In the case of Zrilić v. Croatia,
The European Court of Human
Rights (First Section), sitting as a Chamber composed of:
Dmitry Dedov, judges,
and Sřren Nielsen, Section
Having deliberated in private on 10 September 2013,
Delivers the following judgment, which was adopted on that
The case originated in an application (no.
46726/11) against the Republic of Croatia lodged with the Court under Article
34 of the Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by a Croatian national, Ms Slavica Zrilić
(“the applicant”), on 21 July 2011.
The applicant was represented by Ms V. Šnur, a
lawyer practising in Vinkovci. The Croatian Government (“the Government”) were
represented by their Agent, Ms Š. Stažnik.
The applicant alleged in particular that her
rights to respect for her home and to peaceful enjoyment of her possessions
under Article 8 of the Convention and Article 1 of Protocol No. 1 had been
violated by the national courts’ order for the partition of the house she had
jointly owned with her former husband.
On 3 October 2011 the applicant’s complaints
concerning the right to respect for her home and peaceful enjoyment of her
possessions under Article 8 of the Convention and Article 1 of Protocol No. 1
were communicated to the Government. It was also decided to rule on the
admissibility and merits of the application at the same time (Article 29 § 1).
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1958 and lives in Vinkovci.
In 1992 the applicant and her former husband G.Z.
built a family house in Vinkovci. The house measured 176.42 square metres on
two levels, each consisting of two rooms, bathroom, hallway, dining-room and a
kitchen. It was placed on a plot of land measuring in total 455 square metres.
The applicant and her former husband lived on the ground floor while the upper
level was left in a rough stage of construction.
In May 2005 the applicant and G.Z. divorced, but
continued to live in the same house.
In the meantime, the applicant lodged a civil
action in the Županja Municipal Court (Općinski sud u Županji)
asking it to establish her share in the house and the plot of land. She also
asked that her share in the ownership of a jointly owned car be established.
During the proceedings, the Županja Municipal
Court commissioned an expert report to establish the total value of the house
and the plot of land. The expert submitted her report on 17 March 2009, finding
that the total value of the house and the plot of land was 55,158.48 euros (EUR).
She also found that the parties’ proportions in the total investments were
66:34 in favour of G.Z.
Since G.Z. did not contest the applicant’s
claim, on 8 May 2009 the Županja Municipal Court established that the applicant
was the owner of one-third and G.Z. of two-thirds of the house and the plot of
land. It also established that they owned their car in equal shares and ordered
G.Z. to pay the applicant 3,045.50 Croatian kunas (HRK) on that account. This
judgment became final and the applicant and G.Z. registered their shares of the
house and the plot of land in the land registry of the Vinkovci Municipal Court
(Općinski sud u Vinkovcima).
On 28 August 2009 G.Z. lodged a request with the
Vinkovci Municipal Court for partition of the house. He proposed to buy out the
applicant’s share or, alternatively, to have the house partitioned by judicial
At a hearing on 6 October 2009 the applicant did
not object to the proposal for partition in the proportions established, but
she asked for an adjournment of the hearing so she could prepare her
observations concerning the proposed partition model.
On 14 October 2009 the applicant opposed the
proposed partition model asking the Vinkovci Municipal Court to order partition
in kind. She argued that she and G.Z. had already been living in separate parts
of the house for some years and that it had amounted to a de facto
partition. She further submitted that she had brought a civil action against
G.Z. in the Vinkovci Municipal Court in which she had claimed a refund of her
previous contributions to the construction of the house. These proceedings were
at the time still pending.
On 2 November 2009 G.Z. submitted his reply to
the applicant’s observations. He argued that he and the applicant had actually
been living in the same space and sharing the same living area, apart from bedrooms.
He considered that partition in kind was not technically possible, given their
shares in the house and the plot of land. As regards the applicant’s civil
action for refund of contributions, he pointed out that they had already had
their shares established by a final judgment, and that her civil action had no
bearing on the proceedings at issue.
Another hearing before the Vinkovci Municipal
Court was scheduled for 23 November 2009 at 9 a.m.
