CASE OF PAULIC v. CROATIA
Remainder inadmissible;Violation of Art. 8
Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens
4. The applicant was born in 1953 and lives in Požega. 5. The applicant was employed as a civilian by the Yugoslav People's Army (YPA). On 18 June 1991 the Požega Garrison Command issued a conclusion noting the applicant's application to be granted a flat and classifying it in “group one” on the basis of his employment with the YPA from 19 October 1988. 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 – 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. This decree entered into force on 24 July 1991. 6. On 20 August 1991 the above-mentioned Garrison Command adopted a decision to grant the applicant, as their civilian employee, together with his wife and son, the right to occupy and purchase a flat in Požega owned by the YPA. The applicant and his family moved into the flat in September 1991. Pursuant to the Government's decree of 2 October 1991, all possessions of the former YPA came into the ownership of the Republic of Croatia. The applicant left the YPA and made himself available for the Croatian Army. 7. On 3 June 1991 Parliament enacted the Protected Tenancies (Sale to Occupier) Act (Zakon o prodaji stanova na kojima postoji stanarsko pravo), which regulated the sale of publicly-owned flats previously let under protected tenancies, giving the right to holders of such tenancies of publicly-owned flats to purchase them from the provider of the flat under favourable conditions. On the basis of that Act, in 1997 the applicant requested the Ministry of Defence as the owner of the flat to enter into a contract for the sale of the flat with him as the buyer. Since the owner declined his request, the applicant brought a civil action in the Požega Municipal Court (Općinski sud u Požegi) seeking a judgment in lieu of the contract of sale. 8. On 17 October 1997 the State brought a civil action against the applicant in the same Municipal Court, seeking his eviction. The State submitted that it was the owner of the flat and that the applicant, as a result of the decree of July 1991, had never obtained a specially protected tenancy in respect of the flat, so the State had the right to repossess it. The two proceedings were joined. 9. In a judgment of 25 October 2000 the Municipal Court accepted the State's action and dismissed the applicant's counterclaim. It also ordered that the applicant be evicted. The relevant part of the judgment reads as follows: “... 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 ...” 10. On appeal, on 19 September 2001 the Požega County Court (Županijski sud u Požegi) upheld the first-instance judgment. The relevant part of the appellate judgment reads as follows: “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.” 11. With a view to securing the applicant's eviction the State instituted enforcement proceedings before the Požega Municipal Court on 17 October 2002. The eviction order was issued on 23 October 2002. On 24 October 2001 the applicant lodged an appeal on points of law with the Supreme Court (Vrhovni sud Republike Hrvatske). On 19 November 2002 the applicant sought that the eviction be adjourned, pending the resolution of his appeal on points of law before the Supreme Court. He also submitted medical documentation concerning his son, born in 1989, showing that he suffers from a malign brain tumour and chronic hepatitis B. In view of the applicant's pending appeal on points of law and the condition of the applicant's son, the eviction was adjourned in a decision of 9 January 2003. On 14 January 2004 the Supreme Court dismissed the applicant's appeal on points of law. 12. The applicant lodged a constitutional complaint on 21 April 2004. He complained, inter alia, that his constitutional right to the protection of his personal and family life had been violated in that the lower courts' decision had ordered and upheld his eviction. He argued that these decisions had been contrary to the law and that he had a specially protected tenancy in respect of the flat in question and thus the right to occupy it. 13. The Požega Municipal Court scheduled the eviction of the applicant and his family for 13 April 2005. The applicant asked for an adjournment. On 8 April 2005 the State Attorney's Office, which represented the Ministry of Defence in the proceedings, agreed to the applicant's request owing to his difficult family situation. They stressed, however, that it was only a temporary solution and invited the applicant to file a request for accommodation with the Požega Municipality. On 11 April 2005 the Požega Municipal Court again adjourned the applicant's eviction until the Constitutional Court's decision, on the ground that the applicant's constitutional complaint was pending and that the creditor, that is the State, had agreed with the adjournment owing to the applicant's difficult family situation. 14. A letter of the Požega Municipality of 14 April 2005 sent to the Ministry of Defence indicates that the Municipality had no flats at its disposal where the applicant and his family could be accommodated. In a letter of 26 April 2005 the applicant expressed his intention to purchase another flat. 15. The applicant's constitutional complaint was dismissed as being ill-founded by the Constitutional Court (Ustavni sud Republike Hrvatske) on 11 July 2005. The enforcement proceedings have not been resumed so far. 16. In a letter of 6 December 2006 the applicant informed the Ministry of Defence that he was finally about to resolve his housing situation. 17. 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. 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.” 18. Section 161, paragraph 1, of the Ownership Act (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.” 19. 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: “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. ...” 20. The relevant part of the Constitutional Court's 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 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.”