BUDIMIR v. CROATIA
Inadmissible
Jon Fridrik Kjølbro;Julia Laffranque;Nebojša Vučinić;Stéphanie Mourou-Vikström;Ksenija Turković
1. The applicant, Mr Draško Budimir, is a Croatian national, who was born in 1941 and lives in Split. He was represented by Ms V. Garafulić Kukoč and Mr I. Restović, lawyers practising in Split. 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. Under the socialist system previously in force in former Yugoslavia, tenants who resided in socially owned flats benefited from “specially protected tenancy” agreements, which were in most cases concluded for an indefinite period and could be passed from generation to generation. 5. When Croatia became independent in 1991 and opted for a market economy, it adopted several main reforms in the housing sector which are relevant to the present case. 6. Firstly, on 3 June 1991, Parliament enacted the Specially Protected Tenancies (Sale to Occupier) Act (Zakon o prodaji stanova na kojima postoji stanarsko pravo) with regulations for the sale of socially owned flats previously let under a specially protected tenancy. In general, the Act entitled the holder of a specially protected tenancy in respect of a socially owned flat to purchase it under favourable conditions of sale. However, the Act excluded the holders of specially protected tenancies in most privately owned flats from such favourable treatment. 7. On 1 January 1997 the Act on Compensation for and Restitution of Property Taken under the Yugoslav communist regime (Zakon o naknadi za imovinu oduzetu za vrijeme jugoslavenske komunističke vladavine –hereinafter “the Denationalisation Act”) entered into force. It enabled the former owners of confiscated or nationalised property, or their heirs in the first line of succession (direct descendants or spouse), to obtain, subject to certain conditions, either the restitution of property appropriated during the communist era, including dwellings which had been let under the “specially protected tenancy” scheme, or compensation for it. Thus, a number of such dwellings became private property. 8. Under section 32 of the Denationalisation Act, confiscated flats were to be awarded to their former owners. Under section 13 of the Appropriated Property Compensation Fund Act (Zakon o Fondu za naknadu oduzete imovine), a tenant only had the right to purchase a confiscated flat if no claim for its restitution had been submitted or if such a claim had been dismissed in a final decision. 9. By a judgment of Split County Court of 24 June 1948, a flat in Split, measuring 84.49 square metres at Ante Jonjića Street 1, was confiscated from a private owner. It became the property of Split Municipality. 10. The applicant was an employee of a socially owned company, Brodospas, based in Split, and paid compulsory monthly contributions to its housing fund. On 28 October 1980 the Housing Commission of Brodospas approved a priority list for granting protected tenancies and the applicant was first on the list. 11. On 19 February 1983 the applicant and his family moved into the above-mentioned flat (see paragraph 9 above) and they lived there until 28 May 2012 (see paragraph 19 below). 12. On 21 August 1984 the Housing Commission of Split Municipality entered into a contract by which it ceded the flat at issue to Brodospas for a period of three years. The purpose of the agreement was to resolve the applicant’s housing needs temporarily; during the period in question Brodospas was obliged to find accommodation for the applicant in another flat and return the flat at issue to the Housing Commission of Split Municipality. 13. On 22 February 1985 the Workers’ Council of Brodospas adopted a decision to grant the flat to the applicant for temporary occupation. On 7 March 1985 Brodospas and the applicant entered into a contract which granted the flat to the applicant for temporary occupation for a period of three years. The applicant was designated as the holder of a specially protected tenancy in respect of that flat. 14. On 27 March 1997 the applicant asked to purchase the flat from Split Municipality, which did not reply. 15. On an unspecified date in 2001 the applicant brought a civil action in the Split Municipal Court against the Fund for the Restitution of Expropriated Property, seeking a judgment in lieu of the contract of sale. 16. The claim was dismissed on 6 March 2006 on the grounds that the flat had been ceded to Brodospas by Split Municipality for a period of three years and that therefore the applicant could not have acquired a specially protected tenancy. The judgment was upheld by the Split County Court on 2 March 2007. 17. On 25 September 2007 the flat was returned to I.H., an heir of its previous owner. 18. The subsequent remedies used by the applicant, namely an appeal on points of law and a constitutional complaint, were unsuccessful. The former was dismissed by the Supreme Court on 9 June 2009 and the latter by the Constitutional Court on 17 June 2010. The Constitutional Court’s decision was served on the applicant’s counsel on 17 January 2011. 19. On 15 December 2011 I.H. brought a civil action in the Split Municipal Court against the applicant, seeking his eviction. On 28 May 2012 the applicant and his family moved out of the flat. On 13 February 2013 I.H. withdrew her claim. 