On the day of the hearing, the applicant’s
representative informed the Vinkovci Municipal Court that she was not able to
attend because she had some undisclosed health issues. She asked for the
hearing to be adjourned. The Vinkovci Municipal Court dismissed the request for
adjournment of the hearing, on the grounds that the applicant’s representative
had not provided any evidence about her health, and that she had not asked for
the adjournment in due time. The hearing was held and the Vinkovci Municipal
Court decided to commission an expert report in order to establish whether partition
in kind was possible and also the market value of the property at issue.
On 26 November 2009 the Vinkovci Municipal Court
commissioned an expert report from S.Ž.
On 4 December 2009 the applicant complained to
the Vinkovci Municipal Court that she had not been allowed to participate in
the choice of the expert and that the decision to commission the report had
been adopted in her absence.
On 4 January 2010 S.Ž. submitted his expert
report. He estimated the market value of the property at EUR 55,674. As regards
the possibility of partition in kind, S.Ž. established that it was not possible
because the house was a single unit. He found that the house had one entrance,
which led to a hallway from where it was possible to access all the other rooms
in the house. He also found that the house had a building permit only for the
ground floor although in reality it consisted of two levels, and that the house
did not have a use permit.
At a hearing held on 17 February 2010 the
applicant objected to the findings of the expert report. She maintained that partition
in kind was possible, and pointed out that the expert had not examined the
possibility of creating two separate flats, and that his findings as to the
value of the property and the existence of the use permit were unclear.
The Vinkovci Municipal Court adjourned the
hearing and summoned the expert for questioning concerning the applicant’s
At a hearing held on 8 March 2010 the Vinkovci
Municipal Court, in presence of the parties and their representatives, heard
expert S.Ž., who reiterated his previous findings. He explained that creating
two separate flats would only have been possible if there had been two single
units with separate entrances. Since this was not the case with the house at
issue it was not possible to establish two separate flats without further
significant investment. In particular, it would be necessary to obtain a new
building permit, which meant instituting a new set of administrative
proceedings, and to carry out the necessary construction work. The expert
further explained that he had never seen a use permit and therefore he had made
his report as though it did not exist. In any event, the existence of a use
permit would not significantly influence his findings, because it could always be
obtained without any particular difficulties. As regards the market value of
the property at issue, he explained that it had been assessed in line with the
relevant market data.
The parties had no questions for the expert. The
applicant objected to the part of the report which stated that partition in
kind was not possible. She asked for a new report to be commissioned from
On 22 April 2010 the Vinkovci Municipal Court
dismissed the applicant’s request, on the grounds that all the relevant facts
had been established, and concluded the proceedings.
On the same day the Vinkovci Municipal Court,
relying on the expert report, ordered the sale of the house and the plot of
land. The relevant part of the decision reads:
“This court did not accept the respondent’s request for the
proceedings to be stayed until termination of the proceedings under no. P-1151/09.
The court considers that the outcome of those civil proceedings is not a preliminary
issue which could influence these partition proceedings, especially since the respondent
did not object to the partition itself and the established shares, which is the
decisive prerequisite for partition ...
The court did not accept the respondent’s objection that the
expert had been appointed without having her opinion heard, as provided under Article
251 § 2 of the Code of Civil Procedure.
At a hearing held on 23 November 2009 the court decided to
commission an expert report. The respondent’s representative was duly summoned
to this hearing, but she informed the court, on the same day just before the
hearing ..., that she could not attend for health reasons, without submitting
any evidence of health problems.
The claimant objected to the adjournment, and the hearing was
held in the absence of the respondent and her representative ...
In any event, although it is true that the parties are allowed
to express their opinion as to the choice of the expert, it is for the court to
choose an expert, irrespective of whether the parties agree ...
The respondent asked for a new report to be commissioned from
Answering the respondent’s objections at a hearing held on 8
March 2010, expert [S.Ž.] reiterated his findings both as to the market value
of the property and the possibility of partition in kind.
According to the expert, in order to form a single unit such as
an apartment, there would have to be a cohesive group of rooms suitable as living
accommodation, which would form a unit and would have a separate entrance. A
single unit, according to the expert, could not be formed from one or more
rooms which do not meet the aforementioned criteria.
