FIRST SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 7118/03 by Milan and Katica MRKIĆ against Croatia

The European Court of Human Rights (First Section), sitting on 8 June 2006 as a Chamber composed of:

Mr C.L. Rozakis , President , Mrs N. Vajić , Mr A. Kovler , Mrs E. Steiner , Mr K. Hajiyev , Mr D. Spielmann , Mr S.E. Jebens , judges , and Mr S. Nielsen , Section Registrar ,

Having regard to the above application lodged on 5 February 2003 ,

Having deliberated, decides as follows:

THE FACTS

The applicants, Mr Milan Mrkić and Mrs Katica Mrkić , are Croatian nationals who were born in 1925 and 1936 respectively , and live in Karlovac , Croatia .

A. The circumstances of the case

The facts of the case, as submitted by the parties , may be summarised as follows.

In 1972 the applicants acquired a specially protected tenancy ( stanarsko pravo ) of a flat in Karlovac .

Following their retirement, they usually spent the summer in their house in Brebornica near Plitvice Lakes , situated 25 km from Karlovac .

In December 1990 the second applicant had had a stroke and was hospitalised in Karlovac from 19 December 1990 until 19 February 1991 . Subsequently, she had been admitted for physiotherapy to a medical rehabilitation centre from which she was released on 30 March 1991 .

Following the doctor ’ s advice to avoid stress, in June 1991 the applicants went to their summer house to spend time in the countryside.

However, in October 1991 the war escalated in Croatia , resulting in severe travel difficulties between the Plitvice area (which was part of the Croatian occupied territory from the summer of 1991 until August 1995) and the town of Karlovac . The applicants had remained in their summer house until August 1995 when, following the military operation “Storm” by which Croatia had regained control over almost its entire territory, they returned to Karlovac .

On 29 November 1991 the applicants ’ flat in Karlovac was given to certain displaced persons for temporary use .

On 9 November 1992 the insurance company C.O. (the owner and provider of the flat) brought a civil action against the applicants in the Karlovac Municipal Court ( Općinski sud u Karlovcu ) for termination of their specially protected tenancy. The plaintiff initially based its action on section 97 (1) of the Housing Act claiming that the applicants had not paid the rent since September 1991. Subsequently it also relied on Section 99 of the Act, arguing that the applicants had been absent from the flat for more than six months without justified reason .

On 14 November 1996 the Municipal Court delivered a judgment terminating the applicants ’ specially protected tenancy. The court rejected the applicants ’ arguments that they had left the flat for medical reasons and later on had been unable to return owing to the interruption in traffic connections.

The medical documentation issued upon the second applicant ’ s release from the hospital and the rehabilitation centre suggested that, at the time, she had indeed been seriously ill and needed the assistance of the first applicant. However, it did not necessarily follow that her health condition had remained the same in the period when the applicants had left their flat. The court found it unpersuasive that she had gone to the countryside where no medical facilities to treat her illness were available, especially given that she had actually been advised to consult a neurologist in Karlovac .

Moreover, the court considered that the applicants could have predicted the interruption of traffic in the region due to the escalation of the hostilities and thus should have returned on time. Alternatively, in particular given the second applicant ’ s health condition, in these circumstances they should not have left the town in the first place. Against this background, the court concluded that the applicants decided of their own will to leave the town and stay in their summer house in the period between 1991 and 1995, and that the reasons stated by them could not be taken as justified.

The applicants appealed.

On 6 March 1997 the Karlovac County Court ( Županijski sud u Karlovcu ) dismissed the applicants ’ appeal and upheld the first-instance judgment. The applicants ’ then appealed on points of law ( revizija ) to the Supreme Court ( Vrhovni sud Republike Hrvatske ).

On 12 October 1999 the Supreme Court dismissed the applicants ’ appeal on points of law.

On 18 November 1999 the applicants lodged a constitutional complaint to the Constitutional Court ( Ustavni sud Republike Hrvatske ).

They submit that the Constitutional Court ’ s decision was never served on them.

According to information and supporting documents provided by the Government in reply to a request made under Rule 49 § 2 (a) of the Rules of Court, it follows that on 12 March 2004 the Constitutional Court declared the applicants ’ complaint inadmissible. It found that the articles of the Constitution on which the applicant s sought to rely did not contain any human rights provisions. The decision was served on the applicants ’ representative on 23 April 2004 .

1. The Housing Act

(a) Relevant provisions

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 as follows:

Section 97 read as follows:

“1. The provider of the flat may terminate the specially protected tenancy... [ inter alia ] if the tenant does not pay the rent or the utilities for three consecutive months, or for three months in the last twelve months.

2. Termination of the specially protected tenancy for the reasons enunciated in paragraph 1 may be effected if the tenant does not pay the rent or the utilities due... within the reasonable time after being warned by registered mail to do so.”

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 tena ncy was terminated as soon as the court ’ s judgment, upholding the claim of the provider of the flat, became res judicata (see, inter alia , the Supreme Court ’ s decision no. Rev- 1009/1993-2 of 15 June 1994 ).

