FIRST SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 48794/99 by Teodor ZAKLANAC against Croatia

The European Court of Human Rights, sitting on 15 November 2001 as a Chamber composed of

Mr C. L. Rozakis , President , Mr G. Bonello , Mr P. Lorenzen , Mrs N. Vajić , Mrs S. Botoucharova , Mr V. Zagrebelsky , Mrs E. Steiner , judges , and Mr E. F ribergh , Section Registrar ,

Having regard to the above application introduced on 22 March 1999 and registered on 14 June 1999,

Having regard to the partial decision of 16 March 2000,

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, Teodor Zaklanac , is a Croatian citizen, born in 1948 and living in Sisak, 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 was born in Croatia, at that time part of the Socialist Federal Republic of Yugoslavia (hereinafter “SFRY”), where he had lived until 1991 when, together with his family, he allegedly left for Switzerland. As he did not obtain permission to stay in Switzerland, in 1992 he moved to the Federal Republic of Yugoslavia. Some months later he returned to Croatia and lived in different parts of the then occupied territories.

In September 1995 Parliament passed a law governing temporary use of the property of persons who left Croatia - Temporary Takeover and Managing of Certain Property Act ( Zakon o privremenom preuzimanju i upravljanju određenom imovinom - hereinafter the “ Takeover Act”), which allowed municipalities to give such property for the use of other persons.

It appears that, pursuant to that Act, the Sisak Municipality temporarily accommodated M. I. in the applicant’s house in Sisak .

1. First set of proceedings

On 17 January 1997 the applicant instituted civil proceedings with the Sisak Municipal Court seeking re-possession of his house.

On 21 April 1997 the court pronounced judgment by default in the applicant’s favour.

Subsequently, M. I. filed an application to return the proceedings to the status quo ante and at the same time lodged an appeal against the judgment. On 11 March 1998 the Sisak Municipal Court dismissed the application to return the proceedings to the status quo ante .

In 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”), regulating the principles for their return and the re-possession of their property.

In July 1998 Parliament passed the Act on Termination of the Takeover Act ( Zakon o prestanku važenja Zakona o privremenom preuzimanju i upravljanu određenom imovinom ).

The applicant sought, and on 7 December 1998 obtained, an eviction order from the Sisak Municipal Court. The eviction with the assistance of the court organs was scheduled for 22 December 1998, but was not enforced due to M. I.’s above mentioned appeal against the judgment by default of 21 April 1997.

On 18 February 1999 the Sisak County Court quashed the first instance judgment, and remitted the case to the Sisak Municipal Court for re-examination. It found that the Sisak Municipal Court had failed to assess whether M. I. was given a permission to use the applicant’s property according to the Takeover Act, or without any legal basis, as that was a decisive fact concerning the application of the Programme for Return.

On 27 March 2000 the Sisak Municipal Court dismissed the applicant’s claim. It found that the applicant wrongly filed his action with a municipal court. Instead, he should have filed a request for re-possession of his property with a housing commission, as provided by the Act on Termination of the Takeover Act. The court also stated that that Act was a lex specialis in relation to the Property Act ( Zakon o vlasništvu i drugim stvarnim pravima ), which regulates property rights. As neither party appealed against that decision, it became final on 20 April 2000.

2. Second set of proceedings

According to the documents submitted by the applicant, it appears that in the meantime he had lodged a request for re-possession of his property with the Sisak Municipality Housing Commission ( Stambena Komisija Općine Sisak ). On 4 November 1999 the Sisak Municipality Housing Commission decided to annul the previous decision by which M. I. had obtained the right of use of the applicant’s property.

Subsequently, upon M. I.’s appeal, on 17 January 2000 the Sisak Municipality Housing Commission upheld its previous decision. It found that M. I. was the illegal possessor of the applicant’s property.

On 15 January 2001 the Sisak Municipality Housing Commission ordered M. I. to vacate the premises within a period of 15 days. It appears that he failed to comply with that order.

