JOINT DISSENTING OPINION OF JUDGES TURKOVIĆ AND MOUROU-VIKSTRÖM

1. We regret that we cannot share the view of the majority that there has not been a violation of Article 1 of Protocol No. 1 to the Convention. In our opinion, that provision is applicable and has been breached in the circumstances of the present case.

2. We are grateful to the majority for making a judgment on the merits in order to give us an opportunity to express our views on the case in a joint dissenting opinion, although by finding that the applicant did not have a “possession” within the meaning of Article 1 of Protocol No. 1 (see para. 55 of the judgment), the majority could have rejected the complaint in accordance with Article 35 § 4 to the Convention as being incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3.

3. At the outset we would like to emphasise that legally, the present case raises an important new issue: whether a legitimate expectation that the applicant will obtain effective enjoyment of a property right can still attract protection under Article 1 Protocol No. 1 of the Convention, once the conditional claim has been denied for non-fulfilment of statutory conditions, where such failure is solely attributable to the relevant authorities while an applicant on his or her side has fulfilled all the prerequisites necessary to satisfy the statutory condition. In our view the majority has not been paid sufficient and adequate attention to that issue in the present case.

4. The issue in the present case is whether the applicant had a legitimate expectation of purchasing under favourable conditions the flat which she had been occupying since 1988, which right was granted to holders of specially protected tenancies for socially owned flats. For an easier understanding, we will reiterate the important facts.

In the proceedings for allocating a specially protected tenancy within company S. on the flat at issue, the applicant was at the top of the priority list for allocation of such tenancy. The list was approved by the company ’ s workers ’ committee on 23 April 1990 and thereby according to law it became a final legal act of a constitutive nature for getting specially protected tenancy (see paragraph 10 of the judgment). At that point, the only possible further step for company S. according to law would have been to adopt a formal decision granting her a specially protected tenancy. However, the company S. did not comply with its duty because some of its other employees challenged the list before the national courts. According to the law, such challenge was actually not admissible and thus there was no reason for the company to halt the proceedings for granting the applicant the specially protected tenancy. Indeed, the co-worker ’ s action was declared inadmissible under national law, albeit after a fourteen-year period (see paragraphs 11 and 12 of the judgment).

In the meantime, in 1991, socially owned flats which had until then been managed by socially owned companies were from then on to be managed by housing and communal services funds (see paragraph 20 of the judgment), which had the same rights and obligations in respect of such flats as former socially owned companies. That included the duty to complete the proceedings that were underway for granting specially protected tenancies. Such rights and obligations were later transferred to the municipalities by Government decree of 19 June 1997 (see paragraph 25 above). The duty incumbent on those bodies to complete pending proceedings for granting specially protected tenancies was reinforced by the Lease of Flats Act. When the Lease of Flats Act entered into force in November 1996, it provided that proceedings instituted under the Housing Act were to be concluded under the provisions of that Act (see paragraph 25 of the judgment). This provision has not been contested and it is still in force today, and proceedings related to granting specially protected tenancies that have been initiated under the Housing Act still have to be concluded under that Act.

The proceedings for granting the applicant a specially protected tenancy on the flat at issue had indeed been instituted under the Housing Act and according to the Lease of Flats Act they should have been completed pursuant to the provisions of that Act, even after it was repealed in 1996. Thus, the Zagreb County Court in its 2004 judgment, eight years after the Housing Act was repealed, applying the Section 88 of that Act, declared the applicant ’ s co-workers ’ action inadmissible on the grounds that the priority list could not be challenged before a court of law (see paragraph 12 of the judgment). However, once the appeal by the applicant ’ s co-workers had been rejected on the basis of the Housing Act and any possible doubts as to their right to challenge the list in front of the court had been dispelled, Zagreb Municipality, which had in the meantime taken responsibility for managing the flat, failed to comply with its own duty under the Housing Act to grant the applicant a specially protected tenancy (see paragraph 52 in conjunction with paragraph 25 of the judgment).

