FORMER FIFTH SECTION
CASE OF BERGER-KRALL AND OTHERS v. SLOVENIA
(Application no. 14717/04)
JUDGMENT
This version was rectified on 26 June 2014
under Rule 81 of the Rules of the Court
STRASBOURG
12 June 2014
FINAL
13/10/2014
This judgment has become final under Article 44 § 2 of the Convention. It may be
subject to editorial revision.
BERGER-KRALL AND OTHERS v. SLOVENIA JUDGMENT
1
In the case of Berger-Krall and Others v. Slovenia,
The European Court of Human Rights (Former Fifth Section), sitting as a
Chamber composed of:
Mark Villiger, President,
Angelika Nußberger,
Boštjan M. Zupančič,
Ganna Yudkivska,
André Potocki,
Paul Lemmens,
Aleš Pejchal, judges,
and Claudia Westerdiek, Section Registrar,
Having deliberated in private on 28 May 2013, 18 February and 13 May
2014,
Delivers the following judgment, which was adopted on the
last-mentioned date:
PROCEDURE
1. The case originated in an application (no. 14717/04) against the
Republic of Slovenia lodged with the Court under Article 34 of the
Convention for the Protection of Human Rights and Fundamental Freedoms
(“the Convention”) by ten Slovenian nationals, Ms Cornelia Berger-Krall,
Ms Ljudmila Berglez, Ms Ivanka Bertoncelj, Ms Slavica Jerančič, Ms Ema
Kugler, Mr Primož Kuret, Mr Drago Logar, Ms Dunja Marguč, Mr Dušan
Milič and Ms Dolores Zalar (“the applicants”), on 15 March 2004.
2. The applicants were represented by the Čeferin Law Firm, practising
in Grosuplje. The Slovenian Government (“the Government”) were
represented by their Agent, Mrs V. Klemenc., State Attorney.
3. The applicants alleged that the Housing Reform had deprived them of
their possessions and homes, that they had been discriminated against vis-àvis other categories of tenants, that they did not have access to a court to
challenge the alleged infringement of their rights and that they did not have
at their disposal any effective legal remedy.
4. By a decision of 28 May 2013, the Court declared the application
admissible.
5. The applicants and the Government each filed further written
observations (Rule 59 § 1 of the Rules of Court) on the merits. In addition,
third-party comments were received from the International Union of
Tenants, which had been given leave by the President to intervene in the
written procedure (Article 36 § 2 of the Convention and Rule 44 § 3).
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THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
6. The applicants’ names and dates of birth are listed in annex 2. They
are members of the Association of Tenants of Slovenia (Združenje
najemnikov Slovenije).
A. Relevant background
1. Socially-owned flats and “specially protected tenancy” in the
former Socialist Republic of Slovenia
7. In the former Socialist Republic of Slovenia, socially-owned
dwellings represented a significant part of the housing stock (230,000
housing units). Approximately one-third of the Slovenian population lived
in such housing units at the time. According to the doctrine of “social
ownership” (družbena lastnina) introduced into the Yugoslav system in the
1950s, such dwellings were owned by the community, the role of public
bodies being confined to management.
8. After the Second World War, private dwellings and other premises
passed into State 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
Article 206 of the then Constitution of the Socialist Republic of Slovenia
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”. The Housing Act
1982 (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.
9. 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
BERGER-KRALL AND OTHERS v. SLOVENIA JUDGMENT
3
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
(Section 59 of the ZSR). In the Government’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. No more than one 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 29 of the ZSR).
10. The applicants challenged the Government’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 – 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.
11. In legal theory and judicial practice the specially protected tenancy
was described as a right sui generis. On 26 November 1998 the
Constitutional Court delivered a decision (Up-29/98) in which it considered
that under the legislation of the former Socialist Republic of Slovenia, 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.
12. 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.
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BERGER-KRALL AND OTHERS v. SLOVENIA JUDGMENT
13. In the Government’s opinion, however, this was not a succession of
the occupancy right but rather a specifically regulated transfer of it to one 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 (Section 17 of the ZSR), 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 premises (Section 18 of the ZSR).
14. The occupancy right could be cancelled only on limited grounds
(Sections 56, 58 and 61 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 at least six months without good reason (such as
military service, medical treatment, or temporary work elsewhere in the
former Socialist Federal Republic of Yugoslavia (the “SFRY”) or abroad;
see Section 19 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 two years 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 Đokić v. Bosnia and
Herzegovina, no. 6518/04, § 6, 27 May 2010). 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 9
above). However, according to the applicants, this possibility was in
practice never used and there was no case-law on the matter.
15. All employed citizens were required to pay a special monthly
housing contribution (approximately 4.5 to 6 per cent of their monthly
income) to the Joint Housing Fund. The funds thus obtained were used to
build and maintain socially-owned flats. The Housing Fund 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
the Joint Housing Fund and administered by State institutions,
municipalities, social enterprises and other legal entities governed by public
law.
16. Before Slovenia 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 1991, no difference in
BERGER-KRALL AND OTHERS v. SLOVENIA JUDGMENT
5
specially protected tenancy conditions was made between tenants of Stateconstructed dwellings and tenants of nationalised dwellings.
17. On 25 June 1991 the Republic of Slovenia declared its
independence. Among the first reforms enacted were the Housing Act 1991
(Stanovanjski zakon) and the Denationalisation Act 1991 (Zakon o
denacionalizaciji), aimed at redressing the wrongs committed after the
Second World War. The new Constitution of the Republic of Slovenia
(Section 33) guaranteed the right of private ownership.
2. The Housing Act 1991
18. The Housing Act 1991 (hereinafter referred to also as the “SZ”)
provided for the transformation and privatisation of socially-owned
dwellings. The Joint Housing Fund (see paragraph 15 above) was dissolved
and, with few exceptions, the socially-owned dwellings were transferred ex
lege into State ownership or into that of local communities or the National
Pension Fund. Those dwellings which had become socially-owned property
after having been expropriated from private owners were transferred into the
ownership of the municipalities (Section 113).
19. The specially protected tenancy was replaced ex lege with a normal
lease contract (Section 141). 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 – Section 147) or of purchasing them on favourable
terms, paying an administratively defined price which was calculated on the
basis of a discount of 30% (in the event of payment in instalments) or 60%
(in the event of one-off payment) off the estimated value (Sections 117124).
20. According to the applicants, in practice this meant a price of 5-10%
of the real market value of the dwelling payable in instalments over 20 years
or 5% of that value payable within 60 days. 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 one year from the
restitution of the dwelling (Sections 117 and 125). In that case the 30 or 60
per cent discount (Sections 117 and 119) was offered by the owner, who
would then be reimbursed by the municipality.
21. 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 six months from the entry into force of the Housing Act
1991). 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
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BERGER-KRALL AND OTHERS v. SLOVENIA JUDGMENT
them to other adequate flats without any particular justification (Section 54).
There were now nine grounds on which tenants could be evicted for
misconduct, compared with three previously. The fault-based grounds for
termination of the lease were (Section 53 of the SZ):
“- 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 two out of the last twelve
months 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 more than thirty days 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.”
22. 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.
23. 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 53). The owner could renovate the flat at any time and enter it
twice a year (Section 44). 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 56). The tenant had to pay the
legally regulated non-profit rent (Section 63), which, unlike the fee (see
paragraph 8 above), not only covered maintenance costs and depreciation,
but also included a sum to offset capital costs and management of the
dwelling.
BERGER-KRALL AND OTHERS v. SLOVENIA JUDGMENT
7
3. The Denationalisation Act 1991
24. The Denationalisation Act 1991 (hereinafter referred to also as the
“ZDen”) regulated the denationalisation of property which had previously
passed into State 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 7 December 1993) 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 (Section 2).
25. The restitution of dwellings occupied by a tenant did not affect the
leases concluded in the meantime, which remained in force (see Section 125
of the SZ and Section 24 of the ZDen).
26. 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 1994) that denationalisation proceedings had been initiated,
were the former holders of specially protected tenancies informed that their
requests to purchase had been rejected.
(a) The denationalisation proceedings
27. 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, 37,000 restitution requests had been filed and in the period until
the end of 1999 a yearly average of 2,000 to 5,000 decisions had been
rendered, which meant a total of approximately 29,000 decisions, out of
which only approximately 24,000 became final. Until 1999 approximately
18% of decisions were for restitution in the form of compensation, 27% for
restitution of ownership of free dwellings, 44% for restitution of ownership
of occupied dwellings and 8% were refusals or rejections of the requests.
This meant that by the end of 1999 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.
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BERGER-KRALL AND OTHERS v. SLOVENIA JUDGMENT
28. 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 Constitutional
Court decision no. Up-237/97, point 5). 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
7 December 1991 (date of entry into force of the ZDen), 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 60 of the
ZDen).
(b) Reimbursement of investments
29. 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 7 December
1991 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 two values of the property (Section 25 of the ZDen). In cases in which a
final decision on restitution had already been adopted, a claim for recovery
of investments could be filed within one year from the entry into force of
the 1998 Act amending the ZDen.
30. The applicants observed that in the event of an increase in the value
of the property due to the investments made by the tenant, Section 25 of the
ZDen gave three 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 the
year 2005. 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
BERGER-KRALL AND OTHERS v. SLOVENIA JUDGMENT
9
unrealistic also. Moreover, only those investments which had increased the
value of the dwelling – 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 ten years and the
parties could reach a friendly settlement on these matters. “Previous
owners” frequently made the reimbursement conditional upon the tenants
vacating the premises. 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.
4. The 1994 amendments to the Housing Act and the three “models of
substitute privatisation”
31. In the following years, the SZ and the ZDen, 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”.
32. The 1994 amendments to the Housing Act 1991, enacted on 6 April
1994, 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 117 and 123).
33. The amended Section 125 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).
34. If the “previous owner” declined to sell the dwelling and the tenant
decided, within two years 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 30 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 28 above). The tenant was
entitled to further compensation amounting to 50 per cent of the value, in
thirds, from the municipality, the Slovenian Compensation Fund and the
Development Fund of the Republic of Slovenia. In addition, the tenant also
had the right to a State loan under certain conditions. This was the so-called
“second model” for settling the housing issue.
35. The 1994 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 Section 125). Under this model, the applicants were in
the same position as previous holders of specially protected tenancies in
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BERGER-KRALL AND OTHERS v. SLOVENIA JUDGMENT
State-constructed dwellings who could not purchase the dwelling they had
occupied because of practical and legal obstacles.
36. The applicants noted that the right to purchase established by the
amended Section 125 of the SZ 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 (Supreme Court
decision of 14 January 2010, no. II Ips 370/2007).
37. However, the “third model” was repealed on 25 November 1999 by
the Constitutional Court (decision U-I-268/96), which considered that the
additional financial burden had unduly restricted the municipalities’ newly
acquired ownership rights over dwellings which had previously been
socially owned. In the Constitutional Court’s 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.
38. On 21 March 1996 the Constitutional Court delivered a decision (UI-119/94) concerning the pre-emption right of tenants having contracts of
unlimited duration (Section 18), 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 SZ and the
ZDen, 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 Lojze
Ude was appended to the Constitutional Court decision.
