FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 69265/01 by Miodrag KOSTI Ć against Croatia

The European Court of Human Rights (First Section), sitting on 8 January 2004 as a Chamber composed of:

Mr C.L. Rozakis , President , Mr P. Lorenzen , Mr G. Bonello , Mrs F. Tulkens , Mrs N. Vajić , Mr E. Levits , Mrs E. Steiner, judges , and Mr S. Nielsen , Deputy Section Registrar ,

Having regard to the above application lodged on 2 May 2001,

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

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Miodrag Kostić, is a Croatian [Note1] citizen, who was born in 1936 and lives in Petrinja, Croatia. The respondent Government are represented by their Agent, Ms Lidija Lukina-Karajković.

A. The circumstances of the case

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

The applicant is owner of a house in Petrinja, Croatia where he lived until August 1995 when he left Croatia due to military actions in that area.

On 23 September 1995 Parliament enacted a law providing that all property of persons who left Croatia was to be taken into possession of the State. On 24 March 1997 the Petrinja Housing Commission ( Stambena Komisija Grada Petrinje ) gave the applicant’s house to Ž.L. and M.L. for temporary use because their house in Petrinja was destroyed during the war.

On 10 June 1998 the Petrinja Municipal Court ( Općinski sud u Petrinji ) issued judgment ordering eviction of Ž.L. and M.L. (hereinafter “the respondents”) within fifteen days.

On 26 June 1998 Parliament adopted the Programme for the Return of Refugees and Displaced Persons ( Program povratka i zbrinjavanja prognanika, izbjeglica i raseljenih osoba - hereinafter the “Programme for Return”, Official Gazette no. 92/1998), regulating the principles for their return and the re-possession of their property.

On 21 July 1998 Parliament passed the Act on Termination of the Takeover Act ( Zakon o prestanku važenja Zakona o privremenom preuzimanju i upravljanu određenom imovinom , Official Gazette no. 101/1998 ).

The respondents’ appeal against the judgment ordering eviction was rejected by the Sisak County Court ( Županijski sud u Sisku ) on 30 September 1998. The judgment became final.

The respondents refused to vacate the applicant’s house. Therefore, on 24 November 1998 the applicant applied to the Petrinja Municipal Court seeking that an eviction order be issued.

On 7 December 1998 the eviction order was issued.

On 15 December 1998 the respondents appealed against the eviction order.

On 19 January 1999 the Petrinja Housing Commission annulled its previous decision by which it gave the applicant’s house to the respondents for temporary use.

On 29 June 1999 the Sisak County Court rejected the respondents’ appeal.

On 20 September 1999 the Petrinja Municipal Court asked the Petrinja Municipality to secure temporary accommodation for the respondents.

On 21 September 1999 the court invited the applicant to pay the advance for the costs of eviction. On 25 September 1999 the applicant paid the costs.

On 11 October 1999 the court repeated its request to the Petrinja Municipality to secure temporary accommodation for the respondents. On the same day the Petrinja Municipality Housing Commission replied that for the time being they were not able to provide temporary accommodation for the respondents.

On 15 February 2000 the Sisak County Court inquired into the state of the proceedings. On 24 February 2000 the Petrinja Municipal Court replied that the eviction order had not been carried out because an alternative accommodation had not been found for the respondents.

On 8 March 2000 the Sisak Municipal Court asked the Sisak Municipality to find some temporary accommodation for the respondents.

On 30 March 2000 the court sought the Sisak Regional Office for Reconstruction ( Regionalni ured za obnovu u Sisku ) information about the state of repair of the respondents’ house.

On 10 June 2000 the applicant complained to the court that the respondents still occupied his house with no legal ground.

On 31 July 2000 the court again sought the Sisak Regional Office for Reconstruction ( Regionalni ured za obnovu u Sisku ) information about the state of repair of the respondents’ house.

On 24 August 2000 the Reconstruction Department of the Sisak Office for Planning, Housing, Construction and Environment Protection ( Odsjek za obnovu Ureda za prostorno uređenje, stambeno komunlane poslove , graditeljstvo i zaštitu okoliša ) informed the court that the renovation of the respondent’s house was not a priority for the year 2000 and 2001.

