SECOND SECTION

DECISION

Application no . 70694/12 Darko Å TIMAC and Daniela KUZMIN-Å TIMAC against Croatia

The European Court of Human Rights (Second Section), sitting on 27 September 2016 as a Chamber composed of:

Işıl Karakaş, President, Julia Laffranque, Nebojša Vučinić, Paul Lemmens, Ksenija Turković, Jon Fridrik Kjølbro, Stéphanie Mourou-Vikström, judges, and Hasan Bakırcı, Deputy Section Registar ,

Having regard to the above application lodged on 9 September 2012,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

1. The applicants, Mr Dark o Å timac and Ms Daniela Kuzmin-Å timac, are Croatian nationals who were born in 1957 and 1958 respectively and live in Opatija. They were represented before the Court by the second applicant, who is a lawyer practising in Opatija.

2. The Croatian Government (“the Government”) were represented by their Agent, Ms Å . Sta ž nik.

A. The circumstances of the case

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

1. Background to the case

4. The applicants ’ flat is located in a house which they shared with a certain D.D., until his death in April 2014, and his partner M.D., who occupied a flat on the ground floor of the house. Another flat on the ground floor of the house is owned by company B. Title to the applicants ’ flat is registered in the name of their son, I. Å ., who lived in it with them.

5. Over a number of years the applicants submitted complaints to various domestic authorities about the problems which they were having with their neighbour D.D. and his family. This resulted in various proceedings before the competent domestic authorities, in particular criminal proceedings instituted in the late 1980s, as well as civil proceedings for the removal from the house of an outdoor lighting device and an awning, which terminated in the applicants ’ favour.

2. The relevant criminal proceedings

6. On 1 December 2008 the Opatija Municipal Court ( Op ć inski sud u Opatiji ) convicted D.D. of the offence of carrying out illegal construction work between 4 and 11 June 2007, and sentenced him to four months ’ imprisonment suspended for two years. This judgment became final on 17 April 2009.

7. On 21 July 2010 the Opatija Municipal Court convicted D.D. of the offence of making threats to the first applicant on 28 July 2008, and fined him the sum of 1,693 Croatian kunas (HRK) (approximately EUR 230). On appeal, the Rijeka County Court ( Županijski sud u Rijeci ) upheld the judgment on 23 March 2011 but amended the sentence to four months ’ imprisonment suspended for three years.

8. On 28 February 2011 the Rijeka Municipal Court ( Općinski sud u Rijeci ) convicted D.D. and his partner M.D. of the offence of making threats to the first applicant on 14 April 2008 and to the applicants ’ son on 27 May 2008. D.D. was fined HRK 1,739 (approximately EUR 230) and M.D. was fined HRK 1,434.78 (approximately EUR 190). On appeal, the Rijeka County Court upheld the judgment on 9 May 2012 but amended M.D. ’ s sentence, suspending it for one year.

9. On 26 July 2012 the Rijeka Municipal Court convicted D.D. of the offence of carrying out illegal construction work between 3 September and the beginning of October 2010, and fined him HRK 1,207 (approximately EUR 160). This judgment became final on 10 August 2012.

3. The civil proceedings

10. In September 2008 the applicants ’ son, I. Å ., instituted a civil action in the Opatija Municipal Court against D.D., asking the court to order D.D. to remove an awning from the balcony. He was represented in the proceedings by the second applicant.

11. On 3 October 2008 the Opatija Municipal Court instructed I. Å . to modify his civil action by indicating the value of the claim. The order was made public on the court ’ s notice-board on the grounds that the second applicant had failed to collect the item from her mailbox at the court. It was thereby deemed to have been properly served.

12. On 17 February 2009 the Opatija Municipal Court found that I. Å . had not complied with the order and therefore discontinued the proceedings, since in the circumstances it was presumed that the civil action had been withdrawn. The court ’ s decision was likewise served by means of a public announcement on the court ’ s notice board due to the second applicant ’ s failure to collect the item from her mailbox.

13. In April 2010 I. Å . requested that the Opatija Municipal Court hold a hearing but was informed that the proceedings had been discontinued.

14. On 8 July 2010 I. Å . asked the Opatija Municipal Court to reinstate the proceedings on the grounds that he had not been properly served with that court ’ s decisions.

15. On 4 October 2010 the Opatija Municipal Court dismissed I. Å . ’ s request as unfounded on the grounds that the second applicant, as his legal representative, had a mailbox at the court and was obliged to collect all her mail every eight days. As she had failed to do that, the mail had been posted on the court ’ s notice-board and upon the expiry of eight days it had been deemed to have been duly served. I. Å . did not appeal against this decision and it became final on 26 November 2011.

