(Application no. 23677/07)
9 July 2009
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Bubić v. Croatia,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
George Nicolaou, judges,
and Søren Nielsen, Section Registrar,
Having deliberated in private on 18 June 2009,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
Background of the case
“Z.G. moved into the flat without any authorisation, without a contract on the use of the flat or any other valid basis for entering the flat, by breaking the door ...”
“Z.G. moved into the flat without any authorisation, without a contract on the use of the flat or any other valid basis for entering the flat, by breaking the door ...
In view of the above [Ceming] instituted administrative proceedings with the Split Municipality, Committee for Urbanism, Construction, Property and Housing, and that Committee ordered the eviction of Z.G. from the flat in question in its decision of 27 June 1988 ...”
“According to the statement of participant Z.G. and a report of the on-site visit carried out by the Commission of the respondent this court has established that the participant, together with his family, lives in a one-storey family house located in Klis. According to Z.G, the ground floor comprises two rooms, a kitchen, bathroom and toilet, measuring in all fifty square metres while the first floor, measuring about forty square metres, comprises two more rooms and an additional space. It is undisputed that the first floor is in the exclusive ownership of Z.G., while the ground floor, again according to Z.G., is in his co-ownership in 5/8 together with his mother in 1/8, his brother in 1/8 and the children of his late brother in 1/8. The whole building is in sole and undisturbed possession of Z.G, his spouse, one son and Z.G.'s mother, while his other son rents a flat in Kučine. ...”
“The decision granting the flat to the plaintiff was adopted on 3 December 1990 and it is therefore clear that it could not have become final on 20 September 1990, as is noted on it. ... It is obviously a mistake. However, the fact is that that decision had meanwhile become final because if not, the plaintiff, as a tenant - a holder of a specially protected tenancy - would not have been issued with a decision fixing the amount of the rent for the flat ...
The defendant is using the flat in question without any right to do so. The results of the proceedings show that the flat in question has never been allocated for his use ... Therefore, he has no legal basis to live in the flat in question ...”
However, the judgment was quashed and the case remitted to the Split Municipal Court for a new trial. On 16 July 1993 that court found that it had no jurisdiction in the matter because the applicant had never moved into the flat. This decision was upheld by the Split County Court (Zupanijski sud u Splitu) on 22 October 1993.
“... this court considers that the first defendant has never moved into the flat in question and therefore according to the relevant legal provisions has never acquired the status of a holder of a specially protected tenancy. He could not therefore have purchased the flat in question under the provisions of the Specially Protected Tenancy (Sale to Occupier) Act. For that reason this court has not addressed the preliminary question whether the decision on granting the specially protected tenancy had become final, because the criterion for acquiring a specially protected tenancy, namely that the first defendant has moved into the flat, has not been satisfied and thus the first defendant has not acquired the status of a holder of a specially protected tenancy.”
“The findings of the first-instance court that the sale contract concluded on 18 October 1994 between the defendants was null and void are accepted as correct by this court....
The first-instance court correctly established the following relevant facts:
- that the first defendant had been granted the right to occupy the flat in question by a decision of Ceming, ... of 6 December 1990;
- that the first defendant had never moved into the flat on the basis of a final decision.
On the basis of the above facts, which were correctly and fully established, the first-instance court correctly concluded that the first defendant had never acquired the specially protected tenancy of the flat in question because, under section 59 § 1 of the Housing Act (Official Gazette nos. 51/85 – 70/93,...), the specially protected tenancy is acquired on the day of entering the flat on the basis of a final decision to that effect.
Since the first defendant has not acquired the specially protected tenancy, he does not have the right under section 6 § 1 of the Specially Protected Tenancy (Sale to Occupier) Act (Official Gazette nos. 43/92 – 58/95) to purchase the flat. Therefore, the conclusion of the first-instance court that the sale contract of 18 October 1994 was null and void, under section 103 § 1 of the Civil Obligations Act (Official Gazette nos. 53/91 – 112/99), is correct.
It is undisputed between the parties to the proceedings that the first defendant was granted the flat in question by a decision ... of 6 December 1990 and that it bears a certified stamp that it had become final on 21 September 1990.
The conclusion of the first-instance court that the above decision could not have become final before it had been issued is correct.
The first defendant, in his evidence given on 17 October 2000, claimed that he had no possession of the flat in question since September 1990 which confirms that the decision of the first-instance court is correct because, even assuming that he actually had possession of the flat in September 1990, such possession was not based on the final decision granting him that flat for his use.”
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. The relevant legislation
“A protected tenancy shall be acquired on the day of entering the flat ...”
“A person who does not enter the flat [of which he or she is granted a specially protected tenancy] without a justified reason within thirty days of the day when he or she is granted occupancy shall lose the right to occupy the flat [granted to him or her].”
Section 1 of the Act gave the right to the holders of protected tenancies of publicly-owned flats to purchase such flats under favourable conditions, provided that each holder bought only one flat.
Section 21 obliged a seller to submit the sale contract for approval by the competent State Attorney's Office within eight days.
III. [LEGAL] BASIS
Permissible [legal] basis
“(1) Each contractual obligation shall have a permissible [legal] basis [causa].
(2)The basis is not permissible if it contravenes the Constitution, peremptory norms or morals.
Null and void contract on the ground of its [legal] basis
“Where there is no [legal] basis or where it is not permissible, the contract is null and void.”
Unlimited right to plead nullity
“The right to plead nullity shall be inextinguishable.”
... the competent State Attorney's Office shall ... seek the annulment of a contract ... which contravenes peremptory norms.”
B. The Supreme Court's practice
“... the lower courts lost sight of what they had established, namely that eight days after the defendants B. and Lj.B. had obtained a decision granting them occupancy rights, a certain D.M. had moved into the flat without legal basis and had thus prevented the defendants B. from moving into the flat themselves.
Against this background it cannot be accepted that the defendants had not acquired the specially protected tenancy and that thus they were not entitled to purchase the flat in question under section 6 of the Protected Tenancies (Sale to Occupier) Act ... On the contrary, they were entitled to purchase the flat as tenants.
I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 TO THE CONVENTION
“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.”
The parties' arguments
The Court's assessment
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
FOR THESE REASONS, THE COURT UNANIMOUSLY
Done in English, and notified in writing on 9 July 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis