TRIFUNOVIC v. CROATIA
Inadmissible
Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens
The applicant, Mrs Milka Trifunović, is a national of Bosnia and Herzegovina who was born in 1941 and currently lives in Munich. She was represented before the Court by Mr Č. Prodanović, a lawyer 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’s husband, V.T., was an officer serving in the Yugoslav Peoples’ Army (“the YPA”). In 1984 the YPA awarded him, and he became the holder of, a specially protected tenancy (stanarsko pravo) of a flat in Zagreb. Pursuant to the relevant legislation, the applicant as his wife automatically became a co-holder of the specially protected tenancy of the flat in issue. After a trial in absentia, on 16 March 1993 the Varaždin County Court (Okružni sud u Varaždinu) found V.T. guilty of a war crime against the civilian population and sentenced him to fifteen years’ imprisonment. The judgment was upheld on appeal by the Supreme Court on 12 January 1994. The courts found that in the period between 15 and 22 September 1991, during the siege of the YPA’s military barracks in the town of Varaždin, V.T. as a commander of the 32nd (Varaždin) corps of the YPA had ordered indiscriminate attacks on civilian targets in the town. On 7 July 1994 the State brought a civil action against V.T. and the applicant in the Zagreb Municipal Court (Općinski sud u Zagrebu) seeking termination of their specially protected tenancy and the applicant’s eviction. The plaintiff relied on section 102a of the Housing Act. On 9 June 2000 the Municipal Court ruled for the plaintiff. It terminated the tenancy of V.T. and his wife and ordered the applicant (the wife) to vacate the flat within fifteen days. In the reasons given for its decision the court referred to the State’s obligation stipulated in paragraph 2 of section 102a of the Housing Act (see below). V.T. and his wife appealed. On 28 May 2002 the Zagreb County Court (Županijski sud u Zagrebu) dismissed the appeal and upheld the first-instance judgment. On 2 August 2002 the applicant lodged a constitutional complaint against the second-instance judgment alleging violations of her constitutional right to equality before the law, the right to be presumed innocent and the right to respect and protection of personal and family life, dignity, reputation and honour. On 25 January 2006 the Constitutional Court dismissed the applicant’s complaint. It held that the lower courts’ judgments were not a result of the arbitrary interpretation or application of relevant substantive law and that therefore her constitutional right to equality before the courts had not been breached. Moreover, since the outcome of the proceedings the applicant had complained about did not involve the determination of her criminal liability, her right to be presumed innocent could not have possibly been breached in such proceedings. On 19 June 1991 the Specially Protected Tenancies (Sale to Occupier) Act entered into force. It entitled holders of specially protected tenancies of flats in social ownership (društveno vlasništvo) to purchase their flats under favourable conditions. On 17 August 1995 the Amendments to the Act entered into force extending the right of purchase to holders of specially protected tenancies of flats in state ownership (državno vlasništvo). The applicant never filed a request with the competent authorities with a view to purchasing her flat because she considered that she could not have done so while the proceedings for termination of her specially protected tenancy were pending. The Housing Act (Zakon o stambenim odnosima, Official Gazette nos. 51/1985, 42/1986, 22/1992 and 70/1993), as in force at the material time, provided as follows: Section 64 “2. If a specially protected tenancy was acquired by one spouse who lives with the other, the other shall also be considered as having acquired it.. 3. If one of the spouses dies or permanently ceases to use the flat, the other spouse shall retain the tenancy, unless otherwise provided for by this Act.” Section 102a “1. A specially protected tenancy of those who participated or participate in enemy activities against the Republic of Croatia shall be terminated. 2. Following the court decision on the termination, the owner of the flat shall provide either the same flat or other appropriate lodging for use by the [other] members of the household.” Section 105 “1. The provider of the flat shall terminate a specially protected tenancy by bringing an action in the competent court. 2.... 