4. The relevant administrative proceedings

16. In the period between 2000 and 2010 the applicants lodged several complaints with the Ministry responsible for construction and spatial planning matters (hereinafter: the Ministry of Construction) regarding D.D. ’ s construction of an exterior staircase on the house, renovation work carried out in his flat, and his installation of an awning.

17. These complaints led to several inspections by the competent construction inspectors and orders prohibiting D.D. from carrying out further illegal construction work.

18. In October 2012 the applicants filed a complaint with the Ministry of Culture ( Ministarstvo kulture ), arguing that there was a serious threat to the stability of their house, which was located in the historic city centre of Opatija.

19. The Ministry of Culture replied on 26 October 2012, stating that D.D. ’ s construction work could be considered to constitute serious damage to the building which would need to be repaired.

20. In January 2013 the applicants filed a complaint with the Primorsko-Goranska County Administration ( Primorsko-goranska ž upanija ; hereinafter: the “County Administration”) arguing that the structural stability of their house was endangered.

21. In the meantime, on 3 May 2013 the Ministry of Culture dismissed a request from D.D. to legalise the construction work carried out on the house on the grounds that it had not been executed in compliance with the relevant standards and principles of conservation.

22. On 18 September 2013 the Ministry of Culture urged the Ministry of Construction to implement the measures necessary in the applicants ’ case on the basis of their assertion that the structural stability had been seriously disturbed and that there was a real and imminent risk to their lives and property.

23. On 16 January 2014 a construction inspector invited the applicants and the Ministry of Culture to submit evidence showing that the structural stability had been disturbed.

24. The applicants complied with that order and on 31 January 2014 submitted an expert report drafted by Z.K. attesting that the structural stability of the building had been disturbed and that there was a risk that, in the event of an earthquake, it could collapse.

25. On 5 February 2014 the construction inspector expressed his doubts about Z.K. ’ s findings. He considered that the report needed to be clarified as it was incomplete and methodologically flawed. The inspector also expressed his doubts as to Z.K. ’ s qualifications.

26. On an unspecified date, the applicants provided the Ministry of Construction with a letter from the Rijeka County Court attesting that the expert who had drafted the report was an officially appointed court expert.

27. On 2 December 2014 the chief construction inspector carried out an on-site inspection of the applicants ’ house ‒ accompanied by a Ministry of Construction expert in the structural analysis of buildings ‒ to examine the issues raised in the expert report submitted by the applicants. The applicants and all other interested parties to the proceedings were invited to attend the on-site inspection. The inspectors found that there was a small crack in the house and that it had not been properly maintained. However, there was no sign of any damage to the building indicating that any aspect of its structural stability was endangered.

28. The applicants challenged these findings before the Ministry of Construction. On 18 December 2014 the chief construction inspector replied, explaining that ‒ although there were issues regarding the construction work carried out by D.D. insofar as the house was located in the historic centre of Opatija ‒ there were no indications that the structural stability of the house was in any way endangered.

5. Other relevant facts

29. There were numerous police interventions in connection with the applicants ’ disputes with their neighbours. Those interventions concerned matters such as the parking of a car, the walking of a dog and arguments over the management of various installations in the house.

30. In July 2012 the applicants complained to the Ministry of the Interior ( Ministarstvo unutarnjih poslova ) about the manner in which the Opatija police had dealt with their complaints. They received a reply from the Chief of the Primorsko-Goranska police department ( Policijska uprava Primorsko-goranska ) stating that they had so far registered twelve police interventions in connection with disputes between the applicants and their neighbours and that the Opatija Municipal State Attorney ’ s Office ( Op ć insko državno odvjetni š tvo u Opatiji ) had lodged four indictments against D.D. with the competent criminal courts. However, there was nothing indicating irregular or improper conduct on the part of the police in handling the applicants ’ case.

31. The applicants again complained to the Ministry of the Interior and on 24 October 2012 they received a reply from the internal control department endorsing the police department ’ s findings.

B. Relevant domestic law

32. The relevant provisions of the Constitution of the Republic of Croatia (Ustav Republike Hrvatske, Official Gazette nos. 56/1990, 135/1997, 8/1998, 113/2000, 124/2000, 28/2001, 41/2001, 55/2001, 76/2010, 85/2010 and 5/2014) read as follows:

Article 34

“The home is inviolable ... ”

Article 35

“Everyone has a right to respect for and legal protection of his private and family life, dignity, reputation and honour.”

