Last Updated on October 3, 2020 by LawEuro
FOURTH SECTION
DECISION
Application no. 16990/15
Vladislav NIKOLIĆ
against Slovenia
The European Court of Human Rights (Fourth Section), sitting on 16 January 2018 as a Committee composed of:
Vincent A. De Gaetano, President,
Georges Ravarani,
Marko Bošnjak, judges,
and Andrea Tamietti, Deputy Section Registrar,
Having regard to the above application lodged on 7 April 2015,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Vladislav Nikolić, is a French national who was born in 1936 and lives in Clermont-Ferrand. The applicant, who had been granted legal aid, was represented before the Court by Mr E. Kiganga-Siroko, a lawyer practising in Clermont-Ferrand.
2. The Slovenian Government (“the Government”) were represented by their Agent, Ms B. Jovin Hrastnik, State Attorney.
3. On 25 May 2016 the French Government were informed of their right to intervene in the proceedings in accordance with Article 36 § 1 of the Convention and Rule 44 § 1 of the Rules of Court. On 15 September 2016 they informed the Court that they would not avail themselves of this possibility.
A. The circumstances of the case
4. The facts of the case, as submitted by the parties, may be summarised as follows.
1. Background to the case
5. For relevant background to the case regarding the “specially protected tenancy” (stanovanjska pravica) see Berger-Kralland Others v. Slovenia (no. 14717/04, §§ 7-17, 12 June 2014).
2. The particular circumstances of the case
6. On 12 July 1982 the applicant, as a holder of a specially protected tenancy, concluded a tenancy agreement for a socially-owned flat.
7. On an unspecified date at the end of the 1980s the applicant left Slovenia to live in France, where he obtained French citizenship.
8. On 9 November 1991 the applicant, as a holder of a specially protected tenancy when the 1991 Housing Act entered into force (hereinafter “former holder of a specially protected tenancy”), lodged a request for the purchase of the above-mentioned flat on favourable terms (see paragraphs 23 and 24 below).
9. On 23 December 1991 the Ljubljana Municipality (“the Municipality”) informed him that he could not purchase the flat as he did not have Slovenian citizenship, as required by section 16 of the Constitutional Act Implementing the Basic Constitutional Charter on the Independence and Sovereignty of the Republic of Slovenia (hereinafter “the 1991 Constitutional Act” – see paragraph 25 below).
10. On 28 July 1992 the applicant concluded a lease contract with the Municipality for the flat at issue.
11. On 14 September 1992 the applicant, who at the time held Serbian citizenship, applied for citizenship of the Republic of Slovenia. His application was dismissed owing to his failure to participate in the application process.
12. On 19 October 1993 the applicant brought a civil action against the Municipality, claiming the conclusion of a contract to buy the flat at issue on the basis of the 1991 Housing Act. On 9 September 1994 he withdrew his action. Consequently, the Ljubljana Basic Court issued a decision to discontinue the proceedings (sklep o umiku), which became final on 14 October 1994.
13. In 2004 the applicant resubmitted his request to purchase the flat under the favourable terms of the 1991 Housing Act, basing it on the provisions of the Agreement on Succession Issues (see paragraph 26 below). On an unspecified date the Municipality dismissed the request on the grounds that the applicant was not a former holder of a specially protected tenancy. It held that he had lost that status before the 1991 Housing Act had entered into force because he had not used the flat for more than six months, which was one of the reasons for an ex lege termination of specially protected tenancies under the Housing Relations Act.
14. On 17 May 2005 the Municipality brought an action against the applicant to terminate the lease (see paragraph 10 above), vacate the flat and return it to the owner as the flat had been used by a person not indicated as a user in the contract. By a default judgment the Ljubljana District Court ruled that the Municipality could terminate the contract and that the applicant was required to vacate the flat and return it to the Municipality.
15. On 24 April 2007 the applicant brought a civil action against the Municipality with the Ljubljana District Court, claiming the return of the specially protected tenancy and the conclusion of a contract to buy the flat under the favourable terms of the 1991 Housing Act. He relied, in particular, on Articles 2, 6 and 7 of Annex G to the Agreement on Succession Issues (see paragraph 26 below) and maintained that his specially protected tenancy and the right to purchase the flat on favourable terms should be reinstated under the terms of that Agreement in connection with the 1991 Housing Act.