The parties’ house does not meet the criteria by which single
units could be formed, since it would imply significant costs, particularly for
the new building permit, the relevant administrative proceedings and eventually
the construction work.
The expert also explained that he had determined the market
value taking into account the fact that the house had no use permit, although
obtaining one would not entail significant costs.
Even after the expert had reiterated his findings at the
hearing, the respondent insisted on her objection to his finding that partition
in kind would not be possible, and requested that a new expert report be
This court did not accept the respondent’s request for a new
expert report because it found S.Ž.’s report objective and well drafted.
Namely, throughout the proceedings the respondent maintained
that partition in kind was possible, as she and the claimant had been sharing
the same space as physically divided parts.
However, this court considers that the fact that the parties
live separately in the same house does not mean in itself that partition in
kind is possible, since it would require each party to be allocated a single
unit which could be entered in the land register and which would be in
proportion with their respective shares.
The expert explicitly stated that partition in kind would not
be possible since it would require additional construction work, special
permits and more.
Given that the central question in proceedings relating to partition
of property is to establish whether at the relevant time the property at issue
could be physically partitioned, it follows that the respondent’s objections
are ill-founded, and consequently the expert’s report was accepted.”
On 17 May 2010 the applicant lodged an appeal
before the Vukovar County Court (Županijski sud u Vukovaru) challenging
the first-instance decision. She maintained that the fact that she and G.Z. both
lived in the house amounted to de facto partition and that, in any
event, it had been necessary to stay the partition proceedings pending the
outcome of the civil proceedings in which she had claimed reimbursement of her previous
contributions in the construction of the house. She further challenged the fact
that the expert had been chosen without her having the opportunity to make any
observations in that respect. Furthermore, the applicant considered that it was
possible to form two single units and thus a building with two separate flats. Since
the expert had found differently it was necessary to commission another report;
the first-instance court had refused to do this without giving any relevant
On 17 February 2011 the Vukovar County Court
dismissed the applicant’s appeal as ill-founded. It found the expert report
well drafted and convincing and therefore dismissed all the applicant’s
arguments in that respect. The Vukovar County Court found that the fact that
the applicant had not been heard when the first-instance court had decided to
commission the report had had no bearing on the overall fairness of the
proceedings. It also pointed out that the expert had been heard during the
proceedings and that he had convincingly defended his findings. Finally, the
Vukovar County Court endorsed the findings of the first-instance court that
partition in kind was not possible, and held that the pending civil proceedings
for refund of the applicant’s contributions to the construction of the house
had not warranted staying the proceedings, since the parties’ shares in the
house had already been established by a final judgment.
On 22 March 2011 the Vinkovci Municipal Court
opened enforcement proceedings for judicial sale of the house and the plot of
The applicant lodged an appeal against the above
decision before the Vukovar County Court on 4 April 2011.
On 7 April 2011 the applicant lodged a
constitutional complaint before the Constitutional Court (Ustavni sud
Republike Hrvatske) arguing that there had been a violation of her right to
a fair trial under Article 29 of the Constitution and Article 6 of the
Convention, alone and in conjunction with Article 13 of the Convention. She
also considered that there had been a violation of the principle of lawfulness,
equality before the law, right to respect for private and family life and the
right of ownership, under Articles 5, 14, 35 and 48 of the Constitution
respectively. The applicant reiterated her previous arguments concerning the
choice of the expert and the findings of the expert report. She maintained that
she and G.Z. had both been living in the house for years and that they had
already created de facto partition. Thus she considered that partition
in kind was the only possible solution. The applicant also asked the Constitutional Court to stay the enforcement proceedings.
On 12 May 2011 the Constitutional Court declared
the applicant’s constitutional complaint inadmissible as manifestly ill-founded
and dismissed her request for staying of the enforcement proceedings.
On 10 October 2011 the Vukovar County Court
dismissed the applicant’s appeal against the decision of the Vinkovci Municipal
Court instituting the enforcement proceedings (see paragraphs 28 and 29 above).
On 18 September 2012 the Vinkovci Municipal Court, the
house and the plot of land had been sold to G.Z., by court order, awarded the
applicant HRK 135,333.34 as her share.
