JOINT CONCURRING OPINION OF JUDGES KARAKAŞ, LEMMENS, GRIȚCO, KJØLBRO AND RAVARANI

We fully agree with the conclusion that there has been no violation of Article 1 of Protocol No. 1, for the reasons given in the judgment.

Given the finding that the applicant cannot be said to have had a “possession” within the meaning of that provision (see paragraph 54 of the judgment), it would perhaps be more in conformity with the practice of the Court to declare the complaint incompatible ratione materiae with the provisions of the Convention, and to declare it inadmissible on that ground.

However, in that case the outcome of our deliberation would have been a decision, not a judgment. The minority would then not have been in a position to append a separate opinion to the decision (see, a contrario , Article 45 § 2 of the Convention). We have agreed to examine the issue of the existence of “possessions” on the merits, thus allowing that outcome to take the form of a judgment .

This does not mean, however, that we disagree with the general practice of declaring inadmissible a complaint based on Article 1 of Protocol No. 1 where the existence of a “possession” has not been demonstrated. We consider this case as an exception to the rule.

JOINT CONCURRING OPINION OF JUDGES LEMMENS AND RAVARANI

We fully agree with the conclusion that there has been no violation of Article 1 of Protocol No. 1, for the reasons given in the judgment.

We would not, however, dismiss the eventuality that the applicant has been the victim of an injustice.

The reason why the domestic courts held that the applicant did not have a right to purchase the flat which she occupied was that she did not fulfil the statutory condition. Indeed, she had never been the holder of a specially protected tenancy.

It is true that the applicant criticised the authorities for not having taken the decision to formally grant her a specially protected tenancy, in spite of the fact that she had been listed first on the relevant priority list. She blamed in particular the Zagreb Municipal Court for the delays in the proceedings concerning the challenge to the priority list, as a result of which she could no longer be granted a specially protected tenancy following the termination of those proceedings (see paragraph 44 of the judgment).

We find it relevant to note that the system of specially protected tenancy was abolished by the Lease of Flats Act of 1996 (see paragraph 25 of the judgment). After the entry into force of that Act, on 5 November 1996, the applicant could no longer be granted a specially protected tenancy.

If there had been a failure on the part of the authorities to put the applicant in a position which would have allowed her to purchase the flat under favourable conditions, that failure would necessarily have to be situated in the period before the entry into force of the Lease of Flats Act. It follows that such a failure would be outside the jurisdiction ratione temporis of the Court, given that Protocol No. 1 entered into force in Croatia on 5 November 1997.

Our case thus concerns the aftermath of an unfortunate situation that had become irreversible even before Protocol No. 1 entered into force in respect of the respondent State. Any possibility of obtaining reparation for the consequences of that situation would have to be sought in domestic law. One such possibility might, for example, be an action for compensation against the competent public authorities, based on tort law.