Up-619/17

Reference no.:
Up-619/17
Objavljeno:
Official Gazette RS, No. 17/2019 and OdlUS XXIV, 22 | 14.02.2019
ECLI:
ECLI:SI:USRS:2019:Up.619.17
Abstract:
In certain instances, the right to respect for one's home determined by the first paragraph of Article 36 of the Constitution ensures individuals the right to a judicial assessment of the proportionality of the interference before the impending loss of their home occurs. Such assessment must be particularly diligent when an individual is threatened with eviction from a state-owned or non-profit rented apartment. Such naturally applies provided the individual refers to the mentioned right already in proceedings before [regular] courts.

In the case at issue, the Higher Court changed the first instance court’s judgment such that it granted the Municipality’s claim to evict the complainant from a non-profit rented apartment without carrying out a careful assessment of the proportionality of the interference with the complainant's right to respect for her home beforehand and without taking into account all the circumstances of the case, although the statutory regulation (both substantive and material) enables such balancing. Thereby, the court violated the complainant’s right to respect for her home.
 
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[The text published below is a summary prepared for the annual report.]
 

By Decision No. Up-619/17, dated 14 February 2019 (Official Gazette RS, No. 17/19), the Constitutional Court decided on the constitutional complaint of a complainant whose lease contract for a non-profit rental apartment was cancelled. In civil proceedings, the court of first instance dismissed the claim of the Municipality of Piran to cancel the complainant’s lease contract for a non-profit rental apartment due to the existence of fault grounds, i.e. lengthy rent payment default. The Higher Court, however, upheld the appeal of the municipality and changed the judgement of the first instance court such that it granted the claim for the cancellation of the lease contract and ordered the complainant to vacate the apartment within a period of sixty days from the finality of the judgement.

 

In the constitutional complaint, the complainant objected to the following key positions of the challenged judgment: (1) the long-term social hardship of the complainant does not substantiate a circumstance that would prevent the cancellation of the lease contract of a tenant in a non-profit apartment in accordance with the first paragraph of Article 104 of the Housing Act; and (2) defaulting on the payment of rent can count as fault grounds for the cancellation of the contract regardless of the fact that the complainant was discharged from these liabilities by a final order issued in personal bankruptcy proceedings already before the completion of the first instance proceedings.

 

In the case at issue, the Constitutional Court considered the important constitutional question of whether by deciding that the complainant has to move out of the non-profit rental apartment her right to respect for one’s home – which is protected within the framework of the right to the inviolability of dwellings determined by the first paragraph of Article 36 of the Constitution and the right to respect for private and family life determined by Article 8 of the ECHR – was possibly interfered with. Neither Article 8 of the ECHR nor the first paragraph of Article 36 of the Constitution ensure individuals the right to be provided a home; however, in certain instances the right to respect for one’s home ensures an individual the right to a judicial assessment of the proportionality of the interference before the imminent loss of his or her home. In this respect, the Constitutional Court took into account that in non-profit tenancy relationships also the principle of a social state determined by Article 2 of the Constitution is significantly underlined.

 

Whether an individual’s residence in a specific place already entails his or her home within the meaning of Article 8 of the ECHR depends on the factual circumstances of the concrete case. The right to respect for one’s home can be invoked also by a person who is not the owner of an apartment if he or she can demonstrate the existence of a sufficient and continuous link with a certain space. It is undisputed that the complainant had lived in the non-profit apartment since the conclusion of the lease contract on 27 December 2001, thus for a period of fifteen years at the time of the proceedings before the court of first instance. This apartment therefore undoubtedly represented her home and the decision of the Higher Court ordering the complainant to move out interfered with the complainant’s right to respect for one’s home. The loss of one’s home represents the most extreme interference with the right to respect for one’s home.

 

In contrast to the court of first instance, the Higher Court assessed that by referring only to long-term social hardship the complainant did not prove the existence of particularly exceptional circumstances due to which it would not be possible to cancel the lease contract. It did not, however, thereby assess whether considering all the circumstances of the concrete case the obligation to move out of the apartment represents a proportionate measure. It is precisely long-term social hardship that as a general rule indicates that the tenant of a non-profit apartment is in fact not able to pay the rent (thus that, as a general rule, it was not the case that the tenant did not pay the rent although he or she was able to). The Higher Court should have carefully weighed, by taking into consideration all of circumstances of the case, whether the case at issue indeed concerned a situation in which the complainant did not take her obligation to pay the rent seriously enough despite the received financial assistance or whether perhaps the complainant was in fact not able to pay the rent. It is only following such a careful assessment of the circumstances of the case that the Higher Court should have assessed whether the eviction of the complainant from the non-profit rental apartment represents a proportionate measure required to protect the interests of the Municipality or broader public interests.

 

The Higher Court failed to take into account the requirements following from the right to respect for one’s home guaranteed to the complainant also when assessing the second key position of the first instance court judgement, which by itself sufficed for the dismissal of the claim. It adopted the position that the final discharge of liabilities cannot be taken into account, as the moment in which an action is lodged is decisive for the assessment of whether the conditions for eviction are fulfilled. The Higher Court did not state detailed reasons for this position. In view of the different position in legal theory and case law according to which a court in civil proceedings can take into account the state of the facts existing at the moment of the closure of the main hearing before the court of first instance, the Higher Court should have stated more detailed reasons for its position. Since it did not state detailed reasons why, after the final discharge of past liabilities (which the court of first instance was allowed to take into account in view of generally accepted procedural rules), eviction due to the non-payment of discharged liabilities (under no circumstances can the Municipality any longer claim such liabilities from the complainant) allegedly represents a necessary measure for protecting the interests of the Municipality (in particular taking into consideration the fact that, in accordance with the findings of the court of first instance, the complainant has been regularly fulfilling her new liabilities under the lease contract), it violated the complainant’s right to respect for one’s home. 

 

Due to the fact that when the Higher Court upheld the claim of the Municipality to evict the complainant from the non-profit rental apartment it did not carry out a particularly careful assessment of the proportionality of the interference with the complainant’s right to respect for one’s home that took into consideration all of the circumstances of the case at issue, it inadmissibly interfered with her right to respect for one’s home determined by the first paragraph of Article 36 of the Constitution. The Constitutional Court thus abrogated the challenged judgment of the Higher Court and remanded the case to that court for new adjudication.

 

 
 
Document in PDF:
Type of procedure:
constitutional complaint
Type of act:
individual act
Applicant:
Ana Komljenović, Piran
Date of application:
12.07.2017
Date of decision:
14.02.2019
Type of decision adopted:
decision
Outcome of proceedings:
annulment or annulment ab initio
Document:
AN03949