CASE OF BLECIC v. CROATIA

1. The case originated in an application (no. 59532/00) 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, Mrs Krstina Blečić (“the applicant”), on 6 May 2000.
2. The applicant, who had been granted legal aid, was represented by the International Committee for Human Rights (ICHR), an association based in Sarajevo ( Bosnia and Herzegovina ), and by Mr T. Vukičević, a lawyer practising in Split. The Croatian Government (“the Government”) were represented by their Agents, first Ms L. Lukina-Karajković and subsequently Ms Š. Stažnik.
3. The applicant alleged, in particular, that her rights to respect for her home and to the peaceful enjoyment of her possessions had been violated on account of the termination of her specially protected tenancy. She relied on Article 8 of the Convention and Article 1 of Protocol No. 1.
4. The application was allocated to the First Section of the Court (Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1.
5. On 30 January 2003 the above complaints were declared admissible by a Chamber of that Section, composed of Christos Rozakis, President, Françoise Tulkens, Peer Lorenzen, Nina Vajić, Egil Levits, Vladimiro Zagrebelsky and Elisabeth Steiner, judges, and Søren Nielsen, then Deputy Section Registrar.
6. On 29 July 2004 a Chamber of the Section composed of Christos Rozakis, President, Peer Lorenzen, Giovanni Bonello, Françoise Tulkens, Nina Vajić, Snejana Botoucharova and Elisabeth Steiner, judges, and Santiago Quesada, Deputy Section Registrar, held unanimously that there had been no violation of either Article 8 of the Convention or Article 1 of Protocol No. 1.
7. On 27 October 2004 the applicant requested that the case be referred to the Grand Chamber, in accordance with Article 43 of the Convention and Rule 73. A panel of the Grand Chamber accepted this request on 15 December 2004.
8. The composition of the Grand Chamber was determined according to the provisions of Article 27 §§ 2 and 3 of the Convention and Rule 24.
9. Both the applicant and the Government filed observations on the admissibility and merits of the application.
10. Third-party comments on the merits were received from Interights ( International Centre for the Legal Protection of Human Rights ), which had been granted leave by the President to intervene in the written procedure (Article 36 § 2 of the Convention and Rule 44 § 2). The parties replied to those comments (Rule 44 § 5). On 26 April 2005 the Organisation for Security and Cooperation in Europe (OSCE ), which had been granted leave to intervene in the written procedure before the Chamber, informed the Court that it had nothing further to add to the comments it had already submitted to the Chamber.
11. A hearing took place in public in the Human Rights Building, Strasbourg, on 14 September 2005 (Rule 59 § 3).
There appeared before the Court:
(a) for the GovernmentMs Š. Stažnik, Agent, Lord Lester of Herne Hill QC, Counsel, Mr D. Maričić, Co-Agent, Ms Z. Hrvoj Šipek, Deputy to the Principal State Attorney, Adviser;
(b) for the applicantMr F.J.L. Diaz, Advocate, Mr P. Troop, Barrister-at- law, Mr T. Vukičević, Advocate, Counsel, Mr M. Moratti, Adviser.
The Court heard addresses by Ms Stažnik, Lord Lester of Herne Hill, Mr Diaz and Mr Troop, and replies to questions from the Court.
I. THE CIRCUMSTANCES OF THE CASE
12. The applicant was born in 1926 and currently lives in Rome, Italy.
13. In 1953 the applicant, together with her husband, acquired a specially protected tenancy ( stanarsko pravo ) of a flat in Zadar. After her husband ’ s death in 1989 the applicant became the sole holder of the specially protected tenancy.
14. On 19 June 1991 the Specially Protected Tenancies ( Sale to Occupier) Act came into force. It regulated the sale of publicly owned flats previously let under a specially protected tenancy.
15. On 26 July 1991 the applicant went to visit her daughter who lived in Rome. She intended to stay with her daughter for the summer. The applicant locked the flat in Zadar and left all her furniture and personal belongings in it. She asked a neighbour to pay the bills in her absence and to take care of the flat.
16. However, by the end of August 1991 armed conflict had escalated in Dalmatia, resulting in severe travel difficulties in that area, including the town of Zadar. 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.
17. The applicant submitted that in October 1991 the Croatian authorities had stopped paying her war widow ’ s pension and that the payments had resumed in April 1994. The Government submitted that the applicant ’ s pension had been paid by the Yugoslav Military Pension Fund in Belgrade rather than the Croatian Pension Fund and that it was the Belgrade authorities which had stopped paying the pension in December 1991.
18. According to the applicant, she also lost the right to medical insurance. The Government maintained that her medical insurance had never been stopped or interrupted.
19. Given these circumstances, the applicant decided to remain in Rome.
20. In November 1991 a certain M.F., with his wife and two children, broke into and occupied the applicant ’ s flat in Zadar. The applicant claimed that M.F. had been assisted by an official of the municipality who had provided him with a list of empty flats in Zadar, including hers.
21. On 12 February 1992 the Zadar Municipality ( Općina Zadar ) brought a civil action against the applicant before the Zadar Municipal Court ( Općinski sud u Zadru ) for termination of her specially protected tenancy on the ground that she had been absent from the flat for more than six months without justified reason, contrary to section 99 of the Housing Act.
22. In her submissions to the domestic court, the applicant explained that she had been forced to stay with her daughter in Rome from July 1991 until May 1992. She had not been able to return to Zadar since she had no means of subsistence and no medical insurance and was in poor health. Furthermore, during her stay in Rome she had learned from her neighbour that M.F. had broken into her flat with his family. When she had enquired about her flat and her possessions in it, M.F. had threatened her over the telephone.
23. On 9 October 1992 the Zadar Municipal Court terminated the applicant ’ s specially protected tenancy. The court found that the applicant had left Zadar on 26 July 1991 and had not returned until 15 May 1992. It stated that during the relevant period the citizens of Zadar had not been ordered to evacuate the town on account of the escalation of the armed conflict and that each citizen had had the choice to leave the town or to stay. On that basis the court found that the war in Croatia could not justify the applicant ’ s absence.
24. The court did not accept the applicant ’ s explanation that she had fallen ill during her stay in Rome and had been unable to travel. It was established that she had suffered from spinal arthrosis and diffuse osteoporosis for a long time. However, this had not affected her ability to travel. Even though her left shoulder had been dislocated on 25 March 1992, she had been able to travel following the immobilisation of the injured joint. Furthermore, by 25 March 1992 she had already been absent from the flat for more than six months.
25. The applicant ’ s further explanation that she had stopped receiving her pension in October 1991 and thus had been left without any means of subsistence was not accepted by the court as a justified reason for not returning to Zadar. It took the view that the applicant ’ s daughter could have sent her money. Therefore, the court concluded that the applicant ’ s reasons for not having lived in the flat were not justified.
26. Following an appeal by the applicant, the judgment was quashed by the Zadar County Court ( Županijski sud u Zadru ) on 10 March 1993.
The County Court found that the court of first instance had not given due consideration to the applicant ’ s personal circumstances, namely her age and poor health and the fact that she had lost her pension and lived alone in Zadar. Furthermore, the applicant ’ s decision to prolong her stay in Rome should have been carefully assessed against the background of the circumstances at the material time, namely that Zadar had been exposed to daily shelling and had not had a regular supply of water or electricity, and that third parties had occupied the applicant ’ s flat.
The case was remitted to the first-instance court.
27. In the resumed proceedings, on 18 January 1994 the Zadar Municipal Court again ruled in favour of the municipality and terminated the applicant ’ s specially protected tenancy. It observed that she had been absent from the flat for over six months without justified reason and repeated in substance the findings of the judgment of 9 October 1992.
28. The applicant appealed. On 19 October 1994 the County Court reversed the first-instance judgment and dismissed the municipality ’ s claim. It found that the escalation of the war and the applicant ’ s personal circumstances justified her absence from the flat.
29. On 10 April 1995 the Zadar Municipality lodged an appeal on points of law ( revizija ) with the Supreme Court ( Vrhovni sud Republike Hrvatske ).
30. On 15 February 1996 the Supreme Court allowed the appeal, reversed the County Court ’ s judgment and upheld the judgment of the Municipal Court. It found that the reasons submitted by the applicant for her absence from the flat were not justified. The relevant part of the Supreme Court ’ s judgment read as follows:
“During the aggression against Croatia, living conditions were the same for all citizens of Zadar and, as rightly submitted by the plaintiff, it is neither possible nor legitimate to separate the defendant ’ s case from the context of that aggression. To hold the contrary would mean assessing her case in isolation from all of the circumstances which characterised that time and determined the conduct of each individual.
Contrary to the appellate court, this Court, assessing in that context the defendant ’ s decision not to return to Zadar during the aggression but to stay in Italy, considers the non-use of the flat unjustified. The factual findings made in the case reveal that, in view of her state of health and the available travel connections, the defendant was able to come to Zadar; her health would not have deteriorated because of her stay in Zadar; and she could have taken care of herself. The assumption that she would have had to make a considerable mental and physical effort in order to provide for her basic living needs (all the citizens of Zadar who remained in the town, from the youngest to the oldest, were exposed to the same living conditions) does not justify her failure to return to Zadar and, accordingly, does not constitute a justified reason for the non-use of the flat.”
31. On 8 November 1996 the applicant lodged a constitutional complaint with the Constitutional Court ( Ustavni sud Republike Hrvatske ). She claimed that her rights to respect for her home and property had been violated and that she had been deprived of her right to a fair hearing.
32. On 5 November 1997 the Convention came into force in respect of Croatia.
33. On 8 November 1999 the Constitutional Court dismissed the applicant ’ s constitutional complaint. It found that the Supreme Court had correctly applied the relevant legal provisions to the facts established by the lower courts when holding that the applicant ’ s absence from the flat for more than six months had been unjustified. The Constitutional Court concluded that the applicant ’ s constitutional rights had not been violated.
II. RELEVANT DOMESTIC LAW AND PRACTICE
34. The relevant provisions of the 1990 Croatian Constitution ( Ustav Republike Hrvatske, Official Gazette nos. 56/1990 and 135/ 19 97), as in force at the material time, read as follows:
“Rights and freedoms may be restricted only by law to protect the rights and freedoms of others, the legal order, public morals or health.”
“1. The right to property is guaranteed.
2. Property implies duties. Holders of the title to property and property users shall have a duty to contribute to the general welfare.”
“3. Only certain provisions of a statute may have retroactive effects.”
“International agreements concluded and ratified in accordance with the Constitution and made public shall be part of the Republic ’ s internal legal order and shall be [hierarchically] superior to the [domestic] statutes.”
B. The Constitutional Court Act
35. The relevant part of the Constitutional Act on the Constitutional Court ( Ustavni zakon o Ustavnom sudu Republike Hrvatske, Official Gazette no. 99/ 19 99), as in force at the material time, provided that individuals or legal entities could lodge a constitutional complaint with the Constitutional Court if they considered that a judicial or administrative decision, or a decision of a legal entity invested with public authority, had violated their human rights or fundamental freedoms guaranteed by the Constitution (section 59). A constitutional complaint, in principle, did not suspend the implementation of the impugned decision (section 63). If the Constitutional Court allowed a constitutional complaint, it had to quash the impugned decision and remit the case to the competent authority for a new decision (section 72).
C. The Act incorporating the Convention
36. The Act on Ratification of the Convention for the Protection of Human Rights and Fundamental Freedoms and Protocols Nos. 1, 4, 6, 7 and 11 to the Convention ( Zakon o potvrđivanju Konvencije za zaštitu ljudskih prava i temeljnih sloboda i Protokola br. 1, 4, 6, 7 i 11 uz Konvenciju za zaštitu ljudskih prava i temeljnih sloboda, Official Gazette – International Agreements, no. 18/1997) came into force on 5 November 1997. It incorporated the Convention as an international treaty into the Croatian legal system.
37. The Housing Act ( Zakon o stambenim odnosima, Official Gazette nos. 51/1985, 42/1986, 22/1992 and 70/1993), as in force at the material time, provided that a holder of a specially protected tenancy (“the tenant”) had a right to permanent use of the flat for living purposes, to sublet part of it to someone else and to participate in the administration of the building in which the flat was located. The Act also provided that, in agreement with the provider of the flat, the tenant could exchange it for another flat and, exceptionally, use part of it for business purposes.
38. Section 67 provided that the tenant ’s cohabitants could acquire the tenancy after the tenant ’ s death.
39. Section 99 read as follows :
“ ( 1 ) A specially protected tenancy may be terminated if the tenant ... ceases to occupy the flat for an uninterrupted period exceeding six months.
( 2 ) A specially protected tenancy shall not be terminated under the provisions of subsection (1) of this section in respect of a person who does not use the flat on account of undergoing medical treatment, performance of military service or other justified reasons.”
40. Under section 105(1) the provider of the flat had to bring a civil action in order to terminate the specially protected tenancy. The tenancy was terminated as soon as the court ’ s judgment, upholding the claim of the provider of the flat, became res judicata (see, inter alia, the Supreme Court ’ s decision no. Rev- 1009/1993-2 of 15 June 1994 ).
2. The case-law of the Supreme Court
41. In decisions nos. Rev-3839/93-2 of 19 January 1994, Rev-2276/00-2 of 21 November 2000 and Rev- 590/03-2 of 17 December 2003, the Supreme Court interpreted section 99(1) of the Housing Act as follows:
“War events per se, without any particular reasons rendering use of the flat impossible, do not constitute a justified reason for not using it.”
42. In a series of decisions (for example, in cases nos. Rev-152/1994-2 of 23 February 1994, Rev-1780/1996-2 of 10 March 1999, Rev-1606/00-2 of 1 October 2003, Rev-998/03-2 of 4 December 2003 and Rev-590/03-2 of 17 December 2003), starting with decision no. Rev-155/1994-2 of 16 February 1994, the Supreme Court interpreted another aspect of section 99(1) of the Housing Act as follows:
“The fact that a flat that is not being used by its tenant is illegally occupied by a third person does not, per se, make the non-use [of the flat by the tenant] justified. In other words, if the tenant fails to take the appropriate steps to regain possession of the flat within the statutory time-limits set forth in section 99(1) of the Housing Act ..., then the [illegal occupation of the flat by a third person] is not an obstacle to the termination of the specially protected tenancy.”
E. The Specially Protected Tenancies ( Sale to Occupier) Act
43. The Specially Protected Tenancies ( Sale to Occupier) Act ( Zakon o prodaji stanova na kojima postoji stanarsko pravo, Official Gazette no. 27/ 19 91), as in force at the material time, entitled the holder of a specially protected tenancy of a publicly owned flat to purchase it from the provider under favourable conditions.
44. The Civil Procedure Act ( Zakon o parničnom postupku, Official Gazette nos. 53/ 19 91 and 91/ 19 92), as in force at the material time, provided that an appeal on points of law ( revizija ) lay to the Supreme Court against second-instance judgments.
In cases where a first - instance judgment had been reversed by the second - instance judgment but the Supreme Court reversed the latter and upheld the former, the first-instance judgment became res judicata when the Supreme Court delivered its decision.
III. RELEVANT INTERNATIONAL LAW AND PRACTICE
A. The Vienna Convention of 1969 on the Law of Treaties
45. Article 28 of the Vienna Convention on the Law of Treaties of 23 May 1969 (“the Vienna Convention”) provides :
“ Unless a different intention appears from the treaty or is otherwise established, its provisions do not bind a party in relation to any act or fact which took place or any situation which ceased to exist before the date of the entry into force of the treaty with respect to that party. ”
B. The Permanent Court of International Justice
46. The Permanent Court of International Justice (PCIJ ) has dealt with the issue of its jurisdiction ratione temporis in several cases. In the case of Phosphates in Morocco (Preliminary Objections) between Italy and France, the Italian Government maintained, inter alia, that the dispossession of certain Italian nationals resulting from the decision of the French Mines Department of 8 January 1925, and the denial of justice that had followed, were inconsistent with international obligations incumbent on France. The ratification of the declaration by which France accepted the compulsory jurisdiction of the PCIJ was filed on 25 April 1931. In its judgment of 14 June 1938 ( PCIJ, Series A/B, no. 74, pp. 10-30 ), when examining France ’ s preliminary objection based on the lack of jurisdiction ratione temporis, the PCIJ held:
“The French Government bases its objection on the following passage in its declaration: ‘ ... in any disputes which may arise after the ratification of the present declaration with regard to situations or facts subsequent to this ratification. ’ [p. 22]
[The Court ’ s compulsory jurisdiction ] only exists within the limits within which it has been accepted. In this case, the terms on which the objection ratione temporis submitted by the French Government is founded, are perfectly clear: the only situations or facts falling under the compulsory jurisdiction are those which are subsequent to the ratification and with regard to which the dispute arose, that is to say, those which must be considered as being the source of the dispute. [p. 23]
... The situations and the facts which form the subject of the limitation ratione temporis have to be considered from the point of view both of their date in relation to the date of ratification and of their connection with the birth of the dispute. Situations or facts subsequent to the ratification could serve to found the Court ’ s compulsory jurisdiction only if it was with regard to them that the dispute arose. [p. 24]
[The] decision of the Mines Department, owing to its date, falls outside the Court ’ s jurisdiction. The Italian Government has sought to avert this consequence by arguing ... that the decision of 1925 constituted only an uncompleted violation of international law; that this violation only became definitive as a result of certain acts subsequent to the crucial date and of the final refusal to remedy in any way the situation created in 1925, and that these acts gave rise to the dispute between the two Governments. [p. 27]
The Court cannot regard the denial of justice alleged by the Italian Government as a factor giving rise to the present dispute. In its Application, the Italian Government has represented the decision of the Department of Mines as an unlawful international act ... That being so, it is in this decision that we should look for the violation of international law – a definitive act which would, by itself, directly involve international responsibility. This act being attributable to the State and described as contrary to the treaty right of another State, international responsibility would be established immediately as between the two States. In these circumstances the alleged denial of justice ... merely results in allowing the unlawful act to subsist. It exercises no influence either on the accomplishment of the act or on the responsibility ensuing from it. [p. 28]
... [ T]he complaint of a denial of justice cannot be separated from the criticism which the Italian Government directs against the decision of the Department of Mines of January 8th, 1925, for the Court could not regard the denial of justice as established unless it had first satisfied itself as to the existence of the rights of the private citizens alleged to have been refused judicial protection. But the Court could not reach such a conclusion without calling in question the decision of the Department of Mines of 1925. It follows that an examination of the justice of this complaint could not be undertaken without extending the Court ’ s jurisdiction to a fact which, by reason of its date, is not subject thereto.
In conclusion, the Court finds that the dispute submitted to it by the Italian Government ... did not arise with regard to situations or facts subsequent to the ratification of the acceptance by France of the compulsory jurisdiction, and that in consequence it has no jurisdiction to adjudicate on this dispute. [pp. 28-29] ”
C. The International Court of Justice
47. The issue of temporal jurisdiction arose also in a number of cases before the International Court of Justice (ICJ ). In Certain Property ( Liechtenstein v. Germany ), Preliminary Objections, Liechtenstein maintained that certain decisions by German courts delivered in the period between 1995 and 1998 declaring inadmissible the action of Prince Hans-Adam II of Liechtenstein for restitution of a painting, which had been confiscated by Czechoslovakia on 21 June 1945 under “the Beneš Decrees”, were in breach of international law. In these inadmissibility decisions the German courts relied on the Convention on the Settlement of Matters Arising out of the War and the Occupation, signed in 1952, as amended in 1954, which had come into force on 5 May 1955 (“the Settlement Convention”). In order to found the jurisdiction of the ICJ, Liechtenstein relied in its Application on Article 1 of the European Convention for the Peaceful Settlement of Disputes of 29 April 1957, which came into force between Liechtenstein and Germany on 18 February 1980. In its judgment of 10 February 2005, when examining Germany ’ s preliminary objection based on the lack of jurisdiction ratione temporis, the ICJ held:
“ 47. The Court will now consider whether the present dispute has its source or real cause in the facts or situations which occurred in the 1990s in Germany and, particularly, in the decisions by the German courts in the Pieter van Laer Painting case, or whether its source or real cause is the Beneš Decrees under which the painting was confiscated and the Settlement Convention which the German courts invoked as ground for declaring themselves without jurisdiction to hear that case.
48. The Court observes that it is not contested that the present dispute was triggered by the decisions of the German courts in the aforementioned case. This conclusion does not, however, dispose of the question the Court is called upon to decide, for under Article 27 (a) of the European Convention for the Peaceful Settlement of Disputes, the critical issue is not the date when the dispute arose, but the date of the facts or situations in relation to which the dispute arose.
51. ... The Court ... finds that the decisions of the German courts in the Pieter van Laer Painting case cannot be separated from the Settlement Convention and the Beneš Decrees, and that these decisions cannot consequently be considered as the source or real cause of the dispute between Liechtenstein and Germany.
52. The Court concludes that, although these proceedings were instituted by Liechtenstein as a result of decisions by German courts regarding a painting by Pieter van Laer, these events have their source in specific measures taken by Czechoslovakia in 1945, which led to the confiscation of property owned by some Liechtenstein nationals, including Prince Franz Josef II of Liechtenstein, as well as in the special regime created by the Settlement Convention. The decisions of the German courts in the 1990s dismissing the claim filed by Prince Hans-Adam II of Liechtenstein for the return of the painting to him were taken on the basis of Article 3, Chapter Six, of the Settlement Convention. While these decisions triggered the dispute between Liechtenstein and Germany, the source or real cause of the dispute is to be found in the Settlement Convention and the Beneš Decrees. In light of the provisions of Article 27 (a) of the European Convention for the Peaceful Settlement of Disputes, Germany ’ s ... preliminary objection must therefore be upheld. ”
D. The International Law Commission ’ s Draft Articles on Responsibility of States for Internationally Wrongful Acts
48. The relevant provisions of the Draft Articles on Responsibility of States for Internationally Wrongful Acts, as adopted by the International Law Commission on 9 August 2001 ( for the text of the Draft Articles and Commentary, see Report of the International Law Commission on the Work of its Fifty-third Session, Official Records of the General Assembly, Fifty-sixth Session, Supplement no. 10 (A/56/10), chap. IV.E.1 and chap. IV.E.2, pp. 46 and 133- 45 ) read as follows:
Article 13 International obligation in force for a State
“An act of a State does not constitute a breach of an international obligation unless the State is bound by the obligation in question at the time the act occurs.”
Article 14 Extension in time of the breach of an international obligation
“1. The breach of an international obligation by an act of a State not having a continuing character occurs at the moment when the act is performed, even if its effects continue.
2. The breach of an international obligation by an act of a State having a continuing character extends over the entire period during which the act continues and remains not in conformity with the international obligation.
3. The breach of an international obligation requiring a State to prevent a given event occurs when the event occurs and extends over the entire period during which the event continues and remains not in conformity with that obligation.”
