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FIRST
SECTION
CASE OF ORLIĆ v. CROATIA
(Application
no. 48833/07)
JUDGMENT
STRASBOURG
21 June
2011
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 Orlić v.
Croatia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Anatoly Kovler, President,
Nina
Vajić,
Peer Lorenzen,
Elisabeth
Steiner,
Khanlar Hajiyev,
George
Nicolaou,
Mirjana Lazarova Trajkovska, judges,
and
Søren Nielsen, Section
Registrar,
Having
deliberated in private on 31 May 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 48833/07) 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, Mr Petar Orlić (“the
applicant”), on 3 September 2007.
- The
applicant was represented by Mr M. Zrilić, a lawyer practising
in Rijeka. The Croatian Government (“the Government”)
were represented by their Agent, Ms Š. StaZnik.
- On
27 August 2010 the President of the First Section decided to give
notice of the application to the Government. It was also decided to
rule on the admissibility and merits of the application at the same
time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1950 and lives in Punat, on the Krk island in
Croatia.
1. Background to the case
- The
applicant was in active military service with the former Yugoslav
People’s Army (hereinafter: “the YPA”) for almost
twenty-three years, until 25 June 1991, when he voluntarily left
the YPA and moved from Postojna, Slovenia, where he held a specially
protected tenancy of a flat given to him by the YPA, to Rijeka,
Croatia.
- The
applicant made himself available for service in the Croatian army. He
was unemployed until December 1991, when he found civilian
employment. He then served in the Croatian army between October 1993
and October 1994 and eventually retired on 31 December 2007.
- In
the meantime, on 17 July 1991 the Government adopted the Decree on
the Prohibition of All Real Estate Transactions in Croatia (Uredba
o zabrani raspolaganja
nekretninama na teritoriju Republike Hrvatske – “the
Decree”, published
in Official Gazette no. 36/1991 of 24 July 1991), which banned
all transactions in respect of immovable property situated in Croatia
and belonging to the Former Yugoslavia’s federal institutions
or legal entities having their seat in one of its former federal
units. The Decree entered into force on 24 July 1991.
- The
applicant had a specially protected tenancy of a flat in Postojna,
Slovenia. On 22 August 1991 the applicant returned that flat to the
YPA, in order to obtain priority for the allocation of another flat.
- On
5 September 1991 the applicant was given the right to purchase a flat
in Rijeka by the YPA and moved into the flat with his family.
- Pursuant
to the Government’s Decree of 2 October 1991, all possessions
of the former YPA came under the ownership of the Republic of
Croatia.
- On
8 October 1991 the Republic of Croatia declared its independence.
- On
8 November 1991 the Croatian Government and the YPA Rijeka Corps
entered an agreement by which the Croatian Government guaranteed the
personal safety of those members of the Rijeka Corps of the YPA who
did not wish to leave the Rijeka area and to respect their acquired
rights.
- On
22 November 1991 the Croatian Government and the YPA entered into a
further agreement by which the Croatian Government guaranteed the
personal safety of those members of the YPA who did not wish to leave
Croatia upon the termination of their service in the YPA and accepted
to respect the inviolability of their private property and their
continuing right to occupy the flats given to them by the YPA.
- From
January 1992 until his eviction in October 2004 the applicant paid
the rent and all the charges in respect of the flat in Rijeka to the
Croatian Ministry of Defence. Until June 2000 the bills were issued
in the name of G.R., the previous holder of a specially protected
tenancy of the same flat. From June 2000 the bills were issued in the
applicant’s name.
- In
1997 the applicant received part of a house in Punat on the island of
Krk, Croatia by way of a gift from his father.
2. Civil proceedings
- In
1996 the State brought a civil action against the applicant in the
Rijeka Municipal Court (Općinski sud u Rijeci), seeking
his eviction. The State argued that, as the owner of the flat, it had
the right to seek the eviction of the applicant because the decision
issued by the YPA, granting the applicant the right to purchase the
flat in question, had been contrary to the Decree. The State sought
repossession of the flat.
