CEDH, Cour (Première Section), AFFAIRE BLECIC c. CROATIE, 29 juillet 2004, 59532/00

FIRST SECTION PARTIAL DECISION AS TO THE ADMISSIBILITY OF Application no. 59532/00 by Krstina BLEČIĆ against Croatia The European Court of Human Rights (First Section), sitting on 6 December 2001 as a Chamber composed of Mr C.L. Rozakis, President, Mr G. Bonello, Mr P. Lorenzen, Mrs N. Vajić, Mrs S. Botoucharova, Mr V. Zagrebelsky, Mrs E. Steiner, judges, and Mr E. Fribergh, Section Registrar, Having regard to the above application lodged on 13 March 2000 and registered on 29 September 2000, Having deliberated, decides as follows:

THE FACTS

The applicant, Ms Krstina Blečić, is a Croatian citizen, who was born in 1926 and presently lives in Rome, Italy. She is represented before the Court by Mr Toni Vukičević, a lawyer practising in Split, Croatia. A. The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows. In 1953 the applicant, together with her husband, acquired the specially protected tenancy to a flat in Zadar. After the husband's death in 1989 the applicant became the sole holder of the specially protected tenancy. On 3 June 1991, the Parliament enacted the Specially Protected Tenancies (Sale to Occupier) Act (Zakon o prodaji stanova na kojima postoji stanarsko pravo) which regulates the sale of publicly-owned flats previously let under specially protected tenancy. On 17 July 1991 the applicant went to visit her daughter who lived in Rome, Italy, where she intended to stay for the summer. However, by the end of August 1991 the armed conflict escalated in Dalmatia, resulting in severe travel difficulties in that area, including the town of Zadar. In October 1991 the Croatian authorities ended payments of the applicant's pension since, at that time, she was not a Croatian citizen. She also lost the right to medical insurance she previously had held. At 65 years of age and not in the best of health, the applicant decided to remain in Rome. From 15 September 1991 the town of Zadar was exposed to constant shelling and the supply of electricity and water was disrupted for over a hundred days. In November 1991 M. F. with his wife and two children broke into the applicant's flat in Zadar. On 12 February 1992 the Zadar Municipality (Općina Zadar) brought a civil action against the applicant for termination of her specially protected tenancy on the flat in Zadar, before the Zadar Municipal Court (Općinski sud u Zadru). The Zadar Municipality claimed that the applicant had been absent from the flat for a period longer than six months without justified reason. The applicant claimed that she was not able to return to Zadar since she had no means of subsistence, no health insurance and was in bad health. She also claimed that ever since M. F. had broken into her flat with his family she had been physically prevented from returning there. In addition, she stated that M. F. had threatened her over the telephone when she had inquired about her flat and her possessions in the flat. On 9 October 1992 the Zadar Municipal Court terminated the applicant's specially protected tenancy. After the applicant had appealed against the judgment, it was quashed by the Zadar County Court's decision of 10 March 1993. That court found that the first instance court failed to assess all relevant facts and remitted the case for a re-trial. On 18 January 1994 the Zadar Municipal Court pronounced judgment granting the plaintiff's claim and terminating the applicant's specially protected tenancy. It found that the applicant had been absent from the flat for over six months without justified reason. The applicant appealed. On 19 October 1994 the Zadar County Court (Županijski sud u Zadru) reversed the first instance judgment and rejected the plaintiff's claim. It found that the escalation of war and the applicant's health situation justified her absence from the flat in question. On 10 April 1995 the Zadar Municipality filed a request for revision on points of law (zahtjev za reviziju) with the Supreme Court (Vrhovni sud Republike Hrvatske). On 15 February 1996 the Supreme Court granted the request and reversed the County Court's judgment. It found that the reasons for absence from the flat submitted by the applicant were not justified. On 8 November 1996 the applicant filed a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske). She claimed that her right to respect for her home, her right to property and her right to life had been violated and that she had been deprived of a fair trial. On 8 November 1999 the Constitutional Court rejected the applicant's complaint. It found that the Supreme Court applied the relevant legal provisions to the factual background established by the lower courts. B. Relevant domestic law Section 99 (1) of the Housing Act (Zakon o stambenim odnosima, Official Gazette nos. 51/1985, 42/1986, 22/1992 and 70/1993) provides that the specially protected tenancy can be terminated if the holder does not occupy the flat in a period of six months or more without any justified reason. The Specially Protected Tenancies (Sale to Occupier) Act regulates the conditions of sale of flats let under specially protected tenancies. In general, the Act entitles the holder of a specially protected tenancy on a publicly-owned flat to purchase it under favourable conditions. COMPLAINTS 1. The applicant complains under Article 6 § 1 and Article 13 of the Convention that she did not have a fair hearing in so far as the courts wrongly concluded that her absence from the flat was unjustified and the Constitutional Court failed to examine the facts submitted by the applicant. 2. The applicant complains that her right to respect for her home was violated 3. Finally, the applicant complains under Article 1 of Protocol No. 1 that her right to property was violated because she was deprived of a possibility to buy the flat in question under favourable conditions, as all other holders of the specially protected tenancy.

THE LAW

1. The applicant complains firstly that she was deprived of a fair hearing since her specially protected tenancy was terminated although her absence from the flat was justified. She invokes Article 6 § 1 and Article 13 of the Convention which, in so far as relevant, read as follows: Article 6 § 1 "In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal..." Article 13 "Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity." In so far as the applicant's complaint may be understood to concern assessment of the evidence and the result of the proceedings before the domestic courts, the Court reiterates that, according to Article 19 of the Convention, its duty is to ensure the observance of the engagements undertaken by the Contracting Parties to the Convention. In particular, it is not its function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention. Moreover, while Article 6 of the Convention guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence or the way it should be assessed, which are therefore primarily matters for regulation by national law and the national courts (see the Schenk v. Austria judgment of 12 July 1988, Series A no. 140, p. 29, §§ 45-46 and Garcia Ruiz v. Spain, no. 30544/96, Reports of Judgments and Decisions 1999-I, § 28). The Court finds that there is nothing to indicate that the national courts' evaluation of the facts and evidence presented in the applicant's case was contrary to Article 6 of the Convention. The applicant was fully able to state her case and challenge the evidence; all essential evidence was presented; there had been a public hearing at first instance and the courts' decisions were satisfactorily reasoned. The Court notes also that the applicant was able to lodge an appeal against the first instance judgment as well as a constitutional complaint. In these circumstances the Court finds that the case discloses no appearance of a violation of the provisions invoked by the applicant. It follows this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. 2. The applicant complains also that her right to respect for her home was violated because the domestic courts terminated her specially protected tenancy although she was absent from the flat for justified reason. In the Court's view the applicant's complaint falls to be examined under Article 8 of the Convention. The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 3 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government. 3. The applicant finally complains that she had a legitimate expectation to buy the flat in question under very favourable conditions, as all other holders of specially protected tenancies on the publicly-owned flats, and that she was deprived of that right contrary to Article 1 of Protocol No. 1. The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 3 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

For these reasons

, the Court unanimously Decides to adjourn the examination of the applicant's complaint that she was deprived of her right to respect for her home and of her right to property; Declares inadmissible the remainder of the application. Erik FRIBERGH Christos ROZAKIS Registrar President