FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 1384/03 by Branko and Slaviša GARIĆ against Croatia

The European Court of Human Rights (First Section), sitting on 19 October 2006 as a Chamber composed of:

Mr C.L. Rozakis , President , Mr A. Kovler , Mrs E. Steiner , Mr K. Hajiyev , Mr D. Spielmann , Mr S.E. Jebens , judges , Mr I. Grbin , ad hoc j udge , and Mr S. Nielsen , Section Registrar ,

Having regard to the above application lodged on 6 December 2002 ,

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 applicants,

Having deliberated, decides as follows:

THE FACTS

The applicants, Mr Branko Gari ć and Mr Slaviša Garić , are Croatian nationals, who live in Dubrovnik . They are represented before the Court by Mr T. Vuki č evi ć , a lawyer practising in Split . The respondent Government are represented by their Agent, Ms Š. Stažnik.

A. The circumstances of the case

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

The applicants are co-owners of the first floor of a house in Dubrovnik . N.S. is the owner of the ground floor of the same house.

N.S. has lived in the house with his family since 1967. They shared the house with other tenants during certain periods of time.

As the other tenants left the house during the eighties, N.S. acquired specially protected tenancy on the entire house. He acquired the tenancy on the first floor by a decision of the competent Ministry on 23 February 1995 . It was also established, on the basis of an expert opinion, that the ground floor and the first floor constituted one flat.

The applicants filed an administrative action challenging the Ministry ’ s decision. The Administrative Court ( Upravni sud Republike Hrvatske ) dismissed their action on 19 March 1997 .

On 30 June 1998 the Constitutional Court ( Ustavni sud Republike Hrvatske ) dismissed the applicants ’ constitutional complaint.

N.S. subsequently instituted civil proceedings against the applicants before the Dubrovnik Municipal Court ( Općinski sud u Dubrovniku ) requesting it to order the applicants to conclude a tenancy contract with him (“the contract”).

Under the relevant legislation, the holders of specially protected tenancies on privately owned flats were granted the position of protected tenants (“ zaštićeni najmoprimci ”).

On 23 March 1999 the Dubrovnik Municipal Court ordered the applicants to conclude the contract with N.S. It established, on the basis of the previous administrative proceedings, that N.S. had acquired a specially protected tenancy on the first floor of the house and was thus entitled to be a protected tenant in respect of that part of the house. It also accepted the fact that the whole house represented one flat.

On 8 July 1999 the Dubrovnik County Court ( Županijski sud u Dubrovniku ) dismissed the applicants ’ appeal.

On 20 May 2002 the Constitutional Court dismissed the applicants ’ constitutional complaint. It found that the courts ’ decisions had been based on the law and that they had not interfered with the applicants ’ property rights, since they had not been deprived of their ownership.

B. Relevant domestic law

The Flat Lease Act ( Zakon o najmu stanova , Official Gazette no. 91/1996 of 28 October 1996) (“the Lease Act”) regulates the legal relationship between the landlord and the tenant with respect to the lease of flats. It recognises a special category of tenants, namely those who were previously holders of specially protected tenancies on privately-owned flats. Such a category is, according to the Act, subject to a number of protections, for instance, an obligation for the owners to contract a lease for an unlimited period of time; payment of a so-called protected rent, the amount of which is to be prescribed by the Government, as well as limited reasons for the termination of the lease. The Lease Act abolished the specially protected tenancy as such.

Pursuant to the Lease Act a landlord may terminate the lease of a protected tenant in the following cases:

- if the tenant does not pay the rent or charges;

- if the tenant sublets the flat or part of it, without permission from the landlord;

- if the tenant or other tenants in the flat disturb other tenants in the building;

- if another person, not figuring in the lease contract, lives in the flat longer than thirty days, without permission from the landlord, except where that person is a spouse, child or parent of the tenant or of the other legal tenants in the flat, or a dependant of the tenant or a person on whom the tenant is dependent;

- if the tenant or other legal tenants do not use the flat for living, but for other purposes;

- if the landlord does not have another flat and is entitled to social assistance benefits or is older than sixty years.

Under section 40 (1) of the Lease Act, the landlord may also terminate a lease of a protected tenant if the landlord intends to move into the flat himself or install his children, parents or dependants therein.

COMPLAINTS

1. The applicants complain under Article 6 § 1 of the Convention, taken alone and together with Articles 13 and 14 of the Convention, about the fairness of the proceedings, that the remedies they have used in order to challenge the first-instance judgment have not been effective and that they were discriminated against during the proceedings, because the court disregarded their evidence and that the principle of equality of arms was thus violated.

2. The applicants also complain under Article 8 of the Convention that their right to respect for their home was violated.

3. Lastly, the applicants complain under Article 1 of Protocol No. 1 to the Convention that their property rights were violated in that the courts disabled them from using their flat.

THE LAW

1. The applicants firstly complain under Article 6 § 1 of the Convention, taken alone and in conjunction with Articles 13 and 14 of the Convention, about the fairness of the civil proceedings conducted before the domestic courts. In particular, they complain that the courts established the facts wrongfully. They also complain about the outcome of these proceedings alleging that the remedies they have used in order to challenge the first-instance judgment have not been effective, since the decisions were not in their favour.

Furthermore, the applicants complain that they were discriminated against during the proceedings, because the court disregarded their evidence and that the principle of equality of arms was thus violated.

The invoked provisions read as follows:

Article 6 § 1

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

Article 13

“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.”

Article 14

“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

In so far as the applicants ’ complaints may be understood to concern assessment of the evidence and the result of the proceedings before the domestic courts, the Court reiterates that, according to 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 the Schenk v. Austria judgment of 12 July 1988, Series A no. 140, p. 29, §§ 45-46 and Garcia Ruiz v. Spain , no. 30544/96, Reports of Judgments and Decisions 1999-I, § 28).

