THE CONSTITUTIONAL COURT OF
THE REPUBLIC OF CROATIA
No. U-III-88/2001
Zagreb, 10 October 2002
The Constitutional Court of the Republic of Croatia, composed of Smiljko
Sokol, President of the Court, and Judges Marijan Hranjski, Petar Klaric, Mario Kos,
Ivan Matija, Ivan Mrkonjic, Jasna Omejec, Zeljko Potocnjak, Agata Racan, Emilija
Rajic, Nevenka Sernhorst, Vice Vukojevic and Milan Vukovic, deciding on the
constitutional complaint lodged by N. C. from S., represented by K. K., attorney in S.,
at a session of the Court held on 10 October 2002, rendered the following
DECISION
I.
The constitutional complaint is hereby accepted.
II.
The judgment of the Supreme Court of the Republic of Croatia, No.
Rev-2319/1999-2 and Gzz-61/1999-2 of 13 January 2000, is hereby repealed and
the case is returned to the Supreme Court of the Republic of Croatia for renewed
proceedings.
Statement of reasons
1.
The applicant lodged a constitutional complaint against the judgment of the
Supreme Court of the Republic of Croatia, No. Rev-2319/1999-2 and Gzz-61/1999-2
of 13 January 2000, whereby it accepted judicial revision and the request for the
protection of legality, and revised the judgements of the County Court in S., No. Gž367/98 of 12 October 1998, and of the Municipal Court in S., No. P-1748/97 of 2 July
1998, in such a way as to reject the applicant’s statement of claim.
The applicant brought an action against the Republic of Croatia before the Municipal
Court, in reference to the decision of the Constitutional Court of the Republic of
Croatia, No. U-I-697/1995 of 29 January 1997 (Official Gazette of the Republic of
Croatia, Narodne novine, No. 11/97), whereby certain provisions of the Law on the
Sale of Apartments Subject to Tenancy Rights (stanarsko pravo) (Narodne novine,
Nos. 43/92, 69/92, 25/93, 26/93, 48/93, 2/94, 58/95, 11/97, 68/98 and 96/99) were
repealed as not in conformity with the Constitution. These provisions regulated the
method of establishing prices for the sale of apartments.
In its judgement the trail court accepted the applicant’s statement of claim and found
null and void the following terms of the sale and purchase contract, No. 14607, made
between the applicant and the defendant, the Republic of Croatia, on 19 August
1996: Clause 3 sub-clause 1, determining the price of the flat at 141,568.14 kn,
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because the price was found to be 77,704.44 kn, and Clause 4 sub-clauses 3 and 4,
because the sum of the first instalment was found to be 2,331.13 kn, and the monthly
instalments 274.45 kn until re-evaluation. The applicant was also authorized to pay
the monthly instalment of 274.45 kn from the day when the judgement enters into
force, instead of the prior monthly instalment of 499.98 kn, and to request changing
the registration of lien (mortgage) in accordance with the above sums.
Furthermore, the trail court ruled that the defendant shall return to the applicant, in
compensation for prior instalments paid, the excess amount of 5,797.64 kn it
received with the statutory interest on arrears, running for the sum of 1,915.67 kn
from 1 October 1996, and for the sum of 225.53 kn a month from 1 November 1996
until the judgement enters into force, all within a term of 15 days.
The court of appeal rejected the defendant’s appeal and confirmed the first-instance
judgement.
The defendant applied for judicial revision of the judgement of the court of appeal,
and the Office of Public Prosecutions of the Republic of Croatia presented a request
for the protection of legality. In the disputed judgement the Supreme Court accepted
these extraordinary legal remedies, revised the judgments of the inferior courts and
rejected the applicant’s claim.
In the Statement of Reasons for the disputed judgement, the Supreme Court finds
that the applicant and the defendant had made a contract on selling the apartment in
S. for a price established in accordance with the provisions then in force of the Law
on the Sale of Apartments Subject to Tenancy Rights.
In the continuation of the Reasons, the Supreme Court finds that by decision of the
Constitutional Court of the Republic of Croatia, No. U-I-697/1995 of 29 January 1997,
certain provisions of the Law on the Sale of Apartments Subject to Tenancy Rights,
which regulated the way in which the price for the apartments on sale was
established, were repealed because they were not in conformity with the Constitution.
According to the legal opinion of the Supreme Court of the Republic of Croatia, as
expressed in the disputed decision, the effect of the repeal adjudicated by the
Constitutional Court of the Republic of Croatia enters into force on the day when this
decision is published in Narodne novine, and cannot have a retroactive effect on
contractual relations based on the application of the repealed provisions, which were
a legal regulation in force prior to their repeal. From the above the Supreme Court
concludes that the terms of the contract concerning the price of the disputed
apartment are not void, that the defendant did not acquire benefits without grounds
and that there had therefore been no reason to satisfy the statement of claim.
2.
The applicant considers that the disputed judgement of the Supreme Court,
due to the misapplication of substantive law, infringed her constitutional rights in
Article 14 of the Constitution of the Republic of Croatia, and she also claims the
infringement of the provision of Article 3 of the Constitution.