- In
his defence dated 16 November 1996 the applicant maintained that he
had served as a YPA officer and that the YPA had allocated the flat
in question to him and that, therefore, he had had a valid legal
basis for occupying the flat. He further argued that he had had a
specially protected tenancy of a flat in Postojna which he had given
up in order to obtain a specially protected tenancy of a flat in
Rijeka. He also submitted that he, at the invitation of the Croatian
authorities, had made himself available to serve in the Croatian army
and that he had two schoolchildren.
- On
24 October 2000 the Municipal Court found in the State’s favour
and ordered the applicant to vacate the flat. The court found that
the State owned the flat and that the applicant had no legal
entitlement to occupy it. The relevant part of the judgment reads as
follows:
“It is disputed between the parties whether the
defendant’s occupancy is based on a valid legal entitlement.
It is to be noted in that connection that the defendant
had moved into the flat in question on the basis of a decision of the
[YPA] Garrison Command (Komanda garnizona) no. 499-154-5 of 5
September 1991. Under sections 1 and 3 of the Decree on the
Prohibition of All Real Estate Transactions in Croatia (Official
Gazette 36/91), the [aforesaid] decision is null and void, and cannot
serve as a valid legal basis for acquiring a specially protected
tenancy, as [the grounds for doing so] are those listed in section 59
§ 1 of the Housing Act. The above-mentioned Decree entered into
force on 17 July 1991, while the decision of the Garrison Command was
not issued until 5 September 1991, which was after the entry
into force of the above-mentioned Decree. Since a ... legal act
contrary to the provisions of the Decree is null and void ... which
entails a requirement that the legal position of the parties to such
a contract has to be the same as before the contract was concluded
... the plaintiff’s claim is to be granted ...”
- The
applicant lodged an appeal whereby he argued that before it had
declared its independence, the Republic of Croatia had had no
authority to enact any decrees concerning the assets of the YPA. He
also relied on the agreement between the Croatian Government and the
YPA. He reiterated his argument that he, when leaving the YPA, had
acted at the invitation of the Croatian authorities and had made
himself available to serve in the Croatian army.
- On
19 September 2001 the Rijeka County Court (Zupanijski sud u
Rijeci) upheld the first-instance judgment, endorsing the
reasoning of the first-instance court, and dismissing the applicant’s
argument that the Republic of Croatia had had no authority to adopt
the Decree. The relevant part of the judgment reads as follows:
“... the first-instance court established that the
defendant had occupied the flat in Rijeka, Mihanovićeva 2, on
the basis of a decision of the Garrison Command ... which is null and
void under sections 1 and 3 of the Decree ... and therefore cannot be
considered as a valid legal basis for acquiring a specially protected
tenancy, [in contrast to] the [grounds] listed in section 59 § 1
of the Housing Act ... The Decree entered into force on 17 July 1991,
while the decision of the Garrison Command was not issued until
5 September 1991, which was after the entry into force of the
above-mentioned Decree. In view of the nullity of the said decision,
the plaintiff’s claim was granted ...
The factual findings and legal standpoints of the
first-instance court are accepted by this court as correct.
The defendant argued that, before it had declared its
independence, the Republic of Croatia had had no authority to enact
any decrees concerning the assets of the YPA because these had been
federal assets given to the YPA by a federal statute, namely, the YPA
Assets and Financing Act (Zakon o sredstvima i financiranju JNA).
Therefore, the Republic of Croatia had had no authority to enact the
Decree on the Prohibition of All Real Estate Transactions in Croatia
...
These arguments are, however, ill-founded. The Decree is
based on Article 140 § 2 of the Constitution of the Republic of
Croatia, which provides that “where an act or action by a
federal body or by another federal republic ... goes against the
territorial integrity of the Republic of Croatia or its interests or
where such an act places it in a position of inequality within the
Federation, the bodies of the Republic [of Croatia] shall, on the
basis of the right to self-determination and the sovereignty of the
Republic of Croatia established by this Constitution, adopt necessary
decisions in order to protect the interests of the Republic of
Croatia. ...
