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FIRST
SECTION
CASE OF ĆOSIĆ v. CROATIA
(Application
no. 28261/06)
JUDGMENT
STRASBOURG
15 January 2009
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Ćosić v. Croatia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos Rozakis, President,
Nina
Vajić,
Elisabeth Steiner,
Dean
Spielmann,
Sverre Erik Jebens,
Giorgio
Malinverni,
George Nicolaou, judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 11 December 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 28261/06) 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 Katarina Ćosić
(“the applicant”), on 31 May 2006.
- The
applicant was represented by Mrs S. Pavić, a lawyer practising
in PoZega. The Croatian Government (“the Government”)
were represented by their Agent, Mrs Š. StaZnik.
- On
16 October 2007 the Court decided to communicate the complaint
concerning the applicant’s right to respect for her home to the
Government. It also decided to examine the merits of the application
at the same time as its admissibility (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1943 and lives in PoZega.
1. Background to the case
- The
applicant has served as a teacher in various elementary schools in
Croatia. In 1966 she began her service in an elementary school in
Čaglin. In 1970 she gave birth to a son who remained living with
her until 2004. As a single mother she was granted a specially
protected tenancy (stanarsko pravo) of a flat in Čaglin.
In 1984 the applicant was transferred to an elementary school in
PoZega, a town in the same region. The school provided her with a
flat, which it had temporarily leased from its then owner, the
Yugoslav People’s Army (YPA).
- The
lease expired in 1990. In 1991 the State took over all property of
the YPA, thereby becoming the owner of the flat. The school then
asked on several occasions for the lease to be extended but these
requests were ignored by the competent authorities. However, since no
request for her eviction was made and no other flat was provided for
her by her employer, the applicant remained living in the flat and
continued paying a monthly rent to the State.
2. Proceedings for the applicant’s eviction
- On
7 January 1999 the State brought a civil action against the school
and the applicant in the PoZega Municipal Court (Općinski sud
u PoZegi), seeking the applicant’s eviction. The State
argued that since the applicant’s lease had expired she had no
further legal entitlement to occupy the flat.
- On
30 October 2002 the court granted the State’s claim and ordered
the applicant to vacate the flat within fifteen days even though, as
it noted, the applicant had no other place to stay. The court did so
because it was satisfied that the State owned the flat and the
applicant had no legal entitlement to occupy it. The judgment
concluded as follows:
“The evidence presented in the proceedings lead
this court to finding the plaintiff’s claim to be well-founded.
The Government’s Decree of 2 October 1991 resulted
in all possessions of the former YPA [Yugoslav Peoples Army] coming
into the ownership of the Republic of Croatia ...
Before the above Decree had been enacted, a contract in
relation to the lease of the flat in question was concluded ...
between the YPA ... and the school ... The contract was concluded to
last for a limited period of time - until 31 December 1990 when the
school was obliged to return the flat ... The contract was concluded
pursuant to section 36 of the then valid Act on Financing of the YPA
... That Act allowed the YPA to lease its property ... On the basis
of the contract [between the YPA and the school], the school ...
entered into further contracts with the second respondent Katarina
Ćosić allowing her to temporarily occupy the flat and
obliging her to pay rent as well as all other expenses connected with
the use of the flat, while maintaining the second respondent’s
obligation to return the flat to the YPA after the expiry of the
contract.
Neither the [initial] contract nor the additional
contracts between the school and the second respondent are a basis
for acquiring a specially protected tenancy of the flat in question.
... Thus, irrespective of the time [the second respondent] has
occupied the flat and irrespective of the fact that the respondents
continued to be in possession of the flat even after all contracts
[concerning the flat] had expired, there is no legal basis for the
second respondent to have acquired any rights on the flat in question
...
Although this court is aware of the respondent’s
unenviable position, it has to adopt its decisions exclusively on the
basis of the laws and therefore, relying on the facts of the case, it
has decided as in the operative part of this judgment.”
- The
first-instance judgment was upheld by the PoZega County Court
(Zupanijski sud u PoZegi) on 13 March 2000 and by the
Constitutional Court (Ustavni sud Republike Hrvatske) on 9
February 2006. Both these courts endorsed the reasoning of the
first-instance court that the applicant had no legal entitlement to
occupy the flat.