5. The Housing Act 2003 and further developments
39. Subsequent amendments to the Housing Act 1991, and the new
Housing Act enacted in 2003 (hereinafter referred to also as the “SZ-1”),
were more favourable to the “previous owners”, who were authorised to
raise the non-profit rent by up to 37% 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 (22 March
2000). However, on 20 February 2003 the Constitutional Court (decision
no. U-I-303/00-12) 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
BERGER-KRALL AND OTHERS v. SLOVENIA JUDGMENT
11
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 2000
amendments.
40. The Housing Act 2003 increased from nine to thirteen 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 three months, ownership of another suitable dwelling,
either by the tenant or by his or her partner – Section 103). 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 112(6)). The “previous owner”
could also move the tenant to another adequate flat (defined in Section 10 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” (Section 106). 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 90 days (Section 109). 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 more than two years on
the day of entry into force of the Housing Act was considered to be an
“immediate family member” (Section 180). The tenant had a pre-emption
right if the flat was for sale.
41. Furthermore, rent subsidies (up to 80% 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 104 and 121). The 2009 Housing Act Amendment
introduced Sections 121a and 121b, 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.
42. The 2003 Housing Act also introduced a “new model” of so-called
“substitute privatisation” for former occupancy right holders. Within five
years after the enactment of the Act 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 (up to 74% of the price of the dwelling – Section 173)
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 no later than one year after
receiving the compensation.
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43. Furthermore, tenants who did not wish or could not afford to buy a
flat could apply to rent a non-profit dwelling (Section 174). The latter was
defined as a dwelling rented out by the municipality, the State or a public
housing fund or non-profit organisation, allocated on the basis of a public
call for applications (Section 87). 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 (190), which,
according to the Government, offered them good prospects of being given
priority and actually being declared eligible. Lease agreements for nonprofit dwellings would be concluded for an unlimited period (Section 90).
6. Statistical data
44. According to information available on the Internet, in 1991 there
were some 11,000 housing units eligible for return to “previous owners”.
Some 6,300 housing units were returned to ownership in full title, while
some 4,700 were returned to “previous owners” while still occupied by
tenants who previously had specially protected tenancies. According to the
Government, in 2012 some 2,780 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
State. A further 288 tenants had lodged requests and proceedings were still
pending at the time of submission of the Government’s observations. An
estimated 1,500 tenants would eventually continue to live in the flats they
had previously occupied as holders of specially protected tenancies.
45. The applicants emphasised that at the beginning of the housing
reform, out of approximately 650,000 housing units in Slovenia 230,000
were socially-owned dwellings housing approximately one-third of the
Slovenian population under specially protected tenancies (see paragraph 7
above). At the time the legislation did not distinguish between expropriated
dwellings and other socially-owned dwellings (see paragraph 16 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 several decades 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 20 above, the possibility to
purchase without the “previous owners’” consent was not given to those
who were living in previously expropriated dwellings subject to
denationalisation (approximately 4,700 properties, covering 2% of all
specially protected tenants). According to the available estimates, in
February 2009 approximately 1,500 families (most likely those who could
not afford to buy a dwelling) had continued to lease their denationalised
dwellings, while approximately 3,200 families had vacated the premises and
BERGER-KRALL AND OTHERS v. SLOVENIA JUDGMENT
13
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.
7. The Slovenian Ombudsman
46. Since 1995, in his regular annual reports the Slovenian Ombudsman
has illustrated the difficulties facing tenants in denationalised flats. In his
Special Report of 8 January 2002 on the Situation of Tenants in
Denationalised Flats 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.
B. The Association’s undertakings
1. The “petition”
47. On 3 February 1998 the Association of Tenants (hereinafter, “the
Association”), lodged a “petition” with several State authorities, including
the National Assembly, the President of the Republic and the Government.
It challenged the Housing Act 1991 and the Denationalisation Act 1991, on
the ground that they deprived the Association’s members of their specially
protected tenancy rights in a manner incompatible with the Constitution of
the Socialist Republic of Slovenia, which was still in force at the time when
the two acts were passed in 1991. Instead of the privileged specially
protected tenancy, which in the Association’s view was in many respects
equal to a property right, tenants were granted leases with a temporary nonprofit 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 1991 approximately
45,000 individuals (previous holders of specially protected tenancies and
their families), living in 13,000 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.
48. The Association 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
14
BERGER-KRALL AND OTHERS v. SLOVENIA JUDGMENT
– 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 Association’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 two groups of tenants on no reasonable ground.
49. 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 Association 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 Association 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 Resolution 1096 of the Parliamentary Assembly of the
Council of Europe (see paragraphs 87-89 below). It requested that an
independent expert commission be set up, that the SZ and the ZDen be
amended, that the restitution of property as such be stayed and that the
National Housing Programme be supplemented.
50. On 2 April 1998 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 State 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 two categories of previous holders of specially protected
tenancies were not in a comparable position.
51. 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 the
Constitutional Court.
BERGER-KRALL AND OTHERS v. SLOVENIA JUDGMENT
15
52. 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 SZ, 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 State 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.
2. The administrative proceedings
53. On 8 May 1998 the Association instituted proceedings against the
Government with the Ljubljana Administrative Court, for not initiating the
necessary amendments to the SZ and the ZDen. In their view, the legislation
in question breached the tenants’ rights under the Constitution and the
European Convention on Human Rights, and disregarded Resolution 1096
of the Parliamentary Assembly of the Council of Europe. In particular, the
Association 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.
54. On 3 March 1999 the Administrative Court rejected the complaints,
holding that the Government’s decision and the accompanying opinion did
not qualify under Section 1 of the Administrative Disputes Act, as then in
force, as an individual act or an action infringing the individual’s
constitutional rights.
55. On 6 April 1999 the Association appealed to the Supreme Court.
56. On 20 September 2001 the Supreme Court dismissed the appeal and
upheld the Administrative Court’s decision of 3 March 1999.
57. On 8 March 2002 the Association lodged a constitutional complaint
with the Constitutional Court, challenging the Supreme Court’s 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.
58. On 11 February 2004 the Constitutional Court rejected the
complaint. It upheld the decisions of the Administrative Court and the
Supreme Court that the relevant governmental decision and the
accompanying opinion could not be challenged in administrative
16
BERGER-KRALL AND OTHERS v. SLOVENIA JUDGMENT
proceedings. In the Constitutional Court’s view, they merely reflected the
Government’s policy position with respect to the petition lodged, and were
therefore not subject to court review.
3. The Constitutional Initiative (Ustavna pobuda)
59. On 8 March 2002, at the same time as the constitutional complaint
(see paragraph 57 above), the Association, representing a group of previous
specially protected tenancy holders, also lodged a constitutional initiative
for review of the constitutionality of the SZ, the ZDen, the Administrative
Disputes Act 1997 and the relevant judicial practice, and their compatibility
with international law binding on Slovenia.
60. On 25 September 2003 the Constitutional Court dismissed the
constitutional initiative (decision U-I-172/02-40). It acknowledged that the
Association, 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 the Constitutional Court did not have jurisdiction to examine the
compatibility of the disputed legislation with the provisions of the
Constitution of the Socialist Republic of Slovenia, which was no longer in
force.
61. Relying on the case-law of the European Court of Human Rights, the
Constitutional Court went on to say that in any event the specially protected
tenancy could not be interpreted as an absolute right to property under
Article 1 of Protocol No. 1, guaranteeing the acquisition of a particular
dwelling. Nor could it be said that the claimants’ right to a home had been
breached under Article 8 of the Convention, 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
(Section 56 of SZ).
62. The Constitutional Court 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.
63. The State 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.
BERGER-KRALL AND OTHERS v. SLOVENIA JUDGMENT
17
Tenants’ rights were now limited by the rights of the “previous owners” of
the dwellings.
64. 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 the Constitutional Court 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 two groups of tenants were
profoundly different. While the rights of one 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 176 of the SZ-1).
65. As for other rights and benefits, including the right to a non-profit
rent, the Constitutional Court 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 States. General allegations that the
legislative definition of the non-profit rent was inappropriate were not
sufficient to warrant constitutional review.
66. The Constitutional Court 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.
67. As to the restitution to the “previous owners” of expropriated
dwellings in which tenants were living, the Constitutional Court had already
ruled that the relevant provisions of the ZDen were not contrary to the
Constitution. 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, the
Constitutional Court dismissed the Association’s allegations that Section 1
of the Administrative Disputes Act as then in force was unclear and contrary
to the Constitution.
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BERGER-KRALL AND OTHERS v. SLOVENIA JUDGMENT
C. Other relevant domestic proceedings
68. On 21 April 2005 the Supreme Court deliberated in a case, brought
by applicant no. 6 (Mr Primož Kuret), 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. The Supreme Court 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
Court’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.
69. 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 7 October
2009 (no. U-I-128/08, Up-933/08), the Constitutional court held that it was
unconstitutional to interpret Article 56 of the SZ (see paragraph 23 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 2005 decision of the
Supreme Court. However, the Constitutional Court did clarify that the
spouse or the long term partner of a deceased tenant at the time of the
enactment of the SZ was entitled to continue the lease at a non-profit rent.
70. 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 2009 onwards a
mortis causa transferability of the right to lease had de facto been
eliminated.
D. Individual situations of the applicants
71. As the file contained no specific examples of individual situations, in
September 2008 the Court requested the applicants to submit factual
information in respect of the amount of the original rent in 1991 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.
72. In their reply of 9 November 2008, the applicants gave evidence that
they were all original former holders of specially protected tenancies or
their legal successors.
73. They stated that the first significant increase (of 100%) in the nonprofit rent took place in 1995. At that time, its ceiling annual amount was
still 2.9% of the value of the dwelling. Further gradual changes were
introduced by the 2000 amendments to the SZ (rent increase of 31%), by the
Constitutional Court’s decision and by the SZ-1 (rent increase of 23%). The
BERGER-KRALL AND OTHERS v. SLOVENIA JUDGMENT
19
ceiling amount for the annual non-profit rent was currently 4.69% of the
value of the dwelling. They stated that a further rent increase of 43% was
foreseen in different municipalities. The non-profit rent paid at the time by
the tenants equalled 434.5% of the non-profit rent fixed in 1992.
74. However, the applicants stated that factual information provided by
them showed that the non-profit rent in Ljubljana and Maribor was still
relatively affordable, as it was below the market rent (see annex 1 – “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.
75. In 2008, the average market price of property per square metre in
Ljubljana city centre ranged between 2,000 and 3,000 euros (EUR) and in
Maribor it was between EUR 1,000 and 2,000 per square metre. As to the
statutory minimum wage, in 1991 it amounted to 6,000 Slovenian tolars
(SIT, nominally EUR 25.03). In August 2003 it was SIT 110,380
(nominally EUR 460.6) and in July 2008 EUR 566.53.
76. The applicants also stated that they had made significant financial
investments in the renovation and refurbishment of the dwellings.
77. Five applicants (Mr Kuret, Ms Berglez, Ms Bertoncelj, Mr Milič and
Ms Jerančič) had been forced to move out. Mr Kuret was the only applicant
who pursued the legal avenues up to the Constitutional Court. His
constitutional complaint was dismissed on 6 July 2006 for lack of legal
interest, as he had reached a settlement with the “previous owner” on
17 March 2006 (see annex 1 – “Table summarising the situation of the
individual applicants”).