IV. DECLARATIONS of CROATIA under FORMER ArticleS 25 AND 46 of the Convention
49. On 5 November 1997, when depositing the instrument of ratification of the Convention with the Secretary General of the Council of Europe, the Croatian Minister for Foreign Affairs made the following declarations (contained in the instrument of ratification):
“ The Republic of Croatia recognises for an indefinite period of time, in accordance with Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms, Article 6 of Protocol No. 4 and Article 7 of Protocol No. 7, the competence of the European Commission of Human Rights to deal with petitions addressed to the Secretary General of the Council of Europe by any person, non-governmental organisation or group of individuals claiming to be the victim of a violation of the rights set forth in the Convention and its Protocols, where the facts of the alleged violation of these rights occur after the Convention and its Protocols have come into force in respect of the Republic of Croatia.
The Republic of Croatia recognises for an indefinite period of time, in accordance with Article 46 of the Convention for the Protection of Human Rights and Fundamental Freedoms, Article 6 of Protocol No. 4 and Article 7 of Protocol No. 7, as compulsory ipso facto and without special agreement the jurisdiction of the European Court of Human Rights in all matters concerning the interpretation and application of the Convention and its Protocols and relating to facts occurring after the Convention and its Protocols have come into force in respect of the Republic of Croatia. ”
THE GOVERNMENT ’ S PRELIMINARY OBJECTIONS
50. The Government raised two preliminary objections, based respectively on the Court ’ s lack of jurisdiction ratione temporis to entertain the application and the applicant ’ s failure to exhaust domestic remedies.
1. The Government ’ s submissions
51. The Government submitted that, according to the established case-law of the Convention institutions ( see B.A. v. Turkey, no. 15505/89, Commission decision of 12 March 1990, unreported, and K. v. Turkey, no. 14206/88, Commission decision of 11 July 1989, Decisions and Reports 62, pp. 307- 08 ), the Court did not have jurisdiction ratione temporis in cases where a decision given by the domestic courts after the Convention ’ s entry into force related to events occurring before that date.
52. Furthermore, according to the case-law of the ICJ it was not the date on which the dispute arose that was important for establishing jurisdiction ratione temporis but the date on which the facts or situations that led to the dispute occurred ( see Certain Property (Liechtenstein v. Germany), Preliminary Objections, cited above, §§ 48-49 and 52 ).
53. The present case could not be distinguished from Jovanović v. Croatia ( (dec.), no. 59109/00, ECHR 2002- III ). In its admissibility decision the Chamber had erred when emphasising the difference between the instantaneous character of the dismissal decision in Jovanović and the proceedings for the termination of a specially protected tenancy in the present case. It had overlooked the fact that the proceedings against the applicant had been instituted because she had ceased to occupy her flat for an uninterrupted period exceeding six months. That situation had begun when the applicant left the flat in July 1991 and continued until February 1992, when the Zadar Municipality brought a civil action against her. All of the domestic court decisions had been based exclusively on the applicant ’ s absence during that period and on whether or not there was a justified reason for that absence. In its decision, which was the only one given in the case after the date of Croatia ’ s ratification of the Convention on 5 November 1997 (“ the critical date ”), the Constitutional Court had limited itself to examining whether the substantive law in force during the above-mentioned period had been properly applied. Therefore, the fact that the Jovanović case had involved a dismissal followed by a disciplinary appeal and court proceedings, whereas the present case involved the applicant ’ s absence followed by court proceedings aimed at terminating her tenancy on that ground, was an immaterial distinction.
Moreover, in both cases the constitutional complaint had been lodged before, but had been dismissed by the Constitutional Court after, the critical date.
54. In any event, the applicant ’ s tenancy had been terminated when the Supreme Court gave its judgment, which was before the critical date. It had been an instantaneous act which had not given rise to a continuing situation. The subsequent Constitutional Court decision had not contained any elements which would permit it to be seen as an original or autonomous decision.
2. The applicant ’ s submissions
55. The applicant argued that the facts which occurred between July 1991 and February 1992 were by no means decisive for establishing the Court ’ s temporal jurisdiction since they only enabled the State to exercise its power to seek termination of her tenancy through court proceedings. She had lost her home in the proceedings brought by the State to terminate her tenancy rather than by reason of an instantaneous act such as the dismissal from employment in the Jovanović case. That aim had not been achieved until the final outcome of the proceedings in late 1999. The directly decisive decision was therefore that of the Constitutional Court since that court had examined whether her rights to respect for her home and to the peaceful enjoyment of her possessions had been violated; and it had the power to quash the Supreme Court ’ s judgment and remit the case for a fresh decision. Therefore, the crucial facts of the case had been those State acts, subsequent to her absence from the flat, which had breached her Convention rights. Those facts were the real subject matter of the dispute before the Court.
56. After the entry into force of the Convention in respect of the State concerned, all acts and omissions had to conform to the Convention, even where they were merely extensions of an already existing situation. While it was true that the Court could examine only facts post - dating ratification, it could have regard to prior facts inasmuch as they could be relevant for the understanding of those occurring after that date.
57. The applicant claimed that the Government ’ s reference to the ICJ ’ s decision was irrelevant because the case-law of the Court was significantly different from that of the ICJ owing to the special nature of the Convention. The Court, unlike the ICJ, recognised continuing violations.
58. In any event, the termination of the applicant ’ s tenancy had resulted in a continuing situation since she had been prevented at all times from returning to her home.
59. In its final decision on admissibility the Chamber examined of its own motion its temporal jurisdiction. It found that the applicant ’ s specially protected tenancy had not been terminated by the fact that she had left the flat, but by virtue of the subsequent decisions of the domestic courts. In this respect the present case differed significantly from Jovanović, where the events complained of (the decision dismissing the applicant from work) had represented a single instantaneous act, and the subsequent proceedings had been instituted by the applicant in order to challenge that act.
