FIRST SECTION

DECISION

Application no. 21106/13 Marija STEGIĆ against Croatia

The European Court of Human Rights (First Section), sitting on 6 July 2021 as a Committee composed of:

Alena Poláčková, President, Gilberto Felici, Raffaele Sabato, judges, and Liv Tigerstedt, Deputy Section Registrar ,

Having regard to the above application lodged on 1 March 2013,

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

1. The applicant, Ms Marija Stegić, was a Croatian national who was born in 1935 and lived in Rijeka. She was represented before the Court by Mr J. Alač, a lawyer practising in Rijeka.

2. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik.

3. By a letter of 23 March 2016 the applicant’s representative informed the Court that the applicant had died on 18 July 2014 and that her sons Mr Zvonko Stegić and Mr Berislav Stegić wished to pursue the application in her stead. He submitted a decision issued by a notary public of 6 November 2014 declaring the sons her statutory heirs. Together with his letter he submitted two authority forms both dated 22 March 2016 whereby the applicant’s heirs had authorised him to represent them before the Court.

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

5. In 1984 the applicant’s husband, M.S., was awarded a specially protected tenancy of a flat in Rijeka with a surface area of 46 square metres. Pursuant to the relevant legislation, the applicant – as his wife – automatically became a co-holder of the specially protected tenancy of the flat in issue.

6 . On 19 June 1991 the Specially Protected Tenancies (Sale to Occupier) Act entered into force. It entitled holders of specially protected tenancies of flats in social or State ownership to purchase their flats from the provider of the flat under favourable conditions.

7. In 1993 the applicant’s husband applied to the Rijeka Township ( Grad Rijeka , hereinafter “the local authorities”) to purchase the flat, under the above-mentioned Act.

8 . On 20 September 1993 the local authorities, having established that the flat had been nationalised during the socialist regime, refused his request. They relied on legislation prohibiting any transfer of property appropriated (acquired by means of nationalisation or confiscation) during the socialist era.

9 . On 5 November 1996 the Lease of Flats Act entered into force. It abolished the legal concept of the specially protected tenancy and provided that the holders of such tenancies were to become “protected lessees” ( zaštićeni najmoprimci ). Under the Act, such lessees are entitled to a number of protective measures, such as the duty of landlords to contract a lease of indefinite duration; payment of a protected rent ( zaštićena najamnina ), the amount of which is set by the Government and is significantly lower than the market rent; and better protection against termination of the lease.

10 . On 1 January 1997 the Restitution Act entered into force. It provided that nationalised flats in respect of which third persons had acquired specially protected tenancies were not to be restored to their former owners. The tenants had a right to purchase such flats under favourable conditions set out in the Specially Protected Tenancies (Sale to Occupier) Act (see paragraph 6 above) whereas former owners were entitled to financial compensation. Such flats were to be restored to their former owners only if the tenants had not exercised their right to purchase the flat in which they had been living or if their request for purchase was dismissed in a final decision.

11 . On 4 February 1997 the applicant’s husband reiterated his request to purchase the flat. On 20 May 1997 the local authorities again refused his request, this time because the former owner (who had owned it when the flat had been nationalised by the socialist authorities) had instituted restitution proceedings and had informed them that the applicant and her husband had been renting the flat out instead of living in it.

12. On 23 December 1998 the applicant’s husband brought a civil action in the Rijeka Municipal Court ( Općinski sud u Rijeci ) against the local authorities with a view to obtaining a judgment in lieu of a lease contract stipulating a protected rent under the Lease of Flats Act (see paragraph 9 above), which they had refused to do.

13 . At a hearing held on 6 December 2001 the applicant testified that in the period between 1986 and 1998 she and her husband had not been living in the flat but in their summer home, a house with a surface area of 108 square metres in Tisno owned by her husband. That was because they needed to take care of her husband’s elderly and sick stepmother. The applicant also stated that in the period between 1986 and March 1997, they had been renting out their flat in Rijeka.

14 . By a judgment of 14 February 2002, the Municipal Court dismissed the action of the applicant’s husband. That judgment was upheld on appeal by a judgment of the Rijeka County Court ( Županijski sud u Rijeci ) of 5 November 2003. The courts established that, while the applicant and her husband had indeed been absent from the flat in the period between 1986 and 1998 and had been renting it out, his specially protected tenancy had never been terminated on any grounds provided for in the Housing Act (which had been in force between 25 December 1985 and 4 November 1996). Nevertheless, pursuant to the Lease of Flats Act he was not entitled to a protected rent, because he owned a house in Tisno that was fit for habitation.