3. The judgment ordering eviction shall not be enforced if the person to be evicted is not provided with another flat or basic accommodation [nužni smještaj], when that is required by this Act. 4. Another flat shall be secured by the provider of the flat at the latest by the end of the main hearing in the proceedings for the termination of the specially protected tenancy, unless otherwise provided for by this Act.” 5. Basic accommodation shall be secured in enforcement proceedings.” Section 108 “The duty of the tenant to vacate the flat extends to other users of that flat, unless otherwise provided for by this Act.” According to the Supreme Court’s jurisprudence, the specially protected tenancy was terminated as soon as the court’s judgment, upholding the claim of the provider of the flat to that end, became res judicata (see, inter alia, the Supreme Court’s decision no. Rev-1009/1993-2 of 15 June 1994). In its decisions nos. Gzz-11/1996-2 of 27 November 1996, Rev-211/1996-2 of 28 January 1997, Rev-935/1995-2 of 23 September 1997, Gzz-7/1996-2 and Gzz-35/1996-2 of 7 September 1999 the Supreme Court held that where a spouse acquired a specially protected tenancy on the basis of section 64 of the Housing Act, his or her right was to be considered derived from that of the other spouse to whom the flat had originally been awarded (that is, the original holder of the tenancy). Consequently, when the specially protected tenancy of the original holder was terminated, the tenancy of the other spouse derived from it was to be considered terminated as well. In its opinion no. Su-IV-482/2002 of 17 May 2002 and decisions nos. Rev-431/1998-2 and Gzz-46/01- 2 of 10 January 2002, Gzz-33/00-2 of 19 November 2002, Gzz-36/1999-2 of 26 March 2003, Gzz-81/2003-2 of 7 May 2003 and Gzz-35/2000 of 6 October 2004 the Supreme Court held that in a judgment terminating the specially protected tenancy of the original holder, and consequently that of the spouse, on the basis of section 102a (1) of the Housing Act, a court was entitled to order the eviction of the original holder but not of the spouse whose tenancy was derived from it. This was so because the spouse was entitled to remain in the flat in the capacity of a household member, pursuant to section 102a (2) of the Housing Act, until the provider of the flat either gave him or her the same flat for use or provided him or her with other appropriate lodging. Only in circumstances where the requisite alternative accommodation was secured for the spouse and other household members, but they nevertheless continued to occupy the flat, was the provider of the flat entitled to bring a separate civil action for their eviction. However, in the above mentioned decision no. Gzz-36/1999-2 of 26 March 2003 the Supreme Court upheld a judgment in which, apart from terminating the specially protected tenancy of both spouses under section 102a (1) of the Housing Act, the lower court also ordered their eviction but made that order in respect of the wife – a household member – conditional upon providing her with alternative accommodation. The Supreme Court upheld the judgment because, as it was formulated, it was not detrimental for the wife as the household member. In its decisions nos. U-I-116/1992 of 24 June 1992, U-III-326/1995 of 24 February 1999, U-III-435/2000 of 17 May 2000 and U-III-457/2000 of 13 December 2000 the Constitutional Court held that section 102a of the Housing Act did not introduce the principle of collective guilt because its paragraph 2 obliged the State to provide for the household members by meeting their housing needs. Nor did it violate the constitutional right to be presumed innocent because, properly interpreted, that provision could only be applied to those holders of specially protected tenancies who had been convicted by a final judgment delivered in criminal proceedings. The Specially Protected Tenancies (Sale to Occupier) Act (Zakon o prodaji stanova na kojima postoji stanarsko pravo, Official Gazette no. 27/1991 with subsequent amendments – “the Sale to Occupier Act”), which entered into force on 19 June 1991, entitled the holder of a specially protected tenancy (“the tenant”) of a socially-owned flat to purchase it from the provider of the flat under favourable conditions. The members of the tenant’s household were also entitled to do so upon his or her approval (section 6 paragraph 1). Where both spouses were holders of the specially protected tenancy of a flat, they could buy it either jointly or individually with the consent of the other (section 6 paragraph 2). Section 4 (2) provided that a written request for purchase (the first request) had to be made within one year of the date of the Act’s entry into force (this time-limit was by subsequent amendments to the Act extended until 31 December 1995), and a further request for the actual conclusion of the purchase contract (the second request) within the two years following the first request. In its decision no. Rev-944/99-2 of 13 August 2002 the Supreme Court interpreted section 4 (2) of the Specially Protected Tenancies (Sale to Occupier) Act as follows: “Since the plaintiff did not make a request for purchase of the flat to the respondents in written form until 31 December 1995, as provided by law, [...], the lower-instance courts correctly assessed that the plaintiff had lost his right to request