CASE OF BIKIĆ v. CROATIA
No violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)
Jon Fridrik Kjølbro;Paul Lemmens;Stéphanie Mourou-Vikström;Georges Ravarani;Ksenija Turković
5. The applicant was born in 1954 and lives in Zagreb. 6. In the former Yugoslav socialist regime all employees contributed to housing funds. The funds thus obtained were used, inter alia, to build blocks of flats. The flats were distributed to employees, who acquired protected tenancies in respect of them and other already existing socially owned flats. Each publicly owned company drew up a list of persons to be granted specially protected tenancies. When a person on such a list was granted a specially protected tenancy, his or her housing needs were considered to have been met and his or her name would be removed from the list. 7. The applicant was employed by a socially owned company, S. All employees of S. paid contributions to a housing fund in the amount of 3% of their monthly salaries. 8. On 31 October 1988 company S. granted the applicant a specially protected tenancy of a flat measuring 65.08 square metres in the Zagreb suburbs, with the right to occupy it together with her husband and two daughters. However, since that decision was not yet final, company S. entered into an agreement with the applicant on 7 December 1988 giving her the right to move into the flat with her family and to care for that flat. The applicant moved into the flat and has been living there ever since. 9. The decision to grant the applicant a specially protected tenancy was challenged by three other employees and quashed by the Zagreb Basic Court of Associated Labour (Osnovni sud udruženog rada u Zagrebu). 10. On 27 March 1990 the housing committee of company S. drew up a priority list for the distribution of flats. The applicant was the first on the list. On 23 April 1990 the company’s workers’ council approved the priority list. On the basis of that list she was entitled to have a decision allocating a flat to her issued. On 27 April 1992 the flats of the company S. were transferred for management to the Zagreb Municipality. 11. On 9 and 15 May 1990, respectively, two other employees of company S. brought an action before the competent court, seeking to have the priority list declared null and void. Competence in the matter was subsequently transferred to the Zagreb Municipal Court, which on 3 February 1999 dismissed the claims on the merits since there was no possibility under the relevant law to bring such an action at all. A civil action could be brought to challenge the decision on allocation of a flat but not to challenge a priority list. 12. On 23 June 2004 the Zagreb County Court amended the judgment of 3 February 1999 so as to declare the actions inadmissible on the same grounds, namely that the priority list could not be challenged before a court of law. 13. Meanwhile, on 3 June 1991 Parliament had enacted the Protected Tenancies (Sale to Occupier) Act (Zakon o prodaji stanova na kojima postoji stanarsko pravo), which abolished the specially protected tenancies and regulated the sale of socially owned flats previously let under a specially protected tenancy. 14. On 29 November 1995 the applicant asked the Zagreb Municipality as the owner of the flat to conclude a contract for the sale of the flat with herself as the buyer. The Zagreb Municipality did not take any decision within the prescribed time-limit of sixty days. 15. On an unspecified date in 2005 the applicant re-submitted to the Zagreb Municipality her request to purchase the flat she occupied. The request was refused on 6 July 2005 because she had not been granted a specially protected tenancy in respect of that flat. 16. On 26 September 2005 the applicant brought a civil action against the City of Zagreb, which in the meantime had become the owner of the flat she occupied, seeking a judgment in lieu of the contract of sale of the flat in question. 17. The claim was dismissed by the Zagreb Municipal Court on 18 June 2007 on the grounds that the applicant had not acquired a protected tenancy of the flat in question, since the priority list did not constitute a decision on the granting of protected tenancies within the meaning of the Housing Act. 18. The judgment was upheld by the Zagreb County Court on 8 April 2008. The court held that the applicant did not have a final decision on allocation of the flat to her. 19. In a subsequent constitutional complaint lodged by the applicant, she complained that her right to equality before the law, her right to an appeal as well as her right to a fair trial had been violated. She argued that she had been the first on a priority list drawn up by company S. for the distribution of flats. The only reasons she had not been formally granted a specially protected tenancy of the flat she had been occupying were the challenge of the priority list by her co-workers and the delay in the civil proceedings before the Zagreb Municipal Court. However, once those proceedings had ended, all of the conditions for recognition of her specially protected tenancy of the flat at issue had been met. The one-year validity of the priority list was to be counted from the date of its being confirmed, which in the applicant’s case had occurred when the national courts had dismissed all the objections concerning that list. By not recognising her right to a specially protected tenancy, the national authorities had deprived her of the possibility to purchase the flat she occupied under favourable conditions. She also relied on some other decisions of the Constitutional Court whereby it had granted protection to persons in situations comparable to her own. 20. On 11 May 2012 the Constitutional Court dismissed the applicant’s constitutional complaint on the grounds that the findings of the lower courts that she had not acquired a specially protected tenancy of the flat at issue had been correct. It further held that the decisions the applicant had relied on concerned persons who had had specially protected tenancies which they had subsequently lost.