CASE OF UNIFAUN THEATRE PRODUCTIONS LIMITED AND OTHERS v. MALTA

Violation of Article 10 - Freedom of expression-{general} (Article 10-1 - Freedom of expression)

Carlo Ranzoni;Egidijus Kūris;Ganna Yudkivska;Iulia Motoc;Marko Bošnjak;Paulo Pinto De Albuquerque;Vincent A. De Gaetano

The first applicant , ORG , is a limited liability company which produces theatrical performances in NORP theatres . The second and third applicants are the CARDINAL directors of the company . The fourth applicant is the artistic director of the theatrical production known as “ Stitching ” , a play written by the NORP playwright PERSON , originally published in DATE in GPE by the publishing house PERSON . The fifth as well as the third applicants are CARDINAL actors engaged to perform in the mentioned production ( as PERSON and PERSON , the main characters ) .

In DATE , the first applicant , via the second applicant , decided to produce the play Stitching for the theatre audiences in GPE , and proceeded to obtain the necessary performance licence from the author and his agent . The relevant authorisation was granted to the first applicant by the author and agent of the production following the payment of a fee .

On DATE the first applicant lodged an application with ORG ( “ the Board ” ) , in order for a rating certificate to be issued in terms of LAW ( see Relevant domestic law ) . The relevant fee was paid and a clean copy of the script submitted .

At the same time , the first applicant entered into a reservation agreement with a theatre for CARDINAL dates DATE and DATE and hired the third , fourth and fifth applicants in connection with the services for such play .

On DATE the ORG issued a certificate ( no . DATE ) , which was received by the applicants on an unspecified date , stating that the play had been examined by its chairperson ( GPE ) and that it was decided that it was “ Banned – Banned and disallowed ” . No reasons were provided for the decision . Before ORG submitted a further classification certificate with the same conclusion , also dated DATE , which stated that the classifier was GPE , as well as GPE , DATE and FAC ( the latter names added by means of an asterisk ) . The applicants submitted that they had never received the certificate submitted by the Government . The Government explained that the latter certificate was an internal document .

On DATE the first applicant , via the second applicant , sent an email , followed by a telephone call , to the chairperson of ORG enquiring about the decision . No reasons were provided by the chairperson .

On DATE the first applicant , via its legal counsel , sent a letter to the chairperson requesting a reconsideration of the decision in terms of Regulation DATE ) of ORG .

NORP By means of a letter of CARDINAL DATE the ORG informed the first applicant , via the latter ’s legal counsel , that the original decision was reconfirmed . The letter contained no reasons and did not list the names of the persons who had been involved in the review .

On DATE another letter was sent to the first applicant by the chairperson . It enclosed a document dated DATE addressed “ to whom it may concern ” , which had been deposited with the Commissioner of Police , containing the reasons why the production was banned , namely :

“ CARDINAL . Blasphemy against the State Religion – pages CARDINAL and CARDINAL

Obscene contempt for the victims of FAC – page CARDINAL

An encyclopaedic review of dangerous sexual perversions leading to sexual servitude CARDINAL pages CARDINAL , DATE and several others

PERSON ’s eulogy to the child murderers PERSON and PERSON – page CARDINAL

Reference to the abduction , sexual assault and murder of children – page CARDINAL

In conclusion , the play is a sinister tapestry of violence and perversion where the sum of the parts is greater than the whole . ORG feels that in this case the envelope has been pushed beyond the limits of public decency . ”

On DATE the applicants filed a judicial protest against the chairperson , in her personal capacity and as Chairperson of the ORG , the Commissioner of Police and the Attorney General claiming that the actions of the ORG were illegal in so far as they constituted a violation of LAW of LAW and LAW . They considered the defendants responsible for any damage suffered .

By DATE ( DATE following what had to be the first performance date ) , no reply was received to the mentioned judicial protest . In consequence , the applicants called a press conference explaining the situation , noting that they were adhering to the law but that they were determined to perform the play at some stage .

In TIME of the same day , the applicants and their legal counsel were summoned for questioning at ORG . The applicants were sternly warned by a police inspector that they would face immediate arrest if they attempted to stage the play .

Rehearsals for the production carried on unabated . According to the applicants CARDINAL persons watched the rehearsals and none of them found the play objectionable .

The DATE ’s decision was not revoked and an invitation to the Chairperson to attend a rehearsal ( as members of ORG sometimes did in connection with other performances ) remained unanswered .

On DATE the applicants instituted constitutional redress proceedings complaining that they had suffered a breach of LAW . They also claimed damage and redress . Complaining under LAW they claimed that they did not have a fair hearing before ORG in so far as they had no hearing and no possibility to make submissions , nor were any reasons for the decision ever communicated to them . They also relied on the relevant provisions of LAW .

By a decree of CARDINAL DATE the court rejected a request for the production to be shown behind closed doors to the court and the defendants .

During these proceedings the court heard several witnesses which it classified as ( i ) those who acted in the play and had thus read the script and performed it in rehearsals , ( ii ) persons who watched the rehearsals but did not read the script and ( iii ) the defendants who read the script but did not watch the rehearsal .

The court heard the applicants , CARDINAL witnesses ( who had watched the rehearsals ) produced by the applicants , namely , TIME a consultant psychiatrist , PERSON an educator , child psychologist and actress , GPE a tourism marketing executive and actor , a priest who was a former film classifier for the Archdiocese of GPE , as well as the author of the play . The latter testified that the play had been performed uninterruptedly in all parts of the world and extensively in LOC , during which time it had collected a number of awards .

The author described the play as follows :

“ A couple called PERSON and PERSON , a very normal couple but however a couple who find themselves in relationship difficulties , there have been betrayals , they ’re wondering whether to continue with their relationship . PERSON discovers that she is pregnant by PERSON and so a large part of the play is concerned with them discussing whether or not to have the child . Ultimately they decide to have the child but they decide to do so in order to save their relationship , one might say for somewhat impure motives , they feel that having this child will keep them together . However their relationship continues to disintegrate and at CARDINAL point during a fight they are having between themselves when their attention is diverted elsewhere , the child is involved in an accident and then dies . Obviously this is a huge trauma for them and they are driven apart . They come back together again sometime later , maybe DATE and meet and for them their relationship is not quite finished and they come back together in their grief because they are the only other people who understand the depths of their grief . When they come together they can only do so in a perverted fashion , where PERSON actually poses as a prostitute . She wants to make their sexual relationship a matter of commerce in order to distance herself from the emotions .

What then ensues is a very violent and dark relationship , a kind of a punishment of themselves , confessions of their guilt . Eventually PERSON is tipped into clinical mental illness and performs an act of self - mutilation which she believes will restore her to a virginal state , and that is what finally blows apart their relationship . In a final coda PERSON meets PERSON DATE when she has obviously received treatment for her mental illness and has in fact converted to NORP and both of them decide to go their separate ways . ”

He further testified as follows :

“ ( Concerning pornographic references ) I would not for instance have used real pornographic pictures . I felt that that would be needlessly offensive for people however another director might chose to do so . ...

( Concerning women in FAC walking towards death ) it should not be an unfamiliar concept that in their grief that couple confess to thoughts , to feelings that they feel guilty about . The play to some extent is about life and about death . When he talks about masturbating and using as his material pictures of women from FAC , this is something that occurs when he is a small child , this occurs when he is a very young child . He says that it is the first time that he masturbated which would imply that it is reasonably early . At that time of life a young man is completely concerned with procreation , with the creation of life and he understands nothing of death , of mortality . So in fact that is what actually that phrase is about , the fact that he is confessing , he is saying I knew nothing about death , I did not look at the atrocity of life , I saw only the nudity . So it ’s actually nothing to do with FAC , it ’s to do with sexual urges and it ’s to do with him , you know small children do n’t understand FAC .

( In reply to a court ’s question concerning the swearing / blasphemy ( daagħa ) ) well that ’s not a concept that ever crossed my mind . I ’m not a religious person .

( Domestic court ’s question - Does the script allow the director to put aside certain references to things that could be described by people as hard ? Will the text lose by the director leaving it out ? ) I dare say that a director could remove CARDINAL or CARDINAL swear words but that would all have to be taken on the case by case basis , but largely speaking I would say they would suffer yes because there is a reason why every line is in every one of my plays . There ’s a reason for it and I ’m happy to stand here and justify them DATE .

( Domestic court ’s question - As far as PERSON is concerned an omission by the director could affect the whole performance ? ) Yes absolutely . ”

P.M. , a consultant psychiatrist , stated that in his opinion the play was a love story which unfortunately turned very badly . He explained that following the death of their son through their own negligence , the main characters had a relationship based on various fantasies , until the female character became mentally ill . It was a sad story , with however a redeeming feature , in that the CARDINAL finally manage to get back a balance in their life . He testified that there was nothing pornographic in the story and the bad language was in the context of the emotions being felt by the couple .

J.S. , a child psychologist , stated that in her opinion the play concerned a tragedy of a couple going through a crisis , which reached its peak when their son had died in an accident . She explained that the couple tried to connect in ways which were not necessarily conventional . She considered that it was a sensitive play that called for a mature audience . In reply to a court ’s question concerning a specific part of the text , PERSON replied that she was not shocked because she could not dissociate her female gender from her being a psychologist .

The priest ( who saw the rehearsal but did not read the script ) considered that he would have classified it for wise adults ( bil - għaqal ) . He explained that when a person was suffering she or he “ may lose it ” and enter into areas which decent people may object to . However , in his view that was the human reality . When CARDINAL was ready to study illnesses and the suffering of people who were going through pain one must be democratic and tolerant and give society the chance to understand those not living normally .

GPE ( who saw the rehearsal but did not read the script ) testified that most of the dialogue was between CARDINAL people who had certain hang - ups and inter personal problems , and who in a quest to get closer , nearly started a competition between them as to who was the more outrageous . Nevertheless , in his view , at some point one could tell that they were flirting with each other despite them being outrageous .

The third applicant who was performing as PERSON stated that she did not find the play offensive in any way , noting that the emotions were very real and that she felt that it was a love story . She also testified that no pornography was used as props .

The applicants also submitted that the script could be purchased and read by any person in GPE , without hindrance .

The defendants produced the witness testimony of the members of ORG and other individuals , as explained below .

Another priest ( who read the script but did not see the play ) felt that the script was offensive in various parts and dehumanising . He was annoyed by the blasphemous words and the reference to the Moors murderer , and very annoyed at the reference to the Holocaust . Further , he considered that the woman was being put forward as an object , and while it was possible that it was her choice , he thought she was totally subordinate to the man .

PERSON ( a member of ORG who only read the script ) had no doubt that it would have been better had they watched the theatrical production . He , however , explained that there were instances , such as the one in the present case , where the script was so objectionable , that he did not feel the need to watch it , since the CARDINAL elements which he objected to ( the words concerning FAC and the passage about PERSON and PERSON ) would always remain objectionable , no matter the way in which they were presented , be it a tragedy or a comedy . They would nonetheless remain offensive to certain sectors of NORP society or indeed society anywhere . While shock was a legitimate theatrical weapon and may be used repeatedly , one could not offend other people ’s sensibilities . Both in the case of the holocaust and that of child murders , humanity was at stake , and the relevant passages offended the sense of decency CARDINAL individual should have towards another .

D.M. ( a psychologist and member of ORG ) found the script barely credible in so far as it was unlikely that a person would go through so many situations one after the other . While perversions did exist , this couple was being put forward as a normal couple . In his view a normal couple , a couple who went through a normal life experience such as the death of a child , would not react like the characters in the play , who for example , reenacted a killing which had greatly marked GPE . Further the scene concerning FAC desecrated the memory of the persons who suffered .

Another witness , a retired Chief Justice and professor of law ( who only read the script ) , examined the play from the point of view of public morals . He considered that certain parts of the play were disgusting , such as that describing FAC , and the blasphemous words . He explained that the word “ fuck ” combined with the word “ God ” was unacceptable because it offended public morals , not only that of NORP , but that of CARDINAL the world . Thus , in his view those parts had to be deleted from the play . The parts concerning sex and sexual perversions , such as the part where the male figure wanted to pay the female figure to allow him to do certain things , disgusted him , but he considered that certain people could accept that .

J.C. , the member of the board who confirmed on appeal that the play should be banned considered that , apart from other concerns mentioned by other members of the board , it was not justifiable for a couple to do certain things in public just because they were going through a bad patch . It was not acceptable that a woman had to give her vagina to a man to show him she loved him . In his view , if CARDINAL were to make the appropriate deletions to the script , there would be nearly nothing left , and he could not find anything positive about it .

The Chairperson of the ORG testified that there were entire scenes which she considered went against morality and were an affront and atrocious attack on human rights and the dignity of the individual . She was shocked and very annoyed by what she considered to be unadulterated pornography where the woman was becoming the man ’s absolute slave . She considered that the play in its entirety , and not one scene here and there , was objectionable and offensive . The fact that the play ended with the couple possibly deciding to have a baby , did not suffice to hold that the play had a positive message , given the DATE ( sic ) pages .

In an CARDINAL - page judgment of DATE , ORG ( FAC ) in its constitutional competence rejected the ORG claims .

The court considered that the second applicant had no further interest than that of the director of the company , thus it sufficed that the company was an applicant , and he , thus , had no victim status in his own capacity . Nevertheless , the artistic directors as well as the actors were victims of the alleged violation , as persons who were giving life to a script by means of their artistic representation - a theatrical performance which was a form of expression for the purposes of LAW .

It rejected the ORG ’s objection as to non - exhaustion of ordinary remedies since the ORG complaints concerned mainly issues of a constitutional and conventional nature , and thus were best dealt with by the courts of constitutional jurisdiction . For the purposes of the present case , the applicants were complaining of a human rights violation , and therefore an action for judicial review could not be an effective remedy in so far as it could not award the relevant damage , and could not order that the performance go ahead irrespective of the ban .

As to the merits , the court made extensive reference to the ORG ’s case - law , in particular PERSON v. the GPE ( DATE , Series A no . CARDINAL ) , PERSON v. GPE ( DATE , Series A no . CARDINAL ) and PERSON v. ORG DATE , Reports of Judgments and Decisions DATE ) as well as prominent authors in the field of human rights . It considered that the decision of the Board to ban the play had been correct and in accordance with the law and established guidelines . The court , having read the entire script , could not tie the plot which the author wanted to transmit with the means employed to do so . In the court ’s view the author did not need to make use of such perversions in order to show the troubled reality of the characters .

It considered that the ORG was correct to conclude that the play in its entirety was offensive to NORP society . Indeed the specific scenes referred to , as well as other parts of the play , were an affront to the dignity of the individual , which was an integral part of the civil and moral fabric ( tessut ) of the country . Even in a pluralistic and democratic society , such as the NORP one , human dignity could not be trampled on , even if the aim was “ presumably ” a genuine one . As problematic as the relationship of the couple might have been , one could not make extensive use of vulgar , obscene and blasphemous language to highlight perversions , vilify ( ikasbar ) the right to life and the right to freedom from inhuman and degrading treatment , and vilify the respect towards a woman ’s dignity . It was not acceptable to publicise uncivil behaviour , which broke the law , debased the suffering of women during the holocaust , portrayed women as the object of sexual satisfaction , as well as ridiculed family life and the responsibilities parents have towards their children . A NORP society , while being tolerant , could not permit its values to be turned on their head in the name of freedom of expression . In the court ’s view , the stitching of a vagina as an act of sexual pleasure , bestiality , the depravity arising from the thought of a woman eating another woman ’s excrement , the pleasure obtained in raping children , the murder of children and sexual intercourse with parents of violated and murdered children , were unacceptable even in a NORP society . The court noted that under NORP law , blasphemy was a contravention , and a person could not be immune from punishment simply because he or she was acting on stage . The PERSON , the court went on , “ was a historical fact where innocent victims underwent unprecedented suffering . Instead of treating this sensitive and delicate subject ... with due respect to the dignity of the victims , the character PERSON shows only sexual depravity ... the author permits the demeaning and humiliation of that tragedy totally out of context and for no other reason than for perversions . No matter how the text of the play is looked at , it runs aground on the reef of the inalienable dignity of the human person , and the court understands that this was the underlying reason for the ORG ’s decision . ”

The court rejected their complaint under LAW basis that the proper procedure had been undertaken , the applicants had been free to put forward their views in their request for reconsideration , which was carried out by another person [ not present at first - instance ] and no bias had been shown .

