CASE OF ORLIC v. CROATIA
Violation of Art. 8;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - award
Anatoly Kovler;Elisabeth Steiner;George Nicolaou;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Peer Lorenzen
4. The applicant was born in 1950 and lives in Punat, on the Krk island in Croatia. 5. The applicant was in active military service with the former Yugoslav People’s Army (hereinafter: “the YPA”) for almost twenty-three years, until 25 June 1991, when he voluntarily left the YPA and moved from Postojna, Slovenia, where he held a specially protected tenancy of a flat given to him by the YPA, to Rijeka, Croatia. 6. The applicant made himself available for service in the Croatian army. He was unemployed until December 1991, when he found civilian employment. He then served in the Croatian army between October 1993 and October 1994 and eventually retired on 31 December 2007. 7. In the meantime, on 17 July 1991 the Government adopted the Decree on the Prohibition of All Real Estate Transactions in Croatia (Uredba o zabrani raspolaganja nekretninama na teritoriju Republike Hrvatske – “the Decree”, published in Official Gazette no. 36/1991 of 24 July 1991), which banned all transactions in respect of immovable property situated in Croatia and belonging to the Former Yugoslavia’s federal institutions or legal entities having their seat in one of its former federal units. The Decree entered into force on 24 July 1991. 8. The applicant had a specially protected tenancy of a flat in Postojna, Slovenia. On 22 August 1991 the applicant returned that flat to the YPA, in order to obtain priority for the allocation of another flat. 9. On 5 September 1991 the applicant was given the right to purchase a flat in Rijeka by the YPA and moved into the flat with his family. 10. Pursuant to the Government’s Decree of 2 October 1991, all possessions of the former YPA came under the ownership of the Republic of Croatia. 11. On 8 October 1991 the Republic of Croatia declared its independence. 12. On 8 November 1991 the Croatian Government and the YPA Rijeka Corps entered an agreement by which the Croatian Government guaranteed the personal safety of those members of the Rijeka Corps of the YPA who did not wish to leave the Rijeka area and to respect their acquired rights. 13. On 22 November 1991 the Croatian Government and the YPA entered into a further agreement by which the Croatian Government guaranteed the personal safety of those members of the YPA who did not wish to leave Croatia upon the termination of their service in the YPA and accepted to respect the inviolability of their private property and their continuing right to occupy the flats given to them by the YPA. 14. From January 1992 until his eviction in October 2004 the applicant paid the rent and all the charges in respect of the flat in Rijeka to the Croatian Ministry of Defence. Until June 2000 the bills were issued in the name of G.R., the previous holder of a specially protected tenancy of the same flat. From June 2000 the bills were issued in the applicant’s name. 15. In 1997 the applicant received part of a house in Punat on the island of Krk, Croatia by way of a gift from his father. 16. In 1996 the State brought a civil action against the applicant in the Rijeka Municipal Court (Općinski sud u Rijeci), seeking his eviction. The State argued that, as the owner of the flat, it had the right to seek the eviction of the applicant because the decision issued by the YPA, granting the applicant the right to purchase the flat in question, had been contrary to the Decree. The State sought repossession of the flat. 17. In his defence dated 16 November 1996 the applicant maintained that he had served as a YPA officer and that the YPA had allocated the flat in question to him and that, therefore, he had had a valid legal basis for occupying the flat. He further argued that he had had a specially protected tenancy of a flat in Postojna which he had given up in order to obtain a specially protected tenancy of a flat in Rijeka. He also submitted that he, at the invitation of the Croatian authorities, had made himself available to serve in the Croatian army and that he had two schoolchildren. 18. On 24 October 2000 the Municipal Court found in the State’s favour and ordered the applicant to vacate the flat. The court found that the State owned the flat and that the applicant had no legal entitlement to occupy it. The relevant part of the judgment reads as follows: “It is disputed between the parties whether the defendant’s occupancy is based on a valid legal entitlement. It is to be noted in that connection that the defendant had moved into the flat in question on the basis of a decision of the [YPA] Garrison Command (Komanda garnizona) no. 499-154-5 of 5 September 1991. Under sections 1 and 3 of the Decree on the Prohibition of All Real Estate Transactions in Croatia (Official Gazette 36/91), the [aforesaid] decision is null and void, and cannot serve as a valid legal basis for acquiring a specially protected tenancy, as [the grounds for doing so] are those listed in section 59 § 1 of the Housing Act. The above-mentioned Decree entered into force on 17 July 1991, while the decision of the Garrison Command was not issued until 5 September 1991, which was after the entry into force of the above-mentioned Decree. Since a ... legal act contrary to the provisions of the Decree is null and void ... which entails a requirement that the legal position of the parties to such a contract has to be the same as before the contract was concluded ... the plaintiff’s claim is to be granted ...” 