ZAHI v. CROATIA
Inadmissible
Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque;Ksenija Turković
1. The applicant, Mr Khouri Zahi, is a Croatian and Syrian national, who was born in 1964 and lives in Zagreb. He was represented before the Court by Ms K. Ferdelji, a lawyer practising in Zagreb. 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. In 1961 a flat, measuring a total of 57.28 square metres and located in Zagreb city centre (hereinafter: “the flat”), was nationalised from its previous owners D.B. and S.N. 5. M.M., who was subsequently granted a specially protected tenancy of the flat, lived there with her heir G.B. The latter, however, left to study in the United States but stayed in the flat during her visits to Croatia. 6. In an unspecified period in early 1990, M.M. was treated in the Sestre Milosrdnice Clinical Hospital Centre (Klinički bolnički centar Sestre milosrdnice) where the applicant worked as a trainee physician and his wife, N.Z., worked as a nurse. In these circumstances they came to meet M.M. 7. On an unspecified date in 1990 M.M. died. 8. After the breakout of the armed conflict in Croatia in 1991, N.Z.’s family (her mother A.P., her brother Jo.P. and sister I.P.) came to live in Zagreb as displaced persons coming from an occupied territory of Croatia. It appears that upon their arrival in Zagreb they were provided with accommodation by the local refugee agencies. When the conflict ended, A.P. and her children submitted a request for reconstruction of their family home in the former occupied territory which had been damaged in the conflict. The request was granted and the house was renovated in 2001, after which they lost their right to accommodation as provided for in section 1 of the Temporary Accommodation Act (Zakon o privremenom korištenju stanova) (see paragraph 42 below). 9. On 6 November 1991 the applicant, who was living at the time with N.Z. in a city near Zagreb that was not in a part of the country affected by the armed conflict, entered the flat by breaking a window and the front door. The neighbours immediately informed the police, who attended at the scene on the same day where they found the applicant, N.Z. and her mother A.P., as well as the tenant of the flat G.B. (see paragraph 5 above) and another person accompanying her. The applicant argued that the late M.M. had promised to leave the flat to him and the police left without taking any further action at the scene. 10. The next day, the police informed Zagreb Municipal Council (Grad Zagreb) that the applicant and his family had forcefully entered the flat. A council official who came to the scene found that the applicant and his family had entered the flat without having any legal right to be there and therefore ordered him to vacate the flat. The applicant ignored these orders, requesting a written decision on the matter. The eviction was disrupted after the civil defence siren signalled an attack on Zagreb. 11. On 26 November 1991 Zagreb Municipal Council ordered the applicant and his family (his wife N.Z., and her relatives A.P., I.P. and Jo.P.) to vacate the flat within three days. This decision was made enforceable on 3 December 1991, which was later confirmed on appeal on 7 February 1992. 12. An attempt to evict the applicant from the flat was made on 6 December 1991. Zagreb Municipal Council offered the applicant the opportunity to move to another flat where he could live with his family free of charge but he refused that accommodation, stating that he would only move out of the flat if the council provided him with accommodation in one of the most expensive hotels in Zagreb. 13. A further attempt to evict the applicant from the flat was made on 10 December 1991 but again to no avail, because the applicant refused to move and his wife was now pregnant. 14. On an unspecified date the police lodged a criminal complaint against the applicant and his wife with the Zagreb Municipal State Attorney’s Office. The Zagreb Municipal State Attorney’s Office rejected the criminal complaint on 26 March 1992, finding that while it had been undoubtedly established that the applicant had broken into the flat unlawfully, given his personal circumstances and particularly the fact that he had a pregnant wife and a small child, a criminal prosecution was not necessary since the eviction proceedings would in any event settle the issue. 15. Parallel to the administrative eviction proceedings, on 3 December 1991 G.B. lodged a civil action in the Zagreb Municipal Court (Općinski sud u Zagrebu) seeking the applicant’s eviction from the flat. The claim was granted on 3 November 1992 and this decision became final on 21 June 1993. 