AS TO THE ADMISSIBILITY OF
by Vesna KOLARIĆ-KIŠUR
The European Court of Human Rights (First Section), sitting on 17 September 2009 as a Chamber composed of:
Sverre Erik Jebens,
Giorgio Malinverni, judges
and André Wampach, Deputy Section Registrar,
Having regard to the above application lodged on 29 March 2005,
Having regard to the observations submitted by the respondent Government,
Having deliberated, decides as follows:
The person stated as the applicant in the application form, Mrs Vesna Kolarić-Kišur, was a Croatian national who was born in 1925 and lived in Zagreb. Mr M. Milošević, an advocate practising in Zagreb, claimed to have represented her before the Court. The Croatian Government (“the Government”) were represented by their Agent, Mrs Š. StaZnik.
The facts of the case, as submitted by the parties, may be summarised as follows.
1. The lodging of the application and the procedure before the Court
The application was lodged with the Court on 29 March 2005 in the name of Mrs Vesna Kolarić-Kišur. Enclosed with the application form was a power of attorney dated 16 March 2005 and signed “Vesna Kolarić-Kišur” authorising Mr M. Milošević to represent her before the Court. The power of attorney was also signed by Mr Milošević and bore his stamp.
On 17 January 2008 the President of the First Section decided to communicate the complaint concerning the right of property to the Government.
On 7 May 2008 the Government submitted their observations.
By letter, dated 15 May 2008, the Government’s observations were sent to Mr Milošević, who was requested to submit any observations in reply together with any claims for just satisfaction by 26 June 2008.
By registered letter, dated 13 August 2008, Mr Milošević was notified that the period allowed for submission of his client’s observations had expired on 26 June 2008 and that no extension had been requested. Mr Milošević’s attention was drawn to Article 37 § 1 (a) of the Convention, which provides that the Court may strike a case out of its list of cases where the circumstances lead to the conclusion that the applicant does not intend to pursue the application. Mr Milošević received this letter on 19 September 2008. However, no response has been received.
By letter, dated 18 March 2009, the Government informed the Court that Mrs Vesna Kolarić-Kišur had died on 17 October 2004, that is, before the application was lodged with the Court on 29 March 2005. As proof, the Government enclosed her death certificate with their letter.
By letter, dated 24 March 2009, the Government’s letter of 18 March 2009 and the accompanying document were sent to Mr Milošević, who was requested to submit comments on them by 14 April 2009. However, no response has been received.
2. Mrs Kolarić-Kišur’s property dispute
(a) Background to the case
On 1 January 1997 the Act on Compensation for, and Restitution of, Property Taken Under the Yugoslav Communist Regime (Zakon o naknadi za imovinu oduzetu za vrijeme jugoslavenske komunističke vladavine – “the Denationalisation Act”) entered into force. It enabled the former owners of confiscated or nationalised property, or their heirs in the first line of succession (direct descendants or a spouse), to obtain, under certain conditions, either restitution of, or compensation for, property appropriated during the communist regime. They were required to submit their requests within six months of the Act’s entry into force. Requests submitted after that date would be declared inadmissible.
Pursuant to section 22 of the Denationalisation Act, nationalised flats in respect of which third persons had acquired specially protected tenancies (stanarsko pravo) were not to be restored to their former owners. The tenants had a right to purchase such flats from the provider of the flat under favourable conditions set out in the Specially Protected Tenancies (Sale to Occupier) Act (Zakon o prodaji stanova na kojima postoji stanarsko pravo). At the same time, the former owners were entitled to financial compensation in respect of the flats.
On the other hand, pursuant to section 32 of the Denationalisation Act, confiscated flats were to be awarded to their former owners. Under section 13 of the Appropriated Property Compensation Fund Act (Zakon o Fondu za naknadu oduzete imovine), the tenant had the right to purchase a confiscated flat only if no request for its restitution had been submitted or if such a request had been refused in a final decision.
(b) The particular circumstances of the case
(i) Events leading to the civil proceedings
Mrs Kolarić-Kišur was the holder of a specially protected tenancy of a flat in Zagreb, measuring 153.41 square metres. The flat is located in a building which was confiscated from its owner M.V. by the communist authorities in 1946.