16. On 2 April 2009 the Ljubljana District Court dismissed the applicant’s claim. It held that the Agreement on Succession Issues did not provide for the reinstatement of a specially protected tenancy (it referred to the Constitutional Court’s case-law, see paragraph 27 below). Therefore, the applicant had no right to the reinstatement of a specially protected tenancy and consequently no right to purchase the flat under the favourable terms of the 1991 Housing Act. As for the non-discrimination clause in Article 6 of Annex G to the Agreement on Succession Issues, the court observed that the applicant had at no point either claimed or proven that he had lost his specially protected tenancy owing to discrimination.
17. The applicant appealed, complaining that he had been discriminated against on the grounds of his citizenship, contrary to Article 6 of Annex G to the Agreement on Succession Issues, because he had not been able to purchase the flat he had once occupied under the terms of a specially protected tenancy.
18. On 14 September 2009 the Ljubljana Higher Court dismissed the appeal. It emphasised that Article 6 of Annex G to the Agreement on Succession Issues did not oblige the successor States to reinstate specially protected tenancies, but only to apply the relevant national legislation equally to all citizens of the former Socialist Federal Republic of Yugoslavia (“the SFRY”) without discrimination. The court, inter alia, held that when the 1991 Housing Act had entered into force the applicant had no longer been living in Slovenia and had thus not held a specially protected tenancy on the relevant date.
19. The applicant lodged an appeal on points of law, reiterating his previous arguments. On 5 May 2011 the Supreme Court quashed the second-instance judgment and remitted the case, finding that the higher court had not provided sufficient reasons for its conclusion that the applicant had lost his specially protected tenancy before 19 October 1991.
20. On 8 December 2011 the Ljubljana Higher Court again upheld the first-instance judgment (see paragraph 16 above), finding that the applicant had not obtained the right to purchase the flat on favourable terms with the adoption of the Agreement on Succession Issues. In particular, following the Constitutional Court’s case-law (see paragraph 27 below), it held that the Agreement did not provide for reinstatement of specially protected tenancies, but only for the non‑discriminatory application of domestic law regarding such tenancies.
21. On 27 September 2012 the Supreme Court, following the lower courts’ reasoning, dismissed an appeal on points of law lodged by the applicant. Referring to section 117 of the 1991 Housing Act and to section 16 of the 1991 Constitutional Act, the Supreme Court held that two requirements had to be met in order to exercise the right to purchase a flat under the favourable terms of the 1991 Housing Act. Firstly, those wanting to exercise that right had to be former holders of a specially protected tenancy and, secondly, they had to hold Slovenian citizenship. Foreigners could only acquire property by way of inheritance and under the condition of reciprocity. In the Supreme Court’s view, Annex G to the Agreement on Succession Issues could not be interpreted as conferring any right of purchase on people who did not fulfil both of the above-mentioned requirements when the 1991 Housing Act had entered into force (see paragraphs 24 and 25 below).
22. On 15 October 2014 the Constitutional Court did not accept a constitutional complaint by the applicant for consideration, finding that it did not concern an important constitutional issue or entail a violation of human rights which would have serious consequences for him.
B. Relevant domestic law and practice
1. Domestic law concerning specially protected tenancy
23. The 1991 Housing Act (Official Gazette no. 18/91 with further amendments) entered into force on 19 October 1991. Dwellings and residential buildings that had previously been in social ownership (socially-owned flats) became, with only a few exceptions, the property of the Republic of Slovenia, municipalities or the National Pension Fund (hereinafter “public owners”, sections 111-114). The public owners were obliged to conclude a lease for an indefinite period and for a non-profit rent with holders of specially protected tenancies within six months of the entry into force of the Act (sections 147 and 150). Pursuant to section 141 of the Act, a specially protected tenancy ceased ex lege on the day a lease was concluded.
24. Former holders of a specially protected tenancy or, under certain conditions, their family members, were given the possibility to purchase the flats they occupied on favourable terms, paying a much lower price than the estimated value (sections 117-124). The right of purchase had to be exercised within two years of the entry into force of the 1991 Housing Act (section 123). The public owner of a flat was required to conclude a sale contract within thirty days of a request being lodged by the former holder of a specially protected tenancy (section 117). If it refused to sell the flat in question, the former holder of the specially protected tenancy could apply to a civil court for a ruling on the issue (section 128).
