AS TO THE ADMISSIBILITY OF
Application no. 43389/02
by Milka GAĆEŠA
The European Court of Human Rights (First Section), sitting on 21 September 2006 as a Chamber composed of:
Mr C.L. Rozakis, President,
Mr L. Loucaides,
Mrs F. Tulkens,
Mrs N. Vajić,
Mr A. Kovler,
Mrs E. Steiner,
Mr K. Hajiyev, judges,
and Mr S. Nielsen, Section Registrar,
Having regard to the above application lodged on 11 November 2002,
Having deliberated, decides as follows:
The applicant, Mrs Milka Gaćeša, is a Croatian national who was born in 1950 and lives in Karlovac.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant and her late husband had a specially protected tenancy (stanarsko pravo) of a flat in Karlovac.
In late August 1991 their daughter was admitted to a hospital in Belgrade and on 2 September 1991 she underwent an eye surgery. The applicant and her late husband went to Belgrade to be with their daughter. The daughter was released from the hospital on 9 September 1991.
The applicant and her husband returned to Karlovac, but again left for Belgrade on 14 September 1991 to be with their daughter.
On 4 October 1991 the town of Karlovac was attacked. On 8 October 1991 Croatia declared its independence.
The applicant decided to stay in Belgrade. Her late husband informed the owner of the flat of the inability to return. With the outbreak of war in the region, they could not have crossed the borders and they also had no Croatian citizenship at that time.
In late October 1991 the applicant found out that their flat had been broken into and occupied by another person.
On 26 February 1992 the owner of the flat brought a civil action against the applicant and her late husband in the Karlovac Municipal Court (Općinski sud u Karlovcu), seeking termination of their specially protected tenancy. As the respondents’ residence had been unknown, the competent authority appointed a guardian ad litem (skrbnik za poseban slučaj) in the case.
On 17 August 1992 the Karlovac Municipal Court terminated the respondents’ tenancy. On appeal, the Karlovac County Court (Okružni sud u Karlovcu) upheld the first-instance judgment.
Following an appeal on points of law, on 8 June 1995 the Supreme Court (Vrhovni sud Republike Hrvatske) quashed the lower instances’ judgments and remitted the case, finding that the applicant had not been represented lawfully in the proceedings.
The applicant returned to Karlovac in 1998. Her husband had meanwhile died.
In the resumed proceedings, on 9 May 2001 the Karlovac Municipal Court terminated the applicant’s specially protected tenancy finding that she had been absent from the flat for more than six months without justified reason. As to the applicant’s assertion that her daughter’s surgery and the subsequent escalation of war had justified her absence, the Karlovac Municipal Court held that:
“The court cannot accept [that the absence was justified]..., bearing in mind the parental concern about the medical treatment of their daughter, because the patient’s condition had not been as critical based on the medical documents dating from 1991 or later, so as to prevent her from returning to Karlovac and continuing her treatment in Croatia. The allegations of the respondents that they could not return to Croatia due to the escalation of war or because they had no documents cannot be accepted because it is common knowledge that in the beginning of war there was a chaos and one could enter the country in various places, not only on border crossings, and, in any event, it is very hard to believe that the respondents had not taken appropriate documents on such a far away journey.”
On appeal, on 9 December 2001 the Karlovac County Court (Županijski sud u Karlovcu) upheld the first-instance judgment, reasoning as follows:
“The fact that the respondent’s daughter had actually undergone surgery and was hospitalised for a short period of time in September 1991 in Belgrade does not mean, (...), that the conditions from section 99 (2) of the Housing Act were met... Notwithstanding whether the medical intervention had to be performed in a hospital relatively far away from the respondent’s residence at the material time, the fact is that the civil action is directed against Milka Gaćeša, that is to say, not against the person who was medically treated, but against her mother... In any event, had the postoperative recovery of the respondent’s daughter actually necessitated parental presence or care, such care could have doubtlessly been ensured by one parent and not both...”
The applicant subsequently filed a complaint with the Constitutional Court (Ustavni sud Republike Hrvatske). She complained about equality before the law, the violation of her right to a fair hearing and of her property rights. On 30 April 2002 the Constitutional Court dismissed the applicant’s complaint finding that there had been no violation of her constitutional rights.
B. Relevant domestic law
The Housing Act (Zakon o stambenim odnosima, Official Gazette nos. 51/1985, 42/1986, 22/1992 and 70/1993), as in force at the material time, provided that a holder of a specially protected tenancy (“the tenant”) had a right to permanent use of the flat for living purposes, to sub-let part of it to someone else and to participate in the administration of the building in which the flat was located. The Housing Act also provided that, in agreement with the provider of the flat, the tenant could exchange it for another flat and, exceptionally, use part of it for business purposes.
Section 67 provided that cohabiters of the tenant could acquire the tenancy after the tenant’s death.
Section 99 read as follows:
“1. A specially protected tenancy may be terminated if the tenant [...] ceases to occupy the flat for an uninterrupted period exceeding six months.
2. A specially protected tenancy shall not be terminated under the provisions of paragraph 1 of this section in respect of a person who does not use the flat on account of undergoing medical treatment, performance of military service or other justified reasons.”
Under section 105 (1) the provider of the flat had to bring a civil action in order to terminate the specially protected tenancy. The tenancy was terminated as soon as the court’s judgment, upholding the claim of the provider of the flat, became res judicata.
The Specially Protected Tenancies (Sale to Occupier) Act (Zakon o prodaji stanova na kojima postoji stanarsko pravo, Official Gazette no. 27/1991), as in force at the material time, entitled the holder of a specially protected tenancy of a publicly owned flat to purchase it from the provider of the flat under favourable conditions.
The applicant complains that the domestic courts’ decisions violated her right to home and property. She relies on Article 8 of the Convention and on Article 1 of Protocol No. 1 to the Convention.
1. The applicants complains that the decision to terminate her specially protected tenancy violated her rights to protection of home, as guaranteed under Article 8, the relevant part of which provides as follows:
“1. Everyone has the right to respect for ... home ...
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
The Court observes that the applicant did not raise this issue in her complaint to the Constitutional Court. It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
2. The applicant further complains that, even though she was not the owner of the flat, she had a possession and a legitimate expectation to buy it, as all the other holders of specially protected tenancies on publicly-owned flats. She relies on Article 1 of Protocol No. 1, which reads as follows:
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.
For these reasons, the Court unanimously
Decides to adjourn the examination of the applicant’s property complaint;
Declares the remainder of the application inadmissible.
Søren Nielsen Christos Rozakis
GAĆEŠA v. CROATIA DECISION
GAĆEŠA v. CROATIA DECISION