Hence, the first-instance court correctly applied
sections 1 and 3 of the Decree ... by declaring the decision of the
Garrison Command ... null and void, since it was issued after the
said Decree had entered into force. Accordingly the defendant does
not have a valid legal basis for occupying the flat in Rijeka ... and
his reliance on the Agreement between the Republic of Croatia and the
YPA of 22 November 1991 is irrelevant.
...”
- The
applicant brought a constitutional complaint on 1 February 2002. In
that complaint, the applicant argued that the flat in question had
been allocated to him by the former YPA on the basis of a federal
statute before the Republic of Croatia had declared its independence.
He again reiterated his arguments that he had left the YPA at the
invitation of the Croatian authorities and had made himself available
to serve in the Croatian army.
- On
an unspecified date, the applicant asked the Ministry of Defence, as
owner of the flat, to conclude a contract for the sale of the flat
between the Ministry as seller and himself as buyer. On 19 April 2004
the applicant lodged another request with the Ministry of Defence, in
order to legalise his occupancy of the flat. He claimed that he had a
specially protected tenancy of the flat and the right to buy the flat
under Article 2 of Annex G to the Agreement on Succession Issues
(Ugovor o pitanjima sukcesije). On 27 July 2004 the
Ministry of Defence dismissed his request, finding that the Agreement
cited by the applicant was inapplicable in the applicant’s
case.
- On
12 April 2007 the Constitutional Court dismissed the applicant’s
complaint, endorsing the lower courts’ reasoning.
3. Enforcement proceedings
- On
9 July 2002 the Rijeka Municipal State Attorney’s Office
(Općinsko drZavno odvjetništvo u Rijeci) sought an
enforcement order in the Rijeka Municipal Court for the eviction of
the applicant. The enforcement order was issued on 30 December 2002.
The applicant lodged an appeal, arguing that his eviction from the
flat would cause him irreparable damage because he and his family
would be rendered homeless. He also sought the adjournment of the
eviction until a decision by the Constitutional Court on his
constitutional complaint had been issued.
- On
10 February 2004 the Rijeka Municipal Court dismissed the applicant’s
request for an adjournment, finding that the grounds adduced were not
those listed in the Enforcement Act (Ovršni zakon), and
that the applicant had not specified the damage he would suffer if
evicted.
- The
applicant lodged an appeal, arguing, inter alia, that the
Rijeka Municipal Court had disregarded his argument that the eviction
would render him and his family homeless.
- On
26 May 2004 the Rijeka County Court dismissed the applicant’s
appeals against the enforcement order and the decision on adjournment
of the eviction, finding that the pending constitutional complaint
and the irreparable damage claimed did not constitute valid grounds
for successfully challenging the enforcement order.
- The
eviction was initially scheduled for 14 September 2004. On that
occasion, representatives of the Rijeka Municipal State Attorney’s
Office agreed with the applicant’s request to adjourn the
eviction until 28 October 2004. The applicant complied with the
enforcement order and vacated the flat on 28 October 2004.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- The
relevant part of the Agreement of 8 November 2001 concluded between
the Croatian Government and the YPA Rijeka Corps reads:
II
“The Republic of Croatia guarantees the personal
safely and respect for the acquired rights, including those from
employment, of the members of the YPA Rijeka Corps who do not wish to
leave the territory of Rijeka by the date [noted in] section XII of
this Agreement at the latest. This guarantee also concerns the
members of their families ...”
XII
“... leaving the Croatian territory by the members
of the Rijeka Corps is to be completed by 10 December 1991 at the
latest.”
- The
relevant part of the Agreement of 22 November 2001 concluded between
the Croatian Government and the YPA reads:
IV
“The Republic of Croatia guarantees the personal
safely, [and to respect the] inviolability of private property and
continuing right to use flats, of the members of divisions,
institutions and commands of the YPA who do not wish to leave the
territory of Zagreb or the territory of the Republic of Croatia upon
the termination of their service in the YPA, as well as [that] of the
members of their families ...”
- Article
34 of the Constitution (Ustav Republike Hrvatske, Official
Gazette nos. 41 and 55) reads as follows:
“The home is inviolable.
A search of a person’s home or other premises
shall be ordered by a court in the form of a reasoned written warrant
based on law.
The occupier, or his or her representative, shall be
entitled to be present during a search of a home or other premises.
The presence of two witnesses shall be obligatory.
Under the conditions prescribed by law and where it is
necessary to execute an arrest warrant or to apprehend a person who
has committed a criminal offence or in order to remove serious danger
to the life or health of people, or to property of a high value, the
police may enter a person’s home or other premises and carry
out a search without a court warrant or the occupier’s consent
and without any witnesses being present.
Where there is a probability that evidence may be found
in the home of a person who has committed a criminal offence, a
search shall be carried out only in presence of witnesses.”
- The
relevant part of the Housing Act (Official Gazette nos. 51/1985,
42/1986, 22/1992 and 70/1993) reads:
Section 59
“A specially protected tenancy is acquired on the
date of moving into the flat on the basis of a final decision
allocating the flat or on another valid legal basis, unless otherwise
provided by this Act.”
- The
Specially Protected Tenancies (Sale to Occupier) Act (Official
Gazette nos. 27/1991, 33/1992, 43/1992, 69/1992 25/1993, 26/1993,
48/1993, 2/1994, 44/1994, 47/1994, 58/1995, 11/1996, 11/1997
and 68/1998, Zakon o prodaji stanova na kojima postoji
stanarsko pravo) regulates the conditions for the sale of flats
let under specially protected tenancies. In general, the Act entitles
the holder of a specially protected tenancy of a publicly owned flat
to purchase it under favourable conditions of sale.
The
relevant provision of the Act provides as follows:
Section 4
“Every holder of a specially protected tenancy
(hereinafter ‘the tenant’) may submit a written
application to purchase a flat to the ... owner (‘the seller’)
... and the seller shall be obliged to sell the flat.
...”
- Section
161 paragraph 1 of the Property Act (Zakon o vlasništvu i
drugim stvarnim pravima, Official Gazette no 91/1996) reads as
follows:
“An owner has the right to seek repossession of
his or her property from a person in whose possession it is.”
- The
relevant part of the Civil Procedure Act (Zakon o parničnom
postupku, Official Gazette of the Socialist Federal Republic of
Yugoslavia nos. 4/1977, 36/1977 (corrigendum), 36/1980, 69/1982,
58/1984, 74/1987, 57/1989, 20/1990, 27/1990 and 35/1991, and the
Official Gazette of the Republic of Croatia nos. 53/1991, 91/1992,
58/1993, 112/1999, 88/2001, 117/2003, 88/2005, 2/2007, 84/2008 and
123/2008) provides as follows:
Reopening of proceedings following a final judgment
of the European Court of Human Rights in Strasbourg finding a
violation of a fundamental human right or freedom
Section 428a
“(1) When the European Court of Human Rights has
found a violation of a human right or fundamental freedom guaranteed
by the Convention for the Protection of Human Rights and Fundamental
Freedoms or additional protocols thereto ratified by the Republic of
Croatia, a party may, within thirty days of the judgment of the
European Court of Human Rights becoming final, file a petition with
the court in the Republic of Croatia which adjudicated in the first
instance in the proceedings in which the decision violating the human
right or fundamental freedom was rendered, to set aside the decision
by which the human right or fundamental freedom was violated.
(2) The proceedings referred to in paragraph 1 of this
section shall be conducted by applying, mutatis mutandis, the
provisions on the reopening of proceedings.
(3) In the reopened proceedings the courts are required
to respect the legal opinions expressed in the final judgment of the
European Court of Human Rights finding a violation of a fundamental
human right or freedom.”
