European Court of Human Rights

FIRST SECTION

DECISION

Application no. 27537/07
by Senka RADALJAC
against Croatia

The European Court of Human Rights (First Section), sitting on 14 April 2009 as a Chamber composed of:

Christos Rozakis, President,
Nina Vajić,
Khanlar Hajiyev,
Dean Spielmann,
Sverre Erik Jebens,
Giorgio Malinverni,
George Nicolaou, judges,
and André Wampach, Deputy Section Registrar,

Having regard to the above application lodged on 18 June 2007,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mrs Senka Radaljac, is a Croatian national who was born in 1945 and lives in Ploče. She was represented before the Court by Mr I. Kotromanović, a lawyer practising in Ploče. The Croatian Government (“the Government”) were represented by their Agent, Mrs Š. StaZnik.

A.  The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

On 6 July 1984 the applicant’s sister, B.R., was granted a specially protected tenancy of a flat in Ploče. The flat was a studio, measuring twenty-six square metres. The applicant, who was at that time employed in Germany, registered her residence in the flat and was recognised as a household member.

The applicant’s sister died some time in 1988 and the applicant continued to occupy the flat when she was in Croatia and since 2001, when she retired, she has been living permanently in the flat.

On 2 May 1997 the applicant asked the Ploče Municipality, as the owner of the flat, to make a lease agreement on the said flat. The request was refused and on an unspecified date the Ploče Municipality brought a civil action in the Ploče Municipal Court (Općinski sud u Pločama) seeking the applicant’s eviction.

On 23 September 2003 the Municipal Court ordered the applicant’s eviction within fifteen days on the ground that the applicant had no legal basis to occupy the flat since she had not lived with her sister in the same household for the last two years preceding her sister’s death, that being a condition of acquiring a specially protected tenancy on a flat. The relevant part of the judgment reads as follows:

“Regardless of her possible strong emotional attachment to her late sister and the unselfish assistance that the plaintiff provided to her sister in various forms by caring for her [during] unpaid leaves and holidays, the plaintiff, owing primarily to the distance [of their places of] living, did not live with her sister for the two years preceding the latter’s death, and thus did not acquire a specially protected tenancy on the basis of law.”

The judgment was upheld by the Dubrovnik County Court (Zupanijski sud u Dubrovniku) on 29 July 2004. A subsequent constitutional complaint by the applicant of 23 September 2004 was dismissed by the Constitutional Court (Ustavni sud Republike Hrvatske) on 26 February 2007.

B.  Relevant domestic law

The relevant provisions of the Housing Act (Zakon o stambenim odnosima, Official Gazette nos. 51/1985, 42/1986, 22/1992 and 70/1993) read as follows:

Section 12

“(1) Members of the household of the holder of a specially protected tenancy are ... persons who have lived with him or her in the past two years, including: ... [his or her] brothers and sisters ...”

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) 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 on 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.

...”

COMPLAINT

The applicant complained under Article 8 of the Convention that her right to respect for her home had been violated.

THE LAW

The applicant complained that the national courts’ judgments ordering her eviction had 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 requested the Court to declare the application inadmissible as being incompatible ratione temporis with the provisions of the Convention. They argued in this connection that the proceedings before the national courts had concerned exclusively the facts related to a period prior to the date on which the Convention had come into force in respect of the respondent State.

The Government argued further that the flat in question had not been the applicant’s home since she had lived and worked in Germany and had only occasionally visited her sister who had lived in that flat. The applicant had her own home, a house that she had bought in Baćina, about five kilometres away.

They contended that the interference with the applicant’s right to respect for her home was based in law, namely the regulations on ownership, the Housing Act and the Protected Tenancies (Sale to Occupier) Act. It had a legitimate aim in that the Ploče authorities had the right to seek repossession of their property from the persons who occupied it without legal basis.

The Government also argued that the measure was proportionate to the legitimate aim pursued. In that connection they stressed that the applicant’s complaint mainly concerned her inability to purchase the flat in question. However, there was no such right under Article 8 of the Convention. Furthermore, the applicant had never acquired the specially protected tenancy on that flat because she had not lived in the flat in the two years preceding the death of her sister.

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. She maintained that, although she had been working in Germany, she had regularly come to the flat whenever possible, spending all her holidays there, and had taken care of her sister. She claimed that she had the right to purchase the flat in question, which had been unjustifiably denied her.

The Court does not have to address all issues raised by the parties because the application is in any event inadmissible for the following reasons.

The Court notes that the applicant’s eviction was ordered on the ground that she had never acquired a specially protected tenancy of the flat in question and therefore had no right to occupy the flat. The Court notes that under section 12(1) of the Housing Act the applicant, as a sister of the holder of the specially protected tenancy of the flat in question, needed to live in that flat in the two years preceding the death of her sister in order to have the status of a “household member”, which would give her the right to occupy the flat. However, in the civil proceedings conducted against the applicant it was established that she had not lived in the flat during the two years preceding her sister’s death. As to the findings of the national courts, the Court reiterates that under Article 19 of the Convention its duty is to ensure observance of the engagements undertaken by the Contracting Parties to the Convention. In particular, it is not its function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention. The Court considers that the findings of the national courts as to the fact that the applicant had not lived in the flat in the relevant two years are not arbitrary in any respect. Therefore, the Court accepts their conclusion that the applicant had never acquired a specially protected tenancy of that flat and thus had no legal basis to occupy it.

The Court also recognises and accepts that an owner of a flat, be it a private individual or the State, has the right to dispose freely of that property. Thus, an eviction order against a tenant occupying a flat owned by a third party issued on the grounds that the tenant is occupying a flat without a valid legal basis is not as such contrary to the Convention, regard being had to the guarantees under Article 1 of Protocol No. 1 to the Convention.

As to the applicant’s contention that she had the right to purchase the flat in question, the Court firstly notes that one of the preconditions for purchasing the flat was that the applicant had previously acquired a specially protected tenancy of that flat. However, as said above, the domestic courts found that the applicant could not have acquired the specially protected tenancy of that flat because she had not lived in it during the two years preceding the death of her sister, a condition prescribed by the Housing Act. Furthermore, Article 8 of the Convention, as well as any other provision of the Convention or its Protocols, does not guarantee the right to purchase a flat.

In these circumstances the Court finds that the applicant’s complaint under Article 8 of the Convention does not disclose any appearance of a violation of the applicant’s right to respect for her home.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

André Wampach Christos Rozakis
Deputy Registrar President