the conclusion of the purchase contract.” The Amendments to the Sale to Occupier Act (Zakon o izmjenama i dopunama Zakona o prodaji stanova na kojima postoji stanarsko pravo, Official Gazette no. 58/1995 – “the 1995 Amendments”), which entered into force on 17 August 1995, extended the right of purchase to the holders of specially protected tenancies of state-owned flats. Section 16 read as follows: (1) Holders of specially protected tenancies [...] shall have the right to purchase their flats in state ownership. (2) The provisions of section 6 of [the Sale to Occupier Act] shall not apply to the purchase of flats in state ownership. (3) The following persons shall not be entitled to purchase, or transfer the right to purchase, a flat in state ownership: - those sentenced by a final judgment for crimes against humanity and international law, - those sentenced by a final judgment for crimes against the Republic of Croatia, - those against whom criminal proceedings for crimes against humanity and international law or crimes against the Republic of Croatia have been instituted, until the judgment becomes final, - those who participated or participate in enemy activities against the Republic of Croatia, - those who have evaded conscription, - those against whom proceedings for termination of a specially protected tenancy or termination of a lease agreement in respect of a flat have been instituted, until the end of those proceedings, - those owning a dwelling house or flat in the same place [village, town or city], - those who have left the Republic of Croatia or have moved to the occupied territories and have not used the flat for more than six months. Section 20 (1 and 2) of the 1995 Amendments provided that a written request to purchase a state-owned flat (the first request) had to be made within sixty days of the date of the 1995 Amendments’ entry into force (paragraph 1), after the expiry of which the tenant lost his or her right to purchase the flat (paragraph 2). Section 20 (3) provided that the seller had to conclude the purchase contract with the buyer within one year after the expiry of the time-limit referred to in paragraph 1 (this time-limit was by subsequent amendments extended until 31 December 1998). Section 20 (4) provided that if the seller, at the request of the buyer, failed to conclude the contract within the time-limit referred in paragraph 3, the buyer had a right to bring a civil action in the competent court with a view to obtaining a judgment entirely substituting the contract. Following 37 petitions to review the constitutionality of the 1995 Amendments, on 26 June 1996 the Constitutional Court accepted the initiative and instituted proceedings to that end. On 29 January 1997 it delivered decision no. U-I-697/1995 abrogating a number of provisions of the 1995 Amendments as being unconstitutional. In particular, the Constitutional Court abrogated paragraphs 1 and 2 of sections 16 and 20. It further abrogated paragraph 3 of section 16 in the part relating to the transfer of the right to purchase but held that this abrogation did not relate to sub-paragraphs 6 and 7. Sub-paragraphs 4, 5 and 8 of paragraph 3 of the same section were also abrogated. It observed that paragraph 2 of section 16, as it read, in fact entitled only the holder of the specially protected tenancy of a state-owned flat to purchase it, thereby effectively excluding the spouse and other members of the household from doing so, an option otherwise available to them under section 6 of the Sale to Occupier Act in respect of socially-owned flats. The Constitutional Court held that the exclusion of that option in respect of state-owned flats was unwarranted and thus amounted to constitutionally impermissible discrimination. In particular, the Constitutional Court held that this discrimination adversely affected, inter alia, a spouse who had acquired a specially protected tenancy by operation of section 64 of the Housing Act but whose tenancy was subsequently terminated as a consequence of the termination of the tenancy of the original holder pursuant to section 102a (1) of that Act. Paragraphs 1 and 2 of section 20 were also abrogated because of an unwarranted distinction as regards the time-limits for making a request to purchase the flat between the holders of specially protected tenancies of state-owned flats and those of socially-owned flats. The Constitutional Court noted that the holders of specially protected tenancies of state-owned flats had been obliged to make their request within only sixty days following the entry into force of the 1995 Amendments whereas the holders of tenancies of socially-owned flats had had to do so within one year following the entry into force of the Sale to Occupier Act, which time-limit had been extended several times (eventually until 31 December 1995). In its decision no. Rev-1256/02-2 of 14 July 2004 the Supreme Court interpreted the relationship between the