The applicants appealed the first - instance judgment only in so far as it concerned the merits of their complaints , and asked ORG to confirm the judgment in so far as it related to the second applicant ’s victim status . By a judgment of CARDINAL DATE , ORG confirmed the first - instance judgment and ordered the applicants to pay all costs .

ORG noted that the first - court had chosen to exercise its jurisdiction and rejected the GPE objection of nonexhaustion of ordinary remedies , which in the absence of an appeal on the matter had become final . Nevertheless , it noted that the applicants had not instituted judicial review proceedings of the administrative action in question ( the ORG ’s decision ) ; thus they were not complaining that the ORG ’s decision was based on improper motives or irrelevant considerations . Moreover , the ordinary court , ’s decision ut sic , and people ’s opinions on the play were irrelevant given that the applicants considered the decision to be reasonable .

As to the constitutional and conventional complaint raised by the applicants , ORG held that the existence of ORG did not breach any of the applicants’ rights , and indeed the applicants had not impugned the law establishing ORG . It further considered that freedom of expression had limits and that it was accompanied by duties and responsibilities . Both the Convention and the LAW provided for inter alia the protection of morals and the reputation and rights of others , and LAW also included public decency , in the relevant provision .

ORG , having read the script , shared the firstinstance court ’s view about various scenes of the play . It considered that such scenes all throughout the play affected the morality and decency of the entire production , and it was within the ORG ’s competence to assess that in line with the ORG . ORG had no doubt that there were phrases which constituted disparaging and insolent remarks towards CARDINAL belief , towards women and towards the suffering of the NORP in the Second World War .

Referring to the ORG ’s case - law , in particular , OttoPremingerInstitut v. GPE ( § CARDINAL ) it recalled that those who chose to exercise the freedom to manifest their religion , “ must tolerate and accept the denial by others of their religious beliefs and even the propagation by others of doctrines hostile to their faith . However , the manner in which religious beliefs and doctrines are opposed or denied is a matter which may engage the responsibility of the ORG , notably its responsibility to ensure the peaceful enjoyment of the right guaranteed under LAW to the holders of those beliefs and doctrines . ”

In its view the limits of decency had been breached due to the blasphemy which was an offence under NORP law and to the vilification of the dignity of a people , of a woman , of children , and of the human being , as well as the extreme glorification of sexual perversion . These instances were so strong that they affected the play in its entirety and prevailed over any genuine aim presumably intended by the play . The court emphasized that the production despised the dignity of the individual , in particular sectors , such as women and children , whether because of their nationality or religion , and opined that even though the main characters were acting in this way because of tension , pressure and depression , such contempt could not be justified as article In the court ’s view while art was a wide concept covering any type of manifestation of expression , it could not include language which was obscene and despised the trauma of a genocide , and which , in itself , was against the laws of the country . For a strong moral message to be portrayed it was possible to cause discomfort and annoy other persons , but not to the extent of insulting them because of their beliefs , their people , or simply because they were a woman or a child .

Recalling that it was the duty of the ORG to protect the morality of the country , ORG considered that the ORG had fulfilled its duty . What was morally correct depended on the ORG and the relevant religion , and could not be determined universally . Thus , the fact that the production was performed elsewhere did not mean that it had to also be produced in GPE , particularly in the light of the laws in force in each country . This was precisely why states had latitude in applying certain restrictions on freedom of expression .

It further noted that under the laws in force , the ORG could ban the play , as opposed to classifying it for a mature audience . In any event it considered that adults , who could chose to watch the play in such a case , would also be deserving of protection , and thus limitations could also be necessary in such cases . It highlighted the ORG duty to preserve the sensitivities of the silent citizen ( as opposed to the vociferous ones , who inundated media forums ) and considered that no remedy after the performance could heal any harm already done to society . Thus , in ORG view the ORG ’s decision was correct , was not capricious or exaggerated , and it corresponded to the need to protect public morality in NORP society and the rights of others .

ORG concluded that it was not necessary to watch the play as the script was enough . In the absence of an Article CARDINAL complaint , it was also unnecessary to compare the performance to other performances which had been allowed by ORG . The applicants having refused to make any changes to the text , despite its invitation to do so , ORG confirmed that it would remain banned and that there was no breach of LAW .

In connection with their LAW complaint , ORG held that the applicants did not institute judicial review proceedings and in any event there had been no breach of their rights . Furthermore , in their view there had been no determination of any civil right .


CASE OF BERGER-KRALL AND OTHERS v. SLOVENIA

Remainder inadmissible;Remainder inadmissible (Article 34 - Victim);No violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for home);No violation of Article 14+P1-1 - Prohibition of discrimination (Article 14 - Discrimination) (Article 1 of Protocol No. 1 - Protection of property;Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);No violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Civil rights and obligations);No violation of Article 6 - Right to a fair trial (Article 6 - Constitutional proceedings;Article 6-1 - Access to court)

Aleš Pejchal;André Potocki;Angelika Nußberger;Ganna Yudkivska;Mark Villiger;Paul Lemmens

NORP The applicants’ names and dates of birth are listed in annex CARDINAL . They are members of ORG najemnikov ORG ) .

In the former GPE , socially - owned dwellings represented a significant part of the housing stock ( CARDINAL housing units ) . CARDINAL of the NORP population lived in such housing units at the time . According to the doctrine of “ social ownership ” ( družbena lastnina ) introduced into the NORP system in DATE , such dwellings were owned by the community , the role of public bodies being confined to management .

After the Second World War , private dwellings and other LOC passed into ORG ownership through legislation on nationalisation . At the same time , dwellings were built or purchased by socially - owned enterprises or other public bodies . In both cases the latter allocated them to their employees and other entitled persons , who became holders of a “ specially protected tenancy ” or “ occupancy right ” ( stanovanjska pravica – hereinafter translated either as “ specially protected tenancy ” , as suggested by the applicants , or as “ occupancy right ” , as indicated by the Government ) under LAW and the existing legislation . The right to a socially - owned dwelling guaranteed the citizen “ the permanent use of the dwelling for his personal housing needs as well as for the needs of his family ” . LAW ( hereinafter referred to also as the “ ZSR ” ) provided that once allocated by an administrative decision followed by a contract , a specially protected tenancy entitled the holder to permanent , lifelong and uninterrupted use of the flat against the payment of a fee covering maintenance costs and depreciation . The fee ( or rent ) was determined on the basis of the construction price of dwellings and the requirements of simple replacement of dwellings , and in accordance with the standards and norms for the maintenance and management of socially - owned dwellings .

The Government pointed out that the occupancy right conferred the right to use the socially - owned dwelling only for the purpose of satisfying one ’s personal and family housing needs . Its rationale was the economical and efficient use of housing space , meaning that each family should have at its disposal as much space as it needed , and no more . The occupancy relationship could be terminated and another , more appropriate dwelling allocated in the event of a reduction of the number of users of the dwelling ( LAW of the ZSR ) . In the ORG ’s view , this proved that the occupancy right was associated with personal and family needs , and not with a particular dwelling . The concept of family needs was variable and depended on the number of family members . CARDINAL dwelling could be used at the same time and no one could move into the dwelling without the prior approval of the holder of the occupancy right . The latter was given management entitlements , such as the right and duty to participate in the management of the socially - owned housing . Holders of occupancy rights could exchange dwellings and make alterations to the dwelling , its furnishings and appliances only with the prior written approval of the housing administration ( Section CARDINAL of the ZSR ) .

The applicants challenged the ORG ’s allegation that the specially protected tenancy permitted use of the dwellings for housing purposes only . They observed that the holder of the occupancy right could use the dwelling without restrictions for himself and for the members of his family , did not need any consent to enlarge the number of family members , could use part of the dwelling for business activities and could sublease part of it for an agreed rent . He could modernise the dwelling with the agreement of the housing organisation managing the building ; if such agreement was denied DATE which in practice almost never occurred – he could demand substitution of consent in legal proceedings . The dwellings in question could be sold only to holders of occupancy rights , who could – with few very specific exceptions – exchange their dwellings . Any sales to third persons were null and void .