5. Relying on the principle that a conditional claim which lapses as a result of non-fulfilment of the relevant conditions cannot be considered a “possession” (see Kopeck ý v. Slovakia [GC], no. 44912/98, § 45, 28 September 2004), the majority adopted the position in the present case that since the applicant did not fulfil the crucial condition under the Protected Tenancy (Sale to Occupant) Act, namely being the holder of a specially protected tenancy in respect of the flat in question, it cannot be said that she had a “possession” within the meaning of Article 1 of Protocol No.1 to the Convention (see paragraph 55 of the Judgment).

6. We respectfully disagree with the majority on two points. First, the way in which majority has approached the general principles pertaining to the protection of possessions under Article 1 of Protocol No. 1 as presented in two recent Grand Chamber cases, namely Radomilja v. Croatia [GC], no. 37685/10 22768/12 , 20 March 2018, and Béláné Nagy v. Hungary [GC] , no. 53080/13, 13 December 2016 . In our view, the present case presents a new issue (see paragraph 2 above) that requires a reflective approach to the interpretation of the existing general principles. The present judgment relies on general principles from the Radomilja case which are not directly relevant for resolving the complex issue in the present case and clearly fall short of giving careful consideration to that new issue (see paragraphs 47 and 48 of the judgment).

7. Secondly, we respectfully disagree with the manner in which the majority has applied the general principles developed in the Court ’ s case-law, in particular those relating to legitimate expectations and errors committed by the authorities, in the circumstances of the present case. In reaching the conclusion that it cannot be said that the applicant had a “possession” within the meaning of Article 1 of Protocol No.1 (see paragraph 5 above), the majority completely disregarded the fact that the applicant was not able to fulfil the statutory condition because the competent authorities themselves made that impossible for her. Specifically, even though the applicant had fulfilled statutory prerequisites to be granted protected tenancy and on her part did everything that was required of her in this respect, the competent authorities failed to grant her such a tenancy in breach of the relevant provisions of domestic law without providing any reasoning (see paragraphs 19 and 25 of the judgment, and paragraph 4 above).

8. Finally, we also respectfully disagree with the position taken in the joint concurring opinion by Judges Lemmens and Ravarani that any possible failure of the authorities would be outside the jurisdiction ratione temporis . [1] Their interpretation to the effect that after the entry into force of the Lease of Flats Act on 5 November 1996 the applicant could no longer be granted a specially protected tenancy is incorrect. In reaching their conclusion they disregarded the transitional provision of the Lease and Flats Act according to which all the proceedings instituted under the Housing Act should be completed under the provisions of that Act even after it was repealed (see paragraph 25 of the judgment). Thus, the situation of the applicant is not irreversible, as they claim. Consequently, the conclusion reached by Judges Lemmens and Ravarani that the failure of the authorities, if any, necessarily fell outside the jurisdiction ratione temporis of the Court, given that Protocol No. 1 entered into force in Croatia on 5 November 1997, that is after the Housing Act had been repealed, appears to be incorrect as well.

9. We would like now to focus on the first point in our disagreement with the majority. The Court provides an overview of the notion of “legitimate expectation” in Kopeck ý v. Slovakia (cited above, §§ 45-52) and in Béláné Nagy (cited above, §§ 74-79). In referring to general principles pertaining to the protection of possessions under Article 1 of Protocol No. 1, the majority cited two paragraphs from Radomilja Grand Chamber case (see paragraphs 47 and 48 of the judgment, which correspond to paragraphs 142 and 143 of Radomilja case, cited above) and refused to rely on the general principles presented in the Béláné Nagy Grand Chamber case, in particular those expressed in paragraphs 74 and 79, finding these paragraphs to be contrary to the Court ’ s established case-law predating the Béláné Nagy case (see paragraph 48 of the present judgment, where the text quoted from the Radomilja case is compared and contrasted to paragraphs 74 and 79 from the Béláné Nagy Grand Chamber judgment). In paragraph 74 the Béláné Nagy judgment merely reaffirmed the principle we find in an earlier Grand Chamber case which followed the Kopeck ý case, namely that of Anheuser-Busch Inc. (see Anheuser-Busch Inc. v. Portugal [GC], no. 73049/01, § 65, ECHR 2007-I). We consider that the general principles framed in those two Grand Chamber cases ( Anheuser-Busch Inc. and Béláné Nagy) , which we do not see as contradicting the general principles reaffirmed in Kopeck ý , set the scene for resolving the present case. Indeed, “in certain circumstances a ‘ legitimate expectation ’ of obtaining an asset may also enjoy the protection of Article 1 Protocol No. 1” (id.), and it may so even when the claim is denied (e.g. arbitrarily) [2] or when the statutory conditions have not been fulfilled in the conditional claim (for example where the conditions imposed are discriminatory in nature). [3] Of course, this would be possible only if a substantive proprietary interest is otherwise sufficiently established under national law (see for example, Kopeck ý , cited above, §§ 47 and 52; Béláné Nagy, cited above, §§ 77-79; and Radomilja , cited above, § 143) .

10. In our opinion the mere fact that the two cited paragraphs of the Radomilja Grand Chamber case failed to mention the Béláné Nagy Grand Chamber case does not demonstrate that the general principles pertaining to the protection of possessions in these two Grand Chamber cases are in contradiction and that Radomilja overturned the general principles relating to legitimate expectations as presented in the Béláné Nagy case. Simply put, the facts in Radomilja case were different and did not require any reference to paragraphs 74 and 79 of the Béláné Nagy judgment. [4]

11. The dispute on general principles relating to legitimate expectations between the majority and the minority in the Béláné Nagy Grand Chamber case, which resurfaced in the present case, demonstrates that the Court ’ s existing case-law on legitimate expectations might be subject to different interpretations. In legal literature, the Court ’ s notion of legitimate expectations, and in particular its relationship [of legitimate expectations] with the notions of right, claim and legally protected interest, is criticised as being unclear [5] . Different authors demonstrate in particular that the Court ’ s case-law is controversial regarding both the relevance of legitimate expectations in constituting “possessions” and the exact nature of claims qualifying as “assets” [6] . W e find that the present judgment does not address and discuss sufficiently thoroughly the Court ’ s general principles relevant to this really rather unusual and complicated case.

12. As we have already emphasised, the present case raises an unprecedented issue regarding the fulfilment of statutory conditions which could not be resolved within the parameters established in the Kopeck ý Grand Chamber judgment (cited above) without calling into question legal certainty, fairness and ultimately the rule of law. Indeed, in Kopeck ý v. Slovakia (id., § 35) the Grand Chamber confirmed the principle that a conditional claim which has lapsed as a result of the non-fulfilment of the condition cannot be considered a “possession” within the meaning of Article 1 of Protocol No. 1. However, as we have demonstrated above, this principle, without further elaboration, does not provide adequate guidance in the circumstances of the present case.

13. The Court has already acknowledged that strict application of the above principle would produce unfair and unjust results under certain circumstances, such as, for example, in cases in which the statutory condition required to be fulfilled is discriminatory in nature [7] or in cases where the condition introduced was not foreseeable for the applicant. [8] We do not see any reason for the Court to adopt a different approach to situations in which the authorities themselves interfere with a claim pendente conditione such that they themselves frustrate the possibility of fulfilling the statutory condition(s), albeit only accidentally or by negligence, as the authorities did in the present case by omitting to grant specially protected tenancy to the applicant, in breach of the applicable law. Indeed, although there is the list which according to the law has a character of a final, enforceable legal act, as also confirmed by the 2004 Zagreb County Court ’ s judgment, and on which the applicant appeared in first position, the relevant authorities failed to issue a decision granting specially protected tenancy to her without giving reasons for their refusal (see paragraph 4 above, see Kopeck ý , cited above, § 45).