To support her claims, the applicant calls on Constitutional Court decision No. U-I697/1995 of 29 January 1997 (Narodne novine, No. 11/97), whereby certain
provisions of the Law on the Sale of Apartments Subject to Tenancy Rights
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(stanarsko pravo) were repealed as not in conformity with the Constitution. These
included provisions that referred to excess in the area of rooms and the method of
calculating apartment price in relation to that excess, because they discriminated
between the purchasers of so-called “state-owned” apartments and the purchasers of
other apartments. In the applicant’s opinion, the repealed provisions about higher
apartment price contravened the Constitution right from the time when they entered
into force, that is, also at the time when the sale and purchase contract for the
apartment was made, so rejecting her action for establishing the partial voidness of
the contract places the applicant in an unequal legal position not only in relation to all
the other purchasers of apartments subject to tenancy rights, but also in relation to all
the purchasers of state-owned apartments who made a sale contract after the above
Constitutional Court decision was passed.
The constitutional complaint is grounded.
3.
The Constitutional Court of the Republic of Croatia, in decision No. U-I697/1995 of 29 January 1997, repealed certain provisions of the Law on the
Revisions and Amendments of the Law on the Sale of Apartments Subject to
Tenancy Rights as not in conformity with the Constitution. It repealed, among others,
the provision of Article 8 para. 4 of that Law, which regulated the method of
calculating the price of excess in room area in the apartment.
In accordance with this provision, the excess was purchased for a price
corresponding with the construction value of the reference specimen increased by
the value emerging from the apartment’s favourable position.
In the view of the Constitutional Court, expressed in the above decision, when the
state regulated conditions for purchasing apartments it should not have, without
special reason, prescribed different conditions for tenants, thus placing some tenants
in a situation where they would in fact find it impossible, or essentially more difficult,
to buy the apartment. Furthermore, there were no constitutional grounds for the
legislator to place the state, as a legal entity of public law who is selling items of the
same kind as other sellers, i.e. apartments subject to tenancy rights, in a position
essentially different from that of other sellers of apartments; also, there were no
constitutional grounds for placing the buyers of apartments in an essentially different
position depending on who enjoyed tenancy rights for the apartment being sold.
4.
In its decision No. U-III-731/1994 of 22 April 1997 (Narodne novine, No.
53/97), the Constitutional Court also expressed its legal stand that, in the specific
case, protection of the applicant’s constitutional rights cannot be withheld only
because the Constitutional Court repealed the unconstitutional legal regulation after
the disputed individual act grounded on this unconstitutional legal regulation had
been made.
5.
In pursuance of the above, during constitutional-court proceedings in the
specific case it was established that the price in the sale and purchase contract for
the apartment, made in accordance with the Law on Selling Apartments Subject to
Tenancy Rights, was determined on the grounds of legal provisions that were not in
conformity with the Constitution of the Republic of Croatia right from the time when
they entered into force.
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6.
The provision of Article 463 of the Law on Obligations (Narodne novine, Nos.
53/91, 73/91, 3/94, 7/96 and 112/99) prescribes that, when a price higher than the
statutory price has been contracted, the purchaser owes only the sum of the statutory
price, and if he has already paid the contracted price, he has the right for the
difference to be returned to him.
It follows from the above that in the specific case this was a civil dispute between the
applicant, as purchaser of the apartment, and the vendor, and that the applicant had
the right to seek protection of her rights and legal interests from the competent
municipal court, which she did. The Constitutional Court expressed the same legal
views in decision No. U-III-1341/1997 of 22 April 1998 (Narodne novine, No. 66/98).
In accordance with the provision of Article 55 para. 2 of the Constitutional Act on the
Constitutional Court of the Republic of Croatia (Narodne novine, No. 49/02 – revised
text), as the Supreme Court points out in the disputed judgement, repealed legal
provisions go out of force on the day when the decision of the Constitutional Court is
published in Narodne novine, unless the Constitutional Court stipulates another term.
However, it has already been said that the Court holds that the repealed legal
provisions were not in conformity with the constitution even before they were
repealed, that is, also on 19 August 1996, at the time when the applicant made the
sale and purchase contract for the apartment.
7.
Considering what has been said, it is obvious that the Supreme Court of the
Republic of Croatia, in passing the disputed judgement, acted against the provision
of Article 31 of the Constitutional Act on the Constitutional Court of the Republic of
Croatia, which stipulates the binding nature of the decisions and rulings of the
Constitutional Court of the Republic of Croatia. In the specific case, by accepting
judicial review and the request for the protection of legality, the Supreme Court
infringed the applicant’s constitutional rights in Article 14 of the Constitution, which
guarantee general equality and equality of citizens before the law. The infringement
of the above constitutional rights emerges from the application, to the specific case,
of a regulation that has been established as bringing parties into an unjustifiably
unequal position.
The Court expressed the same legal standpoint in another case, identical from the
aspect of substantive law, in decision No. U-III-213/2000 of 27 March 2000 (Narodne
novine, Ni. 58/00).
8.
In connection with the infringement of the provision of Article 3 of the
constitution claimed by the applicant, it must be pointed out that this provision does
not contain human rights and fundamental freedoms guaranteed by the Constitution
to a natural or legal person, which shall be protected in constitutional-court
proceedings initiated by a constitutional complaint in accordance with Article 62 para.
1 of the Constitutional Act on the Constitutional Court of the Republic of Croatia.
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9.
Pursuant to all the above, in accordance with the provisions of Articles 73 and
76 of the Constitutional Act on the Constitutional Court of the Republic of Croatia, the
Court has decided as in the dictum.
PRESIDENT
Smiljko Sokol, LLD, m. p.