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A catastrophic, fundamental mistake of the European Court of Human Rights

      

              NOTE:    It would be difficult to mention here everything that may be important.

              I beg law experts and others to ask for additional explanations, facts, proofs, etc.

                                                                    Branko Soric   E-mail:  branko.soric@zg.htnet.hr 

 

      The much-emphasized independence of courts must not be a pretext or a screen that makes it possible for some judges to inflict - either unintentionally or intentionally - damage, evil or injustice, to violate human rights, the Constitution, the European Convention on Human Rights, to pass over in silence or ignore essential arguments or facts presented in applications, to write in the court's decisions untruths or fabrications!  Such wrong "final decisions" must not silence the harmed persons! Instead, they should inform the public even more loudly! (But how(?), considering that the most-widely-read Croatian newspapers refuse to publish letters that we send to them!!!)  Such grave mistakes of the highest or international courts must be made known to the whole world!  Nothing is finished by such a "final decision", because, by the Constitution of the Republic of Croatia, the power originates from the people and belongs to the people, and so the people must have the final say! If some judges cause harm, evil and injustice (whereby we lose almost all our property!), they must be held responsible for their work, just as much as any other citizens.

      After the absurd, obviously and doubtlessly wrong decision of the Constitutional Court of Croatia from 1998, which is contradictory even to itself, the European Court of Human Rights also destroyed the possibility to gain the confidence of those who are unjustly deprived of their rights and possessions. The latter Court, giving similar wrong explanations as the former, rejected the applications of the holders of tenantship rights (dwelling rights, stanarsko pravo) in the SEIZED, occupied, so-called "private" apartments. Such decisions have been made by the Court, for example, in the case of Kresimir Strunjak and others (application number: 46934/99 ; date of decision:  October 5, 2000) and Branko Soric (application number: 43447/98 ; date of decision:  March 16, 2000), who had complained about being damaged, deprived of their tenantship rights, discriminated against, etc.  The true explanations about the obvious injustice and incorrectness of these decisions were not heeded by the Court. Also, the Court has not even answered the questions about the origin of the obvious untruths in its decision! The Croatian Public Prosecutor's Office, the government, and others, have not been willing to investigate that thoroughly, to the end!

      The European Court of Human Rights, in explaining those decisions, said that the apartment(s), occupied by the applicant(s), "have always been privately owned, and the applicant(s) do(es) not contest that fact".

      This statement of the Court is wrong, untrue!  Namely, these apartments have been SEIZED during former Yugoslavia (SFRJ). Thereafter they were not owned by original owners or their legal inheritors, although these persons were still registered in the land-registers (cadastral books). This is clear from the very applications, in which the applicants wrote that they had had the permanent, forever-inheritable tenantship rights on these apartments (which means that they had the main ownership rights, which had been seized forever from the original owners, by the laws);  thereby the applicants  HAVE  CONTESTED  the private ownership of the original or nominal "owners" (although they may have used the usual, lay, perhaps imprecise manner of speaking, like e.g.: "private apartments"; "...some were returned to owners in 1959...", etc.;  Namely, that "returning" of seized apartments, and that private "ownership", was only fictitious (seeming, unreal), because the tenantship rights on these apartments continued to exist permanently and could forever be transferred to household members !).

      Branko Soric wrote in his application, and sent proofs to the Court, that he had had the tenantship right, which is property (possessions) worth 90 percent of the market value of the apartment, and he also wrote that his right to peaceful enjoyment of his possession (guaranteed by Article 1 of the First Protocol of the European Convention on Human rights) has been violated;  the Court, in its decision, said: "The Court notes that in the present case the applicant is not and has never been the owner of the flat in question";  but the Court passed over in silence (ignored) the fact that the tenantship right is likewise  property (possessions), because it has an economic value;  so it is also guaranteed by the Convention!  ("Possessions" is wrongly translated into Croatian as "vlasnistvo" instead of "imovina"!) Also, the tenantship right is an (incomplete) ownership, which is about ten times greater and more valuable than the incomplete ownership of a nominal, registered owner!

      Furthermore, the Court said untruly: "His constant position in regard to the flat has been that of a lessee", which is untrue, because he had the tenantship right, and that was not a lease.

      Moreover, it is untruly written in the Court's decision:  "The applicant has been ab initio a lessee of a privately-owned flat, where his position was dependent on the will of the owner"(!);   it is untrue that this has been written in the application, or that such information had been submitted by the applicant (as the Court said at the beginning of the Decision, under A), and also it is untrue that he was a "lessee", or that "his position was dependent on the will of the owner";  besides, the Court did not mention  -  i.e. the Court ignored  -  the proofs about the tenantship right, which proofs the Court had received(!). etc.  (See the NOTE at the end of this text: P.S.).