On 13 February 1997 M.V.’s daughter, M.B., instituted administrative proceedings before the Office for Property Affairs of the City of Zagreb (Grad Zagreb, Gradski ured za imovinskopravne poslove) by submitting a request for restitution of M.V.’s confiscated property, including the above-mentioned building.
On 17 July 1997 M.V. died and her testamentary heirs V.A.-V. and T.A. took over the proceedings.
On 26 May 2004 the Office issued a decision awarding ownership of the entire building to V.A.-V. and T.A. Mrs Kolarić-Kišur appealed.
On 7 December 2005 the Ministry of Justice (Ministarstvo pravosuđa), as the second-instance administrative authority, issued a decision discontinuing the appellate proceedings in respect of Mrs Kolarić-Kišur as on 6 June 2005 her representative Mr Milošević had withdrawn the appeal.
Meanwhile, on 11 August 1998 the City of Zagreb, as the provider of the flat, concluded a contract of sale with Mrs Kolarić-Kišur whereby it sold her the flat in respect of which she had a specially protected tenancy for 137,356 Croatian kunas (HRK). Shortly afterwards she was recorded as the owner of the flat in the land register.
(ii) The civil proceedings
On 20 April 2000 V.A.-V. and T.A. brought a civil action in the Zagreb Municipal Court (Općinski sud u Zagrebu) against Mrs Kolarić-Kišur, several other individuals who had purchased flats located in the same building, and the City of Zagreb. They asked the court to declare the contracts of sale null and void as being contrary to peremptory rules. They argued that under the Denationalisation Act, confiscated flats were not to be sold to their tenants but awarded to their former owners. Only if the former owner’s request for restitution had been refused or declared inadmissible were the tenants to be allowed to purchase such flats. The plaintiffs explained that they had taken over the administrative proceedings instituted on 13 February 1997 before the Office for Property Affairs of the City of Zagreb by M.B., who had submitted a request for restitution of the entire building in which the flats in question were located, and that this request had not been refused or declared inadmissible by the time the impugned contracts of sale had been concluded. Therefore, the City of Zagreb had not been allowed to sell those flats as long as the request for their restitution had been pending.
On 17 October 2002 the court declared the impugned contracts of sale null and void ab initio, endorsing the arguments adduced by the plaintiffs. It found that the contracts were in breach of peremptory rules and therefore null and void from their inception. The respondents appealed.
On 13 January 2004 the Zagreb County Court (Zupanijski sud u Zagrebu) dismissed an appeal by the respondents and upheld the first-instance judgment. Mrs Kolarić-Kišur then lodged a constitutional complaint, alleging a violation of her constitutional right to equality before the law.
On 29 September 2004 the Constitutional Court dismissed her constitutional complaint.
The Government disputed the admissibility of the property complaint on three grounds. They argued that the application was abusive, that domestic remedies had not been exhausted and that, in any event, the complaint was manifestly ill-founded.
The Court does not find it necessary to examine the Government’s objections as the application is in any event inadmissible for the following reasons.
The Court reiterates that it has to satisfy itself that it has jurisdiction in any case brought before it, and is therefore obliged to examine the question of its jurisdiction at every stage of the proceedings (see Blečić v. Croatia [GC], no. 59532/00, § 67, ECHR 2006 III). Thus, even though the Government in their observations raised no plea of inadmissibility concerning lack of jurisdiction ratione personae, the Court nevertheless has to examine it of its own motion.
In this connection, the Court reiterates that an application cannot be brought in the name of a deceased person, since a deceased person is unable, even through a representative, to lodge an application with the Court (see Yaşa v. Turkey, no. 22495/93, Commission’s report of 8 April 1997, § 88, Reports of Judgments and Decisions 1998 VI). As it is undisputed that Mrs Kolarić-Kišur had died more than five months before her representative introduced the application in her name, it follows that the case has not been brought by a person who can be regarded as an applicant for the purposes of Article 34 of the Convention (see, mutatis mutandis, Post v. the Netherlands (dec.), no. 21727/08, 20 January 2009). Therefore, the present application is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected pursuant to Article 35 § 4 (see, for example, Dupin v. Croatia (dec.), no. 36868/03, 7 July 2009).
For these reasons, the Court unanimously
Declares the application inadmissible.
Wampach Anatoly Kovler
Deputy Registrar President