15. Meanwhile, faced with the local authorities’ repeated refusal to sell him the flat in question (see paragraphs 8 and 11 above), on 12 April 2000 the applicant’s husband brought a civil action against those authorities in the Rijeka Municipal Court with a view to obtaining a judgment in lieu of a contract of sale.

16 . In the course of the first-instance proceedings, the applicant’s husband amended his action so as to designate the Fund for the Restitution of Appropriated Property as the defendant instead of the local authorities. The first-instance court also allowed the former owner of the flat to intervene in the proceedings (see paragraph 11 above). Following the death of the former owner, his two children – as his heirs – took over his role in the proceedings.

17. Likewise, on 28 November 2005 the applicant – as her husband’s heir – took over his role in the proceedings after his death on 2 October 2004.

18 . By a judgment of 27 May 2010, the Rijeka Municipal Court ruled for the applicant. It established that, in the period between 1986 and 1998, the applicant and her husband had not been living in the flat but in his house in Tisno (see paragraph 13 above). The court nevertheless rejected the defendant’s and the interveners’ argument that, having regard to that fact, the applicant and her husband’s tenancy had been terminated ex lege on the basis of section 99 of the Housing Act. That provision specified that the non-use of the flat for a period exceeding six months without justified reason was a ground for termination of a specially protected tenancy. The court ruled for the applicant because it held that under section 99 of the Housing Act, a specially protected tenancy could only be terminated following a court judgment, not ex lege .

19 . Following an appeal by the interveners (see paragraph 16 above), by a judgment of 11 May 2011 the Rijeka County Court reversed the first-instance judgment and dismissed the action. It accepted the interveners’ argument and held that the applicant and her husband’s specially protected tenancy had been terminated ex lege on the basis of section 99 of the Housing Act, since they had not used their flat for a period exceeding six months without justified reason. Once the court had resolved this preliminary issue, it went on to conclude that, since the applicant and her husband had lost their tenancy, they had not satisfied the most important statutory requirement for buying the flat under the Specially Protected Tenancies (Sale to Occupier) Act (see paragraph 6 above).

20 . The applicant then, concurrently, lodged an appeal on points of law ( revizija ) and a constitutional complaint. In her constitutional complaint she alleged a violation of her constitutional right to fair proceedings.

21 . On 29 February 2012 the Supreme Court ( Vrhovni sud Republike Hrvatske ) dismissed the applicant’s appeal on points of law. It endorsed the interpretation of section 99 of the Housing Act adopted by the second-instance court.

22. On 3 October 2012 the Constitutional Court ( Ustavni sud Republike Hrvatske ) dismissed the applicant’s constitutional complaint. It served its decision on her representative on 15 October 2012.

Relevant LEGAL FRAMEWORK and practice

23 . The relevant legal framework and practice are set out in Grozdanić and Gršković Grozdanić v. Croatia , no. 43326/13, §§ 46-62, 28 January 2021.

COMPLAINT

24 . The applicant complained under Article 6 § 1 of the Convention of the domestic courts’ refusal to allow her to purchase the flat.

THE LAW

25 . The applicant complained that the domestic courts had violated her right to a fair hearing in that they misinterpreted and misapplied the relevant domestic law when refusing to allow her to purchase the flat in respect of which she had held a specially protected tenancy. In particular, she submitted that under the Housing Act a specially protected tenancy could be terminated only by a court judgment in civil proceedings, and that such proceedings had never been instituted against her or her husband. She had therefore retained the tenancy of the flat in question and should have been able to purchase it. She relied on Article 6 § 1 of the Convention.

26 . The applicant’s heirs in their observations of 23 March 2016 reiterated this complaint, also relying on Article 6 § 1. Moreover, they complained, on account of the same facts, of discrimination, in violation of Article 1 of Protocol No. 12 to the Convention.