On 13 September 2001 the Sisak Housing Commission filed an action for eviction of M. I. from the applicant’s property with the Sisak Municipal Court. It appears that these proceedings are currently pending.

B. Relevant domestic law

Section 2 §§ 3 and 4 of the Act on Termination of the Temporary Takeover and Control of Certain Property Act (Official Gazette no. 73/1995) provide that the proceedings concerning temporary use, management and control of the property of persons who left Croatia are to be conducted by the housing commissions in the first instance and by the municipal courts in the second instance. They shall apply provisions of the Administrative Proceedings Act.

Section 9 of the Programme of Return of Refugees and Displaced Persons (Official Gazette no. 92/1998) provide 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 re-possession of their property. The commission shall inform the owner within five days about the status of his property. Relying on the proof of the ownership, the commission shall annul previous decision allowing temporary accommodation of other persons and order the persons accommodated to vacate the premises. The commission shall serve a written decision to the owner and the temporary occupier within seven days. The decision shall contain a time limit for eviction and an offer of an alternative lodging for a temporary occupier in a house or a flat in the state ownership.

...

“In case that a temporary occupier does not vacate the premises within the fixed time, the commission shall institute eviction proceedings with a competent municipal court within seven days. The court shall apply provisions concerning the civil summary proceedings. The court’s decision is immediately enforceable. An appeal does not interfere with the enforcement proceedings or the re-possession of the property by the owner."

COMPLAINTS

1. The applicant complains that he did not have a fair trial since the Sisak Municipal Court failed to enforce its eviction order and to re-instate his possession of his house in Sisak .

2. The applicant complains further under Article 8 of the Convention and Article 1 of Protocol No. 1 each alone and in conjunction with Article 14 of the Convention that the Sisak Municipal Court’s failure to enforce its eviction order violates his right to respect for his home, private and family life, his right to property and discriminates against him on the basis of his Serbian origin.

THE LAW

1. The applicant complains that the Sisak Municipal Court failed to enforce its judgment of 21 April 1997, granting his request for re-possession of his house in Sisak and its eviction order issued following that judgment. The Court has examined this complaint 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 fair ... hearing ... by [a] ... tribunal...”

The Government submit that the Sisak Municipal Court’s judgment of 21 April 1997 awarding the applicant’s claim was quashed by the Sisak County Court decision of 18 February 1999. Consequently the enforcement proceedings were stayed since the enforcement was no longer possible.

The applicant disagrees with the Government.

The Court notes that on 21 April 1997 the Sisak Municipal Court pronounced judgment by default granting the applicant’s claim for re-possession of his house in Sisak . On 11 March 1998 the same court rejected M. I.’s request to return the proceedings to the status quo ante . However, upon M. I.’s appeal against that decision the Sisak County Court on 18 February 1999 quashed the first instance judgment and remitted the case to the court of first instance. Thus, the judgment of 21 April 1997 ceased to exist. In these circumstances the Court finds that the facts complained of do not disclose any appearance of a violation of 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 complains further that the failure of the Sisak Municipal Court to enforce its judgment and eviction order violates his right to respect for his home, private and family life, his right to property and discriminates against him on the basis of his Serbian origin. In this respect he invokes Article 8 of the Convention and Article 1 of Protocol No. 1, each alone and in conjunction with Article 14 of the Convention.

The Court observes that the applicant filed a successful request for re-possession of his property with the Sisak Municipality Housing Commission, pursuant to the Programme for Return. These proceedings and questions of enforcement are presently pending before the Sisak Municipal Court as the second instance body. Therefore the applicant’s complaints under Article 8 of the Convention and Article 1 of Protocol No. 1, each alone and in conjunction with Article 14 of the Convention are premature.

It follows that this part of the application must be rejected under Article 3 5 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

For these reasons, the Court unanimously

Declares the application inadmissible.

Erik F ribergh Christos R OZAKIS Registrar President