On the same day the Vinkovci Municipal Court
ordered the applicant to vacate the house.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Relevant domestic law
The relevant provisions of the Constitution of
the Republic of Croatia (Ustav Republike Hrvatske, Official Gazette nos.
56/1990, 135/1997, 8/1998 (consolidated text), 113/2000, 124/2000 (consolidated
text), 28/2001 and 41/2001 (consolidated text), 55/2001 (corrigendum), 76/2010,
85/2010) read as follows:
“Everyone in the Republic of Croatia shall enjoy rights and
freedoms regardless of their race, colour, sex, language, religion, political
or other belief, national or social origin, property, birth, education, social
status or other characteristics.
All shall be equal before the law.”
“The home is inviolable ... “
“Everyone has a right to respect for and legal protection of
his private and family life, dignity, reputation and honour.”
“The right of ownership shall be guaranteed ...“
2. Constitutional Court Act
The relevant part of section 62 of the
Constitutional Court Act (Ustavni zakon o Ustavnom sudu
Republike Hrvatske, Official Gazette no. 49/2002) reads as follows:
“1. Anyone may lodge a constitutional complaint with the
Constitutional Court if he or she deems that an individual act of a state body,
a body of local and regional self-government, or a legal person with public
authority, concerning his or her rights and obligations, or a suspicion or an
accusation of a criminal act, has violated his or her human rights or
fundamental freedoms or his or her right to local and regional self-government
guaranteed by the Constitution (hereinafter: a constitutional right) ...
2. If another legal remedy exists in respect of the violation
of the constitutional right [complained of], a constitutional complaint may be
lodged only after that remedy has been used.”
3. Relevant property legislation
The relevant provisions of the Property Act (Zakon
o vlasništvu i drugim stvarnim pravima, Official Gazette nos. 91/96, 68/98,
137/99, 22/00, 73/00, 129/00, 114/01, 79/06, 141/06, 146/08, 38/09, 153/09)
The right to termination
“(1) Co-owners have the right to terminate
co-ownership if that is possible and permissible; such a right is not subject
to any prescription.
(2) Co-owners may require termination at any
time, except when such termination would be detrimental to the interests of
other co-owners; however, such a requirement may be made even at such a time if
in view of the circumstances it cannot be reasonably expected that the
circumstance will change soon to the extent that the termination would not be
detrimental to the interests of other co-owners. The court with jurisdiction
for the termination proceedings shall decide on any objection to the termination
Termination through court proceedings
“(1) In court termination, the court is
primarily bound by strict statutory provisions, and subsidiarily by a valid
agreement existing between the parties on the method of termination, if any,
and if possible and permissible, as well as by the right to terminate by
payment to which a co-owner would be entitled based on a legal transaction or
(2) If the court is not bound regarding the
method of termination within the meaning of paragraph 1 of this Article, the
court shall order partition in kind ...
(4) If the partition under paragraph 2 of this
Article is not possible without adverse substantial effects on the value of the
property, the court shall order judicial sale and divide the proceeds according
to the relevant shares (civil termination).
Termination by creating separate premises
“If co-owners agree to limit their rights
instead of partitioning the real property by establishing separate premises
within it in accordance with their own shares, that shall be considered their
decision on termination ... “
(1) Part of a co-owned real property, representing
a single unit suitable for independent exercise of co-ownership, such as a flat
or other single unit, may transform the property into a condominium ... “
What constitutes a flat is defined under the Lease
of Flats Act (Zakon o najmu stanova, Official Gazette nos. 91/1996,
48/1998, 66/1998, 22/2006) in the following terms:
“(1) A flat is a group of rooms suitable for
living accommodation and their ancillary premises, which form a single unit and
have a separate entrance ... “
B. Relevant Constitutional Court practice
In its decision no. U-III-46/2007 of 22 December
2010 the Constitutional Court, referring to the Court’s case-law in Ćosić
v. Croatia, no. 28261/06, 15 January 2009, examined an appellant’s
complaint concerning her eviction from a flat, under the right to home provided
in Article 34 § 1 of the Constitution, although the appellant had not cited
that provision. In this respect the Constitutional Court noted:
“The appellant complained of a violation of her constitutional
rights under Articles 14 and 18 and 3 and 5 of the Constitution. It is to be
noted that in substance the appellant complained of a violation of her right to
home provided in Article 34 § 1 of the Constitution, and the right to respect
for her home provided in Article 8 of the Convention ...
