FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 125/05 by Branko RA Å ETA against Croatia

The European Court of Human Rights (First Section), sitting on 10 July 2007 as a Chamber composed of:

Mr C.L. Rozakis , President , Mr L. Loucaides , Mrs N. Vajić , Mr A. Kovler , Mrs E. Steiner , Mr S.E. Jebens , Mr G. Malinverni, judges , and Mr S. Nielsen , Section Registrar ,

Having regard to the above application lodged on 30 November 2004,

Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together.

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

H aving deliberated, decides as follows:

THE FACTS

The applicant, Mr Branko Ra š eta, is a Croatian citizen who was born in 1954 and lives in Karlovac. He was represented before the Court by Mr M. Re š kovac, a lawyer practising in Karlovac. The Croatian Government (“the Government”) were represented by their Agent, M rs Š. Stažnik.

A. The circumstances of the case

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

T he applicant was born in 1954 and lives in Karlovac.

The applicant ’ s mother was a holder of a specially protected tenancy on a flat in Karlovac, owned by a public company, Croatian Post and Telecommunications ( Hrvatska pošta i telekomunikacije ). On 3 June 1991 Parliament enacted the Specially Protected Tenancies ( Sale to Occupier) Act ( Zakon o prodaji stanova na kojima postoji stanarsko pravo ), which regulates the sale of publicly owned flats previously let under a specially protected tenancy. On the basis of that Act, on 21 March 1994 the applicant ’ s mother requested the owner of the flat to conclude a contract for the sale of the flat between the owner as the seller and herself as the buyer. Since the owner declined her request, the applicant ’ s mother brought a civil action in the Karlovac Municipal Court ( Općinski sud u Karlovcu ) seeking a judgment in lieu of the contract of sale.

On 12 June 1995 the Karlovac Municipal Court gave a judgment by default. However, on an application by the defendant, the judgment was set aside and the proceedings continued. On 14 July 1998 the Municipal Court gave a fresh judgment in place of the contract of sale. The defendant appealed against the first-instance judgment and the case file was forwarded to the Karlovac County Court ( Županijski sud u Karlovcu ). During the appellate proceedings the applicant ’ s mother died. Subsequently, on 17 February 1999, the appellate court quashed the first-instance judgment on the ground that the plaintiff had died. The applicant took over the proceedings from his deceased mother.

The Karlovac Municipal Court on 24 May 2001 dismissed the applicant ’ s claim, finding that he did not fulfil the conditions for buying the flat in question. The relevant part of the judgment reads as follows:

“Section 135 of the Inheritance Act provides that the deceased ’ s assets are ex lege transferred to his or her heirs at the time of the death. Since at the time of Marija Rašeta ’ s death on 7 February 1999, she was not the owner of the flat in question because a contract of sale had not been concluded beforehand and the judgment replacing such a contract had not become final, her heir could not have inherited the ownership of the flat in question. In other words, the plaintiff Branko Rašeta would be in a position to realise his inheritance and property rights on the flat in question only if the deceased, Marija Rašeta, had concluded a contract of sale or if a final judgment replacing such a contract had been adopted.

Furthermore, under the Specially Protected Tenancies (Sale to Occupier) Act, the right to purchase a flat is vested in the occupier and is a personal right which cannot be transferred to heirs within the meaning of section 2 of the Inheritance Act (Official Gazette nos. 52/1971 and 47/1978) and is linked to the tenancy right, which likewise cannot be inherited.

It follows that Branko Rašeta, as an heir of Marija Rašeta, who had submitted a request to purchase the flat, is not allowed to continue these proceedings.

Branko Rašeta ’ s allegation that as a member of [his mother ’ s] household he has an independent right to purchase the flat under section 6 of the Specially Protected Tenancies ( Sale to Occupier) Act is deemed unfounded by the court.

Without examining the question whether the plaintiff has the status of a member of [his mother ’ s] household, the court has established that he does not have and cannot have his mother ’ s consent because it has been established that Marija Rašeta herself made a request to purchase the flat in question and that she died during the appellate proceedings against this court ’ s judgment dismissing her claim.