16. On 23 September 1993 the Zagreb Municipal Court issued a writ of execution ordering the applicant and his family to vacate the flat. 17. This decision of the Zagreb Municipal Court was never enforced because for a while the applicant could not be reached, and on 11 April 1994 the eviction was postponed after it was determined that no alternative accommodation had been found for the applicant’s two small children. In this regard an attempt was made on 12 July 1994 to find accommodation for the applicant and his family, but the only possibility which existed at the time was to accommodate them outside Zagreb. A further attempt was made by G.B. to settle the dispute, but the applicant also refused her offer. Eventually, on 11 March 2005 the enforcement proceedings were discontinued after G.B. withdrew her enforcement request. 18. On 9 December 1991 the applicant, his wife N.Z. and her relatives lodged a request with the Zagreb Municipal Council asking that they be granted temporary accommodation in the flat under the Temporary Accommodation Act, which was enacted on 4 December 1991 and came into force on 9 December 1991 with a view to solving the problem of accommodation of refugees – internally displaced persons by providing them with accommodation in publicly-owned lodgings (see paragraph 42 below). 19. On 1 April 1992 Zagreb Municipal Council’s housing department granted the applicant’s wife, N.Z., and her family (mother A.P., brother Jo.P. and sisters I.P. Ja.P.) temporary accommodation in the flat after having found that they could be considered refugees – internally displaced persons within the meaning of the Temporary Accommodation Act. The applicant was not granted temporary accommodation. 20. The decision stated that the accommodation was granted for six months and that upon the expiry of that period the occupants were obliged to vacate the flat. It also stated that by being provided with temporary accommodation the occupants did not obtain, nor could they obtain, a specially protected tenancy of the flat. 21. In the period between September 1992 and May 1996 the applicant requested several times that he and his family be given the opportunity to purchase the flat, relying on his personal situation and the status of his family. 22. In a letter of 6 October 1992 Zagreb Municipal Council indicated that temporary accommodation in the flat had been granted to the applicant’s family even though they had omitted to reveal in their application that they had unlawfully entered the flat. Therefore, they had no legal right to stay in the flat. In two letters of 8 December 1995 and 6 May 1996 Zagreb Municipal Council stressed that if the applicant’s application for housing was given priority it would be acting contrary to the domestic law establishing priority lists for housing allocation. It also emphasised that the only reason why the eviction had never been carried out was the fact that the applicant’s family were not able to return to their home. 23. On 29 March 1997 the applicant applied to Zagreb Municipal Council for the right to purchase the flat on favourable terms. He relied on the decision to grant temporary accommodation and his status as a disabled war veteran, since he had in the meantime served the Croatian army and obtained the status of disabled war veteran. 24. On 3 March 1998 Zagreb Municipal Council granted the applicant’s request and sold him the flat. On 4 March 1998 a copy of the purchase contract was submitted to the State Attorney’s Office, which gave its approval. The applicant paid the price of 21,432 Crotian kunas (HRK) and registered his ownership with the land registry. 25. In May 1999 Zagreb Municipal Council discovered that the applicant was in fact not on the list granting disabled war veterans, who had been allocated flats for temporary accommodation, the right to purchase flats owned by the Municipal Council on favourable terms, and that the applicant had therefore had no legal right to be granted the right to purchase the flat on such terms. 26. On 14 May 1999 Zagreb Municipal Council invited the applicant to settle the existing situation amicably by agreeing to the voluntary annulment of the contract and repayment of the purchase price. After the applicant ignored that offer, the Municipal Council referred the case to the Zagreb Municipal State Attorney’s Office. 