(Application no. 3572/06)
22 October 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 Paulić v. Croatia,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
Christos Rozakis, President,
Sverre Erik Jebens,
George Nicolaou, judges,
and Søren Nielsen, Section Registrar,
Having deliberated in private on 1 October 2009,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
“... the decision relied on by the defendant [the applicant] is null and void pursuant to the Decree on the Prohibition of All Real Estate Transactions. No other decision has been adopted concerning the defendant's [rights] in respect of the flat in question. Under the Housing Act a specially protected tenancy could have been acquired on the basis of a final decision on allocation of a flat for occupation or any other valid legal entitlement (section 3 of the Housing Act, Official Gazette no. 51/85). Save for his occupation of the flat in question, the defendant does not possess a final decision that he had acquired a specially protected tenancy or any other valid legal entitlement to that effect ...”
“By the decree of 3 October 1991 the Republic of Croatia became the owner of all real estate, movables, property rights and monetary resources situated on its territory and formerly under control of the YPA. The decree which came into force on 24 July 1991 banned all transactions in respect of the real estate situated in Croatia (including its sale, exchange, transfer of the right of use, etc.) which was in possession or owned or under control of the federal organs or institutions. Therefore, the conclusions of the first-instance court that after that decree had come into force, the YPA, which was the owner of the flat, had no right to dispose of it and that the decision of 20 August 1991 which served as a basis for the defendant's occupation of the flat, was null and void, are correct.
Since the defendant has no legal entitlement to occupy the flat, the decision of the first-instance court ordering his eviction ... is correct.”
II. RELEVANT DOMESTIC LAW AND PRACTICE
“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.
An occupier, or his or her representative, shall be entitled to be present during the 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 for the life or health of people, or for property of greater value, the police may enter a person's home or other premises and carry out a search without a court's 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 owner has the right to seek repossession of his or her property from the person in whose possession it is.”
The relevant provision of the Act provides as follows:
“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.
“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 the enforcement proceedings, since Article 34 of the Constitution guarantees inviolability of home which concerns conduct of the police during entries and searches of home in execution of arrest warrants or in order to comprehend a perpetrator of a criminal offence or to remove serious risk for lives and health of persons or for valuable assets. Therefore, the provision in question is not applicable in the proceedings at issue.”
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
“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.”
1. Submissions by the parties
2. The Court's assessment
(a) Whether a right protected by Article 8 is in issue
(b) Whether there has been an interference with the applicant's right to respect for his home
“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 ...”
“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.”
37. 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.”
(c) Whether the interference was prescribed by law and pursued a legitimate aim
(d) Whether the interference was '”necessary in a democratic society”
“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 ...”
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“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.”
FOR THESE REASONS, THE COURT
Done in English, and notified in writing on 22 October 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following opinions are annexed to this judgment:
(a) concurring opinion of Judge Nicolaou;
(b) dissenting opinion of Judge Malinverni.
CONCURRING OPINION OF JUDGE Nicolaou
The domestic courts found that the applicant had not acquired a protected tenancy of the flat and that, therefore, he had no right to purchase it under the provisions of the Specially Protected Tenancies (Sale to Occupier) Act 1991. As a result, although he was occupying the flat lawfully, he was doing so only as a non-secure tenant. This meant that the State, as owner, was entitled to immediate possession by virtue of the Ownership Act 1996. Consequently, relying on the legal provisions protecting the proprietary interests of the owner, the domestic courts made a possession order but did so without examining the issue, which the applicant had raised, of interference with his right under Article 8 of the Convention. He had pleaded it by way of defence to the State's action for possession and was, apparently, seeking to prevent the making of a possession order altogether rather than simply to defer it. But the latter must be taken as included in the former; so there was good reason to examine the matter in its entirety.
That the flat had been, since 1991, the home of the applicant and his family was undisputed. It was also clear that the applicant's immediate eviction would, in the circumstances, constitute an interference with his right to respect for his home. Such interference was, undoubtedly, legitimate. As we have recently said in the similar case of Ćosić v. Croatia (no. 28261/06, 15 January 2009):
“...the interference in question pursued the legitimate aim of protecting the rights of the State as the owner of the flat.”
However, to be compatible with Article 8 of the Convention such interference must also pass the proportionality test. “Home” is an autonomous concept which may exist even where occupation lacks a legal basis in domestic law (see Buckley v. the United Kingdom, 25 September 1996, § 54, Reports of Judgments and Decisions 1996-IV). The absence of a legal right may be the cause of a possession order or, as here, the result. In either case the occupier may have the right, under Article 8, to remain in occupation of the property for some time thereafter. This aspect of the right to respect for the home is obviously an important one, but it must be seen and assessed in the context of proprietary and contractual rights and within the principle of legality. The Convention requires that the two competing interests be balanced by a judicial decision.
It is obvious that in the present case the question of proportionality meant, in practical terms, giving the applicant time so that he could make suitable arrangements to obtain alternative accommodation. This might have been achieved by an appropriate order for a temporary stay of execution of the possession order with, in my view, the possibility of reviewing the stay of execution in the event that it proved inadequate.
As it turned out, the domestic authorities did, for one reason or another, grant the applicant time. It was more than ample. However, that did not redress the situation. The applicant lacked certainty and remained, throughout, at the mercy of the authorities when he was entitled to a judicial determination of the matter. This requirement is underlined in the following extract from McCann v. the United Kingdom, no. 19009/04, § 50, 13 May 2008:
“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 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 right of occupation has come to an end”.
I agree, therefore, that there has been a violation of Article 8 of the Convention in the present case.
DISSENTING OPINION OF JUDGE MALINVERNI