78. 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.
E. The method of calculation of the non-profit rent
79. The parties also gave details as to the method of calculating the nonprofit rent which was introduced by the SZ. 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 (2.9% for dwellings more
than 25 years old) 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)
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BERGER-KRALL AND OTHERS v. SLOVENIA JUDGMENT
80. 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 more than 25 years old. 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.
81. The Government pointed out that the non-profit rent was a costbased 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 rundown dwelling after a certain number of years – initially 200, then 60);
- the cost of the capital invested;
- the management of the dwelling;
- investment and routine maintenance.
82. Under the 1991 rules, for previous holders of occupancy rights the
annual non-profit rent could not exceed 2.9% of the value of the dwelling.
The rules were revised in 1995 for ordinary tenants, bringing the percentage
to 3.8% for dwellings constructed after 1991. From March 2000 until
December 2004, the percentage was 3.81% for dwellings more than sixty
years old and 5.08% for dwellings less than sixty years old. For former
holders of occupancy rights or persons with whom the “previous owner”
was obliged to conclude a lease contract under Section 56 of the SZ (see
paragraph 23 above) the percentage could not exceed 3.81%.
83. The Government observed that the new calculation method had been
applied progressively over a span of five years; thus, according to them, for
tenants of denationalised dwellings the rent, in real terms, had decreased
from 2.9% in 2000 to 2.54% in 2004.
84. The Housing Act 2003 brought the value of the maximum permitted
annual non-profit rent up to 4.68% of that of the dwelling, and this
notwithstanding the fact that a study ordered by the Ministry responsible for
the Environment and Spatial Planning had shown that a rent covering all
costs of the use of the dwelling should amount to at least 5.63%. A
progressive increase in rents was scheduled up to 31 December 2006 (see
Section 181 of the SZ-1 and the Government Decree on the method for
calculating rents in non-profit dwellings). As a result, for dwellings less
than sixty years old, the non-profit rent was immediately decreased by 8%,
from 5.08% to 4.68%; for dwellings more than sixty years old (which were
the majority), it increased by 21.80%, from 3.81% to 4.68%; lastly, in the
approximately 2,500 denationalised dwellings it increased by 84.20%, from
2.54% to 4.68%. On 1 January 2007, the annual non-profit rent in all
BERGER-KRALL AND OTHERS v. SLOVENIA JUDGMENT
21
buildings amounted to 4.68% of the value of the dwelling. It did not
increase any more after that date.
85. The Government also emphasised that the value of the “housing
point”, which was based on the annual average price per square metre of
constructed non-profit dwellings divided by 320 (average number of points
for newly constructed non-profit dwellings), increased from 1.88 German
Marks (DEM) in 1991 to DEM 3.75 in August 1996. Non-profit rents
increased no further in real terms, but they did increase in relation to the
DEM. For dwellings rented after the implementation of the new calculation
method introduced in 2000 the value of the point was fixed at DEM 5.39
(and later at EUR 2.63). 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.
86. According to the SZ-1 (Section 118(8) and (9)) 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 30% of the rent; however, at the time of the
Government’s observations, only two 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.
II. RELEVANT INTERNATIONAL DOCUMENTS
A. Resolution 1096 (1996) of the Parliamentary Assembly
87. On 27 June 1996 the Parliamentary Assembly of the Council of
Europe adopted Resolution 1096 on measures to dismantle the heritage of
former communist totalitarian systems. In the resolution, the Parliamentary
Assembly confirmed that in the transition of the former communist
totalitarian systems into democratic systems, the principles of subsidiarity,
freedom of choice, equality of opportunity, economic pluralism and
transparency of decision-making should play a role. Some of the principles
which were mentioned in the resolution as means of achieving these goals
were the separation of powers, freedom of the media, protection of private
property and the development of civil society. The Parliamentary Assembly
also considered that the key to peaceful coexistence and a successful
transition process lay in striking the delicate balance of providing justice
without seeking revenge.
88. The Parliamentary Assembly advised that property, including that of
the churches, which was illegally or unjustly seized by the State,
nationalised, confiscated or otherwise expropriated during the reign of
communist totalitarian systems in principle be restored to its “previous
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BERGER-KRALL AND OTHERS v. SLOVENIA JUDGMENT
owners” in integrum, if that was possible without violating the rights of
current owners who acquired the property in good faith, or the rights of
tenants who rented the dwelling in good faith, and without harming the
progress of democratic reforms. In cases where this was not possible, just
satisfaction should be awarded. Claims and conflicts relating to individual
cases of property restitution should be decided by the courts.
89. The Parliamentary Assembly also recommended that the authorities
of the countries concerned verify that their laws, regulations and procedures
complied with the principles contained in the Resolution, and revise them if
necessary. This would, in the view of the Parliamentary Assembly, help to
avoid complaints about these procedures being lodged with the control
mechanisms of the Council of Europe under the European Convention on
Human Rights, the Committee of Ministers’ monitoring procedure, or the
Assembly’s monitoring procedure under Order No. 508 (1995) on the
honouring of obligations and commitments by member States.
B. Policy Guidelines on Access to Housing for Disadvantaged
Categories of Persons, adopted by the European Committee for
Social Cohesion
90. On 14-16 November 2001 the European Committee for Social
Cohesion (the “ECSC”) adopted the Policy Guidelines on Access to
Housing for Disadvantaged Categories of Persons, prepared by the Group of
Specialists on Access to Housing. In the guidelines the ECSC reaffirmed the
significance of housing and the corresponding responsibilities of national
governments, as recognised in a number of international documents such as
the European Social Charter, the UN Habitat Agenda and the Declaration on
cities and other human settlements in the new millennium adopted by the
UN General Assembly. The ECSC established that according to these
documents the Council of Europe member States should ensure affordable
housing to disadvantaged categories of persons, by creating an appropriate
legal framework for housing markets with regard to property rights, security
of tenure and consumer protection. The policies adopted should expand the
supply of affordable housing and provide better legal security of tenure and
non-discriminatory access to housing for all.
91. In paragraph 15, the ECSC also stated:
“In countries that have privatised considerable parts of their public housing stock in
recent years, appropriate housing policy measures should be introduced which
counteract undesirable consequences of housing privatisation and restitution for
disadvantaged categories of persons. For example, in countries with a high rate of
“poor owner-occupiers”, more emphasis should be given to a general housing
allowance system and to public support for the renewal of housing units, for the
benefit of both owners and tenants in restituted dwellings.”
BERGER-KRALL AND OTHERS v. SLOVENIA JUDGMENT
23
92. The ECSC defined the term “disadvantaged categories of persons”
as denoting all persons or groups of persons who are disadvantaged on the
housing market for economic, social, psychological and/or other reasons
and who consequently require appropriate assistance to facilitate their
access to housing.
C. The 2003 Report of the Commissioner for Human Rights on his
visit to Slovenia
93. On 15 October 2003 the Commissioner for Human Rights,
Mr Alvaro Gil-Robles, issued a Report on his visit to Slovenia in May 2003,
in which, among other topics, he addressed the situation of tenants living in
former socially-owned dwellings which were eventually returned to the
“previous owners”. He likened the position of tenants who lost their
privileged specially protected tenancy to the position of landlords who
acquired the ownership of such dwellings but not the use of them. He
observed that, in contrast to the majority of other holders of specially
protected tenancy, the tenants in denationalised dwellings did not have the
advantage of being entitled to purchase the flats they lived in, and he
acknowledged the fear of many of them, now already elderly, that they
would not be able to afford possible rent increases in the future.
94. Concerning the landlords, however, he noted that they could not
really take possession of the dwellings either. They took over ownership of
the property with a number of obligations vis-à-vis the tenants, whom they
had not themselves selected and for whom they had to maintain the social
character of the rent charged. Thus, the “previous owners” were not
supposed to make any substantial profit from their property, nor could they
terminate the tenancy agreement without complying with a number of
specific conditions. He also pointed out that the fact that the landlords had
finally recovered their expropriated dwellings was fair and could not be
contested as such.
95. The Commissioner thus established that “there can be neither
winners nor losers in this situation, because both sides may be considered
disadvantaged,” and concluded his report by recommending that the
legislator consider a new amendment to the legislation “to settle the
problems facing one side while also protecting the interests of the other.”
D. Collective complaint No. 53/2008, European Federation of
National Organisations Working with the Homeless (FEANTSA)
v. Slovenia
96. Following its ratification, the Revised European Social Charter
became a part of the Slovenian legal order as from 11 April 1999. In
September 2008 the international non-governmental organisation
24
BERGER-KRALL AND OTHERS v. SLOVENIA JUDGMENT
FEANTSA (European Federation of National Organisations Working with
the Homeless) filed a collective complaint (no. 53/2008) with the European
Committee of Social Rights. It alleged that tenants of flats denationalised at
the end of the socialist regime had suffered a loss of their title to property,
an increase in the price of accommodation and a reduction of the
possibilities of acquiring adequate accommodation.
97. In a decision on the merits, of 8 September 2009, the European
Committee of Social Rights concluded that Slovenia was violating the right
to housing of former holders of occupancy rights under Article 31 §§ 1
(promotion of access to housing of an adequate standard) and 3
(accessibility of price of housing to those without adequate resources),
Article 16 (right of the family to social, legal and economic protection) and
Article E (prohibition of discrimination) of the Revised European Social
Charter.
98. The Committee held that prior to SZ the right of tenants of nonprofit flats in Slovenia to adequate housing was clearly protected by law.
The rules introduced by SZ (allowing former holders of occupancy rights to
purchase, at an advantageous price, the flats in which they were living, and
whose ownership had been transferred, on a transitional basis, to public
entities) were also deemed to ensure sufficient legal security in the
occupation of the dwellings. The Committee considered, however, as
regards former tenants of flats that had been returned to the “previous
owners”, that the combination of insufficient measures for the acquisition of
or access to a substitute flat, the evolution of the rules on occupancy and the
increase in rents, were likely to place a significant number of households in
a very precarious position, and to prevent them from effectively exercising
their right to housing.
99. Moreover, Slovenia had failed to show that the affordability ratio of
the poorest applicants for housing was compatible with their level of
income. Former holders of occupancy rights, in particular elderly persons,
had been deprived of the opportunity to purchase the flat they lived in, or
another one, on advantageous terms, and of the opportunity to remain in the
flat, or move to and occupy another flat, in return for a reasonable rent.
100. Lastly, the treatment accorded to former holders of occupancy
rights in respect of flats acquired by the State through nationalisation or
expropriation, and returned to the “previous owners”, was manifestly
discriminatory in relation to the treatment accorded to tenants of flats that
were transferred to public ownership by other means. The Committee
observed that there was no evidence of any difference in the situation of the
two categories of tenants, and that the original distinction between the forms
of public ownership in question was in no way imputable to them and had
no bearing on the nature of their own relationship with the public owner or
administrator.
BERGER-KRALL AND OTHERS v. SLOVENIA JUDGMENT
25
101. On the basis of the decision of the European Committee of Social
Rights on the merits, on 15 June 2011 the Committee of Ministers of the
Council of Europe adopted Resolution CM/ResChS(2011)7, welcoming the
measures already taken by the Slovenian authorities and their commitment
to bring the situation into conformity with the Social Charter. The
Committee of Ministers looked forward to Slovenia reporting, in its next
report concerning the relevant provisions of the European Social Charter,
that the situation had been brought into full conformity.
