Published on 2 October 2023

SECOND SECTION

Application no. 3249/22 Duje JELAVIĆ against Croatia lodged on 5 January 2022 communicated on 12 September 2023

SUBJECT MATTER OF THE CASE

The application concerns the applicant’s eviction from a flat in which he was living since his birth, and the adequacy of the reasons given by the Constitutional Court when dismissing his constitutional complaint.

The applicant’s grandmother had a specially protected tenancy of a flat in Split which was in private ownership. The applicant was a member of her household.

In 2013 the applicant instituted civil proceedings against the owner of the flat with a view to obtaining the status of a protected lessee under the 1996 Lease of Flats Act. The owner of the flat brought a counterclaim seeking his eviction. While the first-instance court ruled for the applicant, the second-instance court overturned the first-instance judgment, dismissed his action, allowed the counterclaim and ordered him to vacate the flat. The second-instance court held that the applicant’s grandmother never instituted the relevant civil proceedings to convert her specially protected tenancy into a protected lease. Had she done so the applicant, as a member of her household, would have been able to benefit from the status of a protected lessee.

The applicant then lodged a constitutional complaint arguing, inter alia , that his grandmother could not have instituted civil proceedings to convert her specially protected tenancy into a protected lease because in the relevant period between the entry into force of the Lease of Flats Act in November 1996 and her death in December 2004 the owner of the flat had been unknown. In particular, the individual who had sought his eviction had become the owner of the flat only in December 2007 by inheriting it from the previous owner who had died in 1982. Furthermore, the new owner had never informed the applicant that she had become the owner of the flat. In support of his arguments the applicant relied on the Constitutional Court’s decision in an earlier similar case no. U-III-3856/2013. The applicant also submitted that the second-instance judgment was in breach of his right to respect for his home.

However, the Constitutional Court dismissed the applicant’s constitutional complaint.

The applicant complains under Articles 6 § 1 of the Convention that the Constitutional Court did not address his key arguments in the case. In particular, he avers that it did not answer his argument that his grandmother could not have sought to convert her specially protected tenancy into a protected lease. He also contends that the Constitutional Court did not explain how its decision in his case was different from its decision in the case no. U- II-3856/2013.

The applicant also complains under Article 8 of the Convention that the second-instance judgment ordering his eviction was in breach of his right to respect for his home.

QUESTIONS TO THE PARTIES

1. Did the Constitutional Court give sufficient reasons for its decision, as required by Article 6 § 1 of the Convention (see Jaćimović v. Croatia , no. 22688/09, 31 October 2013; Atanasovski v. the former Yugoslav Republic of Macedonia , no. 36815/03, 14 January 2010; Ruiz Torija v. Spain , 9 December 1994, Series A no. 303 A; and Hiro Balani v. Spain , 9 December 1994, Series A no. 303-B)? In particular, did it (adequately) reply to the applicant’s argument that his grandmother could not have sought to convert her specially protected tenancy into a protected lease, and did it explain how its decision in his case was different from its decision in the case no. U-III-3856/2013?

2. Was the second-instance judgment ordering the applicant to vacate the flat in which he was living in breach of his right to respect for his home, guaranteed by Article 8 § 1 of the Convention? In particular, were the domestic courts required to carry out a proportionality analysis (compare, for example, Bjedov v. Croatia , no. 42150/09, 29 May 2012; Paulić v. Croatia , no. 3572/06, 22 October 2009; and Ćosić v. Croatia , no. 28261/06, 15 January 2009, and contrast with F.J.M. v. the United Kingdom (dec.), no. 76202/16, 6 November 2018; and Vrzić v. Croatia , no. 43777/13, §§ 59-73, 12 July 2016, and see also Vukušić v. Croatia, no. 69735/11, § 48, 31 May 2016)?