(b) The case-law of the Supreme Court

In decisions nos. Rev-3839/93-2 of 19 January 1994 , Rev-2276/00-2 of 21 November 2000 and Rev- 590/03-2 of 17 December 2003 , the Supreme Court interpreted section 99 (1) of the Housing Act as follows:

“War events per se , without any particular reasons rendering use of the flat impossible, do not constitute a justified reason for not using it.”

2. The Civil Procedure Act

The Civil Procedure Act ( Zakon o parničnom postupku , Official Gazette nos. 53/1991 and 91/1992), as in force at the material time, provided that in cases where a first-instance judgment had been upheld by that of the second-instance, it became res judicata when the second-instance court delivered its judgment . An appeal on points of law was regarded as an extraordinary remedy, that is, a remedy which could be lodged only against a res judicata judgment, and which did not, unless succes sful, affect the validity of that judgment.

COMPLAINTS

1. The applicant s complain under Article 6 § 1 of the Convention about the length of the proceedings.

2. The applicants also complain under Article 8 of the Convention that their right to respect for home was violated on account of the termination of their specially protected tenancy.

3. Lastly, the applicants complain under Article 13 of the Convention, read in conjunction with Article 8 thereof, that the proceedings concerning the remedies they had recourse to, were unduly prolonged.

THE LAW

A. Alleged violation of Article 6 § 1 of the Convention

The applicant s complain that the above civil proceedings have not been concluded within a “reasonable time” as required under Article 6 § 1 of the Convention, the relevant part of which reads as follows:

“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”

The Court considers that it c annot, 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.

B. Alleged violation of Article 8 of the Convention

The applicants also complain that their right to respect for home was violated because the domestic courts terminated their specially protected tenancy although they had been absent from the flat for justified reasons. They rely on Article 8 of the Convention which reads as follows:

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.

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 reca lls that, in accordance with general rules of international law, the provisions of the Convention do not bind a Contracting Party in relation to any act or fact which took place or any situation which ceased to exist before the date of the entry into force of the Convention with respect to that Party (see, as the most recent authority , Blečić v. Croatia [GC], no. 59532/00, § 70 , to be published in ECHR 2006 ) .

It further notes that, in its declarations made under former Articles 25 and 46 of the Convention, Croatia recognised the competence of the Convention organs to deal with individual petitions based on facts occurring after th e Convention and its Protocols had come into force in respect of Croatia .

Accordingly, the Court is not competent to examine applications against Croatia in so far as the alleged violations are based on facts having occurred before 5 November 1997 .

The Court recalls that its temporal jurisdiction is to be determined in relation to the facts constitutive of the alleged interference. The subsequent failure of remedies aimed at redressing that interference cannot bring it within the Court ’ s temporal jurisdiction (see Blečić v. Croatia [GC] , cited above , § 77) .

In the present case the applicant s complain that, by terminating their specially protected tenancy, the State violated their right to respect for their home . This being so, the termination of their tenancy was the fact constitutive of the alleged interference. It remains to be determined when the termination occurred.

The Court observes that for a tenancy to be terminated under Croatian law, there had to be a court judgment upholding the claim of the provider of the flat to that end. The tenancy was terminated from the date on which such a judgment became res judicata . In the present case, that judgment was given on 14 November 1996 by the Karlovac Municipal Court. I t became res judicata on 6 March 1997 when the Karlovac County Court, by its own judgment, upheld it. Therefore, it was at that moment – neither before nor afterwards – that the applicants lost their tenancy (see, mutatis mutandis , Blečić v. Croatia [GC] , cited above , § 84).

It follows that in the present case the alleged interference with the applicants ’ right lies in the County Court ’ s judgment of 6 March 1997 . The subsequent proceedings are to be seen as the exercise of available domestic remedies aimed at redressing the interference (see, mutatis mutandis , Blečić v. Croatia [GC], cited above, §§ 77-78). Thus, the decisions of the Supreme Court and the Constitutional Court only resulted in allowing the interference allegedly caused by that judgment to subsist. Having regard to the date of the County Court ’ s judgment, the interference falls outside the Court ’ s temporal jurisdiction (see, mutatis mutandis , Blečić v. Croatia [GC], cited above, § 85).

Accordingly, this complaint is incompatible ratione temporis with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected pursuant to Article 35 § 4.

C. Alleged violation of Article 13 of the Convention

Lastly, the applicants complain that the remedies they resorted to in order to challenge the termination of their specially protected tenancy are unduly delayed and therefore cannot be considered effective for the protection of their Convention right to respect for home. They rely on Article 13 of the Convention, which reads as follows:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

The Court firstly refers to its findings above according to which the applicants ’ complaint under Article 8 of the Convention is outside its competence ratione temporis . It follows that the question whether or not the applicant had an arguable claim for the purposes of Article 13 likewise falls outside the Court ’ s competence ratione temporis ( see , mutatis mutandis , Moldovan and Others and Rostas and Others v. Romania ( (dec.), nos. 41138/98 and 64320/01 (joined) , 13 March 200 1; and Voroshilov v. Russia (dec.), no. 21501/02, 8 December 2005) .

It follows that that this complaint is incompatible with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected pursuant to Article 35 § 4.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicants ’ complaint concerning the length of the proceedings ;

Declares the remainder of the application inadmissible.

Søren Nielsen Christos Rozakis Registrar President