25. Section 16 of the 1991 Constitutional Act (Official Gazette no. 1/91 with further amendments) provides that natural persons who did not have citizenship of the Republic of Slovenia on 25 June 1991 cannot acquire ownership rights to real estate, except on the basis of inheritance and on condition of actual reciprocity.
2. Agreement on Succession Issues
26. On 29 June 2001 Bosnia and Herzegovina, Croatia, the Federal Republic of Yugoslavia (succeeded in 2006 by Serbia), the former Yugoslav Republic of Macedonia, and Slovenia signed the Agreement on Succession Issues, which entered into force on 2 June 2004. Pursuant to Article 2 of Annex G to the Agreement on Succession Issues, the right to immovable property located in a successor State to which citizens of the SFRY were entitled on 31 December 1990 were to be recognised, protected and restored by that State, in accordance with the established standards and norms of international law, irrespective of the nationality, citizenship, residence or domicile of those persons. That included people who, after 31 December 1990, had acquired the citizenship of or established their domicile or residence in a State other than a successor State. Article 6 of the Annex reads as follows:
“The domestic legislation of each Successor State concerning dwelling rights (‘stanarsko pravo/stanovanjska pravica/станарско право’) shall be applied equally to persons who were citizens of the SFRY and who had such rights, without discrimination on any grounds, such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
3. Case-law of the Constitutional Court
27. The Government submitted decisions by the Constitutional Court interpreting the relevant provisions of the Agreement on Succession Issues. In particular, the case-law showed that the court interpreted Article 2 of Annex G to the Agreement on Succession Issues as not being applicable to specially protected tenancy cases (decisions nos. Up-761/03, U-I-318/04 of 18 November 2004 and Up-522/05, U-I-261/05 of 15 September 2005). Furthermore, the Constitutional Court has held that Article 6 of Annex G, which referred specifically to specially protected tenancies, did not require that successor States reinstate such tenancies. Slovenia was thus only obliged to apply the domestic legislation concerning specially protected tenancies to former SFRY citizens who held that right without discriminating against such people on any of the grounds listed in Article 6 of Annex G to the Agreement. The decisions showed that the Constitutional Court had concluded that the 1991 Housing Act had not discriminated against former holders of specially protected tenancies in the enjoyment of their rights on any of the Article 6 grounds.
COMPLAINTS
28. The applicant complained that he had been prevented from purchasing the flat under the favourable terms of the 1991 Housing Act because he did not have Slovenian citizenship. He relied on Articles 6 and 14 of the Convention, Article 1 of Protocol No. 1, Article 1 of Protocol No. 12 and Article 3 of Protocol No. 7.
THE LAW
A. Complaint under Article 1 of Protocol No. 1 taken alone and in conjunction with Article 14
29. The applicant complained that he had been prevented from purchasing the flat on favourable terms on the grounds of his nationality. He relied on Article 1 of Protocol No. 1 and Article 14 of the Convention, which read as follows:
Article 1 of Protocol No. 1
“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.”
Article 14
“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
1. The parties’ submissions
(a) The Government
30. The Government raised a first objection that the applicant had not exhausted domestic remedies with respect to his request to purchase the flat under the 1991 Housing Act. They drew the Court’s attention to the fact that after the Municipality had dismissed his claim in 1991 (see paragraph 9 above), he had failed to contest that decision before the civil courts. They also pointed to the fact that he had withdrawn his action in subsequent proceedings, without providing any explanation (see paragraph 12 above). Furthermore, they were of the opinion that the complaints referring to the proceedings which had ended with the applicant’s withdrawal in 1994 had been lodged outside the six-month time-limit. They maintained in this connection that the applicant’s failure to disclose his 1994 withdrawal from the civil proceedings to the Court constituted an abuse of the right of individual application.
