(Application no. 28261/06)
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,
Sverre Erik Jebens,
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:
I. THE CIRCUMSTANCES OF THE CASE
1. Background to the case
2. Proceedings for the applicant’s eviction
“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.”
II. RELEVANT DOMESTIC LAW
“The owner has the right to seek repossession of his or her property from the person in whose possession it is.”
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
“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. ALLEGED VIOLATION OF ARTICLE 6 § 1 AND ARTICLE 14 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.”
B. Costs and expenses
C. Default interest
FOR THESE REASONS, THE COURT UNANIMOUSLY
(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;
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