      It is well-known to the Court (and it is also clear from the applications) that a tenantship right, on the ground of the Law on Housing Relations ("Zakon o stambenim odnosima" = ZSO), comprised forever the main ownership rights to possess an apartment (i.e. flat), use it, live in it, etc.;  it is likewise well-known that, by ZSO,  the original owners have lost forever the same rights (i.e. by ZSO they have nevermore had the right to move into the apartment, to possess it, use it, etc.), and hence it is clear that,  really and de facto,   the original owners have no longer been the owners of these apartments.  It would be unthinkable to suppose that this is not clear to the Court. However, here is a more-detailed explanation for the readers of this text:

      Not only today, but also during the SFRJ (and before), the ownership was  and is  indivisible.  This means that an owner is a person who has all the ownership rights (i.e. the right to possess a thing, to use it, etc.), and  - as it is also written in the today's Law on Ownership -  there is only one type of ownership;  there can be no other type of ownership, i.e. nobody can be an  owner if he is forever deprived of some of these rights, and especially the most essential ownership rights.

      It should be mentioned, that an owner can lease (let out) his apartment, whereby he can  TEMPORARILY cede most of his rights to a lessee;  but, after a contracted (stipulated) period of notice, the owner again gets all those rights and he keeps them forever.  The unlimited duration of the ownership is one of its essential characteristics.   [For this reason, in Croatia, e.g., a copyright is not considered to be an ownership, because its duration is limited;  but it is considered to be property because it has an economic value. See: Pravni leksikon, 1970., str. 350.-351.,  and the quotation (1) in the Supplement].

      On the contrary, if a person has been granted a tenantship right, this right can forever be inherited by his household members, and so the original owner and his heirs, by the laws, have forever lost almost all the owner's rights on the apartment, and these rights forever belong to the tenantship-right holder and his legal successors.  Thereby, the former (original) owner has forever lost his property (i.e. possessions, in the sense of the European Convention on Human rights - i.e. the economic value greater than 90 percent of the market value of the empty apartment), which forever belongs to the holder of the tenantship right. This corresponds to the meaning of "divided ownership ("dominium divisum"). 

      If the nominal-owner's incomplete rights are considered to be an ownership, then the tenantship right is also an ownership! Or, alternatively, if a tenantship-right holder is not considered to be an owner (because his ownership is not quite complete, although he has the main and most-valuable ownership rights), then a nominal "owner" can even less be considered to be a true owner, because he has lost forever almost all the owner's rights as well as property, by the laws.

      Although formally there has been no nationalization, or confiscation, or other expropriation of the occupied so-called "private" apartments, and although the former original owners remained registered in the land registers, the ownership has legally and REALLY (de facto) been SEIZED from them  by means of the very granting of the permanent tenantship right as provided by the LAW (ZSO). This is essential, as one can also see from a recent decision by the European Court of Human Rights, which says that,  in determining whether there has been a deprivation of possessions, it is necessary not only to consider a formal taking or expropriation of property  but to investigate the REAL situation in order to ascertain whether there has been a de facto expropriation.   (JAHN AND OTHERS v. GERMANY;  application numbers: 00046720/99 ; 00072203/01 ; 00072552/01 ; date: 22/01/2004.  See quotation (2) in the Supplement!).

      Regardless of the ownership, both in the case of nationalized and so-called "private" occupied apartments, it is essential that the property (possessions), worth about ninety percent of the market value of an empty apartment, has forever been seized from the original owner by the law, and has forever been given to the tenantship-right holder (by the same law). Because the seized (nationalized) apartments have  not been returned to original or nominal owners (but, instead, have been cheaply bought by tenantship-right holders), the other seized apartments (i.e. the occupied so-called "private" apartments)  must be treated in the same way. This is also in conformity with Resolution 1096 of the Parliamentary Assembly of the Council of Europe (1996), which demands that a just material compensation be awarded to original owners  in cases where a restitution in integrum of the previously-seized property would violate the rights of new owners or tenants.

      In addition to what was mentioned above, the European Court of Human Rights wrote, that buying the "private" (occupied) apartments would endanger the legitimate interest of  "owners" to have their "ownership" protected (as distinguished from the case of buying the public or nationalized apartments), which is, allegedly, an objective and reasonable justification for denying to the tenantship-right holders the right to buy the "privately-owned" apartments, and for this reason, allegedly, the difference of treatment is not a discrimination within the meaning of Article 14 of the Convention. However, the truth is quite contrary to such wrong explanations of the European Court of Human Rights (as well as to the explanations of the Constitutional Court of Croatia).  Namely, the discrimination against the tenantship-right holders in occupied (so-called "private") apartments is  obvious,  because:

      (1)  as was mentioned above, the property and the ownership have been seized in the case of occupied (so-called "private") apartments, as well as in the case of nationalized apartments (not returned to original owners but cheaply bought by tenants);

      (2)  as Branko Soric wrote in his application, a part of the owners have been compelled (by Article 48 of the Law on Renting Apartments, in 1996) to cheaply sell  to the users of apartments even some privately-owned apartments, that had  not been previously seized from the owners (but had only been leased, without a tenantship right);  the European Court of Human Rights has passed over in silence (ignored) that B. Soric had written about that in his application, and the Court has also ignored the above-mentioned compulsory sale of privately-owned apartments(!) which had also been  APPROVED  by the  CONSTITUTIONAL  COURT  OF  CROATIA  for the sake of  SOCIAL  JUSTICE.   So, it is obvious from the very decision of the Constitutional Court  that the protection of ownership (even the ownership that had not been previously seized)  is  NOT a justification for denying  to the users of apartments  the right to buy the apartments, provided that owners are given compensations;  in other words, by the very Law on Renting Apartments (1996), by the Constitution, and by the Constitutional Court' decision, the social justice is more important than the ownership.  Accordingly, it is clear from (1) and (2) above, that there is  no such "ownership" as was mentioned by the European Court of Human Rights, and there is  no such (alleged) legitimate interest of "owners", or such an "objective and reasonable justification" for the difference in treatment of tenantship-right holders.

 

      The Croatian Sabor (parliament) should do immediately what should have been done many years ago(!),  i.e. the Sabor should CORRECT the injustice, the dicrimination, the enormous damage made by the Courts;  the Sabor should abolish the provision (in the Law on Renting Apartments) by which our tenantship rights (in the occupied so-called "private" apartments) have been annulled, and, at the same time, we should be given the right to cheaply buy our apartments in the same way, and at approximately-equal prices, as the publicly-owned apartments have been bought, i.e. by the provisions of the Law on Selling Apartments with Tenantship Rights. A part of privately-owned apartments has also been bought in the same way (by Article 48 of the Law on Renting Apartments, 1996)!  The State must give a just compensation to original owners in conformity with Resolution 1096 of the Parliamentary Assembly of the Council of Europe.  -   The European Court of Human Rights should  CORRECT  THE  UNTRUTHS  contained in its decision!

      P.S.  NOTE:  Our tenantship right has never been disputed by anybody, but more than twenty years ago there were some unsuccessful, unlawful, evil attempts, made by some persons, to grab away a part of the apartment from my mother and myself by lies, frauds, slanders etc.  We have thwarted those attempts by honest, legal means, through the courts. I don't know whether those lies and fabrications may be in any way connected to the incomprehensible, stupefying untruths in the decision of the European Court of human Rights (from 2000)!?    Wherefrom and how did those untruths get into the Court's decision? I can prove the truth, I can prove that I indeed had the tenantship right, etc., and I have proved it, but the authorities, the Court (and others)  did not  and do not  look at the proofs or ask for them; they don't want the truth to be known!

      (Some more details:  http://soric-b.tripod.com/bstr/id11.html  )

 

SUPPLEMENT:

      (1)  PRAVNI  LEKSIKON, 1970, p. 351, quotation:  "The limitation of the protection period of copyright constitutes the fundamental difference between the copyright and the ownership. The view, by which the copyright is considered to be an ownership, has been almost abandoned in continental law (jurisprudences), but it still remains in Anglo-Saxon countries".

      (2)  JAHN AND OTHERS v. GERMANY;   application number: 00046720/99 ; 00072203/01 ;  00072552/01 ;    date: 22/01/2004. 

      Quotation:   "65.  The Court reiterates that, in determining whether there has been a deprivation of possessions, it is necessary not only to consider whether there has been a formal taking or expropriation of property but to look behind the appearances and investigate the realities of the situation complained of. Since the Convention is intended to guarantee rights that are practical and effective, it has to be ascertained whether the situation amounted to a de facto expropriation (see Sporrong and Lönnroth, cited above, pp. 24-25, § 63; Brumarescu v. Romania [GC], no. 28342/95, § 76, ECHR 1999-VII; and Zwierzynski v. Poland, no. 34049/96, § 69, ECHR 2001-VI)".

      Zagrebu  February, 2004.

 

Dr.med. Branko Soric

Vlaska 84,  10000 ZAGREB

branko.soric@zg.t-com.hr

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Everything in these sites is based on opinions of many other persons (tenantship-right holders, lawyers, and others).  If anything is unclear, additional explanations and arguments can be given. /   Tekstovi na ovim stranicama u skladu su sa misljenjima mnogih drugih osoba (nositelja stanarskog prava, pravnika, i drugih).  Eventualne nejasnoce mogu se objasniti i dodatno argumentirati.