reasons given therein. It added that the applicant had never submitted the decision assigning him the flat in question, which was a precondition for concluding the contract for use of the flat (see section 43(2) of the 1962 Housing Act in paragraph 40 below). 12. By a judgment of 13 November 1985 the Supreme Court (Vrhovni sud Hrvatske) allowed an appeal from the applicant on points of law (revizija), quashed the judgments of the lower courts and remitted the case to the first-instance court. That court held that the lower courts had failed to examine whether the applicant and his wife had acquired a specially protected tenancy by virtue of their long-term use of the flat, that is to say, by complying for many years with their obligations as tenants, which would have implied that there was a contract for use of the flat even though it had not been concluded in writing (see paragraphs 43 and 46 below). The relevant part of that judgment reads as follows: “[The factual] findings of the [lower] courts are deficient to ... [the] extent that they ... do not [provide] sufficient [grounds] for concluding that the defendants have been using the flat without being entitled to do so. It is true that the existence of a written contract for use of the flat was not established. However, circumstances may suggest that such a contract existed even though not in written form. In such cases, which entail compliance [by the occupier] with contractual obligations for many years, [in particular where the occupier] behaves like [a tenant] and pays the rent ... it is possible to acknowledge status as the holder of a specially protected tenancy in respect of a person who has occupied a flat on the basis of a contract of use for the [said] flat for many years (in this case more than 10 years) despite the non-existence of such a contract concluded in writing.” 13. In the resumed proceedings, at a hearing held on 2 December 1992 the local authorities withdrew their civil action in so far as it was directed against the applicant’s wife, who had ceased to live in the flat after the couple divorced. 14. By its judgment of 2 December 1992 the Zagreb Municipal Court dismissed the action by the local authorities. On 5 October 1993 the Zagreb District Court quashed that judgment for incompleteness of facts and remitted the case to the lower court. 15. On 5 November 1996 the Lease of Flats Act entered into force. It abolished the legal concept of the specially protected tenancy and provided that the holders of such tenancies who did not avail themselves of the right to purchase the flats under separate legislation were to become “protected lessees” (zaštićeni najmoprimci). Under the Act such lessees enjoy a number of protective measures, such as the duty of landlords to enter into a lease of indefinite duration, payment of a protected rent (zaštićena najamnina) ‒ the amount of which is set by the Government and significantly lower than the market rent ‒ and better protection against termination of the lease. 16. In its judgment of 10 October 2000 the Zagreb Municipal Court ruled in favour of the local authorities and ordered the applicant to vacate the flat. Following an appeal by the applicant, on 18 May 2004 the Zagreb County Court (Županijski sud u Zagrebu) quashed the first-instance judgment and remitted the case. 17. In the resumed proceedings, at a hearing held on 15 January 2008 the applicant submitted a copy of the contract for use of the flat he had allegedly signed on 22 February 1973, claiming that he had found it in the meantime. He asked the court to allow him to submit the original at a later date. 18. At the same hearing the applicant, relying on the Lease of Flats Act (see paragraph 15 above), also brought a counterclaim against the local authorities (the details of which he provided later) whereby he sought a judgment (a) acknowledging that he had acquired the status of a protected lessee, and (b) forcing a lease contract stipulating the protected rent. 19. At a hearing held on 7 April 2008 the court invited the applicant to bring to the next hearing, scheduled for 5 September 2008, the original of the contract of 22 February 1973. 20. The applicant did not attend in person the hearing held on 5 September 2008 nor did he submit the original of the contract, as requested by the court. 21. At a hearing held on 21 November 2008 the applicant’s representative stated that the applicant was unable to find the original of the contract. He explained that a friend of his from Dubrovnik had only recently found the copy of the contract and sent it to him. However, he had not found the original. The applicant’s representative therefore asked the court to adjourn the hearing and allow him additional time to find it. After hearing the applicant, the court refused that request and closed the main hearing. During his testimony the applicant explained that after 1971 he had been persecuted as a Croatian nationalist and that criminal proceedings had been instituted against him. In those proceedings he had been represented by an advocate from Dubrovnik who had in the meantime died. Because he had not felt safe in Zagreb, he had transferred all his important personal documents, including the contract in question, to that advocate for safekeeping. That was the reason why he could not find the copy of the contract earlier, and why he had been unable to find the original thus far. 22. By a judgment of 5 December 2008 the Zagreb Municipal Court (a) ordered the applicant to vacate the flat, (b) dismissed his counterclaim, and (c) ordered him to pay 12,215 Croatian kunas (HRK) for the costs of the proceedings. That court held that the applicant had not proved he had ever concluded a written contract for use of the flat. In particular, the court held as follows: “It follows ... that the plaintiff proved facts on the basis of which its ownership of the flat at issue may be presumed in terms of section 166 of the [1996] Property Act. It has also proved that its right to possess the flat is stronger (in terms of section 41 of the [1980] Basic Property Act, which was in force at the time of the institution of these proceedings) than that of the defendant, in respect of whom this court ... finds that his use of the flat at issue has been without such entitlement. ... ... The defendant did not succeed in proving during the proceedings ... that he had moved into the flat at issue [on 22 December 1972] on the basis of any valid legal right to do so ... Furthermore, in this court’s view, the defendant did not succeed in proving his arguments [to the effect that he had] subsequently [on 22 February 1973] signed a written contract for use of the flat [and thereby obtained] valid legal status as the holder of a specially protected tenancy in terms of section 14 read in conjunction with section 43(2) of the [1966] Housing Act, which was in force at the [relevant] time. In particular, the copy of the alleged ‘Contract for use of a flat of 22 February 1973’, which ... the applicant did not submit until the hearing held on 15 January 2008, cannot in the view of this court be regarded as valid evidence [that there was] a written contract for use of the flat at issue, given that the plaintiff disputed the authenticity of the said document, and the fact that the defendant had still not, by the time the main hearing was closed, submitted the original of the document in question despite being invited by the court to do so. It is to be noted that at the hearing held on 21 November 2008 this court refused the defendant’s request to allow him additional time to submit the original of the impugned contract. [The court did so because] it found that the proposal was aimed at protracting the proceedings in this case and found unconvincing the defendant’s explanation that he had managed to find the impugned contract at the beginning of 2008 (that is to say, more than 24 years after the institution of these proceedings) and that the original is with an unnamed friend of his in Dubrovnik, who is unable to find it at this time. The court did not give credence to the defendant’s testimony stating that he had ... signed the ... contract for use of the flat of 22 February 1973 on the premises of company S., but that he had lost it after transferring all his personal documentation to an unnamed advocate in Dubrovnik, having been persecuted as a Croatian nationalist from 1971 onwards. [The court] finds such testimony unconvincing and illogical, and contradictory of other evidence taken during these proceedings.” 23. On the question of whether the applicant had acquired a specially protected tenancy on the basis of his long-term use of the flat, the court held as follows: “Even though under the former Housing Act a specially protected tenancy could exceptionally have been recognised in cases where there was no written contract for use of a flat, that was possible only in cases where the long-term occupation, combined with compliance with all the obligations incumbent on the holder of a specially protected tenancy, was the result of an agreement between the provider of the flat and the person occupying [it] – the potential holder of the specially protected tenancy. However, even leaving aside the fact that the [evidence] suggested that the defendant had moved into the flat illegally, ... from the defendant’s own testimony it follows ... that in the relevant period, [that is to say] between the time he moved in and the date when these [civil] proceedings were instituted, [he] had not paid the rent or other charges in respect of the flat. [It] was only in 1984 that he [retrospectively] paid ... the plaintiff [a certain amount] for the rent and charges [accrued] in the period between 1 January 1973 and 31 May 1984. It cannot therefore be concluded that the defendant in the relevant period had complied with the obligations incumbent on a holder of a specially protected tenancy in respect of the flat at issue. In addition, in the view of this court the fact that the defendant was paying the rent and charges after the institution of these proceedings is not decisive for their outcome because [it became evident] at the latest when these proceedings were instituted that the defendant had been using the flat without the consent of the plaintiff, it being understood that the use of a flat without entitlement does not imply using the flat for free.” 24. On 16 February 2009 the applicant appealed against that judgment, arguing that the evidence suggested that a written contract for use of the flat had indeed existed but had been misplaced. 25. By a judgment of 26 January 2010 the Zagreb County Court dismissed the applicant’s appeal and upheld the first-instance judgment, which thereby became final. The County Court endorsed the reasons given by the Municipal Court. It added: “Since in his appeal the defendant contests only the finding of the [first-instance] court that he did not acquire a specially protected tenancy by having signed a [written] contract for use of the flat, but [he does] not [contest] the finding ... that he did not acquire a specially protected tenancy [by long-term use of the flat] with the knowledge and the consent of the plaintiff as the provider of the flat, the first-instance court correctly ... [ruled in favour] of the plaintiff ... given that the defendant does not have any right entitling him to possess [i.e. occupy] the flat.” 26. The applicant then lodged an appeal on points of law (revizija) with the Supreme Court. 27. On 9 March 2011 the Supreme Court dismissed the applicant’s appeal on points of law in so far as the contested second-instance judgment entailed a decision dismissing his counterclaim. To the extent that the impugned second-instance judgment entailed a decision allowing the plaintiff’s action and ordering the applicant to vacate the flat, the Supreme Court declared inadmissible the applicant’s appeal on points of law because the value of the subject matter of the dispute did not reach the statutory threshold for lodging such an appeal. 28. On 18 May 2011 the applicant then lodged a constitutional complaint alleging violations of his constitutional rights of equality before the law, equality before the courts and fair procedure. 29. By a decision of 1 March 2012 the Constitutional Court (Ustavni sud Republike Hrvatske) declared inadmissible the applicant’s constitutional complaint, finding that the case did not raise any constitutional law issue. It served its decision on the applicant’s representative on 19 April 2012. 30. Meanwhile, on 28 February 2012 the local authorities had applied to the Zagreb Municipal Court for enforcement of its judgment of 26 January 2010 (see paragraph 22 above). 31. On 20 February 2013 the court issued a writ of execution (rješenje o ovrsi) ordering the eviction of the applicant from the flat at issue. 32. On 11 June 2013 the Zagreb County Court dismissed the applicant’s appeal against writ. 33. By a decision of 19 September 2013 the Municipal Court, at the request of the applicant, to which the local authorities agreed, decided to postpone the enforcement (odgoda ovrhe) until 13 March 2014. 34. Following a motion by the local authorities, by a decision of 19 November 2013 the Municipal Court decided to stay the enforcement proceedings (prekid postupka) pending a final decision in the concurrent administrative proceedings (see paragraphs 36-39 below). The enforcement court regarded the issue to be decided in those proceedings as a preliminary question (prethodno pitanje) in the enforcement proceedings and thus grounds for stay. 35. It would appear that the enforcement proceedings have been stayed ever since. 36. Meanwhile, by a letter of 4 February 2013, the relevant department of the local authorities informed the applicant that he could regularise his status regarding the flat in question by lodging a request that it be allocated to him under a local regulation setting out the criteria and the procedure for renting out flats owned by the City of Zagreb. The letter also specified that together with his request the applicant had to submit the relevant supporting documents, namely, the proof that he had regularly paid the charges in respect of the flat and the proof that he had paid the costs of the above civil and (see paragraph 22 above) enforcement proceedings. 37. On 28 March 2013 the applicant lodged such request but without enclosing the relevant supporting documents. 38. On 22 August 2013 and 13 November 2014 the local authorities’ commission for allocation of flats informed the applicant that his request was incomplete and invited him to enclose the relevant supporting documents (see paragraph 36 above). 39. Since the applicant did not do so, on 11 December 2015 the commission adopted a decision whereby it declared the applicant’s request inadmissible as incomplete. 