14. In such circumstances the focus should shift from the applicability of Article 1 Protocol No. 1 of the Convention to the legality, legitimate aim and balancing test. [9] Consequently, non-fulfilment of the licit statutory condition, if fulfilment is possible but frustrated by the authorities themselves, should not affect the application of Article 1 of Protocol No. 1 for lack of legitimate expectations, but the existence of possession should be assumed if the substantive proprietary interest is otherwise sufficiently established under national law. In such a scenario the legitimate expectation should rather play a role in the fair balance test as an argument in the applicant ’ s favour on a par with other arguments. Otherwise, the responsibility for errors committed by State authorities would be shifted to the applicants even where the latter have at all not contributed to any error. It could also foster arbitrary behaviour on the part of the authorities. It would be absurd if the doctrine of legitimate expectations, which seeks to protect legal certainty, had the effect of compromising legal certainty itself. It should not be forgotten that the essential aim of the legitimate expectation doctrine is to counter arbitrariness. We believe therefore that it is important in the present case to examine whether the circumstances of the case, considered as a whole, conferred on the applicant title to a substantive interest protected by Article 1 of Protocol No. 1 (see Bozcaada Kimisis Teodoku Rum Ortodoks Kilisesi Vakfi v. Turkey , nos. 37639/03, 37655/03, 26736/04 and 42670/04, § 41, 3 March 2009; Depalle v. France [GC], no. 34044/02, § 62, ECHR 2010, § 62; Plalam S.P.A. v. Italy (merits), no. 16021/02, § 37, 18 May 2010; and Di Marco v. Italy , no. 32521/05, § 50, 26 April 2011).

15. We believe that the above considerations show that in the specific circumstances of the applicant ’ s situation, where she figured first on the list having the character of a final legal act for granting protected tenancies, the regulation of the matter under the national law which is not disputed, the case-law of the Constitutional Court (see paragraph 30 and 31 of the judgment), the applicant ’ s claim that she had a right to purchase the flat had a sufficient basis in national law, and the applicant ’ s reliance on national law were reasonably justified, so that she had a legitimate expectation of obtaining effective enjoyment of that right, which consequently constituted an “asset” and therefore a “possession” for the purpos es of Article 1 of Protocol No. 1.

16. After carrying out an overall examination of the various interests in issue (see Perdigão v. Portugal [GC], no. 24768/06, § 68, 16 November 2010), bearing in mind that the Convention is intended to safeguard rights that are “practical and effective” (see, for example, Chassagnou and Others v. France [GC], nos. 25088/94, 28331/95 and 28443/95, § 100, ECHR 1999 ‑ III); looking behind appearances and investigating the realities of the situation complained of (see Broniowski , cited above, § 151; Hutten ‑ Czapska v. Poland [GC], no. 35014/97, § 168, ECHR 2006 ‑ VIII; and Zammit and Attard Cassar v. Malta , no. 1046/12, § 57, 30 July 2015) and assessing the nature of the interference, the conduct of the applicant and that of the State authorities (see Perdigão , cited above, § 68) in our view the situation created by the national authorities frustrated the applicant ’ s legitimate expectation of being able to purchase the socially owned apartment in which she had been living for thirty years, and placed an excessive individual burden on her.

1 7 . Firstly, in the present case there is no conflict between the various private interests, since the flat which the applicant occupies was socially owned when she moved into it, and is now managed and apparently owned by the Zagreb Municipality (compare and contrast, for example, Pincová and Pinc v. the Czech Republic , no. 36548/97, ECHR 2002-VIII, and Velikovi and Others v. Bulgaria , nos. 43278/98 et al., 15 March 2007).

18 . Furthermore, the applicant did not at all contribute to the situation in which she found herself. Given that the applicant had applied for the right to purchase the flat within the statutory time-limit set forth in section 4 (2) of the Protected Tenancies (Sale of Occupier) Act (see paragraph 24 of the judgment), it follows that she took all the necessary steps for acquiring the right to purchase the flat.

19 . Moreover, the Zagreb Municipality failed without providing any explanation, to issue a decision allocating the flat to the applicant even though under the applicable law she satisfied all the relevant requirements. It thereby placed her in a situation where the proceedings for granting her a specially protected tenancy were never completed, in breach of domestic law. This error is solely attributable to the relevant authority and could have been avoided from the outset (cf. Zubac v. Croatia [GC], no. 40160/12, §§ 90-95, 5 April 2018). At the same time, this enabled the Zagreb Municipality to become the owner of the apartment.