- The
relevant part of Constitutional Court decision no. U-III/408/2003 of
18 February 2004 reads as follows:
“As regards the alleged violation of the
constitutional right guaranteed under Article 34 of the Constitution,
it is to be said that that a violation of that right cannot occur in
enforcement proceedings, as Article 34 of the Constitution guarantees
the inviolability of the home, which concerns the conduct of the
police during entries and searches of homes in the execution of
arrest warrants or in order to apprehend a perpetrator of a criminal
offence or to remove serious risk to the lives and health of persons
or to valuable assets. Therefore, the provision in question is not
applicable to the proceedings at issue.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
- The
applicant complained that, by ordering and enforcing his eviction,
the domestic courts had violated his right to respect for his home
guaranteed under Article 8 of the Convention, the relevant part of
which reads as follows:
“1. Everyone has the right to respect
for ... his home ...
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.”
A. Admissibility
1. Exhaustion of domestic remedies
- The
Government firstly maintained that the applicant had failed to
exhaust domestic remedies, arguing that he had not, in the
proceedings before the national courts and, especially, in his
constitutional complaint, alleged any violation of his right to
respect for his home.
- The
applicant disputed these arguments
- The
Court reiterates that the rule of exhaustion of domestic remedies
contained in Article 35 § 1 of the Convention requires that
normal recourse should be had by an applicant to remedies which are
available and sufficient to afford redress in respect of the breaches
alleged. The existence of the remedies in question must be
sufficiently certain – not only in theory but in practice,
failing which they will lack the requisite accessibility and
effectiveness. It is incumbent on the Government claiming
non-exhaustion to satisfy the Court that the remedy was an effective
one, available in both theory and practice at the relevant time, that
is to say, that it was accessible, was capable of providing redress
in respect of the applicant’s complaints and offered reasonable
prospects of success (see, among other authorities, Akdivar and
Others v. Turkey, 16 September 1996, §§ 65 and 68,
Reports of Judgments and Decisions 1996-IV).
- Turning
to the present case, the Court observes that the wording of Article
34 of the Constitution does not expressly guarantee the right to
respect for one’s home within the meaning of Article 8 of the
Convention, but is aimed at securing protection from unjustified
searches only. In this connection, the Court observes that the
Constitutional Court itself has so held in its decisions (see §
33 above). However, and leaving that question aside, the Court notes
that the applicant lodged a constitutional complaint in which he, at
least in substance, complained that as a result of the lower courts’
decision ordering his eviction he had lost his home. In these
circumstances, the Court is satisfied that the applicant exhausted
domestic remedies in respect of his complaint under Article 8 of the
Convention concerning his right to respect for his home. Accordingly,
that complaint cannot be dismissed for failure to exhaust domestic
remedies.
2. Compliance with the six-month time-limit
- The
Government contended that the application had been lodged after the
expiration of the six-month time-limit, which ought to be counted
from the date when the judgment ordering the applicant’s
eviction had become final (19 September 2001) and not from the date
when the Constitutional Court’s decision had been adopted.
- The
applicant disputed these arguments.
- The
Court reiterates that the object of the six-month time-limit under
Article 35 § 1 is to promote legal certainty, by ensuring
that cases raising issues under the Convention are dealt with in a
reasonable time and that past decisions are not continuously open to
challenge. It marks out the temporal limits of supervision carried
out by the organs of the Convention and signals to both individuals
and State authorities the period beyond which such supervision is no
longer possible (see, amongst other authorities, Walker v. the
United Kingdom (dec.), no. 34979/97, ECHR 2000-I).
- As
a rule, the six-month period runs from the date of the final decision
in the process of exhaustion of domestic remedies. Article 35 § 1
cannot be interpreted in a manner which would require an applicant to
inform the Court of his complaint before his position in connection
with the matter has been finally settled at the domestic level.
- The
Court notes that before brining complaints against Croatia to the
Court, in
order to comply with the principle of subsidiary, applicants are in
principle required to afford the Croatian Constitutional Court, as
the highest Court in Croatia, a possibility of remedying their
situation.
- As
explained above, in his constitutional complaint the applicant
challenged the lower courts’ decision ordering his eviction and
put forward some relevant arguments. Therefore, he gave the
Constitutional Court the opportunity to examine the same issues he is
now presenting before the Court. The application was lodged with the
Court on 3 September 2007, within six months from the adoption of the
Constitutional Court’s decision on 12 April 2007. It follows
that the Government’s objection must be dismissed.
