CEDH, Cour (Première Section Comité), SADIKOVIĆ v. CROATIA, 12 septembre 2017, 75045/12

FIRST SECTION DECISION Application no. 75045/12 Mirsad SADIKOVIĆ against Croatia The European Court of Human Rights (First Section), sitting on 12 September 2017 as a Committee composed of: Kristina Pardalos, President, Ksenija Turković, Pauliine Koskelo, judges, and Renata Degener, Deputy Section Registrar, Having regard to the above application lodged on 15 October 2012, Having regard to the observations submitted by the respondent Government, Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr Mirsad Sadiković, is a Croatian national who was born in 1958 and lives in Zagreb. He was represented before the Court by Mr B. Knežević, a lawyer from Zagreb. 2. The Croatian Government ("the Government") were represented by their Agent, Ms Š. Stažnik. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. The applicant, a roofer by profession, was a civilian working for the former Yugoslav People's Army (hereafter "the YPA") since 1979. 5. On 6 October 1988 the YPA awarded him the specially protected tenancy (stanarsko pravo) of a flat in Zagreb measuring 22.44 square metres ("flat no. 1"). 6. On 24 July 1991 the Croatian Government issued a decree (Uredba o zabrani raspolaganja nekretninama na teritoriju Republike Hrvatske) which forbade any transactions concerning property of the YPA pending the process of dissolution of the former Yugoslavia. 7. By a decision of the Zagreb Garrison of the YPA of 1 October 1991 the applicant was awarded another flat measuring 55 square metres, with an option to purchase it ("flat no. 2"). 8. The applicant states that he moved into the new flat with his family (wife and two children) because his former flat had, by another decision of the YPA, been awarded to someone else. 9. On 3 October 1991 the Government adopted another decree (Uredba o preuzimanju sredstava JNA i SSNO na teritoriju Republike Hrvatske u vlasništvo Republike Hrvatske) under which it took over all YPA property in Croatia. 10. By a decision of 24 January 1992 the Croatian Ministry of Defence awarded the applicant's former flat (flat no. 1) to one D.K. for temporary use; D.K. moved into it two days later. 1. Civil proceedings concerning the first flat 11. On 7 June 1995 the State brought a civil action in the Zagreb Municipal Court (Općinski sud u Zagrebu) against the applicant, seeking the termination of his specially protected tenancy in respect of flat no. 1 on the grounds that he had been absent from it for more than six months without justified reason, contrary to section 99 of the Housing Act. 12. While the civil proceedings were pending, on 18 September 1996 the State concluded a sale and purchase agreement with D.K. whereby it sold him the flat in question. 13. By a judgment of 14 September 2000 the court ruled in favour of the applicant and dismissed the State's action. 14. By a judgment of 7 December 2004 the Zagreb County Court (Županijski sud u Zagrebu) dismissed an appeal by the State and upheld the first-instance judgment, which thereby became final. 2. Civil proceedings concerning the second flat 15. Meanwhile, on 13 March 1996 the State brought another civil action against the applicant, also in the Zagreb Municipal Court. This time it sought his eviction from flat no. 2 (which had been awarded to him by the YPA's decision of 1 October 1991), arguing that the decision in question was null and void as it was contrary to the decree of 24 July 1991, and that the applicant had no legal basis for occupying the flat. 16. By a judgment of 1 June 2006 the court ruled in favour of the State and ordered the applicant to vacate the flat. 17. By a judgment of 3 June 2008 the Zagreb County Court dismissed an appeal by the applicant and upheld the first-instance judgment, which thereby became final. 18. By a decision of 4 April 2012 the Constitutional Court (Ustavni sud Republike Hrvatske) dismissed the applicant's subsequent constitutional complaint. In so doing it relied on the fact that in the course of the civil proceedings the Ministry of Defence had offered the applicant a flat measuring 35 square metres, also in Zagreb, which he had refused. The Constitutional Court's decision was served on the applicant's representative on 18 April 2012. 19. It would appear that the State has not yet instituted enforcement proceedings with a view to enforcing the judgment of 3 June 2008 and evicting the applicant. COMPLAINT 20. The applicant complained under Article 8 of the Convention of the violation of his right to respect for home in that he had been left without a flat to live in.

THE LAW

21. The applicant complained that his right to respect for his home had been violated. He relied on Article 8 of the Convention, the relevant part of which reads: "1. Everyone has the right to respect for ... his home ... 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." 22. The Government argued that the applicant had never challenged the sale contract in respect of flat no. 1 and that he had been offered another flat, as established by the Constitutional Court, but had refused it. 23. The applicant maintained his complaint, but did not submit any further observations. 24. The Court accepts that the flat in which the applicant has been living is his home and that the judgment ordering his eviction from that flat amounts to an interference with the applicant's right to respect for his home, notwithstanding the fact that the judgment ordering the applicant's eviction has not yet been executed (see Ćosić v. Croatia, no. 28261/06, § 18, 15 January 2009). 25. The Court furthermore notes that the interference arose under Croatian laws regulating ownership, which allow an owner to seek repossession of his or her property when the possessor has no legal grounds for possession and pursued the legitimate aim of the economic well-being of the country (compare Paulić v. Croatia, no. 3572/06, § 39, 22 October 2009, and Orlić v. Croatia, no. 48833/07, §§ 60-62, 21 June 2011). 26. As to the proportionality of the interference, the Court notes that the applicant was the holder of a specially protected tenancy in respect of flat no. 1 and that his right was asserted by a judgment adopted in the first set of the civil proceedings described above. This means that the applicant has the right to occupy that flat. The Court also notes that even though the applicant holds a specially protected tenancy in respect of it, the flat at issue was sold to another person, D.K. However, there is nothing in the case file to show that the applicant has attempted to assert his rights in respect of that flat by challenging the sale of flat no. 1. to D.K. in civil proceedings by arguing that the sale contract in respect of that flat should be declared null and void. 27. As to the flat that the applicant currently occupies and in respect of which an eviction order has been issued, the Court notes that the national courts found that the applicant had no legal basis for occupying that flat. The Court has so far found a violation of applicants' right to respect for their home under Article 8 of the Convention in a number of cases against Croatia on the grounds that the national courts, when ordering the eviction of tenants from State-owned flats, assessed only whether there had been a legal basis for these tenants to occupy such flats, without any further assessment of the proportionality of the eviction orders (see, for example, the above-cited cases of Ćosić, Paulić and Orlić, as well as Bjedov v. Croatia, no. 42150/09, 29 May 2012, and Brežec v. Croatia, no. 7177/10, 18 July 2013). However, in the case at issue the Government claimed (and the Constitutional Court held) that another flat, also situated in Zagreb, had been offered to the applicant. The applicant for his part has not disputed or argued in any manner that the flat offered to him did not suit his needs or was in any respect inadequate. 28. Given the above background, and having regard to the margin of appreciation left to the States in housing matters (see Connors v. the United Kingdom, no. 66746/01, § 82, 27 May 2004), the Court considers that in the instant case it cannot be argued that by ordering the applicant to vacate the flat in question the domestic courts - and in particular the Constitutional Court - failed to discharge their obligation to strike a fair balance between the competing interests involved. Consequently, the interference was proportionate to the legitimate aim pursued, and was thus necessary in a democratic society. 29. It follows that this complaint is inadmissible under Article 35 § 3 (a) of the Convention as manifestly ill-founded and must be rejected pursuant to Article 35 § 4.

For these reasons

, the Court, unanimously, Declares the application inadmissible. Done in English and notified in writing on 5 October 2017. Renata Degener Kristina Pardalos Deputy Registrar President