FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 45943/99 by Milić , Mileva and Mirko RUDAN against Croatia

The European Court of Human Rights (Fourth Section), sitting on 13 September 2001 as a Chamber composed of

Mr G. Ress , President , Mr A. Pastor Ridruejo , Mr I. Cabral Barreto , Mr V. Butkevych , Mrs N. Vajić , Mr M. Pellonpää , Mrs S. Botoucharova , judges , and Mr V. Berger , Section Registrar ,

Having regard to the above application introduced on 25 September 1998 and registered on 4 February 1999,

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, Milić , Mileva and Mirko Rudan , are Croatian citizens, born in 1921, 1928 and 1955, respectively and living in Zagreb . They are represented before the Court by Mr Milutin Ostoić , a lawyer practising in Zagreb . The respondent Government are represented by their Agent Ms Lidija Lukina-Krajković .

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

1. Eviction proceedings and proceedings regarding the termination of the first applicant’s specially protected tenancy

In 1986 the first applicant acquired a specially protected tenancy on a flat in Zagreb ; the second and third applicants are his wife and son. They all lived together in the flat in question. On 24 August 1992, while the applicants were absent from Zagreb , three members of the Croatian Army broke the door and occupied the flat.

On 25 August 1992 the third applicant instituted proceedings with the Zagreb Municipal Court ( Općinski sud u Zagrebu ) seeking reinstatement and interim measures so as to obtain the keys of the new lock for the flat’s main entrance and to evict the defendants from the flat. On 25 August 1992 the court ordered interim measures as requested by the third applicant. On 22 September the same court decided in accordance with the third applicant’s claims.

In the meantime, on 26 August 1992, the Ministry of Defence ( Ministarstvo Obrane Republike Hrvatske ) granted temporary possession of the flat in question to A. (although that person was already deceased) and to his wife R. The first and third applicants challenged that decision and on 18 February 1993 the Administrative Court ( Upravni sud Republike Hrvatske ) quashed the Ministry’s decision on the merits.

Meanwhile R. had occupied the flat. Upon the third applicant’s request the Municipal Court ordered R. to vacate the premises on 3 September 1992. As R. did not comply with the court’s order, the first and third applicants sought, and on 1 October 1992 obtained, a decision on the judicial enforcement of the court’s decision ( rješenje o izvršenju ). R. filed a motion to object that decision, but her motion was denied on 28 December 1999. In addition The Trnje Welfare Centre ( Centar za socijalni rad Trnje ), as well as the Ministry of Defence, filed motions for an order staying the execution, which were denied on 18 October 1993. Subsequent attempts to evict R. from the flat by the court’s officials remained unsuccessful due to the presence of armed persons dressed in Croatian Army uniforms, inside and around the flat, opposing the eviction.

R. occupied the flat until April 1994 when she moved out without informing the applicants or the Zagreb Municipal Court, and at the same time Z., a member of the Croatian military police, moved in. Some days later the applicants’ possessions from the flat were removed by persons dressed in Croatian Army uniforms using military trucks. On 20 August 1994 the Ministry of Defence granted temporary possession of the flat to Z.

The applicants did not appeal against that decision.

2. Proceedings regarding the termination of the first applicant’s specially protected tenancy

On 6 September 1993 the Office of State Counsel ( Javno pravobraniteljstvo ) instituted proceedings against the first applicant in the Zagreb Municipal Court requesting the termination of his specially protected tenancy on the flat in question, alleging that he had not occupied the flat for over six months. The Court considered the first applicant’s address to be unknown and appointed a legal representative for him ( staratelj za poseban slučaj ).

On 30 November 1993 the Municipal Court terminated the first applicant’s specially protected tenancy accepting the claim that he and his family had not occupied the flat for longer than six months without a justified reason. Thus, the first applicant lost all his rights regarding the flat in question. Upon the representative’s appeal the Zagreb County Court ( Županijski sud u Gradu Zagrebu ) on 9 August 1994 upheld the first instance decision confirming the reasoning of the Zagreb Municipal Court.

The first applicant was not notified of those decisions, but only his legal representative, who was unknown to him. It appears that on 23 July 1996 an attorney, whom the applicants claim was unknown to them, filed an application to return the proceedings to the status quo ante ( prijedlog za povrat u prijašnje stanje ) with the Zagreb Municipal Court.

On 6 February 1997 the first and second applicants filed an application for the re-opening of the proceedings ( prijedlog za ponavljanje postupka ) with the Zagreb Municipal Court, on the basis that the legal representative appointed in the proceedings concerning the termination of the first applicant’s specially protected tenancy was not aware of the facts that might have been decisive for the outcome of the proceedings such as the fact that the Administrative Court had quashed the Ministry of Defence decision to grant temporary possession of the flat to a third person.

On 9 July 1997 the Zagreb Municipal Court rejected the application to return the proceedings to the status quo ante as having being lodged out of time. On 14 July 1997 the Municipal Court rejected the first and second applicants’ application for the re-opening of the proceedings for the same reason. It appears that on 19 July 1997 the first and the second applicants appealed against the decision concerning the re-opening of the proceedings.

On 19 November 1997 the first and second applicants requested the speeding-up of the proceedings.

On 2 February 1998 the case file was transferred to the Zagreb County Court it being the appellate court.

On 29 April 1998 the first and second applicants again requested the speeding-up of the proceedings.

On 12 May 1998 the Zagreb County Court remitted the case to the Zagreb Municipal Court, without deciding upon the applicants’ appeal. The County Court instructed the Municipal Court to hold a hearing so as to obtain information relevant for reaching the decision upon the first and second applicants’ appeal.

On 27 June 1998 the first and second applicants requested for the third time the speeding-up of the proceedings.