3. Conclusion
- The Court finds that this complaint is not manifestly
ill-founded within the meaning of Article 35 § 3 (a) of the
Convention. It further finds that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
B. Merits
1. The parties’ arguments
- The
applicant argued that his right to respect for his home had been
violated by his eviction from his home and that the national courts’
assessment as to the validity of the legal basis for his occupation
of the flat at issue had been incorrect. He maintained that during
his service in the YPA he had paid contributions into a pension fund;
that, prior to leaving the YPA in 1991, he had had a specially
protected tenancy of a flat in Postojna, Slovenia; and that he had
left the YPA at the beginning of the escalation of conflict in the
former Yugoslavia and had offered to serve in the Croatian army.
- He
further argued that, before it had declared its independence, the
Republic of Croatia had had no authority to enact the Decree, because
it had concerned the assets of the YPA – which had been federal
assets given to the YPA by a federal statute.
- The
Government maintained that there had been no interference with the
applicant’s right to respect for his home, because at the time
of his eviction from the flat at issue the applicant had already
become the owner of a house in Punat, situated in the same county.
- Furthermore,
the applicant had not asserted before the national courts that the
flat in question had been his home and that his right to respect for
his home had been violated. The courts had therefore been absolved
from applying the proportionality test under Article 8 of the
Convention.
2. The Court’s assessment
(a) Whether a right protected by Article 8
is in issue
- The
first question the Court has to address is whether the applicant may
arguably claim that he had a right protected by Article 8 and –
more specifically in the present case – whether the flat in
question may be considered as the applicant’s home.
- The
Convention organs’ case-law is clear on the point that the
concept of “home” within the meaning of Article 8 is not
limited to those premises which are lawfully occupied or which have
been lawfully established. “Home” is an autonomous
concept which does not depend on classification under domestic law.
Whether or not a particular premises constitutes a “home”
which attracts the protection of Article 8 § 1 will depend on
the factual circumstances, namely, the existence of sufficient and
continuous links with a specific place (see Buckley v. the
United Kingdom, 25 September 1996, Reports 1996-IV,
§§ 52-54, and Commission’s report of 11 January
1995, § 63; Gillow v. the United Kingdom, 24 November
1986, § 46, Series A no. 109; Wiggins v. the United Kingdom,
no. 7456/76, Commission decision of 8 February 1978, DR 13, p. 40;
and Prokopovich v. Russia, no. 58255/00, § 36, ECHR
2004 XI (extracts)). Thus, whether a property is to be
classified as a “home” is a question of fact and does not
depend on the lawfulness of the occupation under domestic law (see
McCann v. the United Kingdom, no. 19009/04, § 46, 13 May
2008).
- As
to the present case, it is undisputed that the applicant and his
family had lived in the flat in question between November 1991 and
28 October 2004 when they were evicted. Thus, at the time when
the interference with the applicant’s right to respect for his
home occurred, he had lived in the flat in question with his family.
Having regard to the factual circumstances outlined above, the Court
finds that the applicant had sufficient and continuing links with the
flat at issue for it to be considered his “home” for the
purposes of Article 8 of the Convention, despite the fact that
according to the national courts’ findings he had no legal
basis for occupying it.
(b) Whether there has been an interference
with the applicant’s right to respect for his home
- The
Court has so far adopted several judgments where it assessed the
issue of an interference with an applicant’s right to respect
for his or her home in the circumstances where an eviction order had
been issued. In the case of Stanková v. Slovakia (no.
7205/02, 9 October 2007) the Court held as follows:
“57. The Court notes, and it has not
been disputed between the parties, that the obligation on the
applicant to leave the flat amounted to an interference with her
right to respect for her home which was based on the relevant
provisions of the Civil Code and the Executions Order 1995 ...”
- Subsequently
the Court held in the McCann v. the United Kingdom (no.
