CASE OF VUKUŠIĆ v. CROATIA
Remainder inadmissible;No violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Deprivation of property;Peaceful enjoyment of possessions)
Julia Laffranque;Paul Lemmens;Stéphanie Mourou-Vikström;Georges Ravarani;Ksenija Turković
5. The applicant was born in 1946 and lives in Zagreb. 6. In 1965 the Sisak Ironworks (Željezara Sisak), a socially-owned company, granted a specially protected tenancy to its employee S.K. and his family of a flat in Sisak. During 1991 and 1992 Serbian paramilitary forces gained control of about one third of the territory of Croatia and proclaimed the so-called “Serbian Autonomous Region of Krajina” (Srpska autonomna oblast Krajina, hereinafter “Krajina”). The town of Sisak was close to the border of Krajina. There were targeted killings of Serbian civilians by members of the Croatian police and army in the Sisak area during a prolonged period in 1991 and 1992 (see Jelić v. Croatia, no. 57856/11, § 78, 12 June 2014). Owing to this situation, S.K. and his wife Z.K., both being of Serbian national origin, left the town of Sisak and went to live with their relatives in Rijeka. They left their belongings, such as furniture and household appliances, in the flat in Sisak. 7. In May 1991 the socially-owned company Sisak Ironworks was transformed into a joint-stock company and became Sisak Ironworks Holding (Željezara Sisak Holding). It remained State-owned and State-controlled. It owned several companies, one of them being Sisak Ironworks Flat company (Željezara Sisak “Stan”) which since May 1991 managed all the flats having been previously owned by the former Sisak Ironworks company. Another company was Sisak Ironworks Fortis, which was privatised in July 1995. From 1997 the State ceased to have any share in the ownership of Sisak Ironworks Holding. 8. On 3 June 1991 Parliament enacted the Specially Protected Tenancies (Sale to Occupier) Act (Zakon o prodaji stanova na kojima postoji stanarsko pravo, hereinafter “the Sale to Occupier Act”) with regulations on 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 of a socially-owned flat to purchase it under favourable conditions. 9. The applicant and his family lived in the town of Petrinja in their house. Petrinja was occupied by Serbian paramilitary forces in September 1991. The applicant and his family moved to Sisak as displaced persons. The applicant found employment with Sisak Ironworks Fortis. 10. In 1992 the applicant and his family moved into the flat where S.K. and Z.K. had a specially protected tenancy. According to the applicant the flat was allocated to him and his family by his employer. According to the Government, during the proceedings before the domestic courts the applicant did not produce any document which showed the flat as having been allocated to him. S.K. and the applicant communicated on several occasions by telephone and S.K. agreed that the applicant and his family, as displaced persons, could temporarily occupy the flat. 11. On 13 July 1992 the Sisak Ironworks Flat company brought a civil action in the Sisak Municipal Court against S.K. and Z.K., seeking the termination of their specially protected tenancy of the flat at issue. The applicant gave oral evidence as a witness in those proceedings. He stated that he did not know where S.K. was. S.K. and Z.K., having been adjudged to be persons whose whereabouts were unknown, had a special guardian ad litem appointed to represent them in the proceedings. On 20 October 1992 the Sisak Municipal Court terminated S.K. and Z.K.’s specially protected tenancy on the grounds that they had abandoned the flat in question. That judgment was upheld by the Sisak County Court on 24 March 1992 and thus became final. 12. On 23 December 1993 S.K. and Z.K. lodged an application for the reopening of civil proceedings which had been completed with final effect. A copy of that application was served on the Sisak Ironworks Flat company. The application was granted on 12 April 1994 and the proceedings were reopened. The applicant participated in the reopened proceedings as an intervener on the side of the plaintiff. 13. On the same day, Sisak Ironworks Holding and the Fortis company concluded an agreement to sell the flat at issue to the applicant, under the Sale to Occupier Act. A copy of the contract was submitted to the State Attorney’s Office for approval, which was given on 12 April 1994. 14. On 22 May 1996 the Sisak County Court dismissed the action by the Sisak Ironworks Flat company to terminate the specially protected tenancy held by S.K. and Z.K. That judgment was upheld by the Sisak County Court on 30 June 1997 and thus became final. 15. After the Croatian authorities had gained control over Petrinja in 1995, the applicant and his family sought reconstruction assistance for their house in Petrinja to be repaired, under the Reconstruction Act (see paragraph 28 below). 16. On 12 December 1996 the Office for Reconstruction and Development of Sisak-Moslavina County accepted the applicant’s request and granted him and his family the sum of 29,900 Croatian kunas (HRK) to repair their house in Petrinja. 17. The applicant and his family confirmed to the administrative authorities that they had returned to Petrinja on 16 January 1998. They had their registered residence in Petrinja between 5 February 1993 and 28 December 1999. 18. In 2003 S.K. and Z.K. brought a civil action in the Sisak Municipal Court (Općinski sud u Sisku) against the parties to the 1994 contract of sale, seeking the annulment of that contract. During the proceedings S.K. died. The claim was dismissed by the Sisak Municipal Court on the grounds that the contract of sale had been concluded in accordance with the law, since at that time the applicant had had a specially protected tenancy of the flat in question. 19. The Municipal Court’s judgment was reversed on 22 November 2007 by the Sisak County Court (Županijski sud u Sisku). It established that Z.K. had not lost her specially protected tenancy since it had been restored to her and therefore the contract of sale had been concluded in breach of the mandatory rules of the Sale to Occupier Act. It also held that the applicant had known the circumstances in which the former holders of the specially protected tenancy had left the flat at issue as well as that they had lodged a request for the re-opening of the proceedings in which their specially protected tenancy had been terminated. Therefore, the impugned contract of sale was contrary to morals and constitutional principles and therefore null and void under section 103(1) of the Obligations Act. The judgment was upheld by the Supreme Court (Vrhovni sud Republike Hrvatske) on 20 January 2010. 20. On 26 March 2008 the applicant lodged a constitutional complaint. He relied on Article 3 and Articles 14 § 1 and 29 § 1 of the Constitution (see paragraph 22 below). In essence he complained about the annulment of his title to the flat by the Sisak County Court. In particular, in his constitutional complaint he wrote, inter alia: “The complainant’s right to inviolability of ownership guaranteed by Article 3 of the Croatian Constitution was violated by the decisions of the Sisak County Court and the Sisak Municipal Court because the unconstitutional decision of the Sisak County Court interferes with the complainant’s ownership ...” 21. The Constitutional Court declared the applicant’s constitutional complaint inadmissible on 9 June 2011 holding that the case did not raise any constitutional issues. 22. The applicant is still living in the flat at issue.