SECOND SECTION

DECISION

Application no. 11514/18 Ena TRUMBIĆ against Croatia

The European Court of Human Rights (Second Section), sitting on 7 November 2023 as a Committee composed of:

Pauliine Koskelo , President , Lorraine Schembri Orland, Davor Derenčinović , judges , and Dorothee von Arnim, Deputy Section Registrar,

Having regard to:

the application (no. 11514/18) against the Republic of Croatia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 2 March 2018 by a Croatian national, Ms Ena Trumbić (“the applicant”), who was born in 1948, lives in Split and was represented by Mr S. Štimac, a lawyer practising in Split;

the decision to give notice of the application to the Croatian Government (“the Government”), represented by their Agent, Ms Š. Stažnik;

the parties’ observations;

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASE

1. The application concerns the applicant’s eviction from the premises which she considers to be an integral part of a duplex flat in Split in which she has been living as a tenant since 1981.

2. In 2000 the owner of the flat in question, Mr P.P.A., brought a civil action against the applicant and her husband, Mr V.T., in the Split Municipal Court seeking their eviction. He submitted that they had been occupying the flat without a legal basis. In particular, he claimed that even though during the socialist period the relevant authorities had awarded the specially protected tenancy ( stanarsko pravo ) of the flat to Mr P.T. – who was the applicant’s husband’s father and her father-in-law – she and her husband, as members of the household, had not taken the required steps to transfer the tenancy to them after P.T.’s death in 1977. The owner also averred that the applicant and her husband had unlawfully occupied and used for living purposes the upper floor which was not part of the flat in question and thus had not been covered by the specially protected tenancy.

3. After the owner’s death in 2003, his three heirs became the owners of the flat and took over the proceedings in his stead.

4 . In 2009 the applicant’s husband brought a counterclaim asking the court to recognise that the specially protected tenancy of the flat had automatically passed to him after his father’s death and that he had ex lege acquired the status of a protected lessee ( zaštićeni najmoprimac ) after specially protected tenancy had been abolished. Since the owner had refused to conclude a protected lease contract with him, he also asked the court to issue a judgment which would substitute such contract. He also claimed that the lower floor alone could not constitute a flat as it did not have a toilet or a kitchen. Those were situated in the upper floor which was thus an integral part of the flat and covered by the tenancy.

5 . The report obtained from a construction expert during the proceedings suggested that pursuant to current construction standards, premises could not constitute a flat unless they were equipped with a toilet and a kitchen. However, different construction standards were applicable in 1967 when P.T. had been awarded the specially protected tenancy of the flat in question. According to those standards, premises could constitute a flat if the building in which the flat was located had common sanitary facilities. The expert also observed that the lower floor could be transformed into a flat, within the meaning of the current standards, with “minor remodelling (by connecting it to water supply and sewage)”.

6 . By a judgment of 17 June 2015, the Split Municipal Court recognised the applicant’s husband’s status of a protected lessee, which was derived from the specially protected tenancy he had acquired after P.T.’s death. However, the court established that the two floors of the flat constituted separate housing units and that the applicant’s husband and the members of his household had the right to occupy only the lower floor measuring 55.17 square metres in surface (hereinafter “the flat”). The upper floor, comprising the toilet, the kitchen and some ancillary rooms, constituted the attic (hereinafter “the attic”) of the building in which the flat was located, measuring 36.19 square metres, which they had been using unlawfully. Unlike the flat, which remained in P.P.A.’s ownership, the rest of the building, including the attic, had been nationalised in 1960 by the socialist authorities and, after the democratic changes, returned to his heirs in 2014 in restitution proceedings.

7. The Municipal Court therefore dismissed the civil action and allowed the counterclaim in so far as they concerned the flat. Consequently, it adopted a judgment substituting a protected lease contract in respect of the flat. At the same time, it ordered the applicant and her husband to vacate the attic.

8 . In their remedies against the first-instance judgment the applicant and her husband reiterated their argument that the lower floor could not constitute a flat because it did not have a toilet or a kitchen. They also added that the courts had not carried out a proportionality analysis. However, their appeal was dismissed, and their appeal on points of law and constitutional complaint were declared inadmissible. Their arguments concerning proportionality, and the lack of a toilet and a kitchen were not addressed.

9. The applicant’s husband died in January 2017, while the case was pending before the Supreme Court and the Constitutional Court. After his death the applicant, as a member of his household, automatically became the protected lessee of the flat at issue.

10. The civil proceedings in question ended on 5 September 2017 when the Constitutional Court notified the applicant of its decision of 13 July 2017.

11 . In the ensuing enforcement proceedings, the applicant in her appeal against the enforcement order and her request to have the enforcement postponed argued that she was elderly, poor and in bad health, and that her eviction from the attic would effectively render the flat unfit for living because she would not have access to a toilet or running water. In a decision dismissing her request for postponement, the enforcement court stated that old age, poverty and bad health could, in principle, constitute justified reasons for postponing the enforcement until social services provided accommodation for such an enforcement debtor, but not in her case because she had a flat to live in. The court did not address her argument concerning the lack of a toilet or access to running water.

12. Before the Court the applicant complained, under Article 8 of the Convention, that the judgment ordering her to vacate the attic had constituted a violation of her right to respect for her home.

THE COURT’S ASSESSMENT

13. It was not disputed between the parties that the judgment ordering the applicant to vacate the attic constituted an interference with her right to respect for her home (compare Galović v. Croatia (dec.), no. 54388/09, § 56, 5 March 2013). The Court sees no reason to hold otherwise and considers that the said interference was provided for by law as it was based on the relevant property and housing legislation, specifically the provisions which entitle owners to seek repossession of their property when the possessors have no legal grounds for possessing it. The interference also pursued the legitimate aim of protecting the rights of others.

14. As regards proportionality, the Court firstly notes that the domestic courts found that the applicant and her late husband had occupied the attic unlawfully (see paragraph 6 above), and reiterates that in considering whether an eviction is proportionate, the position of those objecting to it is less strong if their home was established unlawfully (see, for example, Faulkner and McDonagh v. Ireland (dec.), nos. 30391/18 and 30416/18, 8 March 2022).

15. Secondly, the Court observes that in the expert report obtained during the civil proceedings the expert observed that the flat in question could be connected to water supply and sewage with minor remodelling (see paragraph 5 above). The applicant did not contest this. Since it therefore seems feasible to connect the flat to water supply and sewage, and to do so without a lot of works or investment, the Court finds that ordering the applicant to vacate the attic was proportionate to the legitimate aim pursued.

16. As regards the applicant’s argument that the domestic courts had not expressly carried out a proportionality assessment, the Court reiterates that this obligation does not automatically apply in cases where the owner is a private individual or company (see Vrzić v. Croatia , no. 43777/13, § 67, 12 July 2016, and F.J.M. v. the United Kingdom (dec.), no. 76202/16, §§ 37 ‑ 41, 6 November 2018).

17. In the light of the foregoing findings, it follows that the present application is manifestly ill-founded and that it must therefore be rejected pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

18. In view of this conclusion, the Court does not find it necessary to examine the Government’s objection to the admissibility based on the lack of a significant disadvantage.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 30 November 2023.

Dorothee von Arnim Pauliine Koskelo Deputy Registrar President