A positive decision in cancellation of residence to the former occupancy/tenancy right holder by Constitutional Court of the Republic of Croatia

Subject:  Brief analysis of the Constitutional Court of the Republic of Croatia Decision, No.: U-III-1264/2020 dated July 12, 2022 – a positive decision in cancellation of residence to the former occupancy/tenancy right holder

According to the decision of the Constitutional Court of the Republic of Croatia, the constitutional complaint was accepted and the judgment of the High Administrative Court of the Republic of Croatia, number: Usž-4194/2019 dated 29 January 2020, was annulled as well as the judgment of the Administrative Court in Zagreb, number: UsI-4032/18 of 7/24/2019 so the case is returned to the Administrative Court in Zagreb for retrial.

Briefly, we point out that this is the case of our client J.D., a former tenancy rights holder, a returnee, who was renting an apartment in Sisak from 2008 until 2020, regularly paid all the obligations for the apartment, lived in it, but due to illness, medical treatment, and several surgeries, he was occasionally absent from the apartment. Based on the field checks of the Central State Office for Reconstruction and Housing (SDUOSZ), it was assessed that J.D. did not use the apartment, and a procedure was initiated to deregister his residence and return his valid identity card, although in addition, the same body, i.e. SDUOSZ, accepted the client’s request to replace the existing residential unit (5th floor without elevator) because of his illness the same apartment was very difficult to use. After the negative decision of the High Administrative Court of the Republic of Croatia, the procedure regarding residence ended at the Constitutional Court of the Republic of Croatia.

The assessment of the Constitutional Court states that administrative adjudication ensures the implementation of the guarantee of judicial control of the legality of individual acts of administrative authorities and bodies, and that in this regard the Constitutional Court reminds that after the entry into force of the Law on Administrative Disputes on 1 January 2012, administrative courts and the High Administrative Court of the Republic of Croatia are obliged to handle the dispute as a dispute of full jurisdiction, independently determine the factual situation, conduct a public and adversarial oral hearing and decide on the merits of the administrative matter. However, the Constitutional Court notes that courts in an administrative dispute are obliged to provide the parties with the opportunity to contest the determinations of public law bodies. With regard to the conclusion of administrative bodies and courts that this constitutional complaint applicant does not live at the address of residence, which base the conclusion on the field check as the key evidence, the Constitutional Court states that all the information in the file about the field check carried out is sketchy because there is no information on when the check was carried out ( which day and at what time, who performed it and in what way.) Apart from that, it was not contested in the proceedings that the applicant of the constitutional complaint regularly pays rent and utilities for the apartment at that address, that he receives letters at that address, that his medical documentation states that address, that he has no other real estate in the Republic of Croatia, and that no other address has been established where the applicant lives.

The Constitutional Court is of the opinion that there are numerous reasons why a person may be temporarily absent from his home, for several weeks or months, without thereby ending that person’s intention to live permanently in a certain place. Such situations are longer trips, temporary work in another place or country, longer treatment, education and similar. If such situations would lead to the deregistration of residence by official duty or to the obligation of citizens to report every such situation to the police in order to avoid such deregistration, then this would represent a significant restriction of freedom of movement. Considering the importance of residence in Croatian law for the realization of many rights, this could lead to great legal uncertainty.

The Constitutional Court considers that, especially in view of the applicant’s illness, about which he informed the body that requested the verification (SDUOSZ), too great a burden was placed on the applicant. Deregistration of residence by official duty creates very serious legal consequences for citizens, above all the duty to return the identity card, without which they can neither move nor exercise a number of their rights, and therefore the Constitutional Court assesses that the measure taken in the case of the applicant was not proportionate to the legitimate goal that tried to achieve, as well as that interference with the applicant’s right to freedom of movement and choice of residence was not necessary in a democratic society.

Therefore, the Constitutional Court assesses and determines that the disputed judgments violated the applicant’s right to freedom of movement and choice of residence guaranteed by the Art. 32 paragraph 1 of the Constitution of the Republic of Croatia and Article 2, paragraph 1 of the Protocol No. 4 to the Convention for the Protection of Human Rights and Fundamental Freedoms.

Based on the decision of the Constitutional Court of the Republic of Croatia, the case is returned to the Administrative Court in Zagreb for retrial because the applicant’s right to freedom of movement and choice of residence was limited, and the question remains to be answered whether this restriction was proportionate to the goal that was to be achieved.

CRP will continue to follow the case, because it is important for sustainable reintegration of returnees to Croatia, as well as for integration of socially vulnerable population.

 

In Sisak, August 17, 2022

CRP Sisak

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