Brief overview of the deregistration procedure
J.D. was born on January 21, 1949. in a small town near Hrvatska Kostajnica, his parents are Croatian citizens, and the client has lived in the Republic of Croatia since birth, he was educated, worked in the Republic of Croatia and acquired the right to a disability pension. Before the war, he had an apartment in Sisak, and due to the circumstances of the war he left it, for security reasons, and after the war, through a housing program as a former occupancy right holder, he rented and used an apartment in Sisak, where he resided from 2008-2020 with his wife S., who passed away in 2017.
The client is a disabled person, operated on both hips, and the apartment in which he resided was on the fifth floor of the building.
Administrative Procedure
J.D. from 2 May 2008 has a duly registered residence at the address of the apartment in Sisak. However, the Ministry of the Interior of the Republic of Croatia, acting on a letter from the Central State Office for Reconstruction and Housing Care STZB (hereinafter: SDUOSZ), conducted a field inspection and based on a lump sum assessment concluded that the client was not residing at the address of residence. On 2 October 2018, the Ministry of the Interior issued a decision declaring the client’s permanent residence and according to which decision he is obliged to return a valid identity card (valid from April 5, 2018 to permanent). According to the allegations of the Ministry of the Interior of the Republic of Croatia, the field check established that the client J.D. did not reside at the said address, but was occasionally coming for a few days to the same address, so it has therefore been established that J.D. has registered residence at the address where he does not actually live and that he has an identity card proving the address where he does not live and that the conditions for deregistration of residence have been met.
At the same time, the client is conducting proceedings with SDUOSZ to replace the existing housing unit due to his poor health and difficult movement to the apartment on the fifth floor, and SDUOSZ approved the replacement of the housing unit and is on the List of housing units’ replacement. At the same time, the procedure for the purchase of the housing unit in question was underway, also at the SDUOSZ.
Following this decision of the Ministry of the Interior of the Republic of Croatia on deregistration of residence, an administrative lawsuit was filed.
Administrative dispute
On November 8, 2018, CRP initiated an administrative dispute and the administrative lawsuit emphasized that the allegations of the Ministry of the Interior of the Republic of Croatia do not correspond at all to the actual facts or to the official records of other public bodies and institutions of the Republic of Croatia. The Ministry of the Interior states that it acted on the letter from the SDUOSZ, but the plaintiff on July 9, 2018, submitted a request for replacement of the housing unit and SDUOSZ with its letter dated 20 July 2018 acknowledged receipt of the request and included J.D. on the list forwarded to the Service-Regional Office in Petrinja. Thus, the client J.D. is in the process of requesting the replacement of an existing housing unit due to his illness, as he finds it difficult to use the apartment on the 5th floor, and he is also in the process of buying an apartment, which clearly shows that he is always in the same apartment. In addition, it was emphasized that J.D. has lived in the same apartment for more than ten years, takes care of the same apartment, pays for utilities and all other expenses, so the interpretation of the Ministry of the Interior of the Republic of Croatia that the client J.D. is not living in the apartment is not clear at all.
In addition, emphasis was placed on the fact that J.D. is an elderly and very ill person, has a problem with his hips and has difficulty moving, has impaired hearing and is not quite sure if during the field visit, he may have been to the doctor or perhaps even in the apartment and did not hear the doorbell ring. The fact that a field visit that day did not find him does not speak in favor of J.D. he is not constantly in the apartment and to come to it occasionally, because J.D. as a sick person had to go to doctors, he was waiting for surgery, and he had to constantly perform medical examinations and controls. J.D. never denied the fact that he sometimes visit his son and daughter-in-law in BiH, but he completely denied the fact that he was not always in the apartment. According to the opinion and interpretation of the Ministry of the Interior, the client J.D. should not leave the apartment anywhere, he should not visit relatives and friends, i.e. such treatment restricts his freedom of movement and violates his constitutional rights stated in the provisions of Art. 32 of the Constitution of the Republic of Croatia.
The administrative lawsuit pointed out that the confiscation of the identity card encroached on the exercise of a number of other rights of the client J.D. as a citizen of the Republic of Croatia. Namely, J.D. without an identity card cannot exercise his rights such as the right to health care, the right to social welfare and a number of other rights. Therefore, during its proceedings, the Ministry of the Interior did not take into account the insight into the official records of other bodies of the Republic of Croatia, nor did it take into account the consequences of confiscating J.D.’s identity card, nor the fact that J.D. elderly and sick person, is in the process of buying off the apartment and replacing an existing housing unit, and for which housing unit he has exercised the right to housing as a former occupancy right holder, who has no other property and another home, and this procedure discriminates against the plaintiff’s right to home.
The hearing in the administrative dispute in question was held on July 17, 2020.
Judgment of the Administrative Court in Zagreb
Administrative Court in Zagreb on July 24, 2020 renders a judgment, number: UsI-4032/18, rejecting the plaintiff’s claim for annulment of the decision of the Ministry of the Interior of the Republic of Croatia, Police Department in Sisak-Moslavina County with the explanation that the client as the plaintiff did not question the legality of the contested decision with his allegations, and neither submitted nor proposed any evidence in support of his claims that he lived at the address in question in terms of the provision of Article 2 of the Law on Residence and by the same decision of the Ministry of the Interior did not violate the law to his detriment. It is also stated that having in mind all the above and the fact that the client as the plaintiff only claims, and in no way proves that he resides at the address in question and according to the evidence in the file obtained in the proceedings, he also disputes his allegations, and in support of which he also speaks the fact that the delivery of both the summons and the impugned decision to the client J.D. executed by way of mailbox and that he did not pick up the documents listed at the address in question.
The same verdict was appealed to the High Administrative Court of the Republic of Croatia on August 1, 2019 and in the appeal It was pointed out that the client in the administrative dispute submitted as evidence documentation on the realized right to housing at the disputed address of residence, documentation on applying for the purchase of the apartment in question and even for replacing the same housing unit with another because he was very ill and he apartment is on the fifth floor, and in addition he enclosed his medical documentation and copies of invoices for utilities that he has been paying regularly since 2008, when he has been in the apartment, so all this documentation clearly indicates that this is not a dispute without any evidence.
Judgment of the High Administrative Court of the Republic of Croatia
On January 29, 2020, the High Administrative Court of the Republic of Croatia ruled a judgment no. Usž.4194 / 19, rejecting the appeal and confirming the judgment of the Administrative Court in Zagreb, business number: UsI-4032/18 of 24 July 2019. The explanation states that the field inspection established that the client J.D. was not found at the address of the registered residence and an interview was held with the tenants’ representative who stated that the client and his family members did not live at the address in question, but occasionally came and stayed for a few days. J.D. does not reside at the address of residence and that the client has only disputed the established factual situation in a lump sum and does not offer or propose any evidence for his allegations.
Proceedings before the Constitutional Court of the Republic of Croatia
As the client submitted clear and indisputable evidence of his residence in the apartment during the administrative dispute, which he further supported with medical documentation about his illness and the need to go for frequent medical examinations, which is why he cannot be in the apartment permanently, he has been paying regularly since 2008, when he entered the apartment, CRP believe that this procedure discriminated and endangered the client, so CRP assisted the client with filing a constitutional complaint.
In the constitutional complaint, the emphasis were placed on the fact that the circumstance that the client was not found at the address of the registered residence, i.e. that he received the mail through the mailbox, is not sufficient to conclude that the client does not live at the stated address. The provisions of the Residence Act do not prescribe how much time during the year someone must live at the registered residential address in order to be considered that a person actually lives at that address, nor are there any special restrictions in this regard. According to the interpretation of the Ministry of the Interior of the Republic of Croatia, a client should not leave the apartment at all, should not go to a doctor or visit acquaintances and relatives, which violates the client’s right to freedom of movement and the Article 32 of the Constitution of the Republic of Croatia.
The client has been living in the said apartment, i.e. at the disputed address of residence since 2008, i.e. for more than ten years, he pays utilities regularly, takes care of the apartment and in no case can his visits to the doctor, groceries, and visits to relatives be considered permanent absence from the address of residence. The client is disabled, is regularly treated because he has a problem with movement (hip surgery) as well as a person who has no other property and for whom the apartment in question is the only property and his home, and this treatment violated, among other things, his right to freedom of movement and choice of residence, the right to a home and the right to equality, social justice, national equality and respect for human rights as well as the right to the protection of family life, dignity, reputation and honor.
The constitutional complaint was filed on March 13, 2020, and by the Decision of the Constitutional Court of the Republic of Croatia dated July 12, 2022, the constitutional complaint was adopted and the judgment of the High Administrative Court of the Republic of Croatia, number: Usž-4194/2019 of January 29, 2020, was repealed and the judgment of the Administrative Court in Zagreb, number: UsI-4032/18 of 7/24/2019 and the case is returned to the Administrative Court in Zagreb for retrial.
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 the like. If such situations would lead to 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. Given the importance of residence in Croatian law for the realization of many rights, this could lead to great legal uncertainty.
Likewise, the Constitutional Court considers that, especially in view of the applicant’s illness, about which he informed the body that requested the verification (Central State office for reconstruction and housing care – 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.
In conclusion: 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 Art. 32, paragraph 1 of the Constitution of the Republic of Croatia and Art. 2 para 1of the Protocol No. 4 to the Convention for the Protection of Human Rights and Fundamental Freedoms.
CRP Sisak is handling all administrative procedures and emphasizes the importance of creating positive court practice.
Complaint to the Ombudsman
As after the filing of the constitutional complaint, new circumstances arose which completely devalued, more precisely discriminated against the person of the client J.D., on 23 June 2020, CRP lodged a complaint with the Office of the Ombudsman. Namely, on 14 May 2020, when the client was returning from his son from BiH after recovering from the second hip operation, his identity card was confiscated at the Hrvatska Kostajnica border crossing with a certificate of confiscation.
Under the pressure of the situation, the client found itself in a hopeless situation because he lives alone, he has to be away from the apartment in order to perform all his obligations, and is unable to prove all of the above, he came to a position to return the apartment and leave the Republic of Croatia. The same was suggested to him in the SMC Police Department; more precisely, he was instructed that he could get a new ID card with an address in BiH. The client was issued the same card on June 9, 2020, returned the apartment to SDUOSZ, RU Petrinja, and at the end of June 2020 moved to his son in BiH.
So, this is an example of discrimination on several grounds because the client is discriminated against as a disabled person, as a member of the Serbian national minority, and also as the ex-occupancy/tenancy right holder, because in fact such unreasonable and incomplete treatment of the client J.D. inflicted excessive damage and injustice within the housing care program. CRP Sisak believe that within the on-demand checks SDUOSZ trust was given to the tenants’ representative, who does not know or cannot know where the tenants of the building travel every day, what obligations they have, etc., and that such incomplete checks brought the client to the situation of deregistration. We emphasize that at the same time SDUSOZ conducted the procedure of checking residence, while on the other hand the client at the same office was in the process of replacing the housing unit, and even in the process of buying the apartment, which is unheard of and only shows the incompetence of the system.
Finally, on 9 June 2020, the client received a new ID card, but with an address in BiH. CRP Sisak believe that the client was discriminated by this treatment, that his freedom of movement was restricted due to going to his BiH family, and that his right to a home was endangered because he had to return the apartment, he lived in.
CRP hereby point to this case, in order to prevent further cases of discrimination on this basis.
CRP Sisak
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