20. The relevant provisions of the Housing Act (Zakon o stambenim odnosima, Official Gazette nos. 51/1985, 42/1986, 22/1992 and 70/1993) read as follows: “A protected tenancy cannot be acquired in respect of: 1. flats designated for temporary or provisional accommodation...” 21. The Act on the Prohibition of the Transfer of Rights to Dispose of and Use Certain Items of Immovable Property in Social Ownership to other Users or into the Ownership of other Natural or Legal Persons (Zakon o zabrani prijenosa prava raspolaganja i korištenja određenih nekretnina u društvenom vlasništvu na druge korisnike odnosno u vlasništvo drugih fizičkih i pravnih osoba, Official Gazette nos. 53/1990, 61/1991, 25/1993 and 70/1993 – “the Transfer Prohibition Act”), which entered into force on 14 December 1990, banned any transfer of property that had been acquired by means of nationalisation or confiscation. Paragraph 2 of section 1 provided that the prohibition applied to any property appropriated by means of confiscation, irrespective of the legislation on which the confiscation had been based. Section 6 provided that the prohibition was to apply until the introduction of legislation on denationalisation. 22. The Act on Compensation for, and Restitution of, Property Taken during the Yugoslav Communist Regime (Zakon o naknadi za imovinu oduzetu za vrijeme jugoslavenske komunističke vladavine, Official Gazette nos. 92/1996, 92/1999 (corrigendum), 80/2002 (amendments) and 81/2002 (corrigendum) – “the 1996 Denationalisation Act”), which entered into force on 1 January 1997, enables the former owners of confiscated or nationalised property, or their heirs in the first line of succession (direct descendants or spouse), to seek, subject to certain conditions, either the restitution of appropriated property or compensation for it. The relevant provisions of the Denationalisation Act read as follows: “ ... (4) Ownership of confiscated property shall be awarded to its former owner in accordance with this Act, and if this is impracticable ... the former owner shall have the right to compensation in the form of money or securities.” “Ownership of a flat appropriated [by means of confiscation] shall be awarded to its former owner.” 23. The Specially Protected Tenancies (Sale to Occupier) Act (Zakon o prodaji stanova na kojima postoji stanarsko pravo, Official Gazette no. 27/1991 with further amendments) regulated the conditions of sale of flats let under protected tenancies. Section 1 of the Act entitled holders of protected tenancies of socially owned flats to purchase the flats under favourable conditions, provided that each holder bought only one flat. 24. The Appropriated Property Compensation Fund Act (Zakon o Fondu za naknadu oduzete imovine, Official Gazette nos. 69/1997, 105/1999 and 64/2000), which entered into force on 12 July 1997, reads as follows, in so far as relevant: “The tenants (lessees) of confiscated flats in respect of which no claims for restitution have been submitted within the time-limit prescribed by [the Denationalisation Act], or where such claims have been dismissed by a final decision, shall acquire the right to purchase their flats under the provisions of that Act.” 25. 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(1)) but provided that proceedings instituted under the Housing Act should be concluded under the provisions of that Act (section 8(1)). 26. Section 161(1) of the Property Act (Zakon o vlasništvu i drugim stvarnim pravima, Official Gazette no 91/1996) reads as follows: “An owner has the right to seek repossession of his or her property from a person in whose possession it is.” 27. The relevant provisions of the Constitution of the Republic of Croatia (Ustav Republike Hrvatske, Official Gazette 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: “The home is inviolable. ...” “International agreements in force which have been concluded and ratified in accordance with the Constitution and made public shall be part of the internal legal order of the Republic of Croatia and shall have precedence in terms of their legal effects over [domestic] statutes. ...” 28. In its decisions nos. U-I-892/1994 of 14 November 1994 (Official Gazette no. 83/1994) and U-I-130/1995 of 20 February 1995 (Official Gazette no. 112/1995) the Constitutional Court held that all rights guaranteed in the Convention and its Protocols were also to be treated as constitutional rights having legal force equal to the provisions of the Constitution. 29. Section 62(1) of the Constitutional Act on the Constitutional Court (Ustavni zakon o Ustavnom sudu, Official Gazette no. 29/2002) reads: “1. Anyone may lodge a constitutional complaint with the Constitutional Court if he or she deems that a decision (pojedinačni akt) of a State authority, local or regional government, or a legal person invested with public authority, on his or her rights and obligations, or as regards a suspicion or accusation of a criminal offence, has violated his or her human rights or fundamental freedoms, ... guaranteed by the Constitution (‘constitutional right’) ...” 30. The relevant part of the Courts Act (Zakon o sudovima, Official Gazette no. 3/1994, 100/96, 131/97, 129/2000, 17/2004, and 141/2004), as in force at the material time, provided as follows: “1. The courts shall adjudicate cases on the basis of the Constitution and statutes. 2. The courts shall adjudicate cases on the basis of international agreements which are part of the [internal] legal order of the Republic of Croatia ...”