27 . Being master of the characterisation to be given in law to the facts of the case (see Guerra and Others v. Italy , 19 February 1998, § 44, Reports of Judgments and Decisions 1998 ‑ I, and Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, § 124, 20 March 2018), and having regard to its case-law (see GaćeÅ¡a v. Croatia (dec.), no. 43389/02, 1 April 2008, and Tchokontio Happi v. France , no. 65829/12, 9 April 2015), the Court, when giving notice of the application to the Government, considered that the case should be examined under Article 1 of Protocol No. 1. It thus invited the parties to submit observations under that Article, 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.”

28 . The Government submitted that the case should be struck out under Article 37 § 1 (a) of the Convention because, in view of the observations of the applicant’s heirs (see paragraph 26 above), it was no longer justified to continue the examination of the application. Alternatively, the Government argued that the case should be struck out because the applicant’s heirs were not entitled to pursue the application.

29 . The Government also disputed the admissibility of the application. They argued that the applicant had failed to properly exhaust domestic remedies; that Article 1 of Protocol No. 1 was not applicable in the present case; and that the application was, in any event, manifestly ill-founded.

(a) The parties’ arguments

30. The Government submitted that the Court had deemed it appropriate to give notice of the application to them under Article 1 of Protocol No. 1 (see paragraph 27 above). However, the applicant and her heirs had not relied on that Article at all (see paragraphs 24-26 above).

31. Both in her constitutional complaint and in her application to the Court, the applicant had complained of a violation of her right to a fair hearing, and her heirs in their submissions to the Court had expressly relied on Article 6 of the Convention and Article 1 of Protocol No. 12 (see paragraphs 20 and 24-26 above).

32. It was therefore evident that neither the applicant nor her heirs had sought protection by the Court of their right to the peaceful enjoyment of their possessions.

33. Relying on the Court’s decision in Stojaković v. Croatia ((dec.), no. 6504/13, 12 January 2016), the Government thus submitted that it was no longer justified to continue the examination of the application and that it should be struck out under Article 37 § 1 (a) of the Convention.

34. The applicant’s heirs replied that the Stojaković case bore no connection with their mother’s application as the two cases were completely different.

(b) The Court’s assessment

35 . The Court first reiterates that, by virtue of the jura novit curia principle, it is not bound by the legal grounds adduced by the applicant under the Convention and the Protocols thereto and has the power to decide on the characterisation to be given in law to the facts of a complaint by examining it under Articles or provisions of the Convention that are different from those relied upon by the applicant. It cannot, however, base its decision on facts that are not covered by the complaint (see Radomilja and Others , cited above, § 126).

36 . With this principle in mind, the Court finds that the situation in the Stojaković case (cited above) was indeed different from the one in the present case.

37. In that case the applicants complained that the State authorities had not complied with their obligation to identify and punish those who had killed their close relatives, as well as complaining under Article 6 about the outcome of the civil proceedings against the State in which they had sought damages in connection with those killings.

38. The Court gave notice to the Government, under the procedural aspect of Article 2, only of the applicants’ complaint concerning the alleged lack of an effective investigation, whereas the remainder of their application was declared inadmissible.

39. Subsequently, in their observations, their representative specified that the applicants had not complained about the lack of an effective investigation into the deaths of their relatives, but about the civil proceedings.

40. It was in those circumstances – where the complaint relating to the civil proceedings had already been declared inadmissible and where, in light of the applicants’ statement, there was nothing to examine as regards the criminal proceedings – that the Court considered that it was no longer justified to continue the examination of the application and thus decided to strike the case out under Article 37 § 1 (a) of the Convention.

41. To continue the examination of the application in the given circumstances would have entailed taking into account the criminal proceedings, which the applicants had expressly excluded from the factual basis of their complaints. In other words, the Court would have to base its decision on facts not covered by the complaint. To do so would mean deciding beyond the scope of a case and exceeding its jurisdiction (see Radomilja and Others , cited above, § 123).

42. In contrast to the situation in the Stojaković case, as described above, in the present case the applicant and her heirs complained about the refusal of the domestic authorities to allow her to purchase the flat in respect of which she held a specially protected tenancy.

43. This fact, which is the core of the applicant’s complaint, remains the fact constitutive of the alleged violation of the Convention regardless of whether the complaint is examined under Article 1 of Protocol No. 1, Article 6 of the Convention or Article 1 of Protocol No. 12.

