GUSTOVARAC v. CROATIA
Inadmissible
Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque;Ksenija Turković
1. The applicants, Mr Borislav Gustovarac and Ms Zdravka Gustovarac, are Croatian nationals who were born in 1943 and 1950 respectively and live in Pula. They were represented before the Court by Ms L. Štok, a lawyer practising in Pula. 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 1972 the applicants moved to a flat in Pula owned by the Yugoslav Peoples’ Army (“the YPA”) on the basis of a handwritten note signed by Ɖ.V., allegedly the person authorised by the YPA Garrison Command in Pula to dispose of the YPA’s flats. The note bore the Command’s official stamp. 5. The applicants paid the rent and utility bills in respect of the flat from that date onwards. 6. In 1974 criminal proceedings were conducted in the Pula Military Court against Ɖ.V. He was found guilty of abusing his position on the ground that he had, inter alia, unlawfully provided the applicants with the flat at issue. The first applicant was a witness in these proceedings. 7. After Croatia declared independence in 1991, all the YPA’s property became State property. 8. According to the Government, in 1994 the first applicant bought another flat in Pula, measuring 33 square metres, which he donated to his son in 1995. 9. On 1 March 2000 the State brought a civil action against the applicants in the Pula Municipal Court claiming repossession of the flat formerly owned by the YPA and the applicants’ eviction. 10. According to the Government, since 2001 the applicant’s elder son has been renting out another flat in Pula. 11. The Municipal Court granted the claim against the applicants on 16 May 2002. The relevant part of the judgment reads: “... it has been established that in 1972 an authorized person from the Garrison Command of the former YPA, Ɖ.V., issued an order, handwritten on an ordinary piece of paper, instructing R.S. (an administrator of the then ‘Pula Housing Company’) to hand over the keys of the flat at issue to the first defendant, stamped it with the stamp of the Garrison Command and signed it. Subsequently, Borislav Gustovarac presented that certification to R.S., who gave him the keys to the flat. Borislav Gustovarac was employed at that time with ‘Uljanik Harbour’, and was therefore neither a member of the military personnel within the YPA nor a civilian in its service. ... Had the first defendant belonged to the category of persons who could have acquired the right to use such a flat, that is to say, had he fulfilled the requirements for the granting of a specially protected tenancy of the flat at issue, nothing would have prevented the authorized person of the former Garrison Command of the YPA, Ɖ.V., from issuing him a valid decision to such effect ... ... The fact that the defendants lived in the flat at issue for a long period of time with the ‘knowledge and approval’ of the provider of the flat and entirely fulfilled the obligations of protected tenants is irrelevant ... as regards their lack of status as holders of a specially protected tenancy ... because such a status could be implicitly recognised only in respect of persons who had acted in good faith. In this case it is clear that this element was missing, since the defendants knew or ought to have known that they acquired possession of the flat at issue in an illegal and unlawful manner. The fact that the provider of the flat did not ask for the eviction of the defendants cannot place them in a more favourable legal position ...” 12. The first-instance judgment was upheld by the Pula County Court on 31 May 2004. It endorsed the reasoning of the first-instance court and added: “According to the case-law [of the Supreme Court] concerning the application of section 59 of the former Housing Act, a person who dwells in a flat for a long period of time with the knowledge and consent of the provider of the flat, and who fulfils all the obligations of a holder of a specially protected tenancy and acts in every respect as a person who has concluded a written contract for a protected tenancy, may be regarded as a holder of a protected tenancy even though there is actually no written contract governing the use of the flat. However, even though the defendants have been using the flat at issue since 1972 and have paid the rent and utility bills for it, they cannot be regarded as holders of a protected tenancy of the flat since they acquired possession of it as a result of the abuse of office of the authorized person [representing] the former provider of the flat, [a fact of] which the defendants, and in particular the first defendant, had been aware and ought to have been aware [sic] because they were witnesses in the criminal proceedings conducted before the Split Military Court against the persons concerned ... Therefore, the defendants did not act in good faith, which is a condition for recognizing [them as holders of a] specially protected tenancy ...” 13. According to the Government, in 2005 the applicants moved to Bosnia and Herzegovina, where they have had their registered residence ever since. The second applicant rented the flat at issue to other persons between an unspecified date in 2005 and April 2011. 14. The applicants lodged a constitutional complaint on 30 July 2004 which was dismissed by the Constitutional Court on 22 April 2009. The Constitutional Court endorsed the lower courts’ reasoning. 15. According to the Government, on 7 April 2011 the applicants vacated the flat. 16. According to the applicants they were forcibly evicted from the flat in 2011. 17. 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 the tenant moves 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.” 18. 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.”