CASE OF COSIC v. CROATIA
Violation of Art. 8;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - award
Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens
4. The applicant was born in 1943 and lives in Požega. 5. 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 Požega, 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). 6. 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. 7. On 7 January 1999 the State brought a civil action against the school and the applicant in the Požega Municipal Court (Općinski sud u Požegi), 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. 8. 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.” 9. The first-instance judgment was upheld by the Požega County Court (Županijski sud u Požegi) 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. 10. 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.”