19009/04, 13 May 2008):
“47. It was further agreed that the
effect of the notice to quit which was served by the applicant’s
wife on the local authority, together with the possession proceedings
which the local authority brought, was to interfere with the
applicant’s right to respect for his home.”
58. Further, the Court has
held in Ćosić v.
Croatia (no. 28261/06, 15 January
2009):
“18. 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.”
- The
Court sees no reason to depart from this approach in the present
case. It considers that the eviction issued and enforced against the
applicant to leave the flat amounted to an interference with his
right to respect for his home.
(c) Whether the interference was
prescribed by law and pursued a legitimate aim
- The
applicant was ordered to vacate the flat in question 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 possession (see above the relevant provision of the
Property Act).
- In this connection the Court first reiterates that it
is in the first place for the national authorities, notably the
courts, to interpret and apply the domestic law, even in those fields
where the Convention “incorporates” the rules of that law
since the national authorities are, in the nature of things,
particularly qualified to settle the issues arising in this
connection (see, mutatis mutandis, Winterwerp v. the
Netherlands, 24 October 1979, § 46, Series A no.
33). The Court will not substitute its own interpretation for theirs
in the absence of arbitrariness (see, for example, Tejedor García
v. Spain, 16 December 1997, § 31, Reports of
Judgments and Decisions 1997 VIII).
- The
Court is thus satisfied that the national courts’ decisions
ordering the applicant’s eviction were in accordance with
domestic law, in
particular, the Housing Act and the Property Act (see above,
paragraphs 32 and 34). The interference in
question therefore
pursued the legitimate aim of the
economic well-being of the country.
(d) Whether the interference was
‘”necessary in a democratic society”
- 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 ...”
- The
Court notes that when it comes to the decisions of the domestic
authorities in the present case, their findings were restricted to
the conclusion that under applicable national laws the applicant had
no legal entitlement to occupy the flat. 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,
namely his eviction from a State-owned flat. However, the guarantees
of the Convention require that the interference with an applicant’s
right to respect for his 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, 9 October 2007).
- In
this connection the Court reiterates that any person at risk of an
interference with his right to home should in principle be able to
have the proportionality and reasonableness of the measure determined
by an independent tribunal in the light of the relevant principles
under Article 8 of the Convention, notwithstanding that, under
domestic law, he or she has no right to occupy a flat (see, mutatis
mutandis, McCann v. the United Kingdom, no.
19009/04, § 50, 13 May 2008).
- The
Court, however, emphasises that such an issue does not arise
automatically in each case concerning an eviction dispute. If an
applicant wishes to raise an Article 8 defence to prevent eviction,
it is for him to do so and for a court to uphold or dismiss the
claim. As previously held, the Court does not accept that the grant
of the right to an occupier to raise an issue under Article 8 would
have serious consequences for the functioning of the domestic systems
or for the domestic law of landlord and tenant (see, McCann v. the
United Kingdom, cited above, §§ 28 and 54).
- The
Court notes that in the present case the applicant raised the issue
of his right to respect for his home, which was not taken up by the
national courts. They ordered the eviction of the applicant from his
home without having determined the proportionality of the measure. In
this connection, the Court notes that the applicant presented before
the national courts arguments linked to the proportionality of his
eviction, such as that on leaving his service in the YPA he had
answered a call by the Croatian authorities and had made himself
available to serve in the Croatian army, and that, prior to moving to
Rijeka, he had been the holder of a specially protected tenancy of a
flat in Postojna.
- The
Court is also mindful of the applicant’s arguments presented
before it that he had lived in the flat in question for over thirteen
years and had paid charges to the Ministry of Defence during that
time. He had also worked for that Ministry between October 1993 and
October 1994.
- Another
element of importance is the following. In circumstances where the
national authorities, in their decisions ordering and upholding the
applicant’s eviction, have not given any explanation or put
forward any arguments demonstrating that the applicant’s
eviction was necessary, the State’s legitimate interest in
being able to control its property comes second to the applicant’s
right to respect for his home. Moreover, where the State has not
shown the necessity of the applicant’s eviction in order to
protect its own property rights, the Court places a strong emphasis
on the fact that no interests of other private parties are likewise
at stake.