19. The applicant lodged an appeal whereby he argued that before it had declared its independence, the Republic of Croatia had had no authority to enact any decrees concerning the assets of the YPA. He also relied on the agreement between the Croatian Government and the YPA. He reiterated his argument that he, when leaving the YPA, had acted at the invitation of the Croatian authorities and had made himself available to serve in the Croatian army. 20. On 19 September 2001 the Rijeka County Court (Županijski sud u Rijeci) upheld the first-instance judgment, endorsing the reasoning of the first-instance court, and dismissing the applicant’s argument that the Republic of Croatia had had no authority to adopt the Decree. The relevant part of the judgment reads as follows: “... the first-instance court established that the defendant had occupied the flat in Rijeka, Mihanovićeva 2, on the basis of a decision of the Garrison Command ... which is null and void under sections 1 and 3 of the Decree ... and therefore cannot be considered as a valid legal basis for acquiring a specially protected tenancy, [in contrast to] the [grounds] listed in section 59 § 1 of the Housing Act ... The Decree entered into force on 17 July 1991, while the decision of the Garrison Command was not issued until 5 September 1991, which was after the entry into force of the above-mentioned Decree. In view of the nullity of the said decision, the plaintiff’s claim was granted ... The factual findings and legal standpoints of the first-instance court are accepted by this court as correct. The defendant argued that, before it had declared its independence, the Republic of Croatia had had no authority to enact any decrees concerning the assets of the YPA because these had been federal assets given to the YPA by a federal statute, namely, the YPA Assets and Financing Act (Zakon o sredstvima i financiranju JNA). Therefore, the Republic of Croatia had had no authority to enact the Decree on the Prohibition of All Real Estate Transactions in Croatia ... These arguments are, however, ill-founded. The Decree is based on Article 140 § 2 of the Constitution of the Republic of Croatia, which provides that “where an act or action by a federal body or by another federal republic ... goes against the territorial integrity of the Republic of Croatia or its interests or where such an act places it in a position of inequality within the Federation, the bodies of the Republic [of Croatia] shall, on the basis of the right to self-determination and the sovereignty of the Republic of Croatia established by this Constitution, adopt necessary decisions in order to protect the interests of the Republic of Croatia. ... Hence, the first-instance court correctly applied sections 1 and 3 of the Decree ... by declaring the decision of the Garrison Command ... null and void, since it was issued after the said Decree had entered into force. Accordingly the defendant does not have a valid legal basis for occupying the flat in Rijeka ... and his reliance on the Agreement between the Republic of Croatia and the YPA of 22 November 1991 is irrelevant. ...” 21. The applicant brought a constitutional complaint on 1 February 2002. In that complaint, the applicant argued that the flat in question had been allocated to him by the former YPA on the basis of a federal statute before the Republic of Croatia had declared its independence. He again reiterated his arguments that he had left the YPA at the invitation of the Croatian authorities and had made himself available to serve in the Croatian army. 22. On an unspecified date, the applicant asked the Ministry of Defence, as owner of the flat, to conclude a contract for the sale of the flat between the Ministry as seller and himself as buyer. On 19 April 2004 the applicant lodged another request with the Ministry of Defence, in order to legalise his occupancy of the flat. He claimed that he had a specially protected tenancy of the flat and the right to buy the flat under Article 2 of Annex G to the Agreement on Succession Issues (Ugovor o pitanjima sukcesije). On 27 July 2004 the Ministry of Defence dismissed his request, finding that the Agreement cited by the applicant was inapplicable in the applicant’s case. 23. On 12 April 2007 the Constitutional Court dismissed the applicant’s complaint, endorsing the lower courts’ reasoning. 24. On 9 July 2002 the Rijeka Municipal State Attorney’s Office (Općinsko državno odvjetništvo u Rijeci) sought an enforcement order in the Rijeka Municipal Court for the eviction of the applicant. The enforcement order was issued on 30 December 2002. The applicant lodged an appeal, arguing that his eviction from the flat would cause him irreparable damage because he and his family would be rendered homeless. He also sought the adjournment of the eviction until a decision by the Constitutional Court on his constitutional complaint had been issued. 25. On 10 February 2004 the Rijeka Municipal Court dismissed the applicant’s request for an adjournment, finding that the grounds adduced were not those listed in the Enforcement Act (Ovršni zakon), and that the applicant had not specified the damage he would suffer if evicted. 26. The applicant lodged an appeal, arguing, inter alia, that the Rijeka Municipal Court had disregarded his argument that the eviction would render him and his family homeless. 27. On 26 May 2004 the Rijeka County Court dismissed the applicant’s appeals against the enforcement order and the decision on adjournment of the eviction, finding that the pending constitutional complaint and the irreparable damage claimed did not constitute valid grounds for successfully challenging the enforcement order. 