Under Article 62 § 1 of the Constitutional Court Act anyone may
lodge a constitutional complaint with the Constitutional Court if he or she
deems that the individual act of a state body, concerning his or her rights and
obligations, has violated his or her human rights or fundamental freedoms (a
Therefore, the Constitutional Court, in the proceedings upon a
constitutional complaint, and in view of the relevant arguments, protects the
appellants only from violations of their constitutional rights.”
The Constitutional Court followed the same
approach in its decision no. U-III-405/2008 of 21 February 2012, concerning the
eviction of an appellant from her flat, in which she cited Article 14 § 2
(equality before the law) of the Constitution, but the Constitutional Court
considered that her case opened the issue of her right to home. It therefore
examined her complaints under Article 34 § 1 (right to home) of the
Constitution in conjunction with Articles 35 (right to respect for private and
family life) and 16 (restrictions of the Constitution rights) of the
Constitution and Article 8 of the Convention.
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE
CONVENTION AND ARTICLE 1 OF PROTOCOL No. 1
The applicant complained that the national
courts’ order for the partition of the house she had jointly owned with her
former husband by judicial sale had violated her right to respect for her home
and her right to peaceful enjoyment of her possessions. The applicant relied on
Article 8 of the Convention, which reads as follows:
“1. Everyone has the right to respect for his
private and family life, his home and his correspondence.
2. There shall be no interference by a public
authority with the exercise of this right except such as is in accordance with
the law and is necessary in a democratic society in the interests of national
security, public safety or the economic well-being of the country, for the
prevention of disorder or crime, for the protection of health or morals, or for
the protection of the rights and freedoms of others.”
The applicant also cited Article 1 of Protocol No. 1, which
“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.”
1. The parties’ arguments
The Government submitted that the applicant had
failed to complain about the violation of her right to respect for her home and
peaceful enjoyment of her possessions during the proceedings before the
domestic authorities. In her constitutional complaint, which had been an
effective domestic remedy concerning her complaints, the applicant had not cited
the relevant provision of the Constitution or otherwise complained of a violation
of her right to respect for her home and peaceful enjoyment of her possessions.
Furthermore, the applicant had failed to lodge an appeal on points of law with
the Supreme Court, which was also an effective domestic remedy.
The applicant disagreed with the Government,
arguing that she had exhausted all available and effective domestic remedies.
2. The Court’s assessment
The Court reiterates that under Article
35 § 1 of the Convention it may only deal with an application after
all domestic remedies have been exhausted. The purpose of Article 35 is to
afford the Contracting States the opportunity of preventing or putting right
the violations alleged against them before those allegations are submitted to
the Court (see, for example, Mifsud v. France (dec.) [GC], no.
57220/00, § 15, ECHR 2002-VIII). The obligation to exhaust domestic
remedies requires an applicant to make normal use of remedies which are
effective, sufficient and accessible in respect of his Convention grievances.
To be effective, a remedy must be capable of resolving directly the impugned
state of affairs (see Balogh v. Hungary, no. 47940/99,
§ 30, 20 July 2004).
The rule of exhaustion of domestic remedies
normally requires that complaints intended to be made subsequently at the
international level should have been raised before the domestic courts,
at least in substance and in compliance with the formal requirements and
time-limits laid down in domestic law. The object of the rule on exhaustion of
domestic remedies is to allow the national authorities (primarily the judicial
authorities) to address an allegation that a Convention right has been violated
and, where appropriate, to afford redress before that allegation is submitted
to the Court. In so far as there exists at national level a remedy enabling the
national courts to address, at least in substance, any argument as to an
alleged violation of a Convention right, it is that remedy which should be used
(see Azinas v. Cyprus [GC], no. 56679/00, § 38, ECHR 2004-III).
The Court notes that the case at issue concerns
partition of the house which the applicant built together with her former
husband and in which they lived for years, including after their divorce.