- The
Court considers further that a clear distinction has to be made
between the applicant in the present case and those who simply squat
in others’ flats and occupy them. Thus, the Court, without
putting into question the national courts’ conclusions as to
the validity of the legal basis for the applicant’s occupation
of the property, cannot completely ignore that the circumstances of
the allocation of the flat to the applicant are closely linked to the
specific situation of the Homeland War in Croatia. While the
respondent State certainly enjoys a wide margin of appreciation in
creating its social, and housing, policy, the Court notes that the
proceedings for the applicant’s eviction only started in 1996,
five years after the applicant had moved into the flat. Thus, in
addition to the applicant’s occupancy of the flat for a long
period of time, the Court also notes that the authorities did not
initially take a firm standpoint as regards his title to occupy the
flat.
- By
not examining the above arguments, the national courts did not afford
the applicant adequate procedural safeguards.
- There
has, therefore, been a violation of Article 8 of the Convention in
the instant case.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant further complained under Articles 6 and 13 of the
Convention about the interpretation of the laws by the national court
and that he had no effective remedy at his disposal.
- 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 (a) 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 50,000 euros (EUR) in respect of non-pecuniary
damage. He also claimed pecuniary damage. As regards pecuniary
damage, he explained that, had he been granted a specially protected
tenancy of the flat in question, he would have been able to buy it
for 62,502.45 Croatian kuna (HRK). The market value of such a flat in
Rijeka was HRK 563,464.50. Therefore, he claimed the difference in
the amount of HRK 473,962.05.
- The
Government deemed the sums claimed unsubstantiated and excessive.
- The
Court reiterates that a judgment in which it finds a breach imposes
on the respondent State a legal obligation to put an end to the
breach and to make reparation for its consequences. If the national
law does not allow – or allows only partial – reparation
to be made, Article 41 empowers the Court to afford the injured
party such satisfaction as appears to it to be appropriate (see
Iatridis v. Greece (just satisfaction) [GC], no. 31107/96,
§§ 32-33, ECHR 2000-XI). In this connection, the Court
notes that under section 428a of the Civil Procedure Act an applicant
may file a petition for reopening of the civil proceedings in respect
of which the Court has found a violation of the Convention. Given the
nature of the applicant’s complaint under Article 8 of the
Convention and the reasons for which it has found a violation of that
Article, the Court considers that in the present case the most
appropriate way of repairing the consequences of that violation is to
reopen the proceedings complained of. As it follows that domestic law
allows such reparation to be made, the Court considers that there is
no call to award the applicant any sum in respect of pecuniary damage
(see Trgo v. Croatia, no. 35298/04, § 75, 11 June 2009).
- On
the other hand, the Court finds that the applicant must have
sustained non-pecuniary damage. It therefore awards the applicant
under that head EUR 2,000, plus any tax that may be chargeable on
that amount.
B. Costs and expenses
- The
applicant also claimed HRK 93,495.43 for costs and expenses incurred
before the domestic courts and the Court.
- The
Government deemed the sum claimed excessive and unsubstantiated.
- 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 are
reasonable as to quantum. In the present case, regard being had to
the documents in its possession and the above criteria, the Court
considers it reasonable to award the sum of EUR 60 for costs and
expenses in the domestic proceedings and EUR 2,000 for the
proceedings before the Court.
C. Default interest
- The
Court considers it appropriate that the default interest rate 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 concerning the
applicant’s right to respect for his 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 according to
Article 44 § 2 of the Convention, the following
amounts, to be converted into Croatian kuna at the rate applicable at
the date of settlement:
(i) EUR
2,000 (two thousand euros), plus any tax that may be chargeable, in
respect of non-pecuniary damage;
(ii) EUR
2,060 (two thousand sixty euros), plus any tax that may be chargeable
to the applicant, in respect of costs and expenses;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount 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 21 June 2011, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Anatoly
Kovler
Registrar President
