DISSENTING OPINION OF JUDGE KJØLBRO

1 . I agree with the majority that the applicant had a property right that is protected by Article 1 of Protocol No. 1 (paragraphs 40-43 of the judgment) and that the dismissal of her request to purchase the State-owned flat in which she was living amounts to an interference with her right to peaceful enjoyment of her possessions (paragraphs 44-45 of the judgment). However, I am unable to follow the majority in their finding that the interference was not lawful within the meaning of Article 1 of Protocol No. 1 (paragraphs 46 ‑ 58 of the judgment).

2 . In general, it is for the domestic courts to interpret domestic legislation, and the Court will respect their interpretation of that legislation, unless it is manifestly erroneous or arbitrary (see Beyeler v. Italy [GC], no. 33202/96, § 108, ECHR 2000 ‑ I, and Jahn and Others v. Germany [GC], nos. 46720/99, 72203/01 and 72552/01, § 108, ECHR 2005 ‑ VI ). In my view, there is an insufficient basis for saying that the interpretation of domestic law performed by Zagreb Municipal Court in its judgment of 24 June 2008, the Zagreb County Court in its judgment of 12 October 2010, or the Constitutional Court in its judgment of 20 February 2013, was manifestly erroneous or arbitrary.

3 . In accordance with the Sale to Occupier Act 1991, the holder of a specially protected tenancy may purchase his or her socially-owned flat on favourable terms. A one year time-limit for submitting requests for purchase was stipulated in section 4(2) of the Act, and after several extensions the time-limit expired on 31 December 1995. On 17 August 1995, under a new Act, the right to purchase flats was extended to holders of a specially protected tenancy living in State-owned flats. The applicant and her late husband fell into that category and were entitled to make use of the right to purchase their flat. Section 20 of the 1995 Act contained a 60 day time-limit for submitting a written request to purchase a State-owned flat. However, this time-limit was abrogated by the Constitutional Court in a judgment of 29 January 1997, and the legislature never adopted a new time-limit to replace the defunct 60 day time-limit, as they had been encouraged to do by the Constitutional Court.

4 . Therefore, when the applicant in 2006, at the age of 79 and more than 11 years after the adoption of the 1995 Act, lodged a request to purchase her State-owned flat, the domestic authorities, first the Ministry of Defence and subsequently the domestic courts, were faced with the following legal question: what was the legal consequence of the fact that the abrogated 60 day time-limit in section 20 of the Sale to Occupier Act had not been replaced by a new time-limit by the legislature? Was the consequence of this inaction that no time-limit applied? Or was the consequence that the generally applicable time-limit under the 19 91 Act (which had expired on 31 December 1995) applied?

5 . The applicant argued for the first solution, that no time-limit applied (paragraph 36 of the judgment). The Government argued for the second solution, that the general time-limit was applicable (paragraphs 38-39 of the judgment). The domestic court dismissed the applicant ’ s claim holding that it had been lodged out of time. More specifically, the domestic courts ruled that the generally applicable time-limit in the 1991 Act, which had expired on 31 December 1995, was applicable to the applicant ’ s case, and that there had been no objective circumstances preventing the applicant from lodging her claim within the time-limit. The question therefore arises whether the domestic courts ’ interpretation of domestic legislation was “manifestly erroneous” or “arbitrary”. In the view of the majority, that was the case. I respectfully disagree.

6 . The Supreme Court had, in a judgment of 14 July 2004, approximately four years before the applicant instituted court proceedings, ruled that the generally applicable time-limit applied to requests to purchase State-owned flats (paragraph 28 of the judgment). Subsequently, the Constitutional Court in a judgment of 6 May 2005 (paragraph 25 of the judgment) had ruled, having regard to its earlier abrogation of section 20 of the Sale to Occupier Act, that “the non-existence of a time-limit for taking a certain action ... cannot be interpreted to the detriment of a party who had to take such action”.