The Court finds that there is nothing to indicate that the national courts ’ evaluation of the facts and evidence presented in the applicants ’ case was contrary to Article 6 of the Convention. The applicants were fully able to state their case and challenge the evidence; all essential evidence was presented; there had been a public hearing at first instance and the courts ’ decisions were satisfactorily reasoned.

The Court also notes that the applicants were able to lodge an appeal against the first instance judgment as well as a constitutional complaint.

In these circumstances the Court finds that the case discloses no appearance of a violation of the provisions invoked by the applicants.

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

2. The applicants further complain under Article 8 of the Convention and Article 1 of Protocol no. 1 alleging that their right to respect for their home as well as their property rights were violated because N.S. has sufficient living space on the ground floor, whereas the second applicant needs the first floor in order to live there with his family.

The invoked provisions read as follows:

Article 8

“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.”

Article 1 of Protocol no. 1

“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 Government submit firstly that the application is incompatible ratione temporis with the Convention in respect of all the facts occurred prior to 5 November 1997 when Convention entered into force in respect of Croatia .

The Government further contend that the applicants have failed to exhaust domestic remedies because they did not terminate the lease contract with N.S.

As to the merits of the complaint, the Government maintain that the flat in question cannot be regarded as the applicants ’ home and that even considering that there has been an interference with the applicants ’ rights under Article 8 of the Convention and Article 1 of Protocol no. 1, such an interference was necessary for the control of property in public interest.

The applicants argue that the flat in question is their home because the second applicant intends to live in it. They also submit that the interference with their property rights placed a disproportional individual burden on them.

The Co urt must first examine the Government ’ s contention that the applicant s have not exhausted domestic remedies.

The Court observes that the rule of exhaustion of domestic remedies contained in Article 35 § 1 of the Convention requires that normal recourse should be had by an applicant to remedies which are available and sufficient to afford redress in respect of the breaches alleged (see, among other authorities, the Akdivar and Others v. Turkey , judgment of 16 September 1996, Reports of Judgments and Decisions 1996-IV, p. 1210, § 65). The existence of the remedies in question must be sufficiently certain not only in theory but in practice, failing which they will lack the requisite accessibility and effectiveness (ibid.).

It recalls that in the area of the exhaustion of domestic remedies there is a distribution of the burden of proof. It is incumbent on the Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one available in theory and practice at the relevant time, that is to say, that it was accessible, was one which was capable of providing redress in respect of the applicant ’ s complaints and offered reasonable prospects of success. However, once this burden has been satisfied it falls to the applicant to establish that the remedy advanced by the Government was in fact exhausted or was for some reason inadequate and ineffective in the particular circumstances of the case or that there existed special circumstances absolving him or her from the requirement (ibid., p. 1211, § 68).

In addition, the application of the rule must make due allowance for the fact that it is being applied in the context of a machinery for the protection of human rights that the Contracting Parties have agreed to set up (ibid., § 69). Accordingly, the Court has recognised that Article 35 § 1 must be applied with some degree of flexibility and without excessive formalism (see, for example, the Cardot v. France , judgment of 19 March 1991, Series A no. 200, p. 18, § 34). It has further recognised that the rule of exhaustion is neither absolute nor capable of being applied automatically; in reviewing whether it has been observed it is essential to have regard to the particular circumstances of each individual case (see, for example, the , judgment of 6 November 1980, Series A no. 40, p. 18, § 35). This means amongst other things that it must take realistic account not only of the existence of formal remedies in the legal system of the Contracting Party concerned but also of the general legal and political context in which they operate as well as the personal circumstances of the applicants (see the Akdivar judgment cited above, p. 1211, § 69).

The Court will consider whether the applicants have at their disposal legal means envisaged in domestic legal system to protect their rights in connection to the flat in question.

It is firstly to be noted that the applicants express that their wish is to have the tenants removed from their flat in order to install the second applicant and his family in there.

According to section 40 (1) of the Lease Act, the landlord may terminate a lease of a protected tenant if the landlord intends to move into the flat himself or install his children, parents or dependants therein.

The Court observes that the second applicant is a co-owner of the flat in question and that he is directly entitled under domestic law to terminate the lease with N.S. if he himself intends to move into the flat.

The documents submitted by the applicants do not indicate that the second applicant has done so.

Furthermore, it is to be noted that in the case of N.S. ’ s refusal to accept the termination of lease, the second applicant could file a civil action against him.

Having in mind the subsidiary nature of the Convention, the Court recalls that it is firstly for the national authorities to be given an opportunity to remedy any possible violations of the rights guaranteed by the Convention. In these proceedings domestic courts would have a possibility to balance the interests of the tenant occupying the applicant ’ s flat on one side and of the applicants as the owners of the flat on the other side.

If the Court were to engage in the assessment of the proportionality of the measures taken at this stage, such an assessment would amount to disabling the domestic authorities of their own assessment of the conflicting interests of the owners and tenants in the applicants ’ position and also to deprive the domestic courts of ever applying the rules of the Lease Act aimed at the protection of both tenants and the owners of flats.

As to the proceedings so far conducted before the domestic courts, the Court notes that these proceedings did not involve any determination of the applicants ’ right to terminate the lease contract or of the fulfilment of the conditions set out in the domestic law to have such a contract terminated and in this respect any assessment of the applicants ’ personal situation in respect of the right to respect for their home and their property rights.

It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies. Therefore, the Court decides to discontinue the application of Article 29 § 3 of the Convention .

For these reasons, the Court unanimously

Declares the application i nadmissible .

Søren Nielsen Christos Rozakis Registrar President