On 21 December 1998 the Zagreb Municipal Court held a hearing. At that hearing the first and third applicants gave their testimonies as to whether a legal representative who lodged the application to return the proceedings to the status quo ante was given a power of attorney by them.

At the next hearing, which took place on 14 January 1999, the second applicant gave testimony in respect of the same question.

On 14 January 1999 the Zagreb Municipal Court sent the case file to the Zagreb County Court.

On 17 March 1999 the case was again remitted to the Zagreb Municipal Court in order to obtain its explanation in regard of the applicants’ objection to the written minutes of the hearing of 9 July 1997. Furthermore, the court of first instance was requested to enclose a copy of its decision of 14 July 1997 and a copy of the first and second applicants’ appeal against that decision.

On 29 February 2000 the Zagreb County Court quashed the Zagreb Municipal Court’s decisions of 9 July and 14 July 1997 and remitted the case to the court of first instance.

On 15 January 2001 the Zagreb Municipal Court dismissed the application to return the proceeding to the status quo ante as it had been submitted by a representative without a power of attorney. It also dismissed the first and second applicants’ application for the re-opening of the proceedings, again as having been lodged out of time.

On 8 February 2001 the first and second applicants appealed against the Municipal Court’s decision concerning their request for the re-opening of the proceedings. It appears that the cases are presently pending before the Zagreb County Court.

COMPLAINTS

1. The applicants complain under Article 8 alone or in conjunction with Article 14 of the Convention that they were deprived of their home and that their right to respect for their family life was violated due to the fact that the Municipal Court’s order for eviction of the occupiers of the flat and the subsequent reinstatement of the applicants has never been enforced as well as due to the domestic courts’ decisions to terminate the first applicant’s specially protected tenancy. They complain also that the domestic courts operated discriminatorily against them on the basis of their Serbian origin.

2. The applicants complain further under Article 6 § 1 of the Convention about the length of the proceedings concerning the first and second applicants’ application to re-open the proceedings.

THE LAW

1. The applicants complain that they were deprived of their home and that their right to respect for their family life was violated due to the fact that the Municipal Court’s order for eviction of the occupiers and the subsequent reinstatement of the applicants has never been enforced. They further claim that those violations are due to their national origin. In support of their claims they invoke Articles 8 and 14 of the Convention, the relevant parts of which read as follows:

“1. Everyone has the right to respect for his ... home ...

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.”

“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 Court notes that the final decision terminating the first applicant’s specially protected tenancy and thus, depriving the applicants of their home, was given by the Zagreb County Court on 9 August 1994, while the Convention entered into force in respect of Croatia on 5 November 1997.

In this respect, the Court further notes that the application to re-open the proceedings is not a remedy within the meaning of Article 35 § 1 of the Convention which would bring the above proceedings within the Court’s competence ratione temporis .

It follows that this complaint is incompatible ratione temporis with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.

2. The applicants complain that the length of the proceedings regarding their appeal against the decisions rejecting their application to re-open the proceedings exceeded a “reasonable time” within the meaning of Article 6 § 1 of the Convention, the relevant parts of which read as follows:

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

The Government invite the Court to declare the application inadmissible on the ground that the applicants failed to exhaust domestic remedies. In this respect they allege that the applicants failed to lodge a constitutional complaint pursuant to Section 59 (4) of the newly revised Constitutional Court Act. That Act exceptionally allows the Constitutional Court to examine a constitutional complaint before exhaustion of other available remedies in cases where it is evident that there is a serious risk that the party’s constitutional rights and freedoms may be violated and that serious and irreparable consequences may arise from the failure of the relevant authorities to reach a decision.

In the alternative the Government invite the Court to conclude that the application does not disclose any appearance of a violation of Article 6 of the Convention in respect of the complaint raised. They submit that the Court must limit its examination to the period subsequent to the entry into force of the Convention in respect of Croatia. In this connection they contend that the case involved both legal and factual complexity. Furthermore, the proceedings partly took place during the aggression on Croatia when regular operation of the courts was impeded.

With respect to the behaviour of domestic authorities the Government claim that both the Zagreb Municipal and County Courts showed diligence in the conduct of the proceedings.

The applicants disagree with the Government.

The Court does not find it necessary to examine the above issues, as the application is in any event inadmissible for the following reasons.

The Court recalls that the proceedings terminating the first applicant’s specially protected tenancy were concluded on 9 August 1994, prior to the entry into force of the Convention in respect of Croatia i. e. 5 November 1997. The Court observes that the first and second applicants filed their application to re-open the proceedings on 6 February 1997, well after the proceedings to terminate the first applicant’s specially protected tenancy were concluded.

The Court recalls further that, according to established case-law of the Convention organs, Article 6 does not apply to proceedings concerning the re-opening of a civil case (see, inter alia , X. v. Austria, application no. 7761/77, Commission decision of 8 May 1978, Decisions and Reports (DR) 14, pp. 171, 174, and José Maria Ruiz Mateos and Others v. Spain, application no. 24469/94, Commission decision of 2 December 1994, DR 79, p. 141).

The Court observes that in the present case, however, the applicants did not have any opportunity to participate in the proceedings concerning the termination of the first applicant’s specially protected tenancy. In such circumstances the first and second applicants’ request to re-open those proceedings presents their only opportunity to participate in the proceedings. However, the Court notes further that the proceedings concerning the termination of the first applicant’s specially protected tenancy were concluded prior to the entry into force of the Convention in respect of Croatia, and that, thus, the request for the re-opening of those proceedings cannot bring into play the Court’s competence ratione temporis .

In this circumstances the Court sees no reason to depart from the above case-law.

It follows that this part of the application is incompatible ratione materiae with the provisions of the Convention and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Vincent Berger Georg Ress Registrar President