40. The relevant provision of the Housing Act of 1962 (Zakon o stambenim odnosima, Official Gazette of the Socialist Federal Republic of Yugoslavia no. 17/62 with subsequent amendments), which was in force between 1962 and 25 December 1974, reads as follows: “It is against the law to move into or occupy a flat without having signed a contract for use of the [said] flat beforehand, save in the cases provided for in this Act.” “A specially protected tenancy shall be acquired on the day [an individual] lawfully moves into a flat on the basis of a contract for use of the [said] flat, unless this Act provides otherwise.” “(1) A contract for use of a flat in social ownership shall be concluded between a holder of a specially protected tenancy and the [respective] organisation for maintenance of residential buildings in social ownership. (2) The contract referred to in paragraph 1 of this section shall be concluded on the basis of a decision by the provider of the flat, if the issuance of such a decision is envisaged by the agreement between the provider of the flat and the organisation for maintenance of residential buildings in social ownership. (3) ...” “(1) A contract for use of a flat shall be made in writing. (2) A contract for use of a flat which was not made in writing shall have no legal effect. (3) ...” 41. The relevant provision of the Housing Act of 1974 (Zakon o stambenim odnosima, Official Gazette of the Socialist Republic of Croatia no. 52/74), which was in force between 26 December 1974 and 24 December 1985, reads as follows: “A specially protected tenancy shall be acquired by concluding a contract for use of a flat, unless this Act provides otherwise.” “It is against the law to move into a flat and use it without a contract for use of the [said] flat, unless this Act provides otherwise.” “(1) A contract for use of a flat shall be made in writing. (2) A contract which was not made in writing shall be null and void.” 42. The relevant provisions of the Housing Act of 1985 (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 22/92 and 70/93), which was in force between 25 December 1985 and 4 November 1996, and read as follows: “A specially protected tenancy shall be acquired on the day [an individual] lawfully moves into a flat relying on a final decision assigning the flat for use, or another valid legal basis, unless this Act provides otherwise.” 43. The relevant provision of the Obligations Act of 1978 (Zakon o obveznim odnosima, Official Gazette of the Socialist Federal Republic of Yugoslavia nos. 29/78, 39/85 and 57/89, and Official Gazette of the Republic of Croatia nos. 53/91, 73/91, 111/93, 3/94, 7/96, 91/96, 112/99 and 88/01 – “the 1978 Obligations Act”), which was in force between and 1 October 1978 and 31 December 2005, read as follows: “Where the law requires that a contract be made in written form, it shall be considered valid even if it was not made in that form if the contracting parties have complied, entirely or in major part, with the obligations that arise from it, provided that the purpose for which the form is prescribed clearly does not suggest otherwise.” 44. The relevant provisions of the Basic Ownership Relations Act (Zakon o osnovnim vlasničkopravnim odnosima, Official Gazette of the Socialist Federal Republic of Yugoslavia nos. 6/1980 and 36/1990, and Official Gazette of the Republic of Croatia no. 53/1991, “the 1980 Basic Property Act”), which was in force between 1 September 1980 and 31 December 1996, read as follows: “An owner may by bringing a civil action to seek repossession of [his or her] property from a person in whose possession it is.” “A person who has acquired ... a property on the basis of [valid] legal title ... (the presumed owner) shall have the right to seek its repossession even from a possessor in good faith who possesses it without a title or on the basis of weaker title.” 45. The relevant provisions of the Ownership and Other Rights In Rem Act (Zakon o vlasništvu i drugim stvarnim pravima, Official Gazette no. 91/96 with subsequent amendments – “the 1996 Property Act”), which has been in force since 1 January 1997, read as follows: “An owner has the right to seek repossession of his or her property from a person in whose possession it is.” “(1) Anyone who in proceedings before a court or other relevant authority proves his legal title ... shall be considered to be the owner of that property (the presumed owner) against a person who possesses it without title or on the basis of weaker title. (2) A possessor who has no title or has a weaker title must surrender the property to its presumed owner at his or her request ...” 46. In its decisions no. Rev 1799/1997-2 of 9 February 2000, no. Rev 1483/01-2 of 18 December 2001 and no. Rev-x 513/11-2 of 13 July 2011, the Supreme Court held as follows: “... a person who uses housing premises for a number of years with the knowledge and approval of the flat provider [and who] meets all the obligations of a holder of a specially protected tenancy and generally acts as a person who has concluded a contract for use of that flat or who possesses some other written entitlement, shall be considered to be the holder of a specially protected tenancy irrespective of the fact that he or she does not have a written contract for use of the flat [he or she occupies] or some other deed conferring a specially protected tenancy ...”