II. RELEVANT DOMESTIC LAW
- Section
161, paragraph 1 of the Act on Ownership and other Rights in Rem
(Zakon o vlasništvu i drugim stvarnim pravima, Official
Gazette no 91/1996) reads as follows:
“The owner has the right to seek repossession of
his or her property from the person in whose possession it is.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
- The
applicant complained that the national courts’ judgments
ordering her eviction violated her right to respect for her home,
contrary to 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
Government contested that argument.
A. Admissibility
- The Court finds that this complaint is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It further finds that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
B. Merits
1. Submissions by the parties
- The
applicant argued that the domestic authorities had violated her right
to respect for her home by ordering her eviction from the flat where
she had been living at that time for more than eighteen years. She
maintained that she had been given the right to occupy the flat in
question when she, as an elementary school teacher, had been
transferred to work in PoZega from Čaglin, where she had had a
specially protected tenancy of a publicly owned flat. The applicant
argued that the domestic courts had not taken all those circumstances
into account when ordering her eviction, but had reached that
decision only on the ground that she no longer had a right to occupy
the flat.
- The
Government argued that there had been no interference with the
applicant’s right to respect for her home since she was still
living in the flat and although her eviction had been ordered by a
court’s judgment, proceedings for the enforcement of that
judgment had not been instituted.
- Furthermore,
the Government contended that were the Court to find that there had
been an interference, it was based on the laws regulating ownership.
The decision ordering the applicant’s eviction also pursued a
legitimate aim, namely the right of the State to claim possession of
its property.
- As
to the proportionality of the interference, the Government claimed
that they enjoyed a wide margin of appreciation and that the
applicant was no longer legally entitled to occupy the flat.
Furthermore, she had not asked that the flat be leased to her.
2. The Court’s assessment
- The
Court considers that the obligation on the applicant to vacate the
flat amounted to an interference with her right to respect for her
home, notwithstanding the fact that the judgment ordering the
applicant’s eviction has not yet been executed (see, mutatis
mutandis, Stanková v. Slovakia, no. 7205/02,
§ 7, 9 October 2007).
- The
possession order in question was issued by the national courts under
Croatian laws regulating ownership which allow an owner to seek
repossession of his or her property when the possessor has no legal
grounds for the possession. 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 thus satisfied that the
national courts’ decisions ordering the applicant’s
eviction were in accordance with domestic law. The Court further
considers that the interference in question pursued the legitimate
aim of protecting the rights of the State as the owner of the flat.
- The
central question in this case is, therefore, whether the interference
was proportionate to the aim pursued and thus “necessary in a
democratic society”. It must be recalled that this requirement
under paragraph 2 of Article 8 raises a question of procedure as well
as one of substance. The Court set out the relevant principles in
assessing the necessity of an interference with the right to “home”
in the case of Connors v. the United Kingdom,
(no. 66746/01, §§ 81–84, 27 May 2004) which
concerned summary possession proceedings. The relevant passage reads
as follows:
“81. 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 ...
82. In this regard, a margin of appreciation must,
inevitably, be left to the national authorities, who by reason of
their direct and continuous contact with the vital forces of their
countries are in principle better placed than an international court
to evaluate local needs and conditions. This margin will vary
according to the nature of the Convention right in issue, its
importance for the individual and the nature of the activities
restricted, as well as the nature of the aim pursued by the
restrictions. The margin will tend to be narrower where the right at
stake is crucial to the individual’s effective enjoyment of
intimate or key rights ... . On the other hand, in spheres involving
the application of social or economic policies, there is authority
that the margin of appreciation is wide, as in the planning context
where the Court has found that ‘[i]n so far as the exercise of
discretion involving a multitude of local factors is inherent in the
choice and implementation of planning policies, the national
authorities in principle enjoy a wide margin of appreciation’
... . The Court has also stated that in spheres such as housing,
which play a central role in the welfare and economic policies of
modern societies, it will respect the legislature’s judgment as
to what is in the general interest unless that judgment is manifestly
without reasonable foundation ... . It may be noted however that this
was in the context of Article 1 of Protocol No. 1, not Article 8
which concerns rights of central importance to the individual’s
identity, self-determination, physical and moral integrity,
maintenance of relationships with others and a settled and secure
place in the community ... . Where general social and economic policy
considerations have arisen in the context of Article 8 itself, the
scope of the margin of appreciation depends on the context of the
case, with particular significance attaching to the extent of the
intrusion into the personal sphere of the applicant ... .