60. Furthermore, in the proceedings before the domestic courts the applicant ’ s specially protected tenancy had not been terminated by a single decision. Rather, it had been the subject of an entire set of proceedings before the domestic courts.
61. The Chamber acknowledged that the greater part of the proceedings had taken place prior to the entry into force of the Convention in respect of Croatia, and that the Supreme Court ’ s judgment had been given before that date. However, what was important was the fact that the final decision (within the meaning of the Convention) had been taken by the Constitutional Court on 8 November 1999, that is to say, after the critical date. This was so because the outcome of the Constitutional Court proceedings had been directly decisive for the applicant ’ s rights protected by the Convention. That court had been called upon to decide whether the lower courts ’ judgments had violated the applicant ’ s rights to respect for her home and to the peaceful enjoyment of her possessions, that is, to examine the same complaints which she had raised in her application to the Court.
62. Therefore, the Chamber held that the present application fell within the Court ’ s competence ratione temporis.
4. The Grand Chamber ’ s assessment
(a) Whether the Court is competent at this stage of the proceedings to deal with the Government ’ s objection ratione temporis
63. The Court notes that no plea of inadmissibility on account of lack of jurisdiction ratione temporis was made by the Government at the admissibility stage. Nevertheless, the Chamber decided in its final decision on admissibility to examine its temporal jurisdiction of its own motion, holding that the issue called for consideration. The Government raised their objection ratione temporis for the first time in their observations before the Grand Chamber. The applicant, for her part, did not ask the Court to dismiss the Government ’ s preliminary objection in application of Rule 55 of the Rules of Court, according to which “ any plea of inadmissibility must, in so far as its character and the circumstances permit, be raised by the respondent Contracting Party in its written or oral observations on the admissibility of the application ”.
64. The question therefore arises whether the Government are estopped from raising their preliminary objection at this stage of the proceedings.
65. The Court reiterates that the Grand Chamber is not precluded from deciding questions concerning the admissibility of an application under Article 35 § 4 of the Convention, since that provision enables the Court to dismiss applications it considers inadmissible “at any stage of the proceedings”. Thus, even at the merits stage the Court may reconsider a decision to declare an application admissible if it concludes that it should have been declared inadmissible for one of the reasons given in the first three paragraphs of Article 35 of the Convention (see, inter alia, Azinas v. Cyprus [GC], no. 56679/00, § 32, ECHR 2004- III, and Odièvre v. France [GC], no. 42326/98, § 22, ECHR 2003- III ).
66. In the instant case the Court finds that, notwithstanding the requirements of Rule 55 of the Rules of Court, which in any event must be interpreted in a manner compatible with the Convention, in particular Article 32 thereof, the Government cannot be considered to be precluded from raising the issue of temporal jurisdiction before the Grand Chamber.
67. Firstly, incompatibility ratione temporis is a matter which goes to the Court ’ s jurisdiction rather than a question of admissibility in the narrow sense of that term. Since the scope of the Court ’ s jurisdiction is determined by the Convention itself, in particular by Article 32, and not by the parties ’ submissions in a particular case, the mere absence of a plea of incompatibility cannot extend that jurisdiction. To hold the contrary would mean that where a respondent State waived its right to plead or omitted to plead incompatibility, the Court would have to rule on the merits of a complaint against that State concerning a right not guaranteed by the Convention or on a Convention right not yet binding on it, for example by virtue of a valid reservation clause (incompatibility ratione materiae ) or because it has not yet ratified an additional Protocol (incompatibility ratione personae ).
The same has to be true for the Court ’ s temporal jurisdiction, since the non-retroactivity principle (see paragraph 45 above ) operates to limit ratione temporis the application of the jurisdictional, and not only substantive, provisions of the Convention.
Accordingly, the Court, in line with the position taken by the Commission on this point (see Nielsen v. Denmark, no. 3 43/57, Commission decision of 2 September 1959, Yearbook 2, p. 454), 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.
68. Secondly, the Court has already held that it is not open to it to set aside the application of another admissibility criterion, namely the six - month rule, solely because a Government has not made a preliminary objection to that effect (see Walker v. the United Kingdom (dec.), no. 34979/97, ECHR 2000- I ). In reaching that conclusion it explained that the six - month rule, in reflecting the wish of the Contracting Parties to prevent past decisions being called into question after an indefinite lapse of time, served the interests not only of the respondent Government but also of legal certainty as a value in itself. It added that the rule marked out the temporal limits of supervision carried out by the organs of the Convention and signalled to both individuals and State authorities the period beyond which such supervision was no longer possible. Having regard to the fact that the purpose of limitations ratione temporis is to preclude the possibility of submitting to the Court, by means of an application, facts dating from a period when the respondent State was not in a position to foresee the international responsibility or legal proceedings to which these facts might give rise, the Court considers that the above reasoning concerning the six - month rule applies a fortiori in the present instance.
69. Thirdly, despite the Government ’ s failure to raise the relevant objection earlier, and without prejudice to the above-mentioned considerations, the Chamber examined its competence ratione temporis of its own motion and the parties addressed the question in their observations before the Grand Chamber. Accordingly, the issue of temporal jurisdiction is a live issue that must be examined.
(b ) Limitations on the Court ’ s temporal jurisdiction
70. The Court reiterates that, in accordance with the general rules of international law (see paragraph 45 above), the provisions of the Convention do not bind a Contracting Party in relation to any act or fact which took place or any situation which ceased to exist before the date of the entry into force of the Convention with respect to that Party ( see, for example, Kadiķis v. Latvia (dec.), no. 47634/99, 29 June 2000 ).