102. The applicants alleged that in spite of the above decision and
resolution, no substantial step had been taken to positively regulate their
situation.
E. Agreement on Succession Issues
103. The Agreement on Succession Issues was the culmination of nearly
ten years of intermittent negotiations under the auspices of the International
Conference on the former Yugoslavia and the High Representative
(appointed pursuant to Annex 10 to the Dayton Peace Agreement). It
entered into force between Bosnia and Herzegovina, Croatia, the then
Federal Republic of Yugoslavia, “The former Yugoslav Republic of
Macedonia” and Slovenia on 2 June 2004 (see Đokić, cited above, § 43).
Article 6 of Annex G, concerning specially protected tenancy, reads as
follows:
“Domestic legislation of each successor State concerning dwelling rights
(‘stanarsko pravo/ stanovanjska pravica/ станарско право’) shall be applied equally
to persons who were citizens of the SFRY and who had such rights, without
discrimination on any ground such as sex, race, colour, language, religion, political or
other opinion, national or social origin, association with a national minority, property,
birth or other status.”
III. RELEVANT ELEMENTS OF COMPARATIVE LAW
104. After declaring the application admissible, the Court invited the
parties to submit additional information on how the housing reform
undertaken in other former socialist countries has dealt with the issue of
protecting the rights of holders of occupancy rights over denationalised
dwellings. The information provided by the parties may be summarised as
follows.
105. The applicants emphasised that specially protected tenancy was a
sui generis right which was known and enforced only in the SFRY, and not
in other former socialist states of Central and Eastern Europe. After the
collapse of the SFRY a housing reform was enacted not only in Slovenia but
also in Croatia, Serbia and Bosnia and Herzegovina. All these States
26
BERGER-KRALL AND OTHERS v. SLOVENIA JUDGMENT
abolished social ownership of social dwellings and specially protected
tenancy rights; however, in Croatia, Serbia and Bosnia and Herzegovina the
latter had been transformed into ownership through a right to purchase
under favourable terms (regulated price in the amount of 10 to 20 per cent
of the market value, possibility to pay in instalments). In particular, former
holders of occupancy rights were able to purchase the dwellings in which
they were living, while “previous owners” were guaranteed the payment of
just compensation for the loss of their properties. In Bosnia and
Herzegovina an exception to the right to purchase was provided for as far as
dwellings of former religious entities were concerned; however, former
holders of specially protected tenancy in respect of these particular
dwellings could buy a substitute flat instead. According to the information
available to the applicants, in no other former SFRY Republic than Slovenia
was discrimination in the enjoyment of the right to purchase provided for
when the dwelling had been expropriated by the State through
nationalisation or confiscation.
106. The Government first observed that even if it had introduced the
notion of “social ownership” into its legal system, the SFRY did not
completely banish private property. Private ownership of residential units
was allowed but limited to a certain size of living space. Due to
amendments to the Constitution, in 1971 the power to pass laws in the
housing field was transferred from the Federal State to the constituent
republics. The Government submitted the following information concerning
former SFRY republics other than Slovenia.
107. In Bosnia and Herzegovina social ownership was transformed into
state ownership during the 1992-95 war. After 1998, pre-war occupants
were allowed to claim repossession of the apartments which they had left
during the war and to purchase them on favourable terms. Moreover,
occupancy right holders were entitled to purchase the apartments they lived
in, with the exception of privately-owned dwellings. The relevant legislation
initially indicated that the apartments subject to restitution would be
regulated by special provisions on restitution. However, this rule was later
amended, and occupancy right holders were given the right to purchase the
apartments they were occupying even when the latter had been nationalised
or confiscated. The “previous owners” were to be granted comparable
apartments or an equivalent amount of money or other advantages or rights.
If they did not purchase the flats, occupancy right holders became lessees.
Restitution in natura of expropriated property never took place in Bosnia
and Herzegovina. A similar situation existed in the Republika Srpska, where
all occupancy right holders were allowed to purchase the apartments they
lived in, with the exception of the privately-owned ones. When the latter
were returned to their owners, the occupancy right holders had the right to
buy another comparable flat.
BERGER-KRALL AND OTHERS v. SLOVENIA JUDGMENT
27
108. In Croatia, occupancy right holders were allowed to purchase the
apartments they lived in under favourable conditions. However, this did not
apply to privately owned apartments. In 1997 the Croatian legislator
decided that apartments expropriated by way of nationalisation on which
occupancy rights existed could not be returned in natura to “previous
owners”, who would only receive financial compensation; they could
therefore be purchased by the occupancy right holders. A different rule
applied to confiscated apartments, which were subject to restitution in
natura, with the consequence that occupancy right holders would become
lessees and would be given a pre-emption right should the “previous owner”
decide to sell. All occupancy right holders who did not or could not
purchase were entitled to a protected lease.
109. In Serbia, occupancy right holders and their household members
could file a purchase request for the apartments they occupied, irrespective
of whether the latter had been nationalised or acquired through solidarity
and mutual housing funds. If the apartment was not bought before the end
of 1995, the occupants would become lessees, but would retain the
possibility to purchase. This possibility was excluded ab initio for privatelyowned apartments. The occupancy right holders of these flats would
become lessees and could be evicted only if the owner provided them with
alternative accommodation; the municipalities were obliged to secure
alternative accommodation for this category of tenants by 31 December
2000. Serbia adopted a law providing for restitution of expropriated real
estate in kind, similar to the Slovenian one, only in 2011. However, this
only concerned properties which had not meanwhile been purchased by
former holders of occupancy rights.
110. In 1995, Montenegro provided for the transformation of occupancy
rights into private ownership through the purchase of the flats. However,
this did not apply to apartments in private ownership or which had been
previously expropriated. A law on restitution in kind to “previous owners”
was adopted in 2004; it provided that within a period of ten years from its
entry into force the Republic of Montenegro had to provide holders of
occupancy rights over dwellings returned in natura with a corresponding
apartment which they could purchase under the same conditions as applied
to the purchase of apartments in social ownership. This right was not
conferred on occupancy right holders who owned another flat.
111. As far as other former Central and Eastern European countries are
concerned, the Government noted that in Poland people living in flats
returned to “previous owners” were not entitled to buy a substitute or
equivalent dwelling. The municipalities could provide a flat to persons in a
particularly difficult individual or economic situation. Protected tenants, that
is to say people who had been allocated a dwelling on the basis of
administrative decisions, were given contractual leases concluded for an
indefinite period at a controlled rent; they were protected against eviction.
28
BERGER-KRALL AND OTHERS v. SLOVENIA JUDGMENT
There was a possibility, under advantageous conditions, to buy flats which
had been built by a co-operative, taking into account, inter alia, the
contributions the buyer had paid as a member of the co-operative.
112. Hungary did not provide for the restitution in kind of expropriated
dwellings; “previous owners” could only receive partial compensation the
amount of which depended on the country’s economic capacity.
113. In Slovakia in 1992 occupancy rights were transformed into a lease.
Holders of occupancy rights over flats acquired through solidarity and
housing co-operatives could acquire ownership of the premises concerned
on special terms. By way of contrast, it was not possible to purchase a flat
returned to its “previous owner”; however, the occupancy right holder had
the possibility to acquire a substitute flat from the municipality if he or she
had received notice of termination of the lease and did not own another flat
or any other real estate. The lessee was not obliged to vacate the premises
until the municipality had assigned him or her a substitute flat. The rent was
regulated by law, but as of 2011 “previous owners” were allowed to raise it
by 20 per cent per year.
114. In the Czech Republic, occupancy rights were transformed ex lege
into traditional tenancies. If the owner of the flat (that is, the State or the
“previous owner”) decided to terminate the lease, the tenant had the right to
a substitute flat provided by the owner, but did not have the right to buy the
flat in which he or she was living. If the State was the owner and decided to
sell the flat, only the former holder of occupancy rights could buy it.
However, in May 1994 this exclusive right to buy was replaced by a simple
pre-emption right. An enforceable right to buy existed only in relation to
flats owned by a co-operative association, as the latter was obliged, at the
tenant’s request, to sell the dwelling concerned.
115. In Estonia, all dwellings occupied under lease agreements were
subject to privatisation, with the exception of flats returned to “previous
owners”. The price of the sale could be paid in vouchers and public capital
bonds. In the event of restitution to “previous owners”, tenants had an
automatic right to a lease contract (first for a duration of three years and
then for five years) and enjoyed pre-emption rights. If they agreed to vacate
the premises, these tenants were entitled to be allocated a new dwelling or
could apply for a loan or grant from the State for resettlement or to purchase
a dwelling.
116. After the reunification of Germany plots of land in the territory of
the former Democratic Republic of Germany had been returned to “previous
owners”; however, restitution was excluded for those plots in respect of
which a third party had in good faith acquired a right of use from the State
prior to 1990 and had built a house. For these plots, the “previous owners”
would only receive financial compensation, which would cover only a
certain percentage of the market-value of the property. German Federal Law
provided for strong social protection of the tenant: fixed-term leases and
BERGER-KRALL AND OTHERS v. SLOVENIA JUDGMENT
29
termination of the lease by the landlord were permissible only in limited
cases and the agreed rent could be raised only up to the level of the “local
comparative rent”. Even stronger protection was afforded to tenants in the
new German Länder (in particular, the amount of the rent was regulated by
law, and for a certain period of time landlords could not terminate tenancies
when they needed the premises for their own personal use). Given the high
level of protection afforded to tenants, it was felt that in the new German
Länder there was no need to offer substitute housing to the tenants.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 TO
THE CONVENTION
117. The applicants complained that they had been deprived of their
specially protected tenancy without receiving adequate compensation.
They relied on Article 1 of Protocol No. 1 to the Convention, which
reads as follows:
“Every natural or legal person is entitled to the peaceful enjoyment of his
possessions. No one shall be deprived of his possessions except in the public interest
and subject to the conditions provided for by law and by the general principles of
international law.
The preceding provisions shall not, however, in any way impair the right of a State
to enforce such laws as it deems necessary to control the use of property in
accordance with the general interest or to secure the payment of taxes or other
contributions or penalties.”
A. Applicability of Article 1 of Protocol No. 1
118. In its decision of 28 May 2013 on the admissibility of the
application (paragraph 184), the Court considered that the question of the
applicability of Article 1 of Protocol No. 1 was linked to the substance of
the applicants’ complaint and decided to join it to the merits.
1. The parties’ submissions
(a) The Government
119. The Government objected that the applicants’ complaint was
incompatible ratione materiae with the provisions of Article 1 of Protocol
No. 1, as the right of an occupant to reside in a real estate unit he or she did
not own could not constitute a “possession” (they referred to J.L.S. v. Spain
(dec.), no. 41917/98, ECHR 1999-V; Kozlovs v. Latvia (dec.), no. 50835/00,
30
BERGER-KRALL AND OTHERS v. SLOVENIA JUDGMENT
23 November 2000; Kovalenok v. Latvia (dec.), no. 54264/00, 15 February
2001; H.F. v. Slovakia (dec.), no. 54797/00, 9 December 2003; Bunjevac
v. Slovenia (dec.), no. 48775/09, 19 January 2006; and Gaćeša v. Croatia
(dec.), no. 43389/02, 1 April 2008; and also Durini v. Italy, no. 19217/91,
Commission’s decision of 12 January 1994).