27. On 29 September 1999 the Zagreb Municipal State Attorney’s Office, on behalf of Zagreb Municipal Council, lodged a civil action in the Zagreb Municipal Court seeking to have the purchase contract between the applicant and Zagreb Municipal Council declared null and void on the grounds that the applicant had had no legal right to buy the flat on favourable terms. It pointed out that the applicant himself had never been granted temporary accommodation in the flat and that he had not been on Zagreb Municipal Council’s list of disabled war veterans who had the right to purchase a flat on favourable terms. 28. The applicant defended the civil action and lodged a counterclaim seeking damages in the amount of HRK 824,356. His counterclaim was severed into a separate case, and those proceedings were discontinued on 27 May 2010 due to the applicant’s procedural inactivity. 29. During the proceedings concerning the annulment of the purchase contract the applicant contended that his wife had been granted temporary accommodation in the flat, which had given her the right to buy the flat under section 1a of the Specially Protected Tenancies (Sale to the Occupier) Act. He also considered that the civil action had been lodged outside the relevant statutory time-limit of one year after the contract had been concluded, as provided under the Specially Protected Tenancies (Sale to the Occupier) Act (see paragraph 43 below). 30. On 18 February 2004 the Zagreb Municipal Court declared the purchase contract for the flat null and void. It explained that the applicant had not been granted temporary accommodation in the flat and that therefore he had never satisfied the requirements of applicable domestic law for the purchase of the flat on favourable terms. The relevant part of the judgment reads: “Section 1a of the Specially Protected Tenancies (Sale to the Occupier) Act provides that disabled Homeland War [veterans], as well as the spouses, parents and children, adopted children, father’s or mother’s spouses and adoptive parents of a deceased, incarcerated or missing Homeland War veteran have the right, on the terms provided in this Act, to purchase a flat in which they were temporarily accommodated under the Temporary Accommodation Act and the Homeland War Veterans Act [Zakon o pravima hrvatskih branitelja iz domovinskog rata]... Bearing in mind the above provision, this court notes that temporary accommodation in the flat in question was granted to N.[Z.] as a refugee, while the defendant is not one of the individuals who was provided with temporary accommodation under the Temporary Accommodation Act. This court finds that the purchase contract was concluded contrary to section 1a of the Specially Protected Tenancies (Sale to the Occupier) Act, since the defendant had not been granted temporary accommodation under the Temporary Accommodation Act or the Homeland War Veterans Act and therefore, under section 103 of the Obligations Act, the claim should be accepted and the contract declared null and void. Furthermore, the argument that the civil action was lodged outside of the relevant statutory time-limit is unfounded given that, under section 110 of the Civil Obligations Act, the right to claim nullity [of a contract] cannot be extinguished. ...” 31. The applicant lodged an appeal against the first-instance judgment before the Zagreb County Court (Županijski sud u Zagrebu) on 2 March 2004 in which he reiterated his previous arguments. 32. On 15 February 2005 the Zagreb County Court dismissed the applicant’s appeal as without merit and upheld the first-instance judgment. 33. On 30 June 2005 the applicant lodged a constitutional complaint before the Constitutional Court (Ustvani sud Republike Hrvatske), reiterating his arguments before the lower courts. 34. The Constitutional Court dismissed the applicant’s constitutional complaint on 1 October 2008, endorsing the reasoning of the lower courts. In particular, it noted: “The reasoning of the impugned judgments is based on a correct interpretation of the relevant law and can be accepted from the perspective of constitutional rights. The Constitutional Court finds that the lower courts, based on the established facts, provided sufficient reasons in their judgments and that their reasoning does not disclose any arbitrariness in the application of the law.” 35. On 27 April 2006 the applicant’s wife lodged a civil action against Zagreb Municipal Council in the Zagreb Municipal Court, seeking the right to purchase the flat. This civil action was dismissed on 17 June 2008 on the grounds that the process of privatisation of the flat had been started in the meantime (see paragraph 38 below) and therefore that the flat was no longer able to be sold by the Municipal Council but rather belonged to a special privatisation fund. This judgment was appealed against, but it was upheld by the Zagreb County Court on 12 May 2009. 