20 . Given the historical context of specially protected tenancies in the former Socialist Federal Republic of Yugoslavia and the fact that the aim of contributing to the housing funds was to build socially owned flats and allocate them to those in need, and that the applicant herself contributed to that fund, there appears to be no justification for transferring ownership of the flat at issue permanently to the Zagreb Municipality. This is especially so since proceedings for allocating a specially protected tenancy in respect of that flat to the applicant had already been instituted and should have been completed, as provided for under section 52 of the Lease of Flats Act. On the contrary, for the very same reasons the applicant ’ s reliance on the same context and provisions in expecting to be able to buy the apartment in issue was reasonably justified.

2 1 . The Constitutional Court itself expressed the view that the purpose of the Protected Tenancies (Sale to Occupier) Act was to enable those who were lawfully using socially owned flats to become their owners (see paragraph 30 of the judgment). It also stressed that the courts, when adjudicating cases concerning the rights of tenants to purchase the flats, should not rely on “mere mechanical application of the relevant provisions of the Housing Act” but should take into consideration the principle of social justice and respect for human rights (see paragraph 31 of the judgment). This sharply contrasts with the conclusion of the Constitutional Court in the present case, where it failed to consider the reasons behind the fact that the applicant had no document granting her the protected tenancy over the apartment in which she has now been living for thirty years (see paragraph 54 of the judgment). In our view there is hardly any difference between cases in which the applicants had a specially protected tenancy which they had subsequently lost, and the present case, in which the applicant was not issued with the document granting her protected tenancy even though she fulfilled all the relevant preconditions.

2 2 . None of the foregoing considerations, however, were taken into account either by the domestic courts or by the majority in their assessment of the present case. In view of the above discussion we cannot but conclude that there was accordingly a violation of Article 1 of Protocol No. 1 to the Convention in the present case.

[1] . Of course, as our vote clearly shows, we are in full agreement with the position expressed in paragraphs 35 and 36 of the judgment that the complaint cannot be declared inadmissible as incompatible ratione temporis for the reasons given there.

[2] . The rule of law implies, inter alia , that there must be a measure of legal protection in domestic law against arbitrary interferences by public authorities with the rights safeguarded by the Convention (see, among other authorities, Béláné Nagy , cited above, § 78; Karáksony and Others v. Hungary , [GC], no. 42461/13, § 156, 17 May 2016, with the references cited therein ) .

[3] . See paragraph 14 below.

[4] . The central issue in Radomilja case was of a procedural nature, namely the application of the ultra petita and iura novit curia principles. Once the disputed period of time from 1941 to 1991 was removed from the scope of the case owing to the application of the ultra petita principle, the non-existence of any legitimate expectation was clear and non-controversial. Thus, the Radomilja case was not attempting to re-address the highly contested issue of the understanding of legitimate expectation between the minority and the majority in the Béláné Nagy Grand Chamber case.

[5] . S ee, for instance, the critical assessment of M. Sigron , Legitimate Expectations under Article 1 of Protocol No. 1 to the European Convention on Human Rights , Cambridge-Antwerp-Portland: Intersentia 2014, pp. 96-97.

[6] . See T. Allen, Property and the Human Rights Act, 46 et seq., (2005); K. Reid, A Practitioner’s guide to the European Convention on Human Rights, 3rd ed. 505 et seq. (2008); and White/Ovey, Jacobs, White and Ovey: The European Convention on Human Rights, 485 et seq. (5th ed. 2010)).

[7] . Already in a number of cases the Court has not excluded the existence of possession on the bases of non-fulfilment of the discriminatory condition(s) (cf. in this connection Steck and Others v. U.K . [GC], no. 65731/01 65900/01, 12 April 2006; Runkee and White v . U.K. , no. 42949/98 , 10 May 2007; Gaygusuz v. Austria , no. 17371/90, 16 September 1996; and Luczak v. Poland , no. 77782/01, 27 November 2007 ).

[8] . See for example Béláné Nagy , cited above.

[9] . Such a shortcoming in the Court’s case-law was already identified by legal scholars some time ago. See for example , R. Ergec , La protection de la propriété à l'aide du concept d' «espérance légitime» dans la jurisprudence de la Cour Européenne des droits de l'Homme , in Andersen R. et al. (Comité organisateur), En hommage à Francis Delpérée , Itinéraires d'un constitutionnaliste, p. 520 et seq . (2007).