28. The eviction was initially scheduled for 14 September 2004. On that occasion, representatives of the Rijeka Municipal State Attorney’s Office agreed with the applicant’s request to adjourn the eviction until 28 October 2004. The applicant complied with the enforcement order and vacated the flat on 28 October 2004. 29. The relevant part of the Agreement of 8 November 2001 concluded between the Croatian Government and the YPA Rijeka Corps reads: “The Republic of Croatia guarantees the personal safely and respect for the acquired rights, including those from employment, of the members of the YPA Rijeka Corps who do not wish to leave the territory of Rijeka by the date [noted in] section XII of this Agreement at the latest. This guarantee also concerns the members of their families ...” “... leaving the Croatian territory by the members of the Rijeka Corps is to be completed by 10 December 1991 at the latest.” 30. The relevant part of the Agreement of 22 November 2001 concluded between the Croatian Government and the YPA reads: “The Republic of Croatia guarantees the personal safely, [and to respect the] inviolability of private property and continuing right to use flats, of the members of divisions, institutions and commands of the YPA who do not wish to leave the territory of Zagreb or the territory of the Republic of Croatia upon the termination of their service in the YPA, as well as [that] of the members of their families ...” 31. Article 34 of the Constitution (Ustav Republike Hrvatske, Official Gazette nos. 41 and 55) reads as follows: “The home is inviolable. A search of a person’s home or other premises shall be ordered by a court in the form of a reasoned written warrant based on law. The occupier, or his or her representative, shall be entitled to be present during a search of a home or other premises. The presence of two witnesses shall be obligatory. Under the conditions prescribed by law and where it is necessary to execute an arrest warrant or to apprehend a person who has committed a criminal offence or in order to remove serious danger to the life or health of people, or to property of a high value, the police may enter a person’s home or other premises and carry out a search without a court warrant or the occupier’s consent and without any witnesses being present. Where there is a probability that evidence may be found in the home of a person who has committed a criminal offence, a search shall be carried out only in presence of witnesses.” 32. The relevant part of the Housing Act (Official Gazette nos. 51/1985, 42/1986, 22/1992 and 70/1993) reads: “A specially protected tenancy is acquired on the date of moving into the flat on the basis of a final decision allocating the flat or on another valid legal basis, unless otherwise provided by this Act.” 33. 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, Zakon o prodaji stanova na kojima postoji stanarsko pravo) 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 of a publicly owned flat to purchase it under favourable conditions of sale. The relevant provision of the Act provides as follows: “Every holder of a specially protected tenancy (hereinafter ‘the tenant’) may submit a written application to purchase a flat to the ... owner (‘the seller’) ... and the seller shall be obliged to sell the flat. ...” 34. Section 161 paragraph 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.” 35. The relevant part of the Civil Procedure Act (Zakon o parničnom postupku, Official Gazette of the Socialist Federal Republic of Yugoslavia nos. 4/1977, 36/1977 (corrigendum), 36/1980, 69/1982, 58/1984, 74/1987, 57/1989, 20/1990, 27/1990 and 35/1991, and the Official Gazette of the Republic of Croatia nos. 53/1991, 91/1992, 58/1993, 112/1999, 88/2001, 117/2003, 88/2005, 2/2007, 84/2008 and 123/2008) provides as follows: “(1) When the European Court of Human Rights has found a violation of a human right or fundamental freedom guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms or additional protocols thereto ratified by the Republic of Croatia, a party may, within thirty days of the judgment of the European Court of Human Rights becoming final, file a petition with the court in the Republic of Croatia which adjudicated in the first instance in the proceedings in which the decision violating the human right or fundamental freedom was rendered, to set aside the decision by which the human right or fundamental freedom was violated. (2) The proceedings referred to in paragraph 1 of this section shall be conducted by applying, mutatis mutandis, the provisions on the reopening of proceedings. (3) In the reopened proceedings the courts are required to respect the legal opinions expressed in the final judgment of the European Court of Human Rights finding a violation of a fundamental human right or freedom.” 36. The relevant part of Constitutional Court decision no. U-III/408/2003 of 18 February 2004 reads as follows: “As regards the alleged violation of the constitutional right guaranteed under Article 34 of the Constitution, it is to be said that that a violation of that right cannot occur in enforcement proceedings, as Article 34 of the Constitution guarantees the inviolability of the home, which concerns the conduct of the police during entries and searches of homes in the execution of arrest warrants or in order to apprehend a perpetrator of a criminal offence or to remove serious risk to the lives and health of persons or to valuable assets. Therefore, the provision in question is not applicable to the proceedings at issue.”