Information Note on the Court’s case-law 84

March 2006

Blečić v. Croatia [GC] - 59532/00

Judgment 8.3.2006 [GC]

Article 35

Article 35-3

Ratione temporis

Alleged violation based on facts occurring before ratification of the Convention: preliminary objection allowed

Facts : In 1953 the applicant acquired a specially protected tenancy of a flat in Zadar. In 1991 she went to stay with her daughter in Rome for t he summer, locking her flat, with all the furniture and personal belongings in it, and asking a neighbour to pay the bills in her absence and to take care of the flat. Later that year Zadar was exposed to constant shelling and the supply of electricity and water was disrupted for over 100 days. The applicant’s pension payments were stopped and she decided to stay in Rome. In November 1991 someone broke into the applicant’s flat and occupied it with his family. In 1992 the municipality brought a civil action against the applicant for termination of her tenancy, on the ground that she had been absent from the flat for more than six months without justification. The applicant claimed that she had been unable to return due to the war in Croatia and because she h ad no money and was in poor health. In 1994 the Municipal Court terminated the applicant’s specially protected tenancy, finding that the reasons she had given did not justify her absence. After it was reversed by the County Court this judgment became final on 15 February 1996, when the Supreme Court in its town reversed the County Court’s decision. The Constitutional Court dismissed an appeal lodged by the applicant on 8 November 1999.

Law : In its decision of 30 January 2003 (see Information Note N° 49) a C hamber of the Court examined its temporal jurisdiction ex officio . It held that while the proceedings up to and including the Supreme Court had taken place prior to the entry into force of the Convention in respect of Croatia on 5 November 1997, the final decision had been rendered by the Constitutional Court after that date. The outcome of the Constitutional Court proceedings had been directly decisive for the applicant’s Convention rights as that court had been called upon to decide whether the lower cour ts’ judgments had violated the applicant’s right to respect for her home and/or her property rights, that is to say the same issues that were pending before the European Court. Hence the application fell within the Court’s competence ratione temporis . In i ts judgment of 29 July 2004 (see Information Note N° 66) a Chamber of the Court held that there had been no violation of Article 8 of the Convention or Article 1 of Protocol No. 1 thereto.

The Grand Chamber, for its part, held that while the Government had raised their ratione temporis objection for the first time in their observations before the Grand Chamber, they were not precluded from raising the issue at that stage. Since the scope of the Court’s jurisdiction is determined by the Convention itself, in particular by Article 32, and not by the parties’ submissions in a particular case, the mere absence of a plea of incompatibility cannot extend that jurisdiction. Moreover, it is not open to the Court to set aside the application of another admissibility criterion, namely the six-month rule, solely because a government has not made a preliminary objection to that effect. Furthermore, despite the Government’s failure to raise the relevant objection earlier, the Chamber had examined its competence ratione te mporis of its own motion and the parties had addressed the question in their observations before the Grand Chamber. Accordingly, the issue of temporal jurisdiction was a live issue requiring examination.

The Grand Chamber went on to note that when Croatia had ratified the Convention on 5 November 1997 it had recognised the Convention institutions’ competence to examine any individual petitions based on facts occurring after the Convention and its Protocols had entered into force in respect of that State. Ac cordingly, the Court was not competent to examine applications against Croatia in so far as the alleged violations were based on facts having occurred before the date of ratification. The Court’s temporal jurisdiction was to be determined in relation to th e facts constitutive of the alleged interference. The subsequent failure of remedies aimed at redressing that interference could not bring it within the Court’s temporal jurisdiction. In cases where the interference pre-dated ratification while the refusal to remedy it post-dated that event, to retain the date of the latter act in determining the Court’s temporal jurisdiction would be contrary to the general rule of non-retroactivity of treaties. Moreover, any attempt to remedy, on the basis of the Conventi on, an interference that had ended before the Convention came into force, would necessarily lead to its retroactive application. In conclusion, while from the ratification date onwards all of the State’s acts and omissions must conform to the Convention, t he Convention imposes no specific obligation on the Contracting States to provide redress for wrongs or damage caused prior to that date. In order to establish the Court’s temporal jurisdiction it is therefore essential to identify, in each specific case, the exact time of the alleged interference. In doing so the Court must take into account both the facts of which the applicant complains and the scope of the Convention right alleged to have been violated.

The present applicant had complained that, by term inating her specially protected tenancy, the State had violated her rights to respect for her home and peaceful enjoyment of her possessions. The Grand Chamber accepted that the termination of her tenancy was the fact constitutive of the alleged interferen ce. For a tenancy to be terminated under Croatian law there had to be a court judgment upholding the claim of the provider of the flat to that end. The tenancy was terminated from the date on which such a judgment became res judicata , namely on15 February 1996 when the Supreme Court, by its own judgment, had reversed the County Court’s judgment. It was at that moment that the applicant lost her tenancy. The subsequent Constitutional Court decision only resulted in allowing the interference allegedly caused by that judgment – a definitive act which was by itself capable of violating the applicant’s rights – to subsist. That decision, as it stood, did not constitute the interference.

The Court recalled moreover that the deprivation of an individual’s home or property is in principle an instantaneous act and does not produce a continuing situation of “deprivation” of these rights. Therefore, the termination of the applicant’s tenancy di d not create a continuing situation. Neither could it be argued that the Constitutional Court’s refusal to provide redress, that is, to quash the Supreme Court’s judgment, amounted to a new or independent interference since such an obligation could not be derived from the Convention. The Constitutional Court was asked to review the constitutionality of the Supreme Court’s judgment of 15 February 1996. The law in force at the time when the Supreme Court had rendered judgment did not include the Convention an d that court could not therefore have applied it.

In conclusion, since the fact constitutive of the interference giving rise to the application was the Supreme Court’s judgment of 15 February 1996, and not the Constitutional Court’s decision of 8 November 1999, an examination of the merits of the case could not be undertaken without extending the Court’s jurisdiction to a fact which, by reason of its date, was not subject thereto. To do so would be contrary to the general rules of international law.

Conclusion : the Government’s preliminary objection accepted (eleven votes to six).

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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