83. The procedural safeguards available to the
individual will be especially material in determining whether the
respondent State has, when fixing the regulatory framework, remained
within its margin of appreciation. In particular, the Court must
examine whether the decision-making process leading to measures of
interference was fair and such as to afford due respect to the
interests safeguarded to the individual by Article 8 ...”
- In
the present case, the Court notes that when it comes to the decisions
of the domestic authorities, their findings were limited to the
conclusion that under applicable national laws the applicant had no
legal entitlement to occupy the flat. The first-instance court
expressly stated that while it recognised the applicant’s
difficult position, its decision had to be based exclusively on the
applicable laws. The national courts thus confined themselves to
finding that occupation by the applicant was without legal basis, but
made no further analysis as to the proportionality of the measure to
be applied against the applicant. However, the guarantees of the
Convention require that the interference with an applicant’s
right to respect for her home be not only based on the law but also
be proportionate under paragraph 2 of Article 8 to the legitimate aim
pursued, regard being had to the particular circumstances of the
case. Furthermore, no legal provision of domestic law should be
interpreted and applied in a manner incompatible with Croatia’s
obligations under the Convention (see Stanková v. Slovakia,
cited above, § 24).
- In
this connection the Court reiterates that the loss of one’s
home is a most extreme form of interference with the right to respect
for the home. Any person at risk of an interference of this magnitude
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, notwithstanding that, under domestic law, his or her
right of occupation has come to an end (see McCann v. the United
Kingdom, no. 19009/04, § 50,
13 May 2008).
- However,
in the circumstances of the present case the applicant was not
afforded such a possibility. It follows that, because of such absence
of adequate procedural safeguards, there has been a violation of
Article 8 of the Convention in the instant case.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 AND ARTICLE 14
OF THE CONVENTION
- The
applicant complained that the proceedings before the national courts
had been unfair and that she had been discriminated against. She
relied on Article 6 § 1 and Article 14 of the Convention.
- 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.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article
41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed 60,300 euros (EUR) in respect of pecuniary damage
and EUR 10,000 in respect of non-pecuniary damage.
- The
Government submitted that there was no causal link between the
applicant’s claims and the pecuniary damage claimed. As to the
claim in respect of non-pecuniary damage, the Government deemed it
excessive.
- As regards pecuniary damage, the Court notes that the
applicant has not supplied any evidence capable of supporting her
claim which could be causally linked to the violation of the
Convention it has found. It is therefore not appropriate to award any
compensation under that head (see also Angelova and Iliev v.
Bulgaria, no. 55523/00, § 125, 26 July 2007,
and Chassagnou and Others v. France [GC], nos. 25088/94,
28331/95 and 28443/95, § 130, ECHR 1999-III).
- On
the other hand, although the Court has found Article 8 violated in
its procedural aspect only, it considers that the applicant suffered
some non-pecuniary damage, in particular feelings of frustration and
injustice, not sufficiently compensated by the finding of a violation
of the Convention (see Connors v. the United Kingdom,
no. 66746/01, § 114, 27 May 2004). Deciding on an
equitable basis, it awards the applicant EUR 2,000 under this head,
plus any tax that may be chargeable on that amount.
B. Costs and expenses
- The
applicant also claimed EUR 369,97 for the costs and expenses incurred
before the Court.
- The
Government made no comments.
- According
to the Court’s case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and were
reasonable as to quantum. In the present case, regard being had to
the information in its possession and the above criteria, the Court
considers it reasonable to award the sum claimed, plus any tax that
may be chargeable to the applicant on that amount.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint under Article 8 of the
Convention concerning the applicant’s right to respect for her
home admissible and the remainder of the application inadmissible;
- Holds that there has been a violation of Article
8 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following
amounts which are to be converted into the national currency of the
respondent State at the rate applicable at the date of settlement:
(i)
EUR 2,000 (two thousand euros) in respect of non-pecuniary damage,
plus any taxes that may be chargeable to the applicant;
(ii) EUR
369,97 (three hundred and sixty-nine euros and ninety-seven cents) in
respect of costs and expenses, plus any taxes that may be chargeable
to the applicant;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 15 January 2009,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
