Information Note on the Court’s case-law No. 115

January 2009

Ćosić v. Croatia - 28261/06

Judgment 15.1.2009 [Section I]

Article 8

Article 8-1

Respect for home

Lack of procedural safeguards in proceedings for eviction of the applicant: violation

Facts: In 1984 the applicant, a school teacher, was granted a flat temporarily leased from its then owner, the Yugoslav People's Army. The lease expired in 1990. In 1991, by taking over all Army property, the State became the owner of the flat. Since she had not been provided with alternative accommodation, the applicant remained in the flat and continued to pay rent. In 1999 the State brought proceedings for her eviction. In 2002 the first-instance court granted the State's claim and ordered the applicant's eviction even though she had nowhere else to live. The applicant's further appeals were dismissed.

Law: Even though the applicant had not been evicted by the date of the Court's judgment, the court decision obliging her to vacate the flat nonetheless amounted to an interference with her right to respect for home. In this connection, the Court recalled that the proportionality requirement under paragraph 2 of Article 8 raised questions of procedure as well as of substance. In particular, the decision-making process leading to measures interfering with rights protected under Article 8 needed to be fair and to afford due respect for the interests safeguarded to the individual by that provision. The Court further recalled that any person at risk of being deprived of home should in principle be able to have the proportionality and reasonableness of such a drastic measure determined in light of the relevant Convention principles, notwithstanding that under domestic law his or her right of occupation had come to an end. In the applicant's case the domestic courts' findings were limited to the conclusion that under applicable domestic law the applicant had lost any legal entitlement to occupy the flat and that she therefore had to vacate it. While recognising the applicant's difficult situation, the first-instance court expressly stated that its decision had to be based exclusively on the applicable laws. The national courts thus failed to analyse the proportionality of the measure to be applied against the applicant despite their duty not to interpret or apply the provisions of domestic law in a manner incompatible with Croatia's obligations under the Convention. In conclusion, the Court considered that in the proceedings for her eviction, the applicant had not been afforded adequate procedural safeguards.

Conclusion : violation (unanimously).

Article 41 – EUR 2,000 in respect of non-pecuniary damage.

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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