Throughout the domestic proceedings the applicant opposed partition of the
house by judicial sale, arguing that she and her former husband had already
been living in separate parts of the house for years and that this amounted to de
facto partition. Thus she maintained her bid for partition in kind, making
it clear to the domestic authorities that she did not want to leave the house.
When the lower courts refused to accept the request
for partition in kind, the applicant lodged a constitutional complaint whereby
she pursued the same complaints as to the effects of partition by judicial sale.
In this respect the Court notes that, contrary to the Government’s arguments,
the relevant materials from the case file disclose that the applicant did
expressly rely on the Constitution provision guaranteeing the right of
ownership. In any event, irrespective of the provision the applicant cited, it
was open to the Constitutional Court to examine the substance of her complaints
(see paragraphs 39 and 40 above).
Therefore the Court considers that, by
complaining in substance about the effects of the partition on her right to
respect for her home and peaceful enjoyment of her possessions, the applicant
made normal use of the domestic remedies, as required by Article 35 § 1 of
the Convention, before bringing the same complaints before the Court (see, inter
alia, Tarbuk v. Croatia, no. 31360/10, § 32, 11 December 2012).
. As to the Government’s argument that
the applicant failed to lodge an appeal on points of law with the Supreme Court,
the Court notes that the Constitutional Court did not declare the
applicant’s constitutional complaint inadmissible for non-exhaustion of
domestic remedies, but held that her complaint was in substance manifestly
ill-founded. By doing so the Constitutional Court implicitly accepted that the
applicant’s constitutional complaint satisfied formal criteria. The Court sees
no reason to hold otherwise (see Bjedov v. Croatia, no. 42150/09, § 48, 29 May 2012).
. Against the above background, the
Court considers that the Government’s objection must be rejected. The Court further notes that the
applicant’s complaint is not manifestly ill-founded within the meaning of
Article 35 § 3 (a) of the Convention. It also notes that it is not inadmissible
on any other grounds. It must therefore be declared admissible.
1. The parties’ arguments
The applicant argued that in the house at issue
she had developed sufficient links with her private and family life. She had
built the house with her former husband and had lived there for a number of
years. After their divorce, the applicant and her former husband had both continued
to live in the house. She therefore considered that this had amounted to de
facto physical partition and that there had been no reason for partition by
judicial sale. The applicant contended that the amount she had received from the
judicial sale of the house had not been sufficient for her to buy a suitable flat
where she could live. In this respect she contested the findings of the expert
report both as to the possibility of partition in kind and the value of her
The Government submitted that the house at issue
had not been the applicant’s home within the meaning of the Convention. They
pointed out that the applicant had divorced her husband in 2005 but that from 2004
she had been using only one room on the ground floor of the house. The house
had been a single unit and the applicant should have known that it was not
possible for her to have a private and family life in that house. Therefore, at
least from the moment when the parties’ shares in the house had been
established by a final judgment, the applicant’s stay in the house had had a
temporary character, which had prevented the applicant from creating sufficient
and continuous links with the house.
The Government further argued that the partition
of the house had been based on the relevant statutory law, namely the Property
Act and the Code of Civil Procedure, and the relevant case-law of the domestic
courts. It had pursued the legitimate aim of “the protection of the rights of
others” within the meaning of Article 8 § 2 of the Convention, since the
applicant’s former husband had also had a right to peaceful enjoyment of his
possessions and the partition of co-owned property. Finally, the Government
considered that the interference by partition of the house had been “necessary in
a democratic society”. The Government pointed out that the domestic courts had
been confronted with two opposing views as to the best means of partition of
the house. They had therefore commissioned an expert report and afforded the
parties sufficient opportunity to present all their arguments.
As regards the applicant’s complaint under
Article 1 of Protocol No. 1, the Government pointed out that, according to
the Court’s case-law, the State’s responsibility in property disputes between
private parties had been limited to providing an effective remedy. Croatia had discharged its obligation in that respect and therefore there had been no
interference with the applicant’s rights. In any event, the Government
considered that the alleged interference with the applicant’s property rights
had been based on the Property Act and the Code of Civil Procedure, that it had
pursued the legitimate aim of public interest and that it had been
proportionate in the circumstances of the case.