71. It further notes that, in its declarations made under former Articles 25 and 46 of the Convention (see paragraph 4 9 above), Croatia recognised the competence of the Convention organs to deal with individual petitions based on facts occurring after the Convention and its Protocols had come into force in respect of Croatia. These declarations remain valid for the determination of the jurisdiction of the Court to receive individual applications under the current Article 34 of the Convention by virtue of Article 6 of Protocol No. 11, which reads as follows:
“Where a High Contracting Party had made a declaration recognising the competence of the Commission or the jurisdiction of the Court under former Article 25 or 46 of the Convention with respect to matters arising after or based on facts occurring subsequent to any such declaration, this limitation shall remain valid for the jurisdiction of the Court under this Protocol.”
72. Accordingly, the Court is not competent to examine applications against Croatia in so far as the alleged violations are based on facts having occurred before the critical date. However, the question of whether an alleged violation is based on a fact occurring prior or subsequent to a particular date gives rise to difficulties when, as in the present case, the facts relied on fall partly within and partly outside the period of the Court ’ s competence.
73. In Stamoulakatos v. Greece (no. 1) (26 October 1993, Series A no. 271), the applicant complained about his various convictions in absentia by Greek courts prior to the date of Greece ’ s acceptance of the right of individual petition under former Article 25 of the Convention. However, he had lodged appeals against these convictions, which were subsequently dismissed, after that date. The Court held that, although those appeals had been lodged after the relevant date, they were closely bound up with the proceedings that had led to his conviction. Divorcing these appeals from the events which gave rise to them would be tantamount to rendering Greece ’ s declaration accepting the right of individual petition nugatory. Accordingly, the Court declared the application incompatible with the Convention ratione temporis.
74. In Kadiķis (cited above ) the applicant requested the Central Electoral Commission to allow him to sign a petition without having a seal affixed on his passport since the existence of the seal would reveal his political opinions and his sympathy for a particular political party. Construing the ensuing silence of the Central Electoral Commission as an implicit decision rejecting his request, the applicant brought an action in court against that decision. These facts occurred before the date of ratification, while the proceedings following the applicant ’ s action and ending with a final decision dismissing his claim occurred after that date.
In Jovanović (cited above) the applicant was dismissed from work because of his alleged participation in a “referendum” for Serbian autonomy in Croatia. His disciplinary appeal and his subsequent civil action were unsuccessful. He lodged a constitutional complaint challenging the constitutionality of the court decisions dismissing his civil action that had been delivered before ratification. The Constitutional Court dismissed his constitutional complaint after ratification.
The Court considered the implicit decision of the Electoral Commission in Kadiķis and the applicant ’ s dismissal in Jovanović as instantaneous acts which had not given rise to a continuing situation of a violation of the Convention. It held that divorcing the domestic courts ’ judgments delivered after ratification from the events which had given rise to the court proceedings would amount to giving retroactive effect to the Convention, which would be contrary to general principles of international law. It accordingly declared these applications incompatible with the Convention ratione temporis.
The Court followed the same approach in Litovchenko v. Russia (dec.), no. 69580/01, 18 April 2002, Kikots and Kikota v. Latvia (dec.), no. 54715/00, 6 June 2002, and Veeber v. Estonia (no. 1), no. 37571/97, 7 November 2002.
75. In the joined cases of Moldovan and Others and Rostas and Others v. Romania ( (dec.), nos. 41138/98 and 64320/01, 13 March 200 1) the applicants complained, inter alia, under Article 2 of the Convention, that the Romanian authorities had failed to conduct an effective investigation into the killings of their relatives, which had taken place before ratification. The Court held that the alleged obligation to conduct an effective investigation was derived from the aforementioned killings whose compatibility with the Convention could not be examined. It therefore declared that complaint incompatible with the Convention ratione temporis.
76. In Zana v. Turkey ( judgment of 25 November 1997, Reports of Judgments and Decisions 1997- VII ) the applicant complained inter alia, under Article 10 of the Convention, about his conviction on 26 March 1991 on account of a statement he had made to journalists in August 1987. Turkey accepted the compulsory jurisdiction of the Court only in respect of facts and events which had occurred subsequent to 22 January 1990, the day on which it filed its declaration. The Court did not accept the Turkish Government ’ s argument that the relevant principal fact for establishing jurisdiction ratione temporis was the applicant ’ s statement to the journalists. Rather, the principal fact was the applicant ’ s conviction, since it was that conviction which constituted interference with the applicant ’ s rights under Article 10. The Court accordingly dismissed the Government ’ s preliminary objection based on lack of jurisdiction ratione temporis.
77. It follows from the above case-law that the Court ’ s temporal jurisdiction is to be determined in relation to the facts constitutive of the alleged interference. The subsequent failure of remedies aimed at redressing that interference cannot bring it within the Court ’ s temporal jurisdiction.
78. An applicant who considers that a State has violated his rights guaranteed under the Convention is usually expected to have resort first to the means of redress available to him under domestic law. If domestic remedies prove unsuccessful and the applicant subsequently applies to the Court, a possible violation of his rights under the Convention will not be caused by the refusal to remedy the interference, but by the interference itself, it being understood that this may be in the form of a court judgment.
79. Therefore, in cases where the interference pre - dates ratification while the refusal to remedy it post - dates ratification, to retain the date of the latter act in determining the Court ’ s temporal jurisdiction would result in the Convention being binding for that State in relation to a fact that had taken place before the Convention came into force in respect of that State. However, this would be contrary to the general rule of non-retroactivity of treaties (see paragraphs 45 and 70 above).
80. Moreover, affording a remedy usually presupposes a finding that the interference was unlawful under the law in force when the interference occurred ( tempus regit actum ). Therefore, any attempt to remedy, on the basis of the Convention, an interference that had ended before the Convention came into force would necessarily lead to its retroactive application.