Under section 6 of the Specially Protected Tenancies ( Sale to Occupier) Act, a member of [the tenant ’ s] household has the right to purchase a flat with the tenant ’ s consent. Finding it established that the plaintiff does not have such consent, the court sees no need to establish his status as a member of [his mother ’ s] household because these two conditions have to be fulfilled cumulatively. Bearing in mind this legal characterisation of the dispute at issue, the court declined to hear further witnesses on behalf of the plaintiff ... who were to testify as to whether the plaintiff had lived in the same household as Marija Rašeta.”

On a subsequent appeal by the applicant, the Karlovac County Court upheld the first-instance judgment on 17 October 2001. The relevant part of the appellate judgment reads as follows:

“Contrary to the appellant ’ s submissions, under [the relevant] provisions of the Specially Protected Tenancies (Sale to Occupier) Act, the right to purchase a flat is a personal tenant ’ s right that cannot be inherited or transferred to a heir within the meaning of section 2 of the Inheritance Act because it is linked to the tenancy right, which likewise cannot be inherited. Therefore, the legal heir of the plaintiff, Branko Rašeta, does not have the right to purchase the flat in question, cannot inherit it and cannot continue these proceedings and obtain a judgment replacing the contract of sale, as found by the court of first instance. Furthermore, the first-instance court correctly applied section 6 of the above-mentioned Specially Protected Tenancies ( Sale to Occupier) Act, under which the right to purchase a flat is vested in a member of the [tenant ’ s] household with the tenant ’ s consent. Since the plaintiff herself submitted a request [to purchase the flat] as the tenant and thus expressed her choice, her son as a member of her household does not have this right. Therefore, [the first-instance court] correctly decided not to hear evidence concerning his status as a member of [his mother ’ s] household.”

In his subsequent constitutional complaint the applicant argued, inter alia , that his right to a fair hearing had been violated, as well as his property rights. On 27 October 2004 the Constitutional Court ( Ustavni sud Republike Hrvatske ) dismissed the applicant ’ s complaint. In so far as relevant, the decision of the Constitutional Court reads as follows:

“The applicant ’ s allegations of a violation of Article 29 of the Constitution are unfounded. In the proceedings before the Constitutional Court this court has not established any facts or circumstances indicating a violation of the constitutional right to a fair trial. In the disputed situation the judgments were adopted by courts established by law which acted within their competence, also established by law. The documents submitted about the civil proceedings in question show that the first-instance court conducted the proceedings and heard evidence in accordance with the need to establish relevant facts, while the appellate court entirely and thoroughly addressed the applicant ’ s submissions.”

B. Relevant domestic law

The Specially Protected Tenancies ( Sale to Occupier) Act (Official Gazette nos. 27/1991, 33/1992, 43/1992, 69/1992 25/1993, 26/1993, 48/1993, 2/1994, 44/1994, 47/1994, 58/1995, 11/1996, 11/1997 and 68/1998 ) regulates the conditions for the sale of flats let under specially protected tenancies. In general, the Act entitles the holder of a specially protected tenancy on a publicly owned flat to purchase it under favourable conditions of sale.

The relevant provisions of the Act provide as follows :

Section 4

“Every holder of a specially protected tenancy (hereinafter ‘ the tenant ’ ) may submit a written application to purchase a flat to the ... owner (hereinafter ‘ the seller ’ ) ... and the seller shall be obliged to sell the flat.

...”

Section 6

“The right to buy a flat shall be vested in the tenant and, with his consent, the members of his household ...

...

The consent referred to in paragraph 1 of this section shall be given in the contract (of sale) or in a separate document in which the signature must be certified. In the event of its refusal, the issue of consent shall be assessed in judicial proceedings.”

Section 9

“The seller shall be obliged to draw up a contract (of sale) with the buyer at the latest within 60 days after the buyer has made an application to this effect.

If the seller refuses to draw up a contract at the buyer ’ s request within the time-limit laid down in paragraph 1 of this section, the buyer may institute judicial proceedings seeking a judgment in lieu of the contract of sale.”