44 . In other words, by examining the complaint under Article 1 of Protocol No. 1, the Court would not be basing its decision on facts not covered by the applicant’s complaint. Consequently, any reliance by the applicant and her heirs on other Articles of the Convention cannot in the present case lead the Court to conclude that it is no longer justified to continue the examination of the application.

(a) The parties’ arguments

(i) The Government

45. The Government first submitted that, because the applicant’s request to purchase the flat in issue had never been granted, she had never become its owner. Consequently, since the flat had never become part of her property, her heirs could not have inherited it.

46. Furthermore, under domestic law and the case-law of the Court (the Government referred to Rašeta v. Croatia (dec.), no. 125/05, 10 July 2007), the rights of holders of specially protected tenancies, such as the right to purchase the flat, had been personal rights and therefore the applicant’s heirs could not have inherited the flat in question. Consequently, her heirs had no legitimate expectation for the purposes of Article 1 of Protocol No. 1 to purchase the flat in question. In view of the foregoing, the Government argued that the applicant’s heirs were not the victims, direct or indirect, of the violation of the Convention.

(ii) The applicant’s heirs

47. The applicant’s heirs replied that, unlike their mother, the applicant in the Rašeta case (cited above) had not been a holder of a specially protected tenancy and that therefore the domestic courts could not have ruled in his favour.

48. They further argued that they should be entitled to ask the Court to continue the examination of their mother’s application and determine that there had been a violation of her rights, as a result of which she had been unable to purchase the flat in question. Had her claim been granted, the flat would have become part of her property.

49. The heirs clarified that they did not expect to be granted the right to purchase the flat in question. If the Court were to find a violation of their mother’s rights, they would decide on what kind of property claim to make against the State and demand either ownership of another flat or pecuniary compensation.

(b) The Court’s assessment

50 . The Court reiterates that only in cases where the victim of the alleged violation has died in the course of domestic proceedings, and before the application was lodged with the Court, will it examine whether relatives or heirs may themselves claim to be the victims of the alleged violation (see Ressegatti v. Switzerland , no. 17671/02, § 23, 13 July 2006). The situation is different in cases such as the present one, where the applicant had gone through the domestic proceedings and died after having lodged her application with the Court. That is because in such cases the Court’s examination is limited to the question whether or not the complaints as originally submitted by the applicant disclose a violation of the Convention (see Malhous v. the Czech Republic (dec.) [GC], no. 33071/96, ECHR 2000 ‑ XII).

51. Moreover, it is not only material interests which the successor of a deceased applicant may pursue through his or her wish to maintain the application. Human rights cases before the Court generally also have a moral dimension and persons close to an applicant may thus have a legitimate interest in seeing to it that justice is done even after the applicant’s death (ibid.). That is why in such cases heirs or close relatives of the applicant are considered to have a legitimate interest in pursuing the application (see Pais Pires de Lima v. Portugal , no. 70465/12, § 39, 12 February 2019; Hristozov and Others v. Bulgaria , nos. 47039/11 and 358/12, §§ 71-74, 13 November 2012; and, by converse implication, Léger v. France (striking out) [GC], no. 19324/02, § 50, 30 March 2009).

52 . Given that in the present case Mr Z. Stegić and Mr B. Stegić are the late applicant’s next of kin, the Court finds that they have a legitimate interest in pursuing their late mother’s application.

53. In view of the foregoing, the Court concludes that the conditions for striking the case out of its list, as defined in Article 37 § 1 of the Convention, are not met. The Court therefore rejects the Government’s strike-out request.

54. It will accordingly continue to examine the application at the request of the applicant’s heirs.

(a) The Government

55 . The Government argued that the applicant had not properly exhausted domestic remedies, because in her constitutional complaint she had not relied on Article 1 of Protocol No. 1 or on the corresponding Article of the Croatian Constitution (see paragraph 20 above).

56 . The Government further averred that the applicant’s claim to purchase the flat had not had a sufficient basis in national law to qualify as a “possession” and thus attract the protection of Article 1 of Protocol No. 1. That Article was therefore inapplicable to the present case.

57 . Lastly, the Government submitted that the application was in any event manifestly ill-founded, because the alleged interference with the applicant’s right to the peaceful enjoyment of her possessions – namely the domestic authorities’ refusal to acknowledge her claim for the purchase of the flat – had been provided for by law, had pursued an aim in the public interest and had been proportionate.