NORP In legal theory and judicial practice the specially protected tenancy was described as a right sui generis . On DATE the ORG delivered a decision ( Up-CARDINAL/CARDINAL ) in which it considered that under the legislation of the former GPE , the specially protected tenancy enjoyed stronger protection than a purely contractual tenancy right . The legal relationship was not limited in time and was linked not only to the holder of the right , but also to persons living with him . It concluded that , because of the very limited volume of transactions involving socially - owned dwellings , the specially protected tenancy had been more akin to a property right than to a tenancy right .

When a holder of a specially protected tenancy died , his or her rights were transferred to the surviving spouse or long term partner ( who held the specially protected tenancy jointly ) or to a registered member of the family household who was also using the flat . According to the applicants , this also applied if they moved out or divorced . Thus , specially protected tenancies could be passed on from generation to generation .

In the ORG ’s opinion , however , this was not a succession of the occupancy right but rather a specifically regulated transfer of it to CARDINAL of the users of the dwelling . In this respect , the spouse and long term partner enjoyed a privileged status . Special provisions applied in the event of divorce ( LAW ) , and if it considered that none of the users of the dwelling met the conditions for obtaining the occupancy right after the death of the previous holder , the housing administration could request the said users to vacate the LOC ( LAW ) .

NORP The occupancy right could be cancelled only on limited grounds ( Sections CARDINAL , DATE and DATE of the ZSR ) , the most important of which was failure by the holder to use the flat for his or her own housing needs for a continuous period of DATE without good reason ( such as military service , medical treatment , or temporary work elsewhere in the former ORG ( the “ SFRY ” ) or abroad ; see LAW of the ZSR ) . In this case , the users of the dwelling who had been living together with the holder of the occupancy right for a minimum of DATE had the same rights as they would have had if the holder had died . Other grounds were inappropriate and detrimental behaviour , failure to pay the fee , full sublease , use of the dwelling by a person other than the holder of the occupancy right and possession of an unoccupied flat suitable for residence . Although inspections were to be carried out to ensure compliance with these requirements , the specially protected tenancy was rarely , if ever , cancelled on these grounds ( see PERSON GPE , no . GPE , § CARDINAL , CARDINAL DATE ) . In this connection , the applicants pointed out that it was true that in theory holders of a specially protected tenancy could be moved to a substitute dwelling if the dwelling they were occupying was too large for them and the other users with regard to social standards ( see the Government ’s submissions in paragraph CARDINAL above ) . However , according to the applicants , this possibility was in practice never used and there was no case - law on the matter .

All employed citizens were required to pay a special DATE housing contribution ( CARDINAL to MONEY of their DATE income ) to ORG . The funds thus obtained were used to build and maintain socially - owned flats . ORG granted benefits ( allocation of a flat under specially protected tenancy , or loan to purchase , construct or renovate a dwelling ) on the basis of the principles of mutuality and solidarity with those in need . All socially - owned dwellings were part of ORG and administered by ORG institutions , municipalities , social enterprises and other legal entities governed by public law .

Before GPE became independent , the applicants or their legal predecessors acquired specially protected tenancies in socially - owned dwellings which had been expropriated under the legislation on nationalisation . Under the legislation in force prior to DATE , no difference in specially protected tenancy conditions was made between tenants of ORG - constructed dwellings and tenants of nationalised dwellings .

On DATE GPE declared its independence . Among the first reforms enacted were LAW DATE ( PERSON ) and LAW DATE ( Zakon o denacionalizaciji ) , aimed at redressing the wrongs committed after the Second World War . LAW Section CARDINAL ) guaranteed the right of private ownership .

The Housing Act DATE ( hereinafter referred to also as the “ SZ ” ) provided for the transformation and privatisation of socially - owned dwellings . ORG ( see paragraph CARDINAL above ) was dissolved and , with few exceptions , the socially - owned dwellings were transferred ex lege into ORG ownership or into that of local communities or ORG . Those dwellings which had become socially - owned property after having been expropriated from private owners were transferred into the ownership of the municipalities ( LAW ) .

The specially protected tenancy was replaced ex lege with a normal lease contract ( LAW ) . The previous holders of specially protected tenancies or , in the event of their death , their family members living in the flats , were given the possibility of renting the flats for an indefinite period and for a non - profit rent ( which covered maintenance , management of the flat and capital costs – LAW ) or of purchasing them on favourable terms , paying an administratively defined price which was calculated on the basis of a discount of PERCENT ( in the event of payment in instalments ) or PERCENT ( in the event of CARDINAL - off payment ) off the estimated value ( Sections CARDINAL - CARDINAL ) .

According to the applicants , in practice this meant a price of PERCENT of the real market value of the dwelling payable in instalments over DATE or PERCENT of that value payable within DATE . The right to purchase on favourable terms could be transferred inter vivos or mortis causa to close family members . However , previous holders of specially protected tenancy in flats which had been expropriated could only purchase them on favourable terms if the owners agreed to sell them within DATE from the restitution of the dwelling ( Sections CARDINAL and CARDINAL ) . In that case DATE MONEY discount ( Sections CARDINAL and CARDINAL ) was offered by the owner , who would then be reimbursed by the municipality .

It follows from the above that all previous holders of specially protected tenancies were given the possibility of taking out new leases ( to be signed within DATE from the entry into force of LAW DATE ) . However , the applicants contended that these new leases were less advantageous than the specially protected tenancy . In particular , tenants no longer had secured tenancy of their homes since the owners could move them to other adequate flats without any particular justification ( Section CARDINAL ) . There were now CARDINAL grounds on which tenants could be evicted for misconduct , compared with CARDINAL previously . The fault - based grounds for termination of the lease were ( LAW of the ORG ) :

“ - if the tenant and any person living with him uses the dwelling counter to the law or the terms of the lease ;

- if , by the way they use the dwelling , the tenant or any person living with him causes major damage to the dwelling or to common areas , parts , facilities and installations of a multi - dwelling building ;

- if the tenant fails twice in succession or for CARDINAL out of DATE to pay rent or costs payable in addition to rent within the time - limit specified in the lease ;

- if the tenant or any person living with him , by their manner of using the dwelling , frequently or seriously disturbs other residents in their peaceful use of the dwelling ;

- if the tenant makes changes to the dwelling and fixtures without the prior consent of the owner ;

- if , in addition to the tenant , a person who is not named in the lease contract uses the dwelling for DATE without the owner ’s knowledge ;

- if the tenant leases out the dwelling without the agreement of the owner or charges a subtenant a higher rent ;

- if the tenant does not allow access to the dwelling in cases [ specified by law ] ;

- if the tenant or any other person who uses the dwelling engages in a prohibited activity there , or a permitted activity in an unlawful manner . ”

NORP However , before terminating the lease the owner had to give prior written notice to the tenant who was allegedly violating its provisions ; no termination was allowed if the inability to pay the rent in full and to entirely fulfil other obligations was due to the social distress of the tenant and the other persons using the dwelling .

Without the owner ’s permission , tenants could not sublet a flat , renovate it or decorate it . Nor could they bring new people into the flat ( Section CARDINAL ) . The owner could renovate the flat at any time and enter it twice a year ( Section CARDINAL ) . The tenant could not freely transfer the lease to another family member or exchange the flat . After the death of the original tenant , only the spouse or a person having lived with the tenant in a permanent relationship , or an immediate family member living in the flat , had the right to take over the lease ( Section CARDINAL ) . The tenant had to pay the legally regulated non - profit rent ( Section CARDINAL ) , which , unlike the fee ( see paragraph CARDINAL above ) , not only covered maintenance costs and depreciation , but also included a sum to offset capital costs and management of the dwelling .

The Denationalisation Act DATE ( hereinafter referred to also as the “ NORP ” ) regulated the denationalisation of property which had previously passed into ORG ownership through legislation on agrarian reform , nationalisation , confiscation or other forms of expropriation of privately owned properties . Previous owners or their heirs ( hereinafter referred to as “ previous owners ” ) were entitled ( until DATE ) to claim restitution of the expropriated property . Wherever possible , the property itself was to be returned in natura , including dwellings which had been let under the specially protected tenancy scheme . Where such restitution was not possible , claimants were entitled to substitute property and/or compensation ( LAW ) .