81. In conclusion, while it is true that from the ratification date onwards all of the State ’ s acts and omissions must conform to the Convention (see Yağcı and Sargın v. Turkey, 8 June 1995, § 40, Series A no. 319 ‑ A ), the Convention imposes no specific obligation on the Contracting States to provide redress for wrongs or damage caused prior to that date ( see Kopecký v. Slovakia [GC], no. 44912/98, § 38, ECHR 2004 ‑ IX ). Any other approach would undermine both the principle of non-retroactivity in the law of treaties and the fundamental distinction between violation and reparation that underlies the law of State responsibility.
82. In order to establish the Court ’ s temporal jurisdiction it is therefore essential to identify, in each specific case, the exact time of the alleged interference. In doing so the Court must take into account both the facts of which the applicant complains and the scope of the Convention right alleged to have been violated.
(e ) Application of the test to the present case
83. The applicant complained that, by terminating her specially protected tenancy, the State had violated her rights to respect for her home and to the peaceful enjoyment of her possessions. This being so, the Court accepts that the termination of her tenancy was the fact constitutive of the alleged interference. It remains to be determined when the termination occurred.
84. The Court observes that for a tenancy to be terminated under Croatian law there had to be a court judgment upholding the claim of the provider of the flat to that end. The tenancy was terminated from the date on which such a judgment became res judicata (see paragraph 40 above). In the present case, that judgment was given on 18 January 1994 by the Zadar Municipal Court. However, since it was subsequently reversed by the Zadar County Court ’ s judgment of 19 October 1994, it became res judicata on 15 February 1996 when the Supreme Court, by its own judgment, reversed the County Court ’ s judgment. Therefore, it was at that moment – neither before nor afterwards – that the applicant lost her tenancy.
85. It follows that the alleged interference with the applicant ’ s rights lies in the Supreme Court ’ s judgment of 15 February 1996. The subsequent Constitutional Court decision only resulted in allowing the interference allegedly caused by that judgment – a definitive act which was by itself capable of violating the applicant ’ s rights – to subsist. That decision, as it stood, did not constitute the interference. Having regard to the date of the Supreme Court ’ s judgment, the interference falls outside the Court ’ s temporal jurisdiction.
86. As to the applicant ’ s argument that the termination of her tenancy resulted in a continuing situation (see paragraph 58 above), the Court reiterates that the deprivation of an individual ’ s home or property is in principle an instantaneous act and does not produce a continuing situation of “deprivation” in respect of the rights concerned (see, inter alia, Malhous v. the Czech Republic (dec.) [GC], no. 33071/96, ECHR 2000- XII, and, mutatis mutandis, Ostojić v. Croatia (dec.), no. 16837/02, ECHR 2002- IX ). Therefore, the termination of the applicant ’ s tenancy did not create a continuing situation.
87. The only remaining issue to be examined is whether the Constitutional Court ’ s decision, in particular its refusal to quash the Supreme Court ’ s judgment, was in itself inconsistent with the Convention.
88. In the light of the conclusion that the interference occurred prior to the critical date (see paragraphs 8 4 -85 above ), the applicant ’ s constitutional complaint should be regarded as the exercise of an available domestic remedy. It cannot be argued that the Constitutional Court ’ s refusal to provide redress, that is, to quash the Supreme Court ’ s judgment, amounted to a new or independent interference since such obligation cannot be derived from the Convention (see paragraphs 79 and 81 above).
89. As already noted ( see paragraph 8 0 above ), affording a remedy usually presupposes a finding that the impugned decision was unlawful under the law as it stood when the case was decided by a lower court. For the Court, proceedings concerning a constitutional complaint to the Croatian Constitutional Court are by no means different. The Constitutional Court was asked to review the constitutionality of the Supreme Court ’ s judgment of 15 February 1996. The law in force at the time when the Supreme Court gave its judgment did not include the Convention and that court could not therefore apply it.
90. Under the general rule of international law expressed in Article 28 of the Vienna Convention, treaty provisions do not apply retroactively unless the parties have expressly agreed otherwise. That is true in particular of a treaty such as the Convention, which comprises more than mere reciprocal engagements between the Contracting States. It directly creates rights for private individuals within their jurisdiction ( see, inter alia, Ireland v. the United Kingdom, 18 January 1978, § 239, Series A no. 25 ). Therefore the above rule on non-retroactivity of treaties is relevant not only for the Court itself but also, first and foremost, for the domestic courts when they are called upon to apply the Convention. The Court, on account of its subsidiary role in safeguarding human rights, must be careful not to reach a result tantamount to compelling the domestic authorities to apply the Convention retroactively.
91. In this connection, the Court notes that the Constitutional Court, when deciding the applicant ’ s constitutional complaint, could not have applied the Convention as an international treaty without having faced the difficulty posed by Article 28 of the Vienna Convention providing for the non-retroactivity of treaties. Moreover, since the Convention was incorporated into the Croatian legal system in the form of a statute (see paragraph 36 above), and given that under the 1990 Croatian Constitution statutes could not be applied retroactively (see paragraph 34 above), the Constitutional Court could not in the instant case have applied the Convention when reviewing the Supreme Court ’ s judgment. To hold otherwise would mean that the Constitutional Court was bound to take account of the Convention, even though the Convention was not in force in Croatia when the Supreme Court adopted its judgment.
92. Since the fact constitutive of the interference giving rise to the present application is the Supreme Court ’ s judgment of 15 February 1996, and not the Constitutional Court ’ s decision of 8 November 1999, an examination of the merits of this application could not be undertaken without extending the Court ’ s jurisdiction to a fact which, by reason of its date, is not subject thereto. To do so would be contrary to the general rules of international law. It follows that the application is incompatible ratione temporis with the provisions of the Convention within the meaning of Article 35 § 3.
93. In view of this conclusion, it is not necessary for the Court to examine the Government ’ s further objection based on the applicant ’ s failure to exhaust domestic remedies.
Holds, by eleven votes to six, that it is unable to take cognisance of the merits of the case.