58 . In particular, the alleged interference had been based on the relevant provisions of the Housing Act and the Specially Protected Tenancies (Sale to Occupier) Act and the case-law of the domestic courts developed in the application of that legislation (see paragraphs 6, 18-19, 21 and 23 above). It had also been in the public interest because it had allowed the State to return the flat in question to heirs of its former owner from whom it had been appropriated by means of nationalisation during the socialist regime (see paragraphs 8, 10, 16 and 19 above).

59. As regards proportionality, the Government argued that the alleged interference had not imposed an excessive individual burden on the applicant because, after her husband’s death, she could have inherited from him, in full or in part, the ownership of their summer home in Tisno (see paragraph 13 above).

(b) The applicant’s heirs

60 . The applicant’s heirs reiterated their mother’s complaint focusing on the alleged unlawfulness of the domestic courts’ judgments (see paragraph 25 above).

61 . They also added that the flat in question had been their mother’s home during her life. It was true that at some point, owing to life circumstances, she and their father had been forced to rent it out (see paragraph 13 above). However, thereafter she had lived in the flat for twenty years, up until her death.

62. The Court does not find it necessary to examine all the inadmissibility objections raised by the Government (see paragraphs 29 and 55-56 above), because it considers that the application is in any event inadmissible as manifestly ill-founded for the reasons set out below.

63 . In this connection the Court first notes that the decisions of the domestic authorities in the present case had a legal basis in domestic law, in particular the relevant provisions of the Specially Protected Tenancies (Sale to Occupier Act) and of the Housing Act, notably section 99 of the latter, which regulated the conditions under which a specially protected tenancy could be terminated in the event of prolonged absence from the flat (see paragraphs 6, 18-19, 21 and 23 above). Furthermore, in view of its findings in a similar case, the Court is also satisfied that the alleged interference with the applicant’s right to the peaceful enjoyment of her possessions was foreseeable (see Grozdanić and GrÅ¡ković Grozdanić , cited above, §§ 109 ‑ 12).

64 . The Court further observes that the legislation applied in the present case (see the previous paragraph) pursued aims in the public interest, namely promoting the economic well-being of the country and protecting the rights of others. More specifically, it pursued the aim of ensuring that the relevant housing legislation, intended to satisfy the housing needs of citizens, had been properly applied and that flats assigned under the specially protected tenancy had indeed been allocated and later on sold to those who had satisfied the statutory criteria (ibid., §§ 102-3 and 113, and the cases cited therein). In the present case, as pointed out by the Government (see paragraph 58 above), it also pursued another aim that was in the public interest, namely, returning property which had been appropriated during the socialist regime to its former owners (see Pavlinović and Tonić v. Croatia (dec.), nos. 17124/05 and 17126/05, 3 September 2009).

65. As regards the proportionality of the alleged interference, the Court notes that the applicant’s heirs did not dispute the domestic courts’ findings that in the period between 1986 and 1998 the applicant and her husband had been living in his house in Tisno while renting out the flat in question (see paragraphs 13-14, 18-19 and 61 above). In these circumstances it cannot be said that the alleged interference, i.e. the domestic authorities’ refusal to acknowledge the applicant’s claim for the purchase of the flat, placed an excessive individual burden on the applicant.

66 . That being so, and having regard to the aim pursued by the alleged interference (see paragraph 64 above), as well as to the wide margin of appreciation left to the States in housing matters, the Court considers that the domestic courts in the instant case struck the requisite fair balance between the public interest involved and the protection of the individual rights of the applicant (see, mutatis mutandis , Grozdanić and Gršković Grozdanić , cited above, §§ 114-20). The alleged interference with her rights was therefore proportionate to the aim sought to be achieved.

67. It follows that the present application is inadmissible under Article 35 § 3 (a) of the Convention as manifestly ill-founded and must be rejected pursuant to Article 35 § 4.

For these reasons, the Court, unanimously,

Holds that the applicant’s sons, Mr Zvonko Stegić and Mr Berislav Stegić, have standing to pursue the application in her stead;

Rejects the Government’s request to strike the case out of its list;

Declares the application inadmissible.

Done in English and notified in writing on 2 September 2021.

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Liv Tigerstedt Alena Poláčková Deputy Registrar President