Article 48

“The right of ownership shall be guaranteed ... ”

33. The relevant provisions of the Property Act (Zakon o vlasništvu i drugim stvarnim pravima, Official Gazette nos. 91/96, 68/98, 137/99, 22/00, 73/00, 129/00, 114/01, 79/06, 141/06, 146/08, 38/09, 153/09 and 143/12) read:

Protection from nuisance

Section 167

“(1) If a third party unlawfully disturbs the owner, without depriving him of his possessions, the owner may request the court to issue an injunction.

(2) In order to exercise the right referred to in paragraph 1 of this section in courts or in proceedings before another competent authority, the owner shall prove his ownership and that there has been nuisance by the third party; and if the third party claims to have the right to carry out the impugned activity, he or she shall bear the burden of proof thereof.

(3) If damage is sustained as the result of nuisance referred to in paragraph 1 of this section, the owner shall be entitled to claim compensation in accordance with the general rules governing compensation for damage ... ”

34. The relevant part of the Civil Obligations Act ( Zakon o obveznim odnosima , Official Gazette nos. 35/2005, 41/2008, 125/2011 and 78/2015), reads as follows:

Rights of personality Section 19

“(1) All natural persons or legal entities are entitled to protection of their rights of personality [ prava osobnosti ] under the conditions provided by law.

(2) Rights of personality within the meaning of this Act are the right to life, to physical and mental health, reputation, honour, dignity, name, privacy of personal and family life, liberty, etc.

(3) A legal entity shall have all the above-mentioned rights of personality – apart from those related to the biological character of a natural person – and, in particular, the right to a reputation and good name, honour, name or company name, business secrecy, entrepreneurial freedom, etc.”

Section 1046

“Damage may result from ... an infringement of rights of personality (non-pecuniary damage).”

Request for Elimination of Risk of Damage

Article 1047

“(1) Any person may request that another person eliminate a major source of danger for him or her or for another person, as well as refrain from activities causing disturbance or a risk of damage if such disturbance or damage cannot be prevented by applying the appropriate measures.

(2) The court shall order, at the request of an interested party, the taking of appropriate action to prevent the occurrence of damage or disturbance, or to eliminate a source of danger, at the expense of the possessor of such a source of danger, if the latter fails to do so himself or herself.

(3) If damage results from the performance of an act of public interest for which approval has been obtained from the competent authority, only compensation for damage exceeding the usual limits may be requested (excessive damage).

(4) In that event, however, the taking of socially justified measures may be requested in order to prevent the occurrence of damage or to reduce damage.”

Request to desist from violating rights of personality Section 1048

“Anyone may request a court or other competent authority to order the cessation of an activity which violates his or her rights of personality and the elimination of its consequences.”

COMPLAINTS

35. The applicants complained, invoking Article 8 of the Convention and Article 1 of Protocol No. 1, that the State authorities had failed to afford them effective and adequate protection from the unlawful conduct of their neighbours.

36. The applicants also complained, invoking Article 6 of the Convention, of the refusal to reinstate a civil action in the proceedings before the Opatija Municipal Court.

THE LAW

37. Complaining of a failure on the part of the State authorities to provide them with adequate protection from harassment by their neighbours, the applicants relied on Article 8 of the Convention and Article 1 of Protocol No. 1.

38. The Court notes that, given that the property title to the applicants ’ flat is registered in the name of their son (see paragraph 4 above), their complaints fall to be examined only under Article 8 of the Convention, which, in so far as relevant, reads as follows:

Article 8

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

A. The parties ’ arguments

39. The Government submitted that the applicants had failed to use remedies in the civil courts which would have allowed them to address their particular complaints of harassment and unlawful construction by their neighbours. Moreover, in the event of an unfavourable outcome before the civil courts, they could have brought their complaints before the Constitutional Court. The applicants had instead pursued numerous complaints before the construction inspectorate, the activities of which were aimed at the protection of public order in the sphere of construction rather than the rights of individuals. The Government also contended that the applicants had lodged their application regarding the unlawful construction of the external stairs and the renovation work carried out by their neighbours outside the Court ’ s six-month time-limit. In any case, in the Government ’ s view, the applicants ’ complaints were unfounded given that the domestic authorities, namely the police, criminal courts and the construction inspection, had duly taken all the necessary and relevant measures to protect the applicants ’ rights.