120. The Government argued that the applicants’ (unrealistic)
expectation that dwellings constructed before the Second World War with
private funds (and not with social resources) and nationalised under the
socialist system would not be returned to their “previous owners” was based
on a misinterpretation of the nature of the occupancy right. They pointed out
that Article 1 of Protocol No. 1 should apply only to a person’s existing
possessions. The occupancy right did not confer ownership rights and the
dwellings had been allocated to the applicants for “management” and
permanent use. In compliance with the social order then in force, they had
to recognise the authority of the “indirect possessor” of the so-called
“socially-owned property” (which according to the then applicable
principles of real-property law was jointly owned by the people of
Slovenia). The possession of the dwelling was linked to the duration of the
occupancy relationship, but was not based on a permanent and inalienable
right to ownership or another right in rem. This was demonstrated, inter
alia, by the fact that for a certain period of time the occupancy right could
even be allocated in respect of privately owned flats.
121. Even though it might be difficult to compare anachronistic concepts
of socially-owned property with traditional property in a democratic society,
it was clear that the occupancy right was, mutatis mutandis, more akin to a
tenancy. According to the Commentary to the former legislation, it was a
special set of “management” entitlements, on the basis of which the holder
had the right to use the socially-owned dwelling for the purpose of
satisfying personal and family housing needs. It was not associated with a
particular dwelling but rather with the holder’s personal housing needs and
those of his family: should these needs change (for instance because the
number of users decreased), the occupancy relationship could be terminated
provided that another dwelling that suited the altered circumstances was
allocated to the holder of the occupancy right. Moreover, the occupancy
relationship could be terminated if the holder had not been using the
dwelling, had fully sublet it or if the dwelling was occupied by a third party.
122. The holder had to pay the “socially agreed price in the form of
rent”; the occupancy right was not transferable (except in cases provided for
by law) and could not be inherited. Regulated transition was possible to one
of the users of the dwelling: the heir of a tenant who at the time of the
latter’s death was living in the same flat might enter into the same tenancy
relationship with the owner. The holder of the occupancy right could not
dispose of the dwelling (with the exception of an exchange of sociallyowned dwellings) and was not allowed to make alterations without the prior
BERGER-KRALL AND OTHERS v. SLOVENIA JUDGMENT
31
approval of the community of tenants. The occupancy relationship could be
terminated for fault-based reasons which were very similar to the grounds
for terminating any tenancy relationship.
123. In the light of the above, the Government argued that the
occupancy right was comparable to a tenancy relationship, albeit concluded
for an indefinite period. The applicants merely had the right to reside in a
dwelling which was not owned by them; this right was considered neither a
property right nor any other real right, but was in essence an obligation,
established or terminated according to the provisions of the law on
obligations. The Constitutional Court’s decision no. Up-29/98, to which the
applicants referred (see paragraph 11 above), was an isolated one and could
not constitute “case-law”; moreover, it should be understood in the context
of the peculiar status of the complainant in that case, who had suffered harm
because of the actions of the municipal authority, which had encumbered an
asset that was subject to a ban on trade.
124. The Government further observed that the possibility of purchasing
the dwelling, provided for in the SZ, did not apply to socially-owned
dwellings which had become public property by way of nationalisation, as
they were subject to the obligation of restitution. That possibility did not
constitute an entitlement arising from the former occupancy right, and was
introduced only later (with the “third model”) for flats other than those
occupied by the applicants, as a method of privatisation (and not, as
wrongly argued by the applicants, as a kind of compensation for the
withdrawal of the occupancy right). Moreover, the right to purchase the
dwelling should be differentiated from the pre-emption right guaranteed to
any occupancy right holder, which depended upon the “previous owner’s”
free decision to sell the property. Thus, the applicants had no enforceable
right to purchase the flats in which they were living and had no legitimate
expectation to acquire ownership of them. In any event, Article 1 of
Protocol No. 1 did not guarantee the right to acquire property (see Sorić
v. Croatia (dec.), no. 43447/98, 16 March 2000; Slivenko and Others
v. Latvia (dec.) [GC], no. 48321/99, § 121, ECHR 2002-II; and Kopeckỳ
v. Slovakia [GC], no. 44912/98, § 35 (b), ECHR 2004-IX).
125. It was true that the “third model” provided for the option of
purchasing another dwelling; however, this model had been abrogated in
November 1999 (see paragraph 37 above). As none of the applicants had
applied to purchase a dwelling under this model, it could not be argued that
they had an enforceable claim in this regard.
126. The applicants’ claims for recovery of investments (see Article 25
of the ZDen) could not be considered “possessions” within the meaning of
Article 1 of Protocol No. 1 unless there was a “legitimate expectation”
based on a regulation or a final judgment. The mere hope that such claims
might be granted could not bring Article 1 of Protocol No. 1 into play. The
Government had never denied the rights of those applicants who had
32
BERGER-KRALL AND OTHERS v. SLOVENIA JUDGMENT
obtained a final favourable decision in this regard. In any event, entitlement
to recover investments could not be the basis for the establishment of
ownership of the dwellings.
127. As far as applicant no. 2 (Mrs Berglez) was concerned, the
Government observed that she had applied to sign a lease contract out of
time; her conditional claim had therefore lapsed as a result of her failure to
comply with a statutory regulation and could not, for this reason also, be
considered a “possession”.
128. The case of Mago and Others relied on by the applicants (see
paragraph 130 below) could not be compared with the present one as, unlike
Slovenian law, the Dayton Peace Agreement had established that all
occupancy right holders in Bosnia and Herzegovina were entitled to return
to the homes they had lived in before the war. It was true that under the
former regime a socially-owned dwelling could be sold only to its
occupancy right holder; however, this was not an entitlement deriving from
the occupancy right, but a measure aimed at the preservation of the value of
socially-owned property used for housing, and sale was permissible only
under certain conditions and at the price determined by a certified valuator.
(b) The applicants
129. The applicants pointed out that the “specially protected tenancy”,
which they had acquired in good faith, implied the exclusive right to live in
the dwelling for an indefinite period, the right to transmit it inter vivos or
mortis causa to family members who lived with the tenant concerned, and
the exclusive right to purchase the dwelling. It thus had all the essential
characteristics of a right of ownership and the only thing missing was the
title of owner. It was not based on a precarious contract but on a
constitutionally protected civil right of a permanent nature, which could be
terminated only in legally regulated extreme cases, connected to the fact that
in the former social order all individuals were meant to have access to goods
according to their needs. Therefore, the specially protected tenancy
constituted a “possession” within the meaning of Article 1 of Protocol
No. 1.
130. In any event, according to the Court’s case-law, even a legitimate
expectation to lease could be regarded as a possession (Stretch v. the United
Kingdom, no. 44277/98, § 32, 24 June 2003). The Court had also held that
the cancellation of a specially protected tenancy amounted to a deprivation
of possession (Mago and Others v. Bosnia and Herzegovina, nos. 12959/05,
19724/05, 47860/06, 8367/08, 9872/09 and 11706/09, §§ 77-78 and 95,
3 May 2012).
131. Furthermore, it should be kept in mind that at the time of
Slovenia’s ratification of the Convention and until the end of 1999, all
former holders of specially protected tenancies had the right, not subjected
to time limitations, to purchase a dwelling on very favourable terms, either
BERGER-KRALL AND OTHERS v. SLOVENIA JUDGMENT
33
the one they were occupying or, under the “third model”, another
comparable flat. In the applicants’ view, this right also constituted a
“possession”, as it guaranteed the possibility to acquire ownership of a
dwelling upon payment of a minimum financial contribution (5 to 10% of
the market value of the property – see paragraph 20 above). Its exercise
depended upon a unilateral request by the former holder of the occupancy
right, and in most cases the tenants had to wait until the end of the
denationalisation proceedings merely to establish whether the right to
purchase was to be exercised on the existing dwelling or on a substitute
dwelling.
132. The applicants underlined that the Court had considered as a
“possession” the right of former holders of specially protected tenancies in
another Republic of the SFRY to purchase a dwelling (Brezovec v. Croatia,
no. 13488/07, § 45, 29 March 2011). The present case, concerning a right to
purchase with no temporal limitation, was to be distinguished from that of
Gaćeša v. Croatia, cited by the Government (see paragraph 119 above),
where the law clearly fixed a time-limit for exercising the said right and the
applicant had missed it. In Slovenia, the so-called “third model” had been
repealed by the Constitutional Court without any prior announcement or
warning.
133. Contrary to the Government’s allegations, the right to purchase was
not just a legal privilege but also a means of compensating for the forceful
deprivation of the specially protected tenancy, which was the form the legal
title to housing took at that time. This was clear from the nature of the
specially protected tenancy, in so far as only its holder – and not other users
of the dwelling – was granted the right to purchase, and that right was
recognised also in respect of a substitute dwelling. In this connection, the
applicants pointed out that the Court had already classified as a
“possession” an existing legal right to just compensation for deprivation of
property taken prior to the ratification of the Convention (Broniowski
v. Poland [GC], no. 31443/96, § 133, ECHR 2004-V).
(c) The third-party intervener
134. The International Union of Tenants (hereinafter, the “IUT”), a nongovernmental organisation whose headquarters are located in Stockholm,
argued that a right to tenancy constituted a “possession” within the meaning
of Article 1 of Protocol No. 1 (Larkos v. Cyprus ([GC] no. 29515/95, ECHR
1999-I). Even more so the “specially protected tenancy”, which assured a
high level of legal protection to the applicants and their families.
2. The Court’s assessment
135. The Court does not consider it necessary to examine the
Government’s objection of incompatibility ratione materiae since it has
come to the conclusion that, even assuming Article 1 of Protocol No. 1 to be
34
BERGER-KRALL AND OTHERS v. SLOVENIA JUDGMENT
applicable, the requirements of this provision were not violated (see, mutatis
mutandis and in the ambit of Article 6 of the Convention, Ashingdane v. the
United Kingdom, 28 May 1985, § 54, Series A no. 93).
B. The substance of the applicants’ complaint
1. The parties’ submissions
(a) The applicants
(i) Scope of the complaint
136. In their application, the applicants alleged that the respondent
Government had never stated any reasonable grounds or public interest that
justified depriving them of their specially protected tenancy. The only
reason given had been the transition from the previous socialist system to a
market economy. In the applicants’ view, only the “previous owners” had
benefited from these changes, and conferring a private benefit on a private
party could not be in the public interest as defined by Article 1 of Protocol
No. 1.
137. In their observations in reply, however, the applicants stated that it
was not, as such, the abolition of the specially protected tenancy and/or the
restitution of the dwellings to the “previous owners” that they held against
Slovenia. Still, a number of actions and omissions imputable to the State
during the period of implementation of the reforms had, in their opinion,
violated their Convention rights and created a situation which was
unbearable both for the previous holders of occupancy rights and for the
“previous owners”. The result of the denationalisation was a purely formal
restitution of the dwellings: “previous owners” were obliged to lease them
out for a non-profit rent at least until the death of the former holder of the
specially protected tenancy and could, in principle, remove the tenant only
by offering substitute rented accommodation.