36. Meanwhile, on 16 July 2008, the Municipal Council repaid the applicant the purchase price of HRK 21,432 together with statutory default interest in the amount of HRK 47,729.85. 37. On 2 May 2005 the applicant opened a private medical practice in gynecology and obstetrics in the flat, while in June 2004 his family moved to another flat which he had bought in Zagreb. 38. On 20 July 2006, as part of the privatisation process, the ownership of one half of the flat was returned to D.N., a successor of the original owners. 39. On 12 November 2008 D.N. sold his ownership in the flat to the applicant. 40. Throughout the period to date, the applicant has been running his private medical practice in the flat. 41. 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), 76/2010, 85/2010) read as follows: “The home is inviolable ...” “Everyone has a right to respect for and legal protection of his private and family life, dignity, reputation and honour.” “The right of ownership shall be guaranteed ...“ 42. The relevant provisions of the Temporary Accommodation Act (Zakon o privremenom korištenju stanova, Official Gazette no. 66/1991) read: “This Act provides for the terms and the manner of [the provision of] temporary accommodation in publicly-owned flats ... which are empty or abandoned, with a view to allocating refugees – internally displaced persons, and defenders of the Republic of Croatia and their families.” “Individuals who have been granted temporary accommodation and their family members are not [thereby] granted a specially protected tenancy nor can they obtain a specially protected tenancy of the flat in question.” 43. The Specially Protected Tenancies (Sale to the Occupier) Act (Zakon o prodaji stanova na kojima postoji stanarsko pravo, Official Gazette nos. 43/1992, 69/1992, 25/1993, 48/1993, 2/1994, 29/1994, 44/1994, 58/1995, 11/1996, 68/1998 and 96/1999) regulates the conditions of sale of flats let under specially protected tenancies. The relevant part of this Act reads: “Disabled Homeland War [veterans], as well as the spouses, parents and children, adopted children, father’s or mother’s spouses and adoptive parents of deceased, incarcerated or missing Homeland War veterans have the right, on the terms provided in this Act, to purchase a flat in which they have been temporarily accommodated under the Temporary Accommodation Act and the Homeland War Veterans Act, if no other person has a specially protected tenancy of the flat in question.” “The seller shall submit the sale contract for approval to the competent State Attorney within eight days. If the State Attorney finds that the statutory conditions for entering into such a contract have not been met or that the price stipulated in it is lower than that established by this Act, he or she shall disapprove of the sale. If the State Attorney finds after a sale contract has been concluded that the statutory conditions for entering such contract had not been met, he or she shall seek the annulment of that contract within one year after the contract has been concluded.” 44. The relevant provisions of the Obligations Act (Zakon o obveznim odnosima, Official Gazette, nos. 53/91, 73/91, 3/94, 7/96 and 112/99), as then in force, provided: “(1) Each contractual obligation shall have a permissible [legal] basis [causa]. (2) A basis is not permissible if it contravenes the Constitution, fundamental principles of law, or morals. ...” “Where there is no [legal] basis [for a contract] or where its [basis] is not permissible, the contract is null and void.” “A contract which is contrary to the Constitution, fundamental principles of law, or morals is null and void, unless there is some other [applicable] sanction or the law provides differently in a particular case.” “The right to plead nullity shall be inextinguishable.” 45. The relevant provisions of the Enforcement Act (Ovršni zakon, Official Gazette nos. 57/1996, 29/1999, 42/2000, 173/2003, 194/2003, 151/2004, 88/2005, 121/2005 and 67/2008) provide: “A court shall order enforcement only on the basis of a final and enforceable instrument, unless otherwise provided under this Act.” “A decision by which a court has ordered the fulfilment of a claim through payment or performance shall be enforceable when it is final and if the period for voluntary compliance with that decision has elapsed. ... “ “An enforcement instrument may be [used as a basis for] execution only if the creditor and debtor, and the nature, type, scope and time of the obligation are set out [in the relevant decision]. ... “