31. The Government argued, secondly, that the applicant had not had any “possession” in respect of the flat at issue within the meaning of Article 1 of Protocol No. 1. They observed that he had never had a sufficiently recognised claim under national law, either under the applicable legislation or under the relevant case-law, to purchase the flat at issue. In particular, they stated that he had not met the statutory requirements relevant for acquiring ownership of immovable property by concluding a purchase contract, namely Slovenian citizenship, in the first set of proceedings which had ended in 1994. They maintained that when the applicant in 2007 had initiated a new set of civil proceedings regarding his second purchase request (see paragraph 15 above), the question of the refusal of his request of 1991 had long been time-barred. In any event, the Agreement on Succession Issues, in particular Article 6 of Annex G, which was in their opinion the only relevant provision for specially protected tenancies (they referred in that connection to the cases of Mago and Others v. Bosnia and Herzegovina, nos. 12959/05 and 5 others, § 67, 3 May 2012 and Đokić v. Bosnia and Herzegovina, no. 6518/04, § 43, 27 May 2010), had, contrary to the applicant’s interpretation, not provided for the reinstatement of the specially protected tenancy or granted the applicant the right to purchase the flat under the favourable terms of the 1991 Housing Act. Therefore, neither national law nor the Agreement on Succession Issues had provided the applicant with a legitimate expectation that his claim would be accepted and that he could acquire ownership of the flat in question.
32. As for the complaint under Article 14 of the Convention, the Government argued that the applicant had himself given his consent to the loss of his specially protected tenancy and had transformed it into a normal lease on the basis of the 1991 Housing Act. Moreover, the lease had been concluded without any consideration of the applicant’s citizenship.
(b) The applicant
33. The applicant argued that he had had no chance of success with domestic legal remedies in the first set of proceedings in which he had withdrawn his civil action. As to the Government’s argument regarding abuse of the right of individual application, the applicant replied that the 1994 withdrawal had not been an issue in the proceedings he was complaining about in the present case. He was further of the opinion that the domestic courts had erroneously applied Annex G to the Agreement on Succession Issues by not reinstating his specially protected tenancy and the right to purchase the flat under favourable terms. The applicant maintained that the citizenship requirement for purchasing the flat at issue under favourable terms had amounted to discrimination on the grounds of nationality.
2. The Court’s assessment
34. The Court notes that the Government objected that the present complaint was inadmissible because the applicant had abused the right of individual application and had failed to exhaust domestic remedies (see paragraph 30 above). However, the Court does not need to examine those objections because this part of the application is in any event inadmissible for the following reasons.
(a) Court proceedings based on the 1991 Housing Act
35. As regards the set of court proceedings based on the 1991 Housing Act, the Court considers that the six-month period under Article 35 § 1 of the Convention started to run on 9 September 1994, when the applicant withdrew his civil action (see paragraph 12 above). It notes in this connection that the applicant himself argued that he had acted in that way because he had no chance of success (see paragraph 33 above). If he believed that he had no effective remedy at his disposal in respect of his claim under the 1991 Housing Act, the applicant should have turned to the Court directly after withdrawing his civil action (see the relevant principles resumed, inter alia, in Varnava and Others v. Turkey [GC], nos. 16064/90 and 8 others, § 157, ECHR 2009). However, the application was submitted on 7 April 2015. Therefore, the applicant’s complaint under Article 1 of Protocol No. 1 taken alone and in conjunction with Article 14 as far as it concerns the alleged discriminatory application of the 1991 Housing Act by the domestic courts must be declared inadmissible for failure to comply with the six-month time-limit, pursuant to Article 35 §§ 1 and 4 of the Convention.
(b) Court proceedings based on Annex G to the Agreement on Succession Issues
36. The Court notes that the applicant argued in his court proceedings initiated in 2007 on the basis of Annex G to the Agreement on Succession Issues (see paragraph 26 above) that his specially protected tenancy, and consequently the right to purchase his flat on favourable terms, should have been reinstated in accordance with the Agreement (see paragraph 15 above).
37. The Court emphasises that an applicant may allege a violation of Article 1 of Protocol No. 1 only in so far as the impugned decisions relate to his or her “possessions” within the meaning of that provision. “Possessions” can be “existing possessions” or claims that are sufficiently established to be regarded as “assets”. Where a proprietary interest is in the nature of a claim, it may be regarded as an “asset” only if there is a sufficient basis for that interest in national law (for example, where there is settled case-law of the domestic courts confirming it) – that is, when the claim is sufficiently established to be enforceable (see Kopecký v. Slovakia [GC], no. 44912/98, §§ 48-49, ECHR 2004‑IX). The Court will therefore assess whether the applicant’s claim based on the Agreement on Succession Issues was sufficiently established under domestic law.