138. The legislation which existed from 1994 until 1999, contemplating
the “third model”, was “more sensible and ... in accordance with the
Convention”. However, this model had been withdrawn before the majority
of former holders of specially protected tenancies could benefit from it, and
from that time onwards the State had failed to ensure the required fair
balance. The applicants referred to the dissenting opinion of Judge Lojze
Ude appended to the Constitutional Court’s decision of 25 November 1999
(see paragraph 38 above). Since the end of 1999 former holders of
occupancy rights living in denationalised dwellings had been left without
any suitable compensation for the loss of their specially protected tenancy
rights, while at the same time “previous owners” could not fully enjoy their
restituted dwellings.
BERGER-KRALL AND OTHERS v. SLOVENIA JUDGMENT
35
(ii) Whether there was an interference with possessions
139. Citing the case of Velikovi and Others v. Bulgaria (nos. 43278/98
and others, § 161, 15 March 2007), the applicants alleged that the question
whether their rights under Article 1 of Protocol No. 1 had been interfered
with should be examined in the light of the multitude of measures adopted
“from 1991 to at least the end of 1999 and possibly also until today”.
(iii) Whether the interference was lawful
140. The applicants first alleged that, regard being had to the fact that
the previous Constitution was still in force at the moment of the enactment
of the SZ, depriving them of their specially protected tenancy had been
unlawful. However, in their observations in reply they specified that they
would not persist in this claim, as the facts in issue occurred in 1991, before
the Convention was ratified by Slovenia.
141. The applicants argued instead that the interference with their
possessions had not been lawful on other grounds. They noted that at the
time of the Constitutional Court’s decision repealing the “third model”
(November 1999 – see paragraph 37 above), Slovenia had already ratified
the Revised European Social Charter, making it fully part of its domestic
legal order. In its decision of 8 September 2009 (see paragraphs 97-100
above), the European Social Committee had found that the “combination of
insufficient measures for the acquisition of or access to a substitute flat, the
evolution of the rules on occupancy and the increase in rents” were contrary
to Article 31 § 1 of the Charter and that the discrimination between former
holders of occupancy rights in the right to purchase was incompatible with
Article E. It followed that the Constitutional Court’s decision had violated a
binding ratified international instrument.
(iv) Whether the interference was in the general interest
142. The applicants did not contest that the abolition of the specially
protected tenancy and the restitution of nationalised property might have
been regarded as pursuing a legitimate aim and as being in the general
interest. They considered, however, that the same could not be said of the
absence of compensation for the loss of their occupancy rights and for the
abolition of the right to purchase.
143. By repealing the “third model”, the Constitutional Court had acted
against the public interest. This model was meant to balance the interests of
the former holders of occupancy rights and the “previous owners” on one
side and those of the municipalities on the other side. It had somehow
compensated for the fact that for dwellings expropriated through
nationalisation or confiscation after the Second World War, the right of
“previous owners” to restitution was given precedence over the right of
former holders of specially protected tenancies to purchase on favourable
36
BERGER-KRALL AND OTHERS v. SLOVENIA JUDGMENT
terms. It was the only model that represented an actual right to purchase a
dwelling and was possible to use even in the event of restitution and despite
the “previous owner’s” reluctance to sell.
144. The Constitutional Court had repealed the “third model” suddenly,
without any warning or transition period in which former holders of
specially protected tenancy might exercise the right to purchase. It did so
merely because the “third model” interfered with the property rights of the
municipalities, without taking into account the intention behind the
legislation, the interests of the private actors involved and the fact that the
municipalities had acquired the socially-owned dwellings free of charge via
the enactment of the SZ.
(v) Proportionality of the interference
145. The applicants recalled that in the restitution process the State was
not supposed to create disproportionate new wrongs while trying to
attenuate old injuries. The legislation should make it possible to take into
account the particular circumstances of each case, avoiding putting a
disproportionate burden on persons who had acquired possessions in good
faith (see Pincová and Pinc v. the Czech Republic, no. 36548/97, § 58,
5 February 2003, and Velikovi and Others, cited above, § 178). In the
present case, the disproportion lay in the repeal of the tenant’s right to
purchase under the “third model”. From the year 2000 onwards the two
alternatives available to the applicants (namely, continuing to lease the
existing dwelling or moving out of it and obtaining a financial incentive)
were neither a suitable compensation for the loss of the specially protected
tenancy nor a comparable alternative to the right to purchase. In this
connection, the applicants submitted the following arguments.
(α) Specially protected tenancy
146. The applicants argued that the specially protected tenancy was the
strongest civil right over a socially-owned dwelling. It was a sui-generis
right comparable to ownership, and the exclusive right to purchase
precluded everybody else from acquiring ownership of the same dwelling.
The specialised literature cited by the Government, stating that the protected
tenancy was a non-property right, should not be understood in a negative
sense but in the sense that it represented more than a property right, as it
also comprised some managerial entitlements. In any event, the
Government’s allegations did not take due account of the reasoning
followed by the Constitutional Court in its decision Up-29/98 (see
paragraph 11 above).
147. It was true, as pointed out by the Government, that specially
protected tenancies existed only over socially-owned dwellings; indeed,
specially protected tenancy and private ownership were mutually exclusive.
The former was a permanent right which could cease to exist only in
BERGER-KRALL AND OTHERS v. SLOVENIA JUDGMENT
37
exceptional situations defined by law (see paragraph 14 above), which could
be divided into fault-based grounds (damage, disturbance to other residents,
failure to pay the fee) and grounds of needlessness, reflecting the general
principle that no-one should have more property than they needed (failure to
live in the dwelling for more than six months, total sublet of the dwelling,
ownership of another suitable empty dwelling).
148. Under the previous system, dwellings could be sold only to
specially protected tenancy holders (see paragraph 10 in fine above); this
situation changed dramatically with the housing reform, as former holders
of occupancy rights were only given a pre-emptive right; if the tenant
refused to pay the “previous owner’s” asking price the dwelling could be
sold on the free market.
(β) Leases
149. By contrast, the right to continue the lease entailed an essential
degradation of the status enjoyed by the applicants under the specially
protected tenancy. For the majority of holders of occupancy rights a new
leasing relationship (even for an indefinite period) was only a temporary
solution until they could purchase a dwelling. However, they had to
postpone the realisation of their right to purchase, as in most cases they had
to wait for the conclusion of a denationalisation procedure to find out
whether the dwelling was being returned to a “previous owner”; they then
had to wait for that “previous owner” to say whether he consented to a
favourable sale as per the “first model” of substitute privatisation; if not,
they could opt for the so-called “third model”. In practice, therefore, until
the end of 1999 (when it was repealed by the Constitutional Court – see
paragraph 37 above) the latter model was used to good effect only in few
cases. After it was repealed the right to lease became a permanent solution,
allowing tenants to remain in the dwellings they were occupying.
150. The right to lease was weaker than the specially protected tenancy
in that: (a) only persons named in the lease contract were allowed to reside
with the tenant; (b) tenants could not engage in commercial activities in the
dwelling or sublet it without the “previous owner’s” consent; (c) tenants had
to pay a rent (rather than a simple fee) which, even if it was a non-profit
rent, had risen considerably (more than 600%) since 1991 and not only
covered maintenance but was also meant to provide a profit to the “previous
owner”; according to the Constitutional Court’s decision of 20 February
2003 (paragraph 39 above), the new method of calculation of the non-profit
rent was to be applied retroactively; (d) tenants could not exchange
dwellings; (e) the exclusive right to purchase was replaced by a simple preemption right (paragraphs 40 in fine and 64 above); (f) in the event of
eviction or death of the original tenant, the right to lease at a non-profit rent
was not transferrable to family members other than the spouse or long term
partner (paragraphs 68-70 above); (g) the right to use the dwelling was no
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BERGER-KRALL AND OTHERS v. SLOVENIA JUDGMENT
longer a constitutionally and legally protected right, but merely an ordinary
contractual right; (h) it could be terminated at any moment by the “previous
owner” if he found the tenant another suitable dwelling (paragraph 40
above); (i) new fault-based and needlessness-based grounds for eviction
were introduced, including ownership of another dwelling (Section 103 of
the Housing Act 2003, paragraph 40 above), regardless of whether the latter
was empty or “real” (in the sense that it was not just a holiday home) and
moving entailed a substantial deterioration of the tenant’s living conditions
(all these things were guaranteed under the former legislation). The
applicants considered that it was irrational, in 2003, to introduce ownership
of another dwelling as a ground for eviction, as this would be consistent
with the principles of socialism but not with those of a free market
economy. Moreover, if a tenant moved to his own dwelling, the rest of his
or her family could not stay in the original dwelling.
151. It was true that the SZ-1 regulated the right of tenants to modernise
the dwelling and defined situations in which the “previous owner” could not
deny his or her consent to do so; however, a similar right, while not
regulated by law, had also been recognised by legal doctrine and case-law
with regard to holders of occupancy rights. And in any event, under the
previous regulation modernisation without the required consent was not a
ground for eviction, while it was so under the new rules.
(γ) The “second model” of substitute privatisation
152. In his report of 8 January 2002 (paragraph 46 above) the
Ombudsman stated that former holders of specially protected tenancy in
denationalised dwellings were victims of systematic violations of human
rights, and suggested suitable solutions (higher payments to former holders
of occupancy rights, or incentives for the “previous owners” to sell). Even
though the Ombudsman’s report was formally examined and accepted by
the National Assembly, the suggestions it contained were not implemented
in the SZ-1, which completely abolished the concept of the right of former
specially protected tenancy holders to purchase an existing or substitute
dwelling in accordance with the “first and third models” of substitute
privatisation. Instead, the 2003 legislation focused on the “second model”
(paragraph 34 above), which had rarely been used and which allowed the
tenant to receive financial compensation if he or she decided to move out of
the dwelling and purchase another flat on the free market or to build a
house.
153. However, according to the SZ-1, in such cases the State
contribution amounted only to 15-20% of the market value of the dwelling
the tenant was leaving. This meant that in order to acquire a comparable
property, he or she had to pay approximately 80-85% of its value. By
contrast, the right to purchase under the “third model” allowed former
specially protected tenancy holders to accede to ownership by paying
BERGER-KRALL AND OTHERS v. SLOVENIA JUDGMENT
39
approximately 5-10% of the value of the dwelling in instalments over a span
of twenty years. It was true that under the “second model”, the tenant could
apply for a loan from the Housing Fund for the remaining sum to be paid.
However, according to the applicants only people who would be eligible for
ordinary bank loans could obtain such loans, and the interest rate on them
was even worse than on commercial bank loans.
154. The abolition of the “third model” effectively forced a majority of
former holders of occupancy rights to buy dwellings on the free market
(which were worse than the dwellings they were leaving in terms of surface,
construction and location) by dint of great sacrifices and in numerous cases
with the help of their family members. In any event, the proportionality
issue to be assessed in the present case was not whether former holders of
occupancy rights managed, in one way or another, to have a roof over their
heads, but rather whether there was fair compensation for the loss of their
rights. The European Committee of Social Rights had found that a
disproportionate burden had been put on them, and the applicants asked the
Court to reach the same conclusion.