7 . From this the majority deduce that, in the view of the Constitutional Court, no time-limit applied for requests to purchase State-owned flats. However, in the judgment of the Constitutional Court, the applicant in that case had argued that she had only acquired the specially protected tenancy of the State-owned flat on 13 March 1997 and that she had therefore not been able to lodge a request to purchase it before that date. In other words, the case concerned an applicant who, for objective reasons, could not comply with the generally applicable time-limit that had expired on 31 December 1995. Therefore, it does not follow clearly from the judgment that no time-limit is applicable in the view of the Constitutional Court. On the contrary, the judgment can equally be read as confirming the Constitutional Court ’ s earlier case-law, in a judgment of 16 November 2004 (paragraph 24 of the judgment), according to which applicants who had been prevented on objectively justified grounds from lodging a request to purchase State-owned flats that they occupied could not have been required to lodge such a request as long as those obstacles existed. Likewise, the judgments of 27 May 2010 and 13 May 2015 of the Constitutional Court (paragraph 26 and 27 of the judgment) only repeat what was stated in the Constitutional Court ’ s judgment of 6 May 2005, according to which “the non-existence of a time-limit for taking a certain action ... cannot be interpreted to the detriment of a party who had to take such action”. Furthermore, it does not follow clearly from these two judgments that no time-limit applied in the view of the Constitutional Court.

8 . From this I deduce that it is possible to interpret the domestic legislation in the following way. The special time-limit for lodging requests to purchase State-owned flats was abrogated by the Constitutional Court. Therefore, the generally applicable time-limit, which expired on 31 December 1995, is applicable. However, this time-limit does not apply, by way of exception, where the person concerned has been prevented on objectively justified grounds from lodging a request to purchase a State-owned flat. I am not saying that this is the correct interpretation of domestic legislation. I am only saying that this is a possible interpretation. Furthermore, if this interpretation is adopted, there is no conflicting case-law as alleged by the majority.

9 . This possible interpretation was exactly the one adopted by the Zagreb County Court in its judgment of 12 October 2010, upholding the Zagreb Municipal Court ’ s judgment of 24 June 2008. Furthermore, I cannot but note that the Constitutional Court dismissed the applicant ’ s constitutional complaint in a judgment of 20 February 2013. In doing so, the Constitutional Court noted that the domestic courts had dismissed the applicant ’ s claim “on the grounds that she had not proved that any objective circumstances had prevented her from lodging a request to purchase the flat in issue within the prescribed time-limit”, and according to the Constitutional Court, the decisions “contain reasons acceptable from the standpoint of the constitutional law and ... therefore they cannot be seen as arbitrary or unreasonable” (paragraph 17 of the judgment).

10 . Having regard to the Constitutional Court ’ s judgment, I cannot but note the following. If, as alleged by the majority, there is conflicting case-law between the Supreme Court and the Constitutional Court (paragraph 50 of the judgment), the majority must also assume that the Constitutional Court was not aware of – or erroneously did not apply – its own case-law when it adopted its judgment of 20 February 2013. I would be very careful not to make such an assumption.

11 . Therefore, having regard to the possible interpretation of domestic law and the remarks above, I cannot share the view of the majority that the domestic courts ’ interpretation of domestic law in the applicant ’ s case, that is to say in the judgments of the Zagreb Municipal Court, the Zagreb County Court and the Constitutional Court, was “manifestly erroneous” or “arbitrary”.

12 . For my part, I am willing to accept the domestic court ’ s interpretation of domestic law and find that the interference with the applicant ’ s property right was lawful within the meaning of the Convention. Having regard to the length of the period in question (from 17 August 1995 when the law entered into force until 31 December 1995) and the fact that there were no objective circumstances that had prevented the applicant from lodging her request within that time-limit, I do not find it disproportionate to dismiss the applicant ’ s request for failure to comply with the time-limit. Therefore, I voted for a finding of no vio lation of Article 1 of Protocol No. 1.

13 . I would like to add a final remark. I find the consequences of the Court ’ s judgment very unfortunate. In the view of the Court, no time-limit applies for lodging a request to buy a State-owned flat under the Sale to Occupier Act 1991 (paragraph 57 of the judgment). In other words, holders of a specially protected tenancy, who for unknown reasons had not submitted a request to purchase their flat before the end of 1995, may now, with reference to the Court ’ s interpretation of domestic legislation, lodge a request to buy their State-owned flat more than 30 years after the adoption of the 1995 Act, thereby allowing individuals to speculate on the development of the market value of real estate to the detriment of the State and tax-payers. The applicant was 79 years old when she, in 2006, decided to request to buy the flat in which she had been living since 1961, and today she is 89 years old. Therefore, the judgment of the Court will, in practice, be first and foremost of benefit to the applicant ’ s heirs.