The restitution of dwellings occupied by a tenant did not affect the leases concluded in the meantime , which remained in force ( see LAW of the ORG and LAW of the ORG ) .

The applicants pointed out that after the enactment of the housing reform , a number of former holders of specially protected tenancies in previously expropriated flats filed requests to purchase the flats . The deadline for filing such requests expired before that for “ previous owners ” to file restitution claims . Only when it became clear in individual cases ( especially in DATE ) that denationalisation proceedings had been initiated , were the former holders of specially protected tenancies informed that their requests to purchase had been rejected .

Holders of occupancy rights had no part in the denationalisation proceedings to determine the ownership of the property , which meant that they were not notified when a request was filed for the restitution of the dwelling they were occupying . According to the data submitted by the applicants , CARDINAL restitution requests had been filed and in the period until DATE a yearly average of CARDINAL decisions had been rendered , which meant a total of CARDINAL decisions , out of which CARDINAL became final . Until DATE PERCENT of decisions were for restitution in the form of compensation , PERCENT for restitution of ownership of free dwellings , PERCENT for restitution of ownership of occupied dwellings and PERCENT were refusals or rejections of the requests . This meant that by DATE a substantial portion of denationalisation procedures had not been completed . Initially in such procedures the property was returned to the pre - war owners ; however , in the vast majority of cases those owners had passed away , which meant that in order to identify the “ previous owners ” a complex and time - consuming inheritance procedure was necessary .

The Government pointed out that tenants were not party to the denationalisation proceedings because restitution did not affect the tenancy relationship and did not prejudice the tenants’ rights or benefits which had a direct basis in law . Moreover , the existence of a tenancy relationship did not affect the decision on denationalisation and restitution ( see ORG decision no . Up-CARDINAL/CARDINAL , point CARDINAL ) . However , tenants could participate if they demonstrated a legal interest , notably an interest in recovering their investments . In this regard , the status of party to the denationalisation proceedings was recognised in respect of : ( a ) any person who , before DATE ( date of entry into force of the PERSON ) , had invested in nationalised real estate , whenever and insofar as the proceedings might lead to a ruling on that person ’s rights deriving from the investments concerned , and ( b ) the entities liable for restitution , which in the case of former socially - owned dwellings usually meant municipalities ( Section CARDINAL of the PERSON ) .

The principle of restitution in natura applied also in cases in which the value of the property had increased . Former holders of the occupancy right who had invested in the dwelling could only claim compensation under the law , but not acquire ownership of the dwelling by virtue of such investments . In particular , the occupant could claim total recovery of costs on the condition that the investments had been made prior to DATE and that they constituted major maintenance investments and not simple routine maintenance . Upon a judicial action introduced by the tenant , the competent court would appoint a construction expert to assess the value of the property at the time of nationalisation and its value at the time of its restitution ; a tenant who could provide evidence of the investments made ( they were not required to provide evidence that the community of residents had consented to the investments ) could then obtain the difference between the CARDINAL values of the property ( LAW of the ORG ) . In cases in which a final decision on restitution had already been adopted , a claim for recovery of investments could be filed within DATE from the entry into force of the CARDINAL Act amending the ORG .

The applicants observed that in the event of an increase in the value of the property due to the investments made by the tenant , LAW of the PERSON gave CARDINAL options to the “ previous owners ” : ( a ) to request compensation instead of restitution in natura ; ( b ) to request part ownership of the dwelling ; ( c ) to recover the full property and reimburse the tenant . As a rule , the tenants’ requests for reimbursement were examined in sets of proceedings initiated after the denationalisation proceedings , often after DATE . However , according to the applicants , the evaluation of the dwellings according to the relevant domestic rules was totally unrealistic , which made the evaluation of the increased value due to new investments unrealistic also . Moreover , only those investments which had increased the value of the dwelling DATE and not those which had kept the value of the property at the same level since its expropriation – were taken into account . The time - limit for reimbursement of investments was DATE and the parties could reach a friendly settlement on these matters . “ Previous owners ” frequently made the reimbursement conditional upon the tenants vacating the LOC . In the applicants’ opinion , these rules did not guarantee former holders of occupancy rights a fair possibility of recovering the real value of their investments .

In DATE , the ORG and the PERSON , as well as the legal acts implementing them , underwent numerous amendments , which on some occasions were more favourable to the tenants , and on others to the “ previous owners ” .

The DATE amendments to LAW , enacted on DATE , were more in favour of the tenants . Former holders of a specially protected tenancy who occupied previously expropriated flats which had not been returned to “ previous owners ” ( because no request for restitution had been filed , or the request had been rejected ) were allowed to purchase the flats they were occupying ( amended Sections CARDINAL and CARDINAL ) .

The amended LAW further provided that where the dwelling had been returned to the “ previous owner ” , if he agreed to sell he was eligible for an additional financial reward from public funds ( this was the so - called “ first model ” of substitute privatisation ) .

If the “ previous owner ” declined to sell the dwelling and the tenant decided , within DATE from the restitution , to move out and purchase a flat or construct a house , and if the “ previous owner ” so agreed , he would pay the tenant compensation amounting to CARDINAL per cent of the value of the dwelling . If , however , the “ previous owner ” refused this solution , the tenant was entitled to claim the same amount from the entity liable for restitution , which was usually a municipality ( see paragraph CARDINAL above ) . The tenant was entitled to further compensation amounting to MONEY of the value , in CARDINAL , from the municipality , ORG and ORG . In addition , the tenant also had the right to a ORG loan under certain conditions . This was the so - called “ second model ” for settling the housing issue .

The DATE amendments also introduced a so - called “ third model ” , where a tenant to whom the “ previous owner ” was not prepared to sell the dwelling could purchase a comparable substitute flat on favourable terms from the municipality if he decided not to purchase another flat or construct a house ( amended LAW ) . Under this model , the applicants were in the same position as previous holders of specially protected tenancies in ORG - constructed dwellings who could not purchase the dwelling they had occupied because of practical and legal obstacles .

The applicants noted that the right to purchase established by the amended LAW of the ORG was legally directly applicable and was not subjected either to preclusive time - limits or to a statute of limitations . It was a permanent legal option , to be realised on the basis of a unilateral request by the former holder of the specially protected tenancy ( ORG decision of DATE , no . PERSON CARDINAL/CARDINAL ) .

However , the “ third model ” was repealed on DATE by ORG ( decision ORG ) , which considered that the additional financial burden had unduly restricted the FAC newly acquired ownership rights over dwellings which had previously been socially owned . In ORG opinion , this restriction could not be justified by the tendency of the legislature to ensure that the previous protected tenants of denationalised dwellings enjoyed a position resembling as closely as possible that of other tenants , in particular with regard to the possibility of purchasing a flat .

On DATE the ORG delivered a decision ( U - I-CARDINAL/CARDINAL ) concerning the pre - emption right of tenants having contracts of unlimited duration ( Section CARDINAL ) , such as the previous holders of specially protected tenancies . It held that that pre - emption right , already provided for by the previous legislation , did not interfere with the property rights in respect of dwellings subject to original privatisation under the ORG and the PERSON , since the property right had not yet been established at the time of the entry into force of those acts . However , where property rights had been acquired by other means , the pre - emption right interfered with the right of property and was unconstitutional . The dissenting opinion of Judge PERSON was appended to the ORG decision .

Subsequent amendments to LAW , and LAW enacted in DATE ( hereinafter referred to also as the “ SZ-CARDINAL ” ) , were more favourable to the “ previous owners ” , who were authorised to raise the non - profit rent by PERCENT in order to cover maintenance costs and other expenses . That increase in the non - profit rent was to be applied only to leases taken out after the amendments entered into force ( DATE ) . However , on DATE ORG ( decision no . U - I-CARDINAL/CARDINAL - CARDINAL ) declared this limitation unconstitutional as being discriminatory . It underlined that protecting the status of former occupancy right holders did not mean that the non - profit rent could not change , and that eliminating the discrepancy in the previous system ( under which rents did not cover the real cost of the use of a dwelling ) could not be deemed to be an inadmissible interference with the terms of the lease contracts . The protection of acquired rights and the principle of non - retroactivity did not protect tenants from increases in rent . The increase in the non - profit rent was thus extended to all the leases that predated the enactment of the DATE amendments .

The Housing Act DATE increased from CARDINAL to CARDINAL the number of fault - based grounds on which tenants could be evicted from their homes ( unauthorised persons living in the flat , violation of the house rules , tenant ’s absence in excess of DATE , ownership of another suitable dwelling , either by the tenant or by his or her partner – Section CARDINAL ) . However , tenants could avoid termination of the lease by proving that the problem was not their fault or that it had not been possible for them to rectify the problem within the given time - limit ( Section CARDINAL ) ) . The “ previous owner ” could also move the tenant to another adequate flat ( defined in LAW as a flat satisfying the housing needs of the tenant and his immediate family members living with him or her ) at any time and without any reason ; however , this could be done to the same tenant only once and the removal costs were borne by the “ previous owner ” ( LAW ) . In respect of the transferability of the lease after the tenant ’s death , a request to take the lease over had to be filed within DATE ( Section CARDINAL ) . For this purpose , a relative up to the second generation who had lived in economic community with the former holder of the occupancy right for DATE on DATE of entry into force of LAW was considered to be an “ immediate family member ” ( LAW ) . The tenant had a pre - emption right if the flat was for sale .

Furthermore , rent subsidies ( PERCENT of the non - profit rent ) were available to tenants in the event of financial difficulties ; socially disadvantaged people could also apply to the municipalities to obtain another non - profit rental dwelling or a temporary solution for their housing needs ( Sections ORG and CARDINAL ) . The DATE LAW introduced Sections CARDINALa and CARDINALb , which provided for the possibility , for people who were paying market rents and had unsuccessfully applied for the allocation of a non - profit rental dwelling , to obtain subsidies ( amounting to the difference between the market and non - profit rents ) . These provisions were aimed at compensating the shortage of non - profit dwellings .

The DATE LAW also introduced a “ new model ” of so - called “ substitute privatisation ” for former occupancy right holders . Within DATE after the enactment of the LAW or after the decision on denationalisation had become final , they could exercise their right to purchase another dwelling or to build a house , thus becoming entitled to special compensation ( PERCENT of the price of the dwelling – Section CARDINAL ) and to a subsidised loan for the remaining amount . Entitlement to and level of compensation were determined by the Ministry responsible for housing matters . Tenants who decided to buy another dwelling or build a house were obliged to vacate their rented accommodation DATE after receiving the compensation .

Furthermore , tenants who did not wish or could not afford to buy a flat could apply to rent a non - profit dwelling ( Section CARDINAL ) . The latter was defined as a dwelling rented out by the municipality , the ORG or a public housing fund or non - profit organisation , allocated on the basis of a public call for applications ( LAW ) . Under this procedure “ tenants of a dwelling expropriated under nationalisation regulations and returned to the previous owner ” were awarded a rather high number of points ( CARDINAL ) , which , according to the ORG , offered them good prospects of being given priority and actually being declared eligible . Lease agreements for non - profit dwellings would be concluded for an unlimited period ( Section CARDINAL ) .

According to information available on the Internet , in DATE there were CARDINAL housing units eligible for return to “ previous owners ” . CARDINAL housing units were returned to ownership in full title , while CARDINAL were returned to “ previous owners ” while still occupied by tenants who previously had specially protected tenancies . According to the Government , in DATE some CARDINAL such tenants had managed to solve their housing situation by substitute privatisation , that is , by purchasing or building a substitute dwelling with the help of a financial incentive from the ORG . A further FAC tenants had lodged requests and proceedings were still pending at the time of submission of the Government ’s observations . CARDINAL tenants would eventually continue to live in the flats they had previously occupied as holders of specially protected tenancies .

The applicants emphasised that at the beginning of the housing reform , out of CARDINAL housing units in GPE CARDINAL were socially - owned dwellings housing CARDINAL of the NORP population under specially protected tenancies ( see paragraph CARDINAL above ) . At the time the legislation did not distinguish between expropriated dwellings and other socially - owned dwellings ( see paragraph CARDINAL above ) and , in general , individuals acquiring occupancy rights did not even know which source the dwelling came from . This was especially true for those who had acquired occupancy rights DATE after the expropriation . The great majority of holders of occupancy rights who had been given the opportunity to purchase the dwellings on favourable terms had availed themselves of this possibility ; only a few of them had stayed in the flats on a contractual basis . However , as explained in paragraph CARDINAL above , the possibility to purchase without the “ previous ORG ” consent was not given to those who were living in previously expropriated dwellings subject to denationalisation ( CARDINAL properties , covering PERCENT of all specially protected tenants ) . According to the available estimates , in DATE approximately CARDINAL families ( most likely those who could not afford to buy a dwelling ) had continued to lease their denationalised dwellings , while CARDINAL families had vacated the LOC and found a solution to their housing needs elsewhere . According to the applicants , for the former category of families relations with the “ previous owners ” had often been burdened with judicial and personal conflicts . “ Previous owners ” applied constant pressure through , inter alia , illegal evictions , rent increases or simply poor building maintenance .

Since DATE , in his regular annual reports the NORP Ombudsman has illustrated the difficulties facing tenants in denationalised flats . In his ORG of DATE on FAC in FAC he also made a number of proposals designed to remedy the situation : feasible models for substitute privatisation ( greater financial incentives to solve the housing issue , for both tenants and “ previous owners ” ) , protection of the duration of leases and definition of the non - profit rent , legal mechanisms for the protection of tenants’ rights , such as free legal aid , improved implementation of the right to pre - empt , realistic evaluation of tenants’ investments for the refurbishment of the dwellings .

On DATE ORG ( hereinafter , “ the Association ” ) , lodged a “ petition ” with several ORG authorities , including ORG , the President of the Republic and the Government . It challenged LAW DATE and LAW DATE , on the ground that they deprived the ORG ’s members of their specially protected tenancy rights in a manner incompatible with LAW , which was still in force at the time when the CARDINAL acts were passed in DATE . Instead of the privileged specially protected tenancy , which in the ORG ’s view was in many respects equal to a property right , tenants were granted leases with a temporary non - profit rent . Moreover , once the dwelling had been taken over by a “ previous owner ” , that contract became an ordinary lease contract . This effectively deprived the tenants of their property and home . In DATE CARDINAL individuals ( previous holders of specially protected tenancies and their families ) , living in CARDINAL flats , were concerned by these measures . They considered themselves victims of the transition , in the same manner as “ previous owners ” whose property had been taken away under the previous regime .

The ORG also complained that its members were not given all the rights and benefits that other former specially protected tenancy holders enjoyed , such as the right to purchase the dwelling and to have a permanent lease with a non - profit rent . It argued that tenants who – like all its members – were living in dwellings once expropriated , could not purchase their homes , which were subject to restitution to the “ previous owners ” , whereas all other previous beneficiaries of specially protected tenancies had that possibility . In addition , “ previous owners ” of flats returned in denationalisation proceedings were selling them to third parties but not to the tenants , who were facing eviction proceedings . In the ORG ’s view , the restitution of the dwellings to the “ previous owners ” deprived the tenants of the right to purchase them and resulted in differential treatment between the CARDINAL groups of tenants on no reasonable ground .

The offending legislation allegedly also failed to provide for proper compensation for the money the tenants had invested in the maintenance and improvement of the dwellings . Moreover , the ORG complained that its members did not have locus standi in the denationalisation proceedings which were to rule on the ownership of “ their ” dwellings . It also criticised the constant increases in the non - profit rent , which in its view was approaching levels comparable to the rents charged on the free market . The ORG concluded that privatisation and restitution of previously expropriated dwellings should be achieved by paying compensation to the “ previous owners ” of the dwellings rather than returning their property , as recommended by LAW of ORG of ORG ( see paragraphs CARDINAL below ) . It requested that an independent expert commission be set up , that the ORG and the PERSON be amended , that the restitution of property as such be stayed and that ORG be supplemented .

On DATE the Government adopted a decision concerning the petition , with an accompanying opinion . The Government did not agree that tenants were the victims of transition . Regarding the right of previous holders of specially protected tenancies to purchase the dwellings , different factual circumstances had to be taken into account . While in some cases the dwellings had been built with ORG funds , in other cases they had been expropriated from private owners . These “ previous owners ” might also claim restitution of , and therefore property rights over the dwellings . This meant that they had priority over the former holders of specially protected tenancy rights . In conclusion , as far as the purchase of dwellings was concerned , the CARDINAL categories of previous holders of specially protected tenancies were not in a comparable position .

On the other hand , with respect to other rights and benefits the tenants had been put on an equal footing with all those previous holders of specially protected tenancies who decided not to purchase their dwellings but to rent them on favourable terms . They were all granted the right to rent the dwellings for an indefinite period for a non - profit rent , even after the “ previous owner ” took over the flat . This had been upheld by ORG .

The Government also disputed the objection that the impugned legislation did not take into account the investments the tenants had put into the dwellings . They referred to the relevant provisions of the ORG , which granted former specially protected tenancy holders the right to compensation . The Government pointed out that the needs and expectations of the tenants had to be reconciled with those of the “ previous owners ” of the dwellings , as well as with the limited financial capacities of the ORG to provide them with housing on favourable terms . They further acknowledged that the tenants , especially elderly people , encountered certain difficulties in their new situation ( pressure to move out or to pay a higher rent ) , but such circumstances had no foundation in the existing legislation . The Government supported the establishment of an expert commission with representatives of both tenants and “ previous owners ” . It appears that no other authority took a position with respect to the petition .

On DATE the ORG instituted proceedings against the Government with ORG , for not initiating the necessary amendments to the ORG and the PERSON . In their view , the legislation in question breached the tenants’ rights under LAW and LAW , and disregarded LAW of ORG of ORG . In particular , the ORG repeated the complaints from its petition that the dwellings should not be returned as such , that the tenants had only a limited right to purchase the dwellings , that they did not have locus standi in the denationalisation proceedings and that their investments in the dwellings had not been taken into account .

On DATE ORG rejected the complaints , holding that the ORG ’s decision and the accompanying opinion did not qualify under LAW , as then in force , as an individual act or an action infringing the individual ’s constitutional rights .

On DATE the ORG appealed to ORG .

On DATE ORG dismissed the appeal and upheld ORG decision of DATE .

On DATE the ORG lodged a constitutional complaint with ORG , challenging ORG decision . It repeated the arguments from the petition and the subsequent court proceedings , and argued in particular that the legislation in issue deprived the tenants of their property and homes .

On DATE ORG rejected the complaint . It upheld the decisions of ORG and ORG that the relevant governmental decision and the accompanying opinion could not be challenged in administrative proceedings . In ORG view , they merely reflected the ORG ’s policy position with respect to the petition lodged , and were therefore not subject to court review .

On DATE , at the same time as the constitutional complaint ( see paragraph CARDINAL above ) , the ORG , representing a group of previous specially protected tenancy holders , also lodged a constitutional initiative for review of the constitutionality of the ORG , the ORG , LAW DATE and the relevant judicial practice , and their compatibility with international law binding on GPE .

On DATE ORG dismissed the constitutional initiative ( decision ORG ) . It acknowledged that the ORG , relying on a number of court proceedings initiated by its members , had a legal interest in challenging the existing legislation since it directly interfered with their rights , interests and legal position , but it ruled that ORG did not have jurisdiction to examine the compatibility of the disputed legislation with the provisions of LAW , which was no longer in force .

Relying on the case - law of ORG , ORG went on to say that in any event the specially protected tenancy could not be interpreted as an absolute right to property under LAW No . CARDINAL , guaranteeing the acquisition of a particular dwelling . Nor could it be said that the claimants’ right to a home had been breached under LAW , since they could remain in the dwellings , with a contract of unlimited duration and for a non - profit rent . In addition , after the tenant ’s death , the right of a spouse or a person having lived with the tenant in a permanent relationship , or an immediate family member living in the flat , to take over the tenancy was also guaranteed ( LAW of ORG ) .

ORG had held in its previous decisions that the specially protected tenancy from the former system was a right to be protected by the rule of law . However , in the new system , this right encountered other rights . In transposing the system of specially protected tenancy relations into lease relations , the legislator could not fulfil all the expectations arising from the former socio - economic and political system , which was founded on social property , and not on private property . The rights from the former system could not have remained unchanged and untouched .

The ORG had undergone political and social changes , including the transformation of social property into private property . The challenged legislation and the transformation of specially protected tenancy into simple tenancy rights should therefore be understood as part of these changes . Tenants’ rights were now limited by the rights of the “ previous owners ” of the dwellings .

NORP In particular , the tenants’ right to purchase now competed with the property rights of the “ previous owners ” of the dwellings . In this conflict of rights , priority was given to the property rights of the “ previous owners ” . With this argument ORG also dismissed the objection that tenants who could not purchase their dwellings because they were subject to restitution to the “ previous owners ” were discriminated against in comparison with all other tenants , who had the right to buy their dwellings . It held that the factual circumstances of the CARDINAL groups of tenants were profoundly different . While the rights of CARDINAL group of tenants had to be reconciled with the rights of the “ previous owners ” of the dwellings , no such limitation on the rights of the other group of tenants was necessary . The tenants also had a pre - emption right in the event that the “ previous owner ” decided to sell the dwelling , which could be entered in the land register and was weaker only than the pre - emption right of a co - owner ( Section CARDINAL of the SZ-CARDINAL ) .

As for other rights and benefits , including the right to a non - profit rent , ORG considered that all the previous holders of occupancy rights had been placed on an equal footing , regardless of the origin of their dwellings . These rights , in turn , were comparable to the level of protection granted to tenants in other GPE . General allegations that the legislative definition of the non - profit rent was inappropriate were not sufficient to warrant constitutional review .

ORG also dismissed the complaint that the tenants did not have locus standi in the denationalisation proceedings . Inasmuch as the proceedings were decisive for tenants’ rights , tenants did have locus standi . In particular , this concerned the tenants’ right to compensation for any money invested in the dwelling , which could be claimed from the “ previous owner ” . On the other hand , on the basis of such financial investments , the tenants did not acquire a property right or a claim to the property itself in the denationalisation proceedings .

As to the restitution to the “ previous owners ” of expropriated dwellings in which tenants were living , ORG had already ruled that the relevant provisions of the PERSON were not contrary to LAW . Furthermore , the “ previous owners ” were not free to enter into any lease agreements with the tenants ; they merely took over the existing leases the tenants had signed with the municipalities . Finally , ORG dismissed the ORG ’s allegations that Section CARDINAL of the Administrative Disputes Act as then in force was unclear and contrary to the LAW .

DATE . On DATE ORG deliberated in a case , brought by applicant no . CARDINAL ( Mr PERSON ) , concerning the right of a family member to demand a new non - profit lease after the tenant of the denationalised flat in question had died . ORG reversed the case - law and decided that users of denationalised flats could not demand the continuation of a non - profit lease following the demise of the tenant ; in the ORG ’s view , they were entitled only to a lease , and the “ previous owner ” should be free to determine the amount of the rent without any limitations .

Subsequently , a close family member of a deceased former holder of occupancy rights filed a petition for a review of the constitutionality of this new case - law , and a constitutional complaint . In a decision of CARDINAL DATE ( no . U - I-CARDINAL/CARDINAL , Up-CARDINAL/CARDINAL ) , the LAW court held that it was unconstitutional to interpret LAW ( see paragraph CARDINAL above ) in such a manner that , after the death of the holder of a protected tenancy , the “ previous owner ” was obliged to lease it to the family members of the deceased for a non - profit rent . It thus confirmed the DATE decision of ORG . However , ORG did clarify that the spouse or the long term partner of a deceased tenant at the time of the enactment of the ORG was entitled to continue the lease at a non - profit rent .

The applicants observed that this case - law allowed “ previous owners ” to fix an unreasonably high rent , thereby preventing the family members of the deceased tenant ( other than the spouse or the long term partner ) from continuing the lease . They alleged that from DATE onwards a mortis causa transferability of the right to lease had de facto been eliminated .

As the file contained no specific examples of individual situations , in DATE the ORG requested the applicants to submit factual information in respect of the amount of the original rent in DATE and that of the present non - profit rent , the surface area of the flat , its state of repair and its current market value , as well as a chronological overview of the increases in rent and in the statutory minimum wage .

In their reply of DATE , the applicants gave evidence that they were all original former holders of specially protected tenancies or their legal successors .

They stated that the first significant increase ( of PERCENT ) in the non - profit rent took place in DATE . At that time , its ceiling DATE amount was still PERCENT of the value of the dwelling . Further gradual changes were introduced by the DATE amendments to the ORG ( rent increase of PERCENT ) , by ORG decision and by the SZ-CARDINAL ( rent increase of PERCENT ) . The ceiling amount for the DATE non - profit rent was currently PERCENT of the value of the dwelling . They stated that a further rent increase of PERCENT was foreseen in different municipalities . The non - profit rent paid at the time by the tenants equalled PERCENT of the non - profit rent fixed in DATE .

NORP However , the applicants stated that factual information provided by them showed that the non - profit rent in GPE and GPE was still relatively affordable , as it was below the market rent ( see annex DATE “ Table summarising the situation of the individual applicants ” ) . The situation was allegedly different in the countryside , but no concrete information was provided . In certain cases there was no historical data as the documentation no longer existed because of the lapse of time and because the tenants had moved .

In DATE , the average market price of property per square metre in GPE city centre ranged QUANTITY it was between EUR CARDINAL per square metre . As to the statutory minimum wage , in DATE it amounted to CARDINAL NORP tolars ( SIT , nominally ORG CARDINAL ) . In DATE it was SIT CARDINAL ( nominally ORG CARDINAL.CARDINAL ) and in DATE EUR CARDINAL.CARDINAL .

DATE . The applicants also stated that they had made significant financial investments in the renovation and refurbishment of the dwellings .

CARDINAL applicants ( Mr Kuret , PERSON , PERSON , PERSON PERSON and PERSON ) had been forced to move out . Mr PERSON was the only applicant who pursued the legal avenues up to ORG . His constitutional complaint was dismissed on DATE for lack of legal interest , as he had reached a settlement with the “ previous owner ” on DATE ( see annex DATE “ Table summarising the situation of the individual applicants ” ) .

The other applicants , who still occupied the dwellings , were allegedly under pressure , either through court proceedings or through correspondence with the lawyers representing the “ previous owners ” . They complained about various forms of chicanery and intimidation . All the applicants had had to seek legal advice .

The parties also gave details as to the method of calculating the non - profit rent which was introduced by the ORG . Its level might be agreed upon by the parties to the lease contract , but they had to apply the method provided for by the law and not exceed the maximum permitted level of non - profit rent . This was always a percentage ( PERCENT for dwellings DATE ) of the administrative value of the flat , which was determined by the housing authorities according to the following formula :

Value of the dwelling = number of points x value of the point x usable area x effect of size of the dwelling ( corrective factor )

NORP The rent for dwellings for which tenancy agreements were concluded with the former holders of occupancy rights could not exceed the rent level charged for dwellings DATE . The values of the point and the correction factor for surface measurements had always been determined by primary or secondary legislation and as such amended several times . As a general rule , the non - profit rent for newly constructed or renovated flats , of better quality and better equipped , was higher than for older , less well - maintained flats . The non - profit rent was also determined in the light of the state of repair at the time the dwelling was allocated to the tenant , that is , before any investment was made .

The Government pointed out that the non - profit rent was a cost - based rent covering the economic costs of a dwelling . It did not include taxes to be paid by the “ previous owner ” and was meant to cover :

- the depreciation of the dwelling ( to enable the owner to replace a run - down dwelling after a certain number of DATE initially CARDINAL , then CARDINAL ) ;

- the cost of the capital invested ;

- the management of the dwelling ;

- investment and routine maintenance .

Under the DATE rules , for previous holders of occupancy rights the DATE non - profit rent could not exceed PERCENT of the value of the dwelling . The rules were revised in DATE for ordinary tenants , bringing the percentage to PERCENT for dwellings constructed after DATE . From DATE until DATE , the percentage was PERCENT for dwellings DATE and PERCENT for dwellings DATE . For former holders of occupancy rights or persons with whom the “ previous owner ” was obliged to conclude a lease contract under LAW of the ORG ( see paragraph CARDINAL above ) the percentage could not exceed PERCENT .

The Government observed that the new calculation method had been applied progressively over DATE ; thus , according to them , for tenants of denationalised dwellings the rent , in real terms , had decreased from PERCENT in DATE to PERCENT in DATE .

LAW DATE brought the value of the maximum permitted annual non - profit rent up to PERCENT of that of the dwelling , and this notwithstanding the fact that a study ordered by ORG responsible for ORG had shown that a rent covering all costs of the use of the dwelling should amount to PERCENT . A progressive increase in rents was scheduled DATE ( see LAW DATE and LAW on the method for calculating rents in non - profit dwellings ) . As a result , for dwellings DATE , the non - profit rent was immediately decreased by PERCENT , from PERCENT to PERCENT ; for dwellings DATE ( which were the majority ) , it increased by PERCENT , from PERCENT to PERCENT ; lastly , in the CARDINAL denationalised dwellings it increased by PERCENT , from PERCENT to PERCENT . On DATE , the annual non - profit rent in all buildings amounted to PERCENT of the value of the dwelling . It did not increase any more after that date .

The Government also emphasised that the value of the “ housing point ” , which was based on the DATE average price per square metre of constructed non - profit dwellings divided by CARDINAL ( average number of points for newly constructed non - profit dwellings ) , increased from CARDINAL NORP PERSON ( ORG ) in DATE to DEM CARDINAL.CARDINAL in DATE . Non - profit rents increased no further in real terms , but they did increase in relation to the ORG . For dwellings rented after the implementation of the new calculation method introduced in DATE the value of the point was fixed at DEM MONEY ( and later at EUR CARDINAL.CARDINAL ) . Each dwelling was given a certain number of points which would take into account the time and quality of construction , the type and quality of joinery elements , floorings , walls , fitted installations , the type and availability of common areas , thermal and acoustic insulation and any negative impacts on the use of the dwelling .

According to the DATE ( Section CARDINAL(CARDINAL ) and ( CARDINAL ) ) the location of the dwelling could also affect its value . The effect of the location on the level of the non - profit rent could be determined by each municipality and might amount to a maximum of PERCENT of the rent ; however , at the time of the Government ’s observations , CARDINAL municipalities ( Nova Gorica and Mengeš ) had adopted provisions in this respect ; this meant that in all other municipalities , the location of the building did not affect the rent .


Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Ján Šikuta;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra

The applicant was born in DATE and lives in PERSON . She is disabled and is confined to a wheelchair . She depends on her disability pension as a means of subsistence .

On an unspecified date the applicant instituted proceedings against her neighbour , PERSON , seeking to have dismantled a construction that the latter had built in DATE inside the entrance of their multi - flat house for the purpose of insulating the building . In its place the applicant sought to install a wooden ramp for her wheelchair in order to facilitate her access to her flat , situated on the ground floor .

It appears that during the court proceedings the applicant , who was not represented by a lawyer , modified her claim and asked for the construction in question not to be dismantled but to be allocated to her so that she could install a wooden ramp in its place .

On DATE ORG dismissed the applicant ’s claim , finding that the applicant had failed to substantiate with any proof , such as an expert opinion , that it was necessary and possible to dismantle the construction and that it was technically possible to install a wooden ramp in its place .

On DATE the applicant , still not represented , lodged an appeal .

On DATE ORG dismissed the applicant ’s claim on appeal . The court found that the applicant ’s request to have the construction allocated to her was ill - founded since the construction had not been built by her and , moreover , belonged to the owner of the underlying plot of land . The court further referred to an opinion issued on DATE by GPE , according to which it was technically preferable to build a wooden ramp from the balcony side of the applicant ’s flat rather than from the building ’s main entrance .

On DATE the applicant , still unrepresented , lodged an appeal on points of law with ORG .

By a letter of CARDINAL DATE the Chief Registrar of ORG returned the applicant ’s appeal , informing her that the appeal had not been admitted for examination as it had not been lodged by an advocate licensed to act before ORG , pursuant to LAW ( the CCP ) .