155. Lastly, the applicants claimed that many of them had invested
substantial amounts in the maintenance and refurbishment of the dwellings,
which had initially been poorly maintained, thereby considerably increasing
the value of the flats; yet ownership rights had nevertheless been restored to
the “previous owners”.
(b) The Government
(i) Whether there was interference with possessions
156. The Government argued that the adoption of the SZ did not in any
way change the legal status of the applicants, as their occupancy rights were
transformed into a tenancy for an indefinite period, with protection against
arbitrary eviction by the “previous owner”. The lease could not be
terminated if rent was not paid for reasons of financial hardship, there was a
possibility of obtaining a subsidised rent and moving to another suitable
non-profit dwelling, the lease was transferrable to the tenant’s heirs and the
“previous owner” was obliged to maintain the dwelling in good repair,
thereby ensuring a reasonable standard of living. The only essential
difference with the previous system was that while under the former social
ownership regime the owner was not really identifiable – a fact which might
have led the applicants to consider themselves as the “owners” of the
dwellings –, in the market economy dwellings had identifiable owners. In
the Government’s view, this fact alone could not amount to an interference
with the rights guaranteed by Article 1 of Protocol No. 1.
157. In this connection, the Government also noted that the holders of
occupancy rights were granted leases at non-profit rent levels irrespective of
their financial situation. In the past twenty years such rents had increased,
40
BERGER-KRALL AND OTHERS v. SLOVENIA JUDGMENT
but the standard of living in general had radically changed and the nonprofit rents paid by the applicants were nothing like free-market rents. Had
the “previous owners” not received a sum to cover their costs, their
obligation to maintain the flats in good repair would have constituted a
disproportionate burden (see, mutatis mutandis, Hutten-Czapska v. Poland
[GC], no. 35014/97, § 198, ECHR 2006-VIII).
158. With regard to individual applicants, the Government made the
following observations.
159. At the date of entry into force of the SZ, applicant no. 6 (Mr Kuret)
was not the holder of the occupancy right but merely one of the legal users
of the dwelling to which his father held the right. At that time, as an
immediate family member, he did not even have the right to a tenancy
relationship. Therefore, in the Government’s opinion, the provisions of the
SZ had not had any direct effect on his legal situation. Moreover, applicant
no. 6 had concluded a friendly settlement “of all mutual relations”, in which
he explicitly withdrew any further claims against the “previous owner” of
the dwelling, and therefore also the possibility to appeal against the
Supreme Court judgment of 21 April 2005 (no. II Ips 98/2004 – see
paragraph 68 above). He had thus forfeited any victim status he might have
had.
160. The same applied to applicant no. 2 (Mrs Berglez), who had not
lodged a request to purchase the dwelling she was living in or any other
suitable dwelling. She had refused to sign a lease and thus lived in the
dwelling without the necessary legal title. In the Government’s opinion, she
was in no position to claim that her legal status had deteriorated because of
the action taken by the Republic of Slovenia.
161. The Government also pointed out that, by analogy with the former
legislation of the Socialist Republic of Slovenia, the SZ had established that
where a former holder of occupancy rights no longer needed housing
protection (because he owned another dwelling or because of other
circumstances), the “previous owner” of the dwelling in which he was living
was not obliged to sign a lease contract. This was notably the case for
applicants nos. 2 (Mrs Berglez), 7 (Mr Logar), 9 (Mr Milič) and 10
(Mrs Zalar), who had resolved their housing needs by purchasing another
dwelling. The Government argued that under these circumstances, they
could not be considered victims of the alleged violations.
162. The Government also pointed out the following:
- The spouse of applicant no. 1 (Mrs Cornelia Berger-Krall) owned a
vineyard cottage and a house of 91 square metres (m²) suitable for
habitation;
- Applicant no. 2 (Mrs Berglez) had received a grant of EUR 38,752.08
and a soft loan of EUR 28,774.92; she had purchased a dwelling in Maribor;
- Applicant no. 7 (Mr Logar) had received a grant of EUR 53,276.42 and
a soft loan of EUR 89,223.57; he had purchased an 82 m² dwelling;
BERGER-KRALL AND OTHERS v. SLOVENIA JUDGMENT
41
- Applicant no. 8 (Mrs Marguč), together with her husband, owned a
64 m² house in a prestigious location by the sea in Piran, which was suitable
for habitation;
- Applicant no. 9 (Mr Milič) had received a grant of EUR 45,975.98 and
a soft loan of EUR 21,524.02, and had purchased a 75 m² dwelling;
- Applicant no. 10 (Mrs Zalar) had received a grant of EUR 32,262.99
and a soft loan of EUR 72,737.02; she had purchased two dwellings, one
measuring 84 m² and the other 148 m².
163. Moreover, in their observations of 5 June 2012 the applicants had
stated that they had never explicitly or implicitly claimed that they did not
have sufficient means of subsistence or that they had no property and were
therefore entitled to social benefits or subsidised rent. In the Government’s
opinion, this statement was an admission that being unable to continue the
tenancy at a non-profit rent did not constitute a threat to the family lives of
any of the applicants, and that the increases in the non-profit rent did not
violate their Convention rights. As a close family member could not
purchase the dwelling unless he or she obtained the written consent of the
former occupancy right holder, applicant no. 6 (Mr Primož Kuret), who had
not obtained such consent, could not be considered a victim from this point
of view, as he was not a member of a protected category.
(ii) General remarks
164. The Government observed that under the previous regime housing
policy had mainly been addressed in a spirit of social policy and protection
of the standard of living, and thus had a destabilising impact on economic
and social development trends. A dwelling was considered as a social, not
an economic entity. The introduction of market relations in the housing
economy meant eliminating anachronistic legislative solutions, such as
occupancy rights. At the same time, the Government had to provide an
appropriate transitional regime in accordance with the principle of trust in
the law (which should not be understood to mean that the legislation must
remain unchanged). As the Constitutional Court rightly pointed out, in the
new legal system the occupancy right encountered other rights and a fair
balance had to be struck between them.
165. As explained in paragraph 156 above, the legal status of former
occupancy right holders remained, in substance, untouched. They
maintained the pre-emption right to which they had been entitled under the
previous system. Inspections could be made by the national housing
inspectorate, which, in the event of poor maintenance of the dwelling, could
order that the defect be remedied at the “previous owner’s” expense. The
tenant had the right to obtain compensation for damage suffered due to poor
maintenance and reimbursement of excessively high rent. He or she could
also demand that the level of rent be checked by a competent body. This
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BERGER-KRALL AND OTHERS v. SLOVENIA JUDGMENT
degree of protection was not extended, however, to users who under the
previous system did not have occupancy rights or had lost them.
166. As to the tenant’s obligations, he or she had to use the dwelling in
accordance with the terms of the lease, to allow the “previous owner” access
to the premises (no more than twice a year), and could not change the
dwelling layout or install fittings and appliances without the prior written
agreement of the “previous owner”. These were basically the same
obligations as under the previous regime. However, under that regime
failure to respect them resulted in liability for damages, while under the new
rules unauthorised changes to the dwelling were grounds for termination of
the lease (unless the tenant removed the modifications upon written request
by the “previous owner”). When moving out, the tenant was entitled to
reimbursement of the non-depreciated part of any useful investment in the
dwelling he had made with the consent of the “previous owner”. With such
written consent he or she could also sublet part of the dwelling.
167. With ninety days’ notice, the tenant could at any time unilaterally
terminate the lease contract without any justification; the “previous owner”
could do so only upon providing the tenant with another suitable dwelling.
168. As to the new fault-based grounds for termination of the lease
(paragraph 21 above), they were imposed by the nature of the civil-law
relationship and the protection of the other contractual party. Tenants in
social distress who could not pay the rent in full were entitled to help from a
municipal administrative body, which would pay the “previous owner” the
difference in the rent or give the tenant the possibility of renting a sociallyowned dwelling. The right to subsidised rent (Sections 26-31 of the Social
Assistance Act) was implemented by the social work centres and the
method for calculating it was modified in 2005. The cash benefits
(including the subsidised rent) could not exceed the legal minimum wage.
169. According to Section 56 of the SZ, when a tenant died the
“previous owner” was obliged to sign a lease agreement with the surviving
spouse or long term partner or with one of the immediate family members
indicated in the lease contract (paragraph 23 above). As the Constitutional
Court had pointed out (paragraph 69 above), the transfer of the tenancy to
another family member ensured the social function of the dwelling.
However, a distinction was to be made between the spouse and/or long term
partner on the one hand and the other immediate family members on the
other: while the purpose of marriage (or long-term partnership) was to
permanently live together, the same could not be said of relations with other
family members such as children and parents. Had the latter been allowed to
continue the tenancy relationship ad infinitum under the same conditions as
the former holder of occupancy rights, the balance between the protection of
property and the pursuit of its social function would have been upset. In
particular, had the family members continued to benefit from the non-profit
rent, the “previous owner” would have been prevented from obtaining
BERGER-KRALL AND OTHERS v. SLOVENIA JUDGMENT
43
income from his property, an element which is of special importance in the
market economy system. Protection of family members could have been
achieved by other means, such as allowances and loans or opportunities to
rent other non-profit dwellings.
170. The non-profit rent (paragraph 19 above) was not an encroachment
on the property right of the “previous owner”, but a regulation of the
method of enjoyment of the property and a form of protection of the legal
situation of former holders of occupancy rights. In assessing it, the financial
situation of the tenant was not relevant, whereas the protection of his or her
legal status, originating from the former regulation, was a factor to be taken
into account. The Government referred to the part of their observations
describing the method of calculation of the non-profit rent (paragraphs 7986 above).
171. The Government also pointed out that the SZ-1 maintained the
principle of protection of the status of former holders of occupancy rights. It
introduced the right of the tenant to require the “previous owner” to provide
another suitable dwelling or demand a relative reduction in rent for the time
during which the dwelling could not be used normally. If renovation work
required the tenant’s temporary removal, the “previous owner” was obliged
to provide substitute premises and to pay the costs of the move. Moreover,
the SZ-1 laid down the conditions under which the “previous owner” could
not refuse consent to alterations by the tenant (Section 97), introduced the
tenant’s right to a refund of the non-depreciated part of any useful and
necessary investments made (Section 98) and stipulated that the “previous
owner” could not request the tenant’s removal before having reimbursed the
investments the tenant had made in the dwelling (Section 112(2)). As to the
fact that ownership of other real estate was a ground for termination of the
tenancy, the Government considered that it would be disproportionate to
burden the landlord with a tenancy relationship for an indefinite period and
a non-profit rent where the tenant had other suitable accommodation at his
or her disposal.
(iii) Proportionality of the interference
172. The Government argued that they enjoyed a wide margin of
appreciation in reforming the country’s political and economic system.
Restitution of dwellings to the “previous owners” was meant to correct the
injustices committed in the post-war period and excluded the right of the
occupancy right holder to acquire ownership of the same dwelling. The
reforms had a legal basis in the SZ and ZDen, as well as in Amendment
XCIX to the Constitution, which provided for the transformation of
socially-owned property into public and other forms of property to be
regulated by law. The occupancy right, a typical element of the former
socialist system based on a planned economy and socially-owned property,
could not continue to exist in a market economy.