COMPLAINTS

1. The applicant firstly complain ed under Article 6 of the Convention that the domestic court ’ s findings were arbitrary and wrong. In particular he contended that the requirement to present the consent of his mother to purchase the flat on which she had a specially protected tenancy, at the moment when she had already deceased, violated his right to a fair trial.

2. The applicant further complained under Article1 of Protocol No. 1 that the domestic courts ’ decisions had prevented him from purchasing the flat in question.

3. Finally, the applicant invoked Article 17 of the Convention.

THE LAW

1 . The applicant complained under Articles 6 § 1 of the Convention that the domestic courts ’ findings had been arbitrary and contrary to the facts of the case and that they had not applied the domestic law correctly. The relevant parts of Article 6 read as follows:

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

The Government firstly submitted that the Court had jurisdiction to examine only the facts occurring after 5 November 1997, when the Convention was ratified by Croatia .

The applicant did not address this issue.

The Court agrees with the Government but notes that all decisions of the national courts concerning the applicant were taken after the date of ratification of the Convention by Croatia . Therefore, the Court finds that these proceedings clearly fall within its jurisdiction ratione temporis and that no issue arises in this respect.

Having regard to the views expressed by the domestic courts and the legal provisions governing the sale of flats under the Specially Protected Tenancies (Sale to Occupier) Act, the Government claimed that the proceedings had been fair because the domestic courts had given sufficient and adequate reasons for their findings. Their findings had been in no way arbitrary but instead reached in accordance with the clear legal rules and practice of the Supreme Court.

The applicant submitted that the proceedings had not been fair because the domestic courts had based their findings on the lack of consent from his mother for his purchase of the flat on which she had had a specially protected tenancy, whereas at that time she had already died.

In so far as the applicant ’ s complaint may be understood to concern the assessment of the evidence and the result of the proceedings before the domestic courts, the Court reiterates that, under Article 19 of the Convention, its duty is to ensure the observance of the engagements undertaken by the Contracting Parties to the Convention. In particular, it is not its function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention. Moreover, while Article 6 of the Convention guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence or the way it should be assessed, which are therefore primarily matters for regulation by national law and the national courts (see Schenk v. Switzerland , judgment of 12 July 1988, Series A no. 140, p. 29, §§ 45 ‑ 46).

In the present case the Court notes that the applicant had the benefit of adversarial proceedings. At the various stages of those proceedings he was able to submit the arguments he considered relevant to his case. The factual and legal reasons for the first-instance decision dismissing his claim were set out at length. In the judgment at the appeal stage the Karlovac County Court endorsed the statement of the facts and the legal reasoning set out in the judgment at first instance in so far as they did not conflict with its own findings. The Court finds no reason to conclude that the domestic courts overlooked important aspects of the case or in any arbitrary manner disregarded evidence presented by the applicant. Furthermore, in so far as the applicant ’ s complaint may be understood to concern an alleged lack of adequate reasoning in the national courts ’ judgments, the Court, having regard to the reasoning set out above, does not find that the national courts obligation in this respect was set aside. In these circumstances, the Court finds that this case does not disclose any appearance of a violation of the applicant ’ s right to a fair hearing as guaranteed under Article 6 of the Convention.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

2 . The applicant complained further that the domestic courts ’ decisions had prevented him from purchasing the flat in question. He r elied 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 notes that at the time of her death the applicant ’ s mother was not the owner of the flat in question and that therefore the applicant could not have inherited the flat. Furthermore, since under domestic law the rights of a holder of a specially protected tenancy were personal rights, the applicant had no legitimate expectation for the purposes of Article 1 of Protocol No. 1 to purchase the flat in question.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

3 . The applicant also alleged a violation of Article 17 of the Convention.

In the light of all the material in its possession, and in so far as the matters complained of were within its competence, the Court considers that th is part of the application does not disclose any appearance of a violation of this Article of the Convention . It follows that this complaint is inadmissible under Article 35 § 3 as being manifestly ill-founded and must be rejected pursuant to Article 35 § 4 of the Convention.

For these reasons, the Court unanimously

Decides to discontinue the application of Article 29 § 3 of the Convention ;

Declares the application inadmissible.

Søren Nielsen Christos Rozakis Registrar President