38. The Court takes note of the case-law of the Constitutional Court concerning specially protected tenancy cases under the Agreement on Succession Issues (see paragraph 27 above). It observes in that connection that the domestic courts in the present case followed the Constitutional Court’s interpretation. Accordingly, they concluded that Annex G did not provide for a right to purchase the flat. Article 6 only obliged the successor States not to discriminate against former SFRY citizens in the application of the domestic law concerning specially protected tenancies. However, in the present case the applicant complained that he had been prevented from purchasing the flat on favourable terms, not that he was unable to enjoy the specially protected tenancy.
39. Having regard to the text of the Agreement on Succession Issues and the reasoning of the domestic courts, and bearing in mind that it is in the first place for the national authorities, notably the courts, to interpret and apply domestic law (see Gottwald-Markušić v. Croatia (dec.), no. 49049/06, 30 March 2010), the Court finds that the provisions of Annex G to the Agreement on Succession Issues could not be considered as giving rise to a legitimate expectation on the part of the applicant that he would be able to purchase the flat in question. Accordingly, this part of the complaint under Article 1 of Protocol No. 1 is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected pursuant to Article 35 § 4.
40. As regards Article 14 of the Convention, the Court reiterates that it complements the other substantive provisions of the Convention and its Protocols. It has no independent existence since it has effect solely in relation to “the enjoyment of the rights and freedoms” safeguarded thereby. Although the application of Article 14 does not presuppose a breach of those provisions – and to this extent it is autonomous – there can be no room for its application unless the facts at issue fall within the ambit of one or more of them (see, among many other authorities, Fábián v. Hungary[GC], no. 78117/13, § 112, 5 September 2017).
41. The Court notes that that the above complaint under Article 1 of Protocol No. 1 is incompatible with the provisions of the Convention because the applicant, notwithstanding his nationality, had no legitimate expectation under the law he relied on in the domestic proceedings. Therefore, the Court considers that Article 14 of the Convention cannot apply in the instant case either (see, mutatis mutandis, Straka and Others v. Slovakia (dec.), nos. 11809/12 and 35284/13, § 61, 4 November 2014). The applicant’s complaint under Article 14 is therefore to be rejected as incompatible ratione materiae with the provisions of the Convention, pursuant to Article 35 §§ 3 and 4 of the Convention.
B. Complaint under Article 1 of Protocol No. 12
42. The applicant complained that the domestic courts’ interpretation of Annex G to the Agreement on Succession Issues had prevented him from purchasing the flat under favourable terms on the grounds of his nationality, in violation of Article 1 of Protocol No. 12, which reads as follows:
“1. The enjoyment of any right set forth by law shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.
2. No one shall be discriminated against by any public authority on any ground such as those mentioned in paragraph 1.”
43. The Court observes that when Protocol No. 12 entered into force in respect of Slovenia, on 1 November 2010, the proceedings initiated by the applicant on the basis of Annex G to the Agreement on Succession Issues were still pending before the domestic courts (see paragraph 19 above). The applicant complained that he had been discriminated against by the way the domestic courts had applied the aforementioned Agreement to his claim.
44. The Court reiterates its above finding that the applicant’s claim to purchase the flat was dismissed as the Agreement on Succession Issues did not provide for a right to purchase the flat on favourable terms (see paragraph 39 above). Under Article 6 of Annex G to the Agreement on Succession Issues, the respondent State was only required not to discriminate against the applicant in his enjoyment of the rights concerning the specially protected tenancy.
45. The Court notes that in the present case the domestic courts found that the applicant had not lost his specially protected tenancy because he lacked Slovenian citizenship. In fact, it transpires from the documents before the Court that the applicant’s specially protected tenancy was transformed into a lease, which was concluded irrespective of the applicant’s citizenship, and that the applicant made no complaint about the status of that lease (see paragraph 10 above).
46. Therefore, the Court concludes that the domestic courts’ decisions following the applicant’s request to purchase the flat on the basis of the Agreement on Succession Issues do not disclose any discriminatory treatment. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
C. Remaining complaints
47. The applicant complained that the way the domestic courts had interpreted the Agreement on Succession Issues had violated his rights under Article 6 of the Convention. Moreover, he complained that the refusal to let him purchase the flat on favourable terms had had serious consequences which amounted to a violation of Article 3 of Protocol No. 7.
48. The Court has examined the applicant’s remaining complaints. However, in the light of all the material in its possession, and so far as the matters complained of are within its competence, it finds that they do not disclose any appearance of a violation of the Articles he relied on. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 8 February 2018.
Andrea Tamietti Vincent A. De Gaetano
Deputy Registrar President
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