Sale to Occupier Act (in particular its section 4) and the 1995 Amendments as follows: “The plaintiff made a request for purchase of the flat to the respondent on 18 October 1996, that is, after the expiry of the prescribed time-limit (31 December 1995), so the courts [ruled] correctly [when they] dismissed her claim. The time-limit in question is preclusive, meaning that after its expiry a holder of a specially protected tenancy loses his or her right to make a request to purchase the flat ... The fact that the proceedings for termination of the specially protected tenancy – that ended by the first-instance judgment [...] of 16 April 1996, which became final on 11 July 1996 – were pending between the parties at the time when the time-limit expired (31 December 1995) is not relevant. [...][Those proceedings] did not prevent the plaintiff from making a request to purchase the flat. ... The provisions of section 16 of the 1995 Amendments on which the plaintiff relies, and which concern the so-called state-owned flats, did not extend the time-limit for making the request to purchase the flat. Under [section 16 of the 1995 Amendments] the persons, against whom the proceedings for termination of the specially protected tenancy ... have been instituted, could not, until the end of those proceedings, buy a state-owned flat. That means, in particular, that the plaintiff could not have concluded a contract of sale in respect of the flat until 11 July 1996, when the proceedings for the termination of the specially protected tenancy ended ... On that day that impediment ceased to exist ... [H]owever making a written request to purchase the flat before the expiry of the prescribed time-limit is a precondition for the conclusion of the contract [of sale]. Since the plaintiff had not made such a request before the time-limit had expired (31 December 1995) she had lost the right to make the request and the respondent was not obliged to sell her the flat on the basis of the request made after the expiry of the time-limit (18 October 1996). The proceedings for termination of the specially protected tenancy were an impediment to buying the flat (for the conclusion of a contract), but not to making a request to purchase the flat. The existence of the [pending] proceedings does not extend the time-limit for making a request to purchase the flat. The Constitutional Court’s decision U-I-697/1995 of 29 January 1997 abrogating, inter alia, section 20 paragraphs 1 and 2 of the 1995 Amendments is of no relevance to the outcome of these proceedings. Those abrogated provisions provided that the request ... to purchase the state-owned flat had to be made within sixty days following the entry into force of the 1995 Amendments and that after the expiry of that time-limit the applicant lost the right to buy the flat. [Those provisions] placed the holders of specially protected tenancies of state-owned flats in an unequal position compared to the holders of such tenancies of flats not owned by the State, because for them the considerably shorter preclusive time-limit for making their request to purchase the flat was prescribed (the prescribed time-limit of sixty days expired on 16 October 1995). By the Constitutional Court’s decision the buyers of state-owned flats were put in the same position as other buyers, but they were not given a privileged status so that the prescribed time-limit for making a request to purchase the flat (31 December 1995), valid for all other buyers, would not apply to them.” The Lease of Flats Act (Zakon o najmu stanova, Official Gazette no. 91/1996 of 28 October 1996), which entered into force on 5 November 1996, abolished the specially protected tenancy as such (section 30 paragraph 1) but provided that proceedings instituted under the Housing Act should be concluded under the provisions of that Act (section 8 paragraph 1). The Lease of Flats Act regulates the legal relationship between landlord and tenant with respect to the lease of flats. It recognises a special category of tenants, namely those who were previously holders of specially protected tenancies of privately-owned flats or those who did not purchase their flats under the Sale to Occupier Act. That category is subject to a number of protections, for instance, an obligation on the owners that a contractual lease should last for an unlimited period of time; payment of a protected rent (zaštićena najamnina), the amount of which is to be prescribed by the Government, as well as limited reasons for the termination of the lease. Section 37 provides that if none of the persons living in the flat held the specially protected tenancy at the moment of the Act’s entry into force (for example, the household members) they could institute proceedings before the competent court to obtain the status of lessees under a lease agreement with protected rent. On 3 October 1991 the Government 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.