2. The Court’s assessment
Having regard to all the circumstances of the
present case, and the applicant’s complaints, the Court considers it
appropriate to examine first the applicant’s complaint under Article 8 of the
(a) Whether a right protected by Article 8 is in
The first question the Court has to address is
whether the applicant may arguably claim that she had a right protected by
Article 8 and - more specifically in the present case - whether the house in
question may be considered the applicant’s home.
The Court reiterates that the concept of “home”
has autonomous meaning under the Convention. Whether or not a particular
premises constitutes a “home” which attracts the protection of Article 8 § 1
will depend on the factual circumstances, namely the existence of sufficient
and continuous links with a specific place (see, amongst many others, Gillow
v. the United Kingdom, 24 November 1986, § 46, Series A no. 109; Buckley
v. the United Kingdom, 25 September 1996, §§ 52-54, Reports of
Judgments and Decisions 1996-IV; and Bjedov, cited above, §
The Court notes that it is undisputed between
the parties that the applicant, with her former husband G.Z., built the house
at issue in 1992, and that they both lived in the house even after their
divorce in 2005. The applicant was ordered to vacate the house only in
September 2012 and throughout that period she had no other home or place of residence. In such circumstances, the Court finds
that the applicant had sufficient and continuing links with the house at issue
for it to be considered her “home” for the purposes of Article 8 of the
(b) Whether there has been an interference with the
applicant’s right to respect for her home
The Court observes that there is no dispute
between the parties that the partition of the applicant’s house and the order
to vacate it amounted to an interference with the right to respect for her
home. The Court sees no reason to hold otherwise.
(c) Whether the interference was prescribed by law
and pursued a legitimate aim
The partition of the house in question and the
order to the applicant to vacate the house were adopted by the national courts
under Croatian laws regulating co-ownership, which allow any co-owner to seek
termination of the co-ownership. The Court, noting that its power to review
compliance with domestic law is limited (see, among other authorities, Allan
Jacobsson v. Sweden (no. 1), 25 October 1989, Series A no. 163,
p. 17, § 57), is satisfied that the national courts’ decisions had a basis
in the relevant domestic law. Furthermore, the interference in question pursued
the legitimate aim of the “protection of the rights of others”, namely G.Z.’s
right to seek termination of the co-ownership of the house at issue.
(d) Whether the interference was ‘”necessary in a
The central question in this case is therefore whether
the interference was “necessary in a democratic society”.
The Court reiterates that an interference will
be considered “necessary in a democratic society” for a legitimate aim if it
answers a “pressing social need” and, in particular, if it is proportionate to
the legitimate aim pursued. While it is for the national authorities to make
the initial assessment of necessity, the final evaluation as to whether the
reasons cited for the interference are relevant and sufficient remains subject
to review by the Court for conformity with the requirements of the Convention
(see Connors v. the United Kingdom, no. 66746/01, § 81, 27 May 2004, and
Buckley, cited above, § 74).
The Court observes that in the case at issue the
domestic courts were confronted with the problem of finding a fair balance
between the applicant’s and G.Z’s private interests in partition of their
family house. These interests involved their rights under Article 8 of the
Convention and therefore, by the nature of the dispute, there was an inevitable
interference by the domestic courts’ decisions with the rights of one of the
parties guaranteed under that provision. In such circumstances, the Court must
examine whether the decision-making process leading to measures of interference
was fair and was such as to afford due respect to the interests safeguarded to
the individual by Article 8 (see Zehentner v. Austria, no. 20082/02, § 58, 16 July 2009).
The Court notes that when G.Z. brought his
action in the Vinkovci Municipal Court seeking termination of his and the
applicant’s co-ownership of the house at issue by buying out the applicant’s
share or partition of the house by judicial sale, the applicant did not object to
the proposal for partition (see paragraph 12 above), thus removing the question
of the necessity and legitimacy of such a request from any dispute. The
applicant rather objected to the proposed partition model, seeking partition in
kind (see paragraph 13 above); a proposal which was objected to by G.Z. (see
paragraph 14 above).