On 19 September 2000 the court again asked the Petrinja Municipality Housing Commission to find accommodation for the respondents. It also asked the Ministry for Public Affairs, Reconstruction and Construction ( Ministarstvo za javne radove , obnovu i graditeljsttvo ) to inform it when the respondents’ house was due to be renovated.

On 19 October 2000 the Ministry informed the court that the respondents’ house was enlisted for the reconstruction programme for the year 2000.

On 10 January 2000 the court again asked the Petrinja Municipality Housing Commission to find accommodation for the respondents.

On 12 June 2001 the Petrinja Municipality Housing Commission informed the court that it was still not in a position to secure accommodation for the respondents.

On 28 June 2001 the Ministry for Public Affairs Reconstruction and Construction informed the court that the renewal of the respondents’ house was completed.

On 22 October 2001 the Petrinja Municipality Housing Commission ordered the respondents to vacate the applicant’s house.

On 8 November 2001 the respondents vacated the applicant’s house.

On 12 November 2001 the applicant obtained re-possession of his house.

B. Relevant domestic law

Relevant parts of the Takeover Act ( Zakon o privremenom preuzimanju i upravljanju određenom imovinom , Official Gazette no. 73/1995) provide as follows.

Section 2 gives the property, situated in the previously occupied territories and belonging to persons who had left Croatia, into possession and under control of the State.

Section 5, inter alia , authorises the housing commissions to give the property from Section 2 for temporary use to refugees, displaced persons and persons whose property was destroyed in war.

Section 7 obliges the temporary occupants to use the property given with the care of a good householder ( pažnjom dobrog gospodara ) and forbids them to sell the property or to create any charge on it.

Section 9 of the Programme for the Return of Refugees and Displaced Persons (Official Gazette no. 92/1998) provides as follows:

“Persons with Croatian documents, who are the owners of property in Croatia where other persons are temporarily accommodated, may apply to the municipal housing commissions and seek repossession of their property. The commission shall inform the owner within five days about the status of his property. Relying on the proof of ownership, the commission shall annul the previous decision allowing temporary accommodation of other persons and order the persons accommodated to vacate the premises. The commission shall serve a written decision on the owner and the temporary occupier within seven days. The decision shall contain a time-limit for eviction and an offer of alternative accommodation for a temporary occupier in a house or flat in State ownership.

.......

“Where a temporary occupier does not vacate the premises within the time allowed, the commission shall institute eviction proceedings with a competent municipal court within seven days. The court shall apply the provisions concerning summary civil proceedings. The court’s decision shall be immediately enforceable. An appeal shall not stay enforcement proceedings or repossession of the property by the owner....”

Article 59 § 1 of the 1999 Constitutional Act on the Constitutional Court ( Ustavni zakon o Ustavnom sudu Republike Hrvatske , Official Gazette no. 99/1999, hereinafter “the 1999 Constitutional Court Act”) provides that every person, who considers that any of his constitutional right has been violated by a decision of judicial or administrative body or any other body invested with public authority may lodge a constitutional complaint with the Constitutional Court.

COMPLAINTS

1. The applicant complained under Article 1 of Protocol No. 1 that his right to peaceful enjoyment of his possession was violated in so far as he had been prevented from re-possessing his house in Petrinja .

2. The applicant further complained under Article 14 of the Convention that he was discriminated against on the basis of his Serbian origin.

THE LAW

1. The applicant complained that he had been prevented from re-possessing his property for a prolonged period of time contrary to Article 1 of Protocol No. 1 which reads as follows:

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.”

a. The Government firstly submitted that the present application was incompatible ratione personae with the provisions of the Convention insofar as the applicant was no longer a victim of the violation of the Convention as he had regained the possession of his house on 12 November 2001.The applicant did not comment on that issue.