40. The applicants contended in particular that the domestic authorities had failed to react properly and promptly to their allegations of harassment by their neighbours. All the remedies which they had used had been ineffective and they had seen no reason to pursue further civil remedies, particularly because a generally negative attitude towards them had been adopted by the judges of the competent civil courts and other competent authorities. Moreover, they had lacked the necessary financial means for pursuing remedies in the civil courts. The applicants also argued that they had brought their complaint before the Court within the respective time-limit. In their view, the domestic authorities had failed to recognise that they had been the victims of harassment and had failed to react promptly to protect their personal integrity and their home as an amenity.

B. The Court ’ s assessment

41. The Court finds it unnecessary to address all of the Government ’ s objections, as the complaints are in any event inadmissible for the following reasons.

42. With regard to the issue of protecting individuals from harassment by their neighbours the Court refers to its findings in the case of B.V. and Others v. Croatia (dec.), no. 38435/13, §§ 154-164, 15 December 2015.

43. The Court notes in the case at issue that, as in the case of B.V. and Others , there is an ongoing, long-lasting dispute between the applicants and their neighbours which the applicants sought to settle by involving various domestic authorities, namely the police, the construction inspection authorities and the criminal courts.

44. For the most part, these complaints concerned matters such as the parking of a car, the walking of a dog or the management of installations in the house. Nevertheless, the Court observes that the police responded promptly to the applicants ’ requests for intervention, taking the appropriate measures within their competence (see paragraphs 29-30 above). In addition, the Court notes that the applicants brought various criminal complaints against their neighbours which, in so far as they fall within the Court ’ s temporal jurisdiction, concerned issues of illegal construction and threatening behaviour. The criminal courts reacted appropriately to such complaints and punished the applicants ’ neighbours for their unlawful conduct (see paragraphs 6-9 above).

45. In this connection the Court reiterates that in respect of less serious acts between individuals, such as those alleged in the present case, the obligation of the State under Article 8 to maintain and apply in practice an adequate legal framework affording protection can also consist of civil law remedies capable of affording sufficient protection (see B.V. and Others , cited above, §§ 154 in fine and 163).

46. The same is true for the alleged nuisance created by the applicants ’ neighbours ’ actions (see, for instance, Pawlak v. Poland (dec.), no. 29179/06, § 66, 19 March 2013). Indeed, the Court notes that the only disturbance of a serious nature affecting the applicants ’ home concerned the alleged danger to the stability of their house caused by their neighbours ’ actions. The applicants brought their complaints regarding that alleged danger before the competent construction inspector, relying on an expert report which they had commissioned from Z.K. However, the competent inspector found numerous deficiencies in the report which needed to be clarified (see paragraphs 24-25 above). In addition, a team of experts from the Ministry of Construction, consisting of the chief construction inspector and an expert on issues concerning the structure of buildings, conducted an on-site inspection and found that the applicants ’ allegations of danger to the stability of the building were completely unfounded (see paragraphs 27-28 above).

47. In view of the above, and given that a legal framework affording protection can also consist of civil law remedies capable of affording sufficient protection, the Court notes that it is not disputed between the parties that the applicants had the possibility of filing a claim before the civil courts and of seeking protection from nuisance, the elimination of a risk of possible damage resulting from their neighbours ’ actions and compensation for the alleged damage and abuse of their rights (see paragraphs 33-34 above).

48. The Court notes, however, that the applicants failed to avail themselves of the effective remedies available in the civil courts aimed at providing protection from the actions of their neighbours. The Court notes that within its temporal jurisdiction the only attempt to use the civil remedies that was made by the applicants ’ son, I. Å . However, the civil proceedings concerned were limited in scope and were discontinued due to his failure to participate effectively in the proceedings (see paragraphs 10- 15 above). As regards the applicants ’ arguments that, on the one hand, civil proceedings would have been ineffective due to the competent domestic authorities ’ generally negative attitude towards them and, on the other, that they lacked the necessary financial means for pursuing such remedies, the Court finds these allegations unfounded and unsubstantiated.

49. In view of the above findings, and also taking into account the authorities ’ response to the applicants ’ requests for interventions, the measures adopted and the proceedings instituted by the authorities and the possibility of instituting proceedings in the civil courts, the Court finds no indication of any deficiencies in the domestic framework relating to the applicants ’ specific complaints (see B.V. and Others , cited above, § 164). It follows that the complaints are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

C. Other alleged violation of the Convention

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 20 October 2016 .

Hasan Bakırcı Işıl KarakaÅŸ              Deputy Registrar President