Such a disagreement between the applicant and
G.Z. required the domestic courts to seek a partition model which would be feasible
and appropriate in the circumstances of the case. In this connection the Court
reiterates that any person at risk of an interference with his right to home
should in principle be able to have the proportionality and reasonableness of
the measure determined by an independent tribunal in the light of the relevant
principles under Article 8 of the Convention (see, mutatis mutandis, Orlić
v. Croatia, no. 48833/07, § 65,
21 June 2011). This requirement applied equally both to the applicant’s and
G.Z.’s relevant interests.
On 26 November 2009 the Vinkovci Municipal Court
commissioned an expert report in order to establish whether partition in kind
was possible and also the market value of the house and the plot of land. The
expert report of 4 January 2010 found that partition in kind was not possible,
since the house was a single unit with one entrance and a hallway leading to
all the other rooms in the house (see paragraph 19 above). These findings were
further elaborated by the expert at a court hearing held on 8 March 2010. The
expert explained that partition in kind by establishing separate flats for the
applicant and G.Z. was not possible without further significant investment,
such as instituting new administrative proceedings, obtaining a new building
permit, and carrying out the necessary construction work (see paragraph 22
The Court notes that the applicant had no
questions for the expert, although she was given every opportunity to confront
the expert with her position and to put the relevant questions concerning his
findings. The applicant merely maintained that partition in kind was possible
(see paragraph 23 above). The Vinkovci Municipal Court accepted the expert
report, finding it sufficiently reasoned and convincing, and ordered partition
by judicial sale. The decision of the Vinkovci Municipal Court is sufficiently
reasoned and does not disclose any arbitrary or manifestly unreasonable conclusions,
particularly having in mind the provisions of the relevant domestic law. They stipulate
that the court shall order partition by judicial sale if partition in kind is
not possible without adverse effects on the value of the property (see paragraph
37 above, sections 50 § 4 and 67 of the Property Act) and that a “flat”
requires a separate entrance (see paragraph 38 above).
The Court therefore, having in mind that it
cannot substitute its own findings of fact for that of the domestic courts,
which are better placed to assess the evidence adduced before them, is satisfied that the decision-making
process leading to measures of interference with the applicant’s rights was
fair and such as to afford due respect to the interests safeguarded by Article
Finally, the Court notes that although the
applicant raised a relevant argument before it, namely that she would not be
able to buy another suitable flat with the money awarded by judicial sale, which
could play an important role in balancing of interests also in terms of the
relevant domestic law (see paragraph 37 above - section 47 § 2 of the Property
Act); she had never raised that argument before the domestic authorities.
Having in mind that the domestic authorities duly examined the applicant’s
objection as to the partition model, the Court sees no reason to doubt that
they would have examined the applicant’s argument as to whether it would be
possible for her to buy another flat. However, without having that issue raised
at the national level, the Court cannot substitute itself for the national
authorities, since that would take it beyond its subsidiary role.
Therefore, the Court finds that there has been
no violation of Article 8 of the Convention.
In view of the above considerations, the Court
also finds no basis on which to conclude that any of the decisions of the
domestic courts were affected by any element of arbitrariness or were otherwise
manifestly unreasonable and thus in violation of the applicant’s property
rights under Article 1 of Protocol No. 1. (see, mutatis mutandis, Anheuser-Busch
Inc. v. Portugal [GC], no. 73049/01, § 86, ECHR 2007-I).
This allows the Court to conclude, without
further examination, that there has been no violation of Article 1 of Protocol
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
Lastly, the applicant complained, under Article
6 § 1 of the Convention, that the domestic courts lacked impartiality, and
under Article 14 of the Convention that she was discriminated against, but
without any further substantiation.
In the light of all the material in its possession,
and in so far as the matters complained of are within its competence, the Court
considers that this part of the application does not disclose any appearance of
a violation of the Convention. It follows that it is inadmissible under Article 35
§ 3 as manifestly ill-founded, and must be rejected pursuant to Article 35
§ 4 of the Convention.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Declares the complaint concerning the
alleged violation of the applicant’s right to respect for her home and the
peaceful enjoyment of her possessions admissible and the remainder of the application
2. Holds that
there has been no violation of Article 8 of the Convention;
3. Holds that there has been no violation of
Article 1 of Protocol No. 1 to the Convention.
Done in English, and notified in writing on 3 October 2013,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Sřren Nielsen Isabelle Berro-Lefčvre