The Court considers that the present application concerns a situation where the State authorities failed to carry out an eviction order for more than three years. Thus, the applicant may claim to be a victim of the violation of the rights guaranteed by the Convention because he alleges that the fact that he was unable to regain possession of his house in Petrinja for more than three years violates Article 1 of Protocol No. 1.

Therefore, the objection of incompatibility ratione personae of the application must be dismissed.

b. The Government further objected that the applicant had failed to exhaust domestic remedies. They argued that the applicant could have sought protection of his rights before a county court whereby he could have complained about an illegal act of an official. Furthermore, the applicant could have filed a criminal complaint against officials who deprived him of his rights. Lastly, he could have complained to the Constitutional Court.

The applicant did not comment on that issue.

The Court observes that the applicant did not complain about an illegal act of an official or that any of the officials involved in his case had committed any crime. He complained that the prolonged period for which he had been unable to regain possession of his house in Petrinja due to the fact that the State had placed other persons into his house, violated his right to peaceful enjoyment of his possessions.

As to the necessity of a constitutional complaint the Court notes that the latter may be lodged against a decision in disfavour of a party filing a constitutional complaint but not in a situation which concerns non-enforcement of a decision in the applicant’s favour for a prolonged period of time. The Court observes that the applicant had a final judgment confirming his ownership of the house in question and ordering the eviction of the temporary occupants. The applicant then had an eviction order issued. Accordingly, he had no reason to complain about any of these decisions.

It follows that the Government’s objection as to the non-exhaustion of domestic remedies has to be rejected.

c. In the alternative the Government invited the Court to reject the application as manifestly ill-founded. They argued that the contracting States had the right to control the use of property in pursuit of public interest. In this respect they maintained that the Petrinja area where the applicant’s house was situated suffered gravely from the effects of war. They explained that a lot of property had been destroyed in war operations and many persons had left the town. After the war, the returnees had been placed in houses that were good for living. A family of returnees had been placed in the applicant’s house while the applicant was absent.

In 1998 Parliament adopted the Programme for Return of Refugees and Displaced Persons which guaranteed the return of their possessions to persons who had left Croatia. However, temporary occupiers were to be placed in state-owned accommodation.

The Government asserted that this Programme was adopted in order to protect public interest, namely to secure re-possession of property to persons who had left Croatia and whose property had been given for temporary use to other persons but at the same time to protect refugees who were placed in houses owned by the previous group of persons.

The Government maintained that the Petrinja Housing Commission and the Petrinja Municipal Court together attempted to find accommodation for the family temporary placed in the applicant’s house. However, they faced a shortage of state-owned accommodation in the Petrinja area and were not able immediately to secure to the applicant the re-possession of his house. Meanwhile their own house was renovated and they moved in which made it possible for the applicant to re-possess his house.

The applicant disagreed with the Government.

The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

2. The applicant also complained that he had been discriminated against on the basis of his Serbian origin alleging that no single eviction order has been carried out in the Petrinja area where the owner of the house was a person of Serbian origin. He relied on Article 14 of the Convention which reads as follows:

“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.”

The Government emphasised that the Programme for Return applied equally to everyone irrespective of their ethnic origin and that the parties to the proceedings before the domestic courts were not asked to declare their ethnic origin. As to the applicant’ assertion that no single eviction order had been carried out in the Petrinja area if the owner of the house was a person of Serbian origin, the Government submitted that in the period between 1998 and 2002 there had been fifteen such proceedings. In eight of these proceedings the owners had re-possessed their houses, one case was pending before the Sisak County Court upon an appeal and six cases were still pending before a municipal court.

In the Government’s view there was no indication of discrimination in any respect.

The applicant disagreed with the Government.

The Court notes that the Programme for Return equally applies to all persons who returned to Croatia irrespective of their ethnic origin and that there is no indication that the applicant was discriminated against in any respect.

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

For these reasons, the Court unanimously

Declares admissible, without predjudging the merits, the applicant’s complaint concerning his right to peaceful enjoyment of his possessions;

Declares the remainder of the application inadmissible.

Søren N IELSEN Christos Rozakis              Deputy Registrar President

[Note1] To be checked.