RASETA v. CROATIA
Inadmissible
Christos Rozakis
The applicant, Mr Branko Rašeta, is a Croatian citizen who was born in 1954 and lives in Karlovac. He was represented before the Court by Mr M. Reškovac, a lawyer practising in Karlovac. 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 1954 and lives in Karlovac. The applicant’s mother was a holder of a specially protected tenancy on a flat in Karlovac, owned by a public company, Croatian Post and Telecommunications (Hrvatska pošta i telekomunikacije). On 3 June 1991 Parliament enacted the Specially Protected Tenancies (Sale to Occupier) Act (Zakon o prodaji stanova na kojima postoji stanarsko pravo), which regulates the sale of publicly owned flats previously let under a specially protected tenancy. On the basis of that Act, on 21 March 1994 the applicant’s mother requested the owner of the flat to conclude a contract for the sale of the flat between the owner as the seller and herself as the buyer. Since the owner declined her request, the applicant’s mother brought a civil action in the Karlovac Municipal Court (Općinski sud u Karlovcu) seeking a judgment in lieu of the contract of sale. On 12 June 1995 the Karlovac Municipal Court gave a judgment by default. However, on an application by the defendant, the judgment was set aside and the proceedings continued. On 14 July 1998 the Municipal Court gave a fresh judgment in place of the contract of sale. The defendant appealed against the first-instance judgment and the case file was forwarded to the Karlovac County Court (Županijski sud u Karlovcu). During the appellate proceedings the applicant’s mother died. Subsequently, on 17 February 1999, the appellate court quashed the first-instance judgment on the ground that the plaintiff had died. The applicant took over the proceedings from his deceased mother. The Karlovac Municipal Court on 24 May 2001 dismissed the applicant’s claim, finding that he did not fulfil the conditions for buying the flat in question. The relevant part of the judgment reads as follows: “Section 135 of the Inheritance Act provides that the deceased’s assets are ex lege transferred to his or her heirs at the time of the death. Since at the time of Marija Rašeta’s death on 7 February 1999, she was not the owner of the flat in question because a contract of sale had not been concluded beforehand and the judgment replacing such a contract had not become final, her heir could not have inherited the ownership of the flat in question. In other words, the plaintiff Branko Rašeta would be in a position to realise his inheritance and property rights on the flat in question only if the deceased, Marija Rašeta, had concluded a contract of sale or if a final judgment replacing such a contract had been adopted. Furthermore, under the Specially Protected Tenancies (Sale to Occupier) Act, the right to purchase a flat is vested in the occupier and is a personal right which cannot be transferred to heirs within the meaning of section 2 of the Inheritance Act (Official Gazette nos. 52/1971 and 47/1978) and is linked to the tenancy right, which likewise cannot be inherited. It follows that Branko Rašeta, as an heir of Marija Rašeta, who had submitted a request to purchase the flat, is not allowed to continue these proceedings. Branko Rašeta’s allegation that as a member of [his mother’s] household he has an independent right to purchase the flat under section 6 of the Specially Protected Tenancies (Sale to Occupier) Act is deemed unfounded by the court. Without examining the question whether the plaintiff has the status of a member of [his mother’s] household, the court has established that he does not have and cannot have his mother’s consent because it has been established that Marija Rašeta herself made a request to purchase the flat in question and that she died during the appellate proceedings against this court’s judgment dismissing her claim. Under section 6 of the Specially Protected Tenancies (Sale to Occupier) Act, a member of [the tenant’s] household has the right to purchase a flat with the tenant’s consent. Finding it established that the plaintiff does not have such consent, the court sees no need to establish his status as a member of [his mother’s] household because these two conditions have to be fulfilled cumulatively. Bearing in mind this legal characterisation of the dispute at issue, the court declined to hear further witnesses on behalf of the plaintiff ... who were to testify as to whether the plaintiff had lived in the same household as Marija Rašeta.” On a subsequent appeal by the applicant, the Karlovac County Court upheld the first-instance judgment on 17 October 2001. The relevant part of the appellate judgment reads as follows: “Contrary to the appellant’s submissions, under [the relevant] provisions of the Specially Protected Tenancies (Sale to Occupier) Act, the right to purchase a flat is a personal tenant’s right that cannot be inherited or transferred to a heir within the meaning of section 2 of the Inheritance Act because it is linked to the tenancy right, which likewise cannot be inherited. Therefore, the legal heir of the plaintiff, Branko Rašeta, does not have the right to purchase the flat in question, cannot inherit it and cannot continue these proceedings and obtain a judgment replacing the contract of sale, as found by the court of first instance. Furthermore, the first-instance court correctly applied section 6 of the above-mentioned Specially Protected Tenancies (Sale to Occupier) Act, under which the right to purchase a flat is vested in a member of the [tenant’s] household with the tenant’s consent. Since the plaintiff herself submitted a request [to purchase the flat] as the tenant and thus expressed her choice, her son as a member of her household does not have this right. Therefore, [the first-instance court] correctly decided not to hear evidence concerning his status as a member of [his mother’s] household.” In his subsequent constitutional complaint the applicant argued, inter alia, that his right to a fair hearing had been violated, as well as his property rights. On 27 October 2004 the Constitutional Court (Ustavni sud Republike Hrvatske) dismissed the applicant’s complaint. In so far as relevant, the decision of the Constitutional Court reads as follows: “The applicant’s allegations of a violation of Article 29 of the Constitution are unfounded. In the proceedings before the Constitutional Court this court has not established any facts or circumstances indicating a violation of the constitutional right to a fair trial. In the disputed situation the judgments were adopted by courts established by law which acted within their competence, also established by law. The documents submitted about the civil proceedings in question show that the first-instance court conducted the proceedings and heard evidence in accordance with the need to establish relevant facts, while the appellate court entirely and thoroughly addressed the applicant’s submissions.” The Specially Protected Tenancies (Sale to Occupier) Act (Official Gazette nos. 27/1991, 33/1992, 43/1992, 69/1992 25/1993, 26/1993, 48/1993, 2/1994, 44/1994, 47/1994, 58/1995, 11/1996, 11/1997 and 68/1998) regulates the conditions for the sale of flats let under specially protected tenancies. In general, the Act entitles the holder of a specially protected tenancy on a publicly owned flat to purchase it under favourable conditions of sale. The relevant provisions of the Act provide as follows: “Every holder of a specially protected tenancy (hereinafter ‘the tenant’) may submit a written application to purchase a flat to the ... owner (hereinafter ‘the seller’) ... and the seller shall be obliged to sell the flat. ...” “The right to buy a flat shall be vested in the tenant and, with his consent, the members of his household ... ... The consent referred to in paragraph 1 of this section shall be given in the contract (of sale) or in a separate document in which the signature must be certified. In the event of its refusal, the issue of consent shall be assessed in judicial proceedings.” “The seller shall be obliged to draw up a contract (of sale) with the buyer at the latest within 60 days after the buyer has made an application to this effect. If the seller refuses to draw up a contract at the buyer’s request within the time-limit laid down in paragraph 1 of this section, the buyer may institute judicial proceedings seeking a judgment in lieu of the contract of sale.”