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BERGER-KRALL AND OTHERS v. SLOVENIA JUDGMENT
173. The re-establishment of the ownership rights of “previous owners”
of nationalised property and the redress of wrongs suffered by them was a
legitimate aim in a democratic society based on the rule of law and respect
for human rights. The national legislator had struck a fair balance between
competing rights: ownership of dwellings could not be acquired by the
holders of occupancy rights against the will of the “previous owner”, but the
latter’s right of property was restricted by the obligation to enter into a lease
contract for an unlimited period. Moreover, it should be taken into account
that the right to purchase the dwelling was never one of the entitlements
constituting the occupancy right under the previous system. Occupancy
right holders had only a pre-emption right at a price determined by a
certified valuator; they could not force or request the purchase.
174. The right to apply to purchase the dwelling bestowed on holders of
occupancy rights in buildings acquired with solidarity and mutual housing
funds was not meant to be just satisfaction for the withdrawal of the
occupancy right, but a measure enabling privatisation and transition from
the social-ownership system to a system of private ownership with known
owners. The applicants did not have this option as the dwellings in which
they were living had not been acquired with mutual funds, but had been
coercively nationalised. The legislator had substantial reasons for regulating
the situation of these dwellings differently.
175. Furthermore, should the “previous owner” not consent to sell the
dwelling, tenants in the applicants’ situation could solve their housing
problem by buying a dwelling or building a house on the favourable terms
(financial compensation in the amount of a percentage of the dwelling’s
value and a loan) provided for in Article 125 of the SZ, under the “second
model” of substitute privatisation (paragraph 34 above).
176. As to the decision of the European Committee of Social Rights (see
paragraphs 97-100 above), it should be emphasised that the obligations
resulting from Article 31 of the European Social Charter are obligations of
effort and not obligations of result. Moreover, in order to comply with the
obligations arising from the said decision, in October 2011 Slovenia had
adopted the Rules amending the Rules on the allocation of non-profit
dwellings and was in the process of preparing a National Housing
Programme, which would be a long-term housing policy for the coming tenyear period and would confer on the Housing Council the role of advising
the Government and monitoring the implementation of the reforms.
177. As far as the abolition of the “third model” was concerned, the
Government observed that the Constitutional Court’s decision was founded
on the actual and modest financial capabilities of the municipalities. The
latter could offer few dwellings for substitute purchase; indeed, in October
1993 there were only 531 vacant dwellings in the whole of Slovenia, and in
former municipalities in Ljubljana they numbered 172. It was the duty of
the municipalities to make a certain number of public dwellings available to
BERGER-KRALL AND OTHERS v. SLOVENIA JUDGMENT
45
socially weaker and endangered citizens, so they were obliged to give them
to people in more urgent social need than the former occupancy right
holders in denationalised dwellings. In any event, the financial incentives
afforded by Slovenia to solve housing problems constituted adequate
“compensation” for any possible encroachment on the occupancy right. It
could also be argued that because of the financial participation of the State
in the purchase of another dwelling, such compensation was not necessary.
(c) The third-party intervener
178. The IUT considered that in the process of housing transition and
reform Slovenia had excessively interfered with the rights of specially
protected tenancy holders, withdrawing the minimum legal protection
assured to tenants in other European countries. According to the IUT, the
applicants had been deprived of their specially protected tenancy status
without any suitable compensation. The new tenancy rights given to them
by the housing reform laws were of a lesser quality. This degradation of
their position was not proportionate and justified under Article 1 of Protocol
No. 1.
2. The Court’s assessment
(a) Whether there was an interference with possessions
179. The Court first recalls that in its decision of 28 May 2013 on the
admissibility of the application (paragraph 149), it considered that insofar as
the Government referred to the particular circumstances of individual
applicants (notably, their entitlement to occupy the flats they lived in, their
ownership of other real estate, their financial situation and/or the financial
grants received by them – see paragraphs 159-163 above), these issues were
relevant considerations to assess whether there was interference with the
applicants’ rights under Article 1 of Protocol No. 1 and Article 8 of the
Convention and, in the affirmative, whether this interference was
proportionate and necessary in a democratic society.
180. It is to be noted in this connection that the applicants have specified
that their complaints are not directed against the abolition of the specially
protected tenancy and/or the restitution of the dwellings to the “previous
owners” per se (see paragraphs 137 and 142 above), but rather against the
alleged insufficient protection of the category of former holders of
occupancy rights in denationalised flats and against the repeal of the “third
model” of substitute privatisation. In their opinion, the violation of Article 1
of Protocol No. 1 did not depend upon a direct or potential individual risk of
eviction, but on the effects the general legal framework of the housing
reform had on their situation. This distinguishes this complaint from the one
raised under the same provision in the case of Liepājnieks v. Latvia ((dec.),
no. 37586/06, §§ 88-89, 2 November 2010), which was essentially based on
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BERGER-KRALL AND OTHERS v. SLOVENIA JUDGMENT
the loss of a dwelling without compensation and which was declared
inadmissible by the Court because the applicant had chosen to vacate the
premises of his own accord and to move into the property of his spouse.
181. That being so, the Court considers that the housing reform and the
repeal of the “third model” of substitute privatisation have interfered with
the applicants’ right to the peaceful enjoyment of their possessions since the
entry into force of the Convention in respect of Slovenia (28 June 1994).
The replacement of the specially protected tenancy with normal leases
restricted the applicants’ rights in several respects. They were no longer able
to enjoy the protection which the previous legislation afforded to holders of
occupancy rights, namely the possibility of using the premises for an
indefinite period in exchange for the payment of a fee, protection against
eviction, the right to transmit the lease to family members other than
spouses or long-term partners and the possibility of subletting, renovating or
decorating the flat without the owner’s permission. Moreover, the fee was
replaced by a higher non-profit rent, and the obligation to tolerate visits of
the “previous owners”, and new grounds for eviction were introduced. It is
also to be noted that the Constitutional Court’s decision repealing the “third
model” of substitute privatisation (see paragraph 37 above) deprived the
applicants of the possibility, provided for by the 1994 amendments to the
Housing Act 1991, of purchasing a substitute flat on favourable terms from
the municipalities. The applicants thus lost an enforceable right to acquire
property at a price significantly lower than the market price, a fact that has
adversely affected their substantive interests protected by Article 1 of
Protocol No. 1.
182. The applicants’ financial situation and/or their ownership of other
real estate could not change these conclusions, but are relevant factors in
evaluating the proportionality of the interference. The Court has also
examined the Government’s allegations concerning applicants nos. 2
(Mrs Ljudmila Berglez) and 6 (Mr Primož Kuret – see paragraphs 159, 160
and 163 above). It observes that the fact that Mrs Berglez allegedly refused
to sign a lease contract with the “previous owners” did not, as such, affect
her status as a previous holder of occupancy rights. As to Mr Kuret, even if
he was not the holder of the occupancy rights, but only one of the legal
users of the dwelling, the Court is of the opinion that his status as legitimate
heir of the previous specially protected tenant would in principle have
entitled him to have the protected tenancy transferred to him upon the
demise of his father. Under these circumstances, the Court concludes that
the Article 1 of Protocol No. 1 rights of applicants nos. 2 and 6 were also
interfered with.
183. The Court refers to its established case-law on the structure of
Article 1 of Protocol No. 1 and the manner in which the three rules
contained in that provision are to be applied (see, among many other
authorities, Jokela v. Finland, no. 28856/95, § 44, ECHR 2002-IV, and J.A.
BERGER-KRALL AND OTHERS v. SLOVENIA JUDGMENT
47
Pye (Oxford) Ltd and J.A. Pye (Oxford) Land Ltd v. the United Kingdom
[GC], no. 44302/02, § 52, ECHR 2007-III).
184. In line with that case-law, the Court considers that the interferences
described above fall to be considered under the so-called third rule, relating
to the State’s right “to enforce such laws as it deems necessary to control the
use of property in accordance with the general interest” set out in the second
paragraph of Article 1 of Protocol No. 1 (see, mutatis mutandis, Almeida
Ferreira and Melo Ferreira v. Portugal, no. 41696/07, § 26, 21 December
2010).
185. It remains to be ascertained whether this interference complied with
the requirements of Article 1 of Protocol No. 1.
(b) Whether the interference was justified
(i) Whether the interference was “lawful”
186. The Court reiterates that the first and most important requirement
of Article 1 of Protocol No. 1 is that any interference by a public authority
with the peaceful enjoyment of possessions should be lawful: the second
sentence of the first paragraph authorises a deprivation of possessions only
“subject to the conditions provided for by law” and the second paragraph
recognises that States have the right to control the use of property by
enforcing “laws” (see OAO Neftyanaya Kompaniya Yukos v. Russia,
no. 14902/04, § 559, 20 September 2011). Moreover, the rule of law, one of
the fundamental principles of a democratic society, is inherent in all the
Articles of the Convention (see Capital Bank AD v. Bulgaria, no. 49429/99,
§ 133, ECHR 2005-XII (extracts), and The former King of Greece and
Others v. Greece [GC], no. 25701/94, § 79, ECHR 2000-XII).
187. In the present case, it is not disputed between the parties that the
suppression of the specially protected tenancies and their replacement with
normal lease contracts had a legal basis in domestic law, as it was provided
for by the Housing Act 1991 (see paragraphs 18-23 above) and subsequent
amendments to it (see paragraphs 31-43). As to the decision to repeal the
“third model” of substitute privatisation, it was adopted by the
Constitutional Court in a procedure prescribed by law (see paragraph 37
above).
188. The applicants, however, argued that the interference with their
possessions was not lawful as at the time of the adoption of that decision
(25 November 1999), Slovenia had already ratified the Revised European
Social Charter, thereby incorporating it into its domestic legal order, and in
2009 the European Social Committee had found that the repeal of the “third
model” was contrary to Article 31 § 1 and to Article E of the Charter (see
paragraph 141 above). The Government replied that the obligations
resulting from the European Social Charter were obligations of effort and
not of result (see paragraph 176 above).
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BERGER-KRALL AND OTHERS v. SLOVENIA JUDGMENT
189. The Court recalls that in defining the meaning of terms and notions
in the text of the Convention, it has on several occasions taken into account
elements of international law other than the Convention, such as the
European Social Charter, and the interpretation of such elements by
competent organs (see, for instance, Demir and Baykara v. Turkey [GC],
no. 34503/97, §§ 74-86, ECHR 2008-..). However, when requiring that a
measure be “lawful”, the Convention essentially refers back to national law
and states the obligation to conform to the substantive and procedural rules
thereof (see, for instance and in the ambit of Article 5 § 1 of the
Convention, Olymbiou v. Turkey, no. 16091/90, § 85, 27 October 2009).
190. It is also worth noting that in its decision of 8 September 2009 (see
paragraphs 97-100 above), the European Committee of Social Rights
emphasised that it was “clear from the actual wording of Article 31 [of the
Revised Social Charter] that it cannot be interpreted as imposing on States
an obligation to achieve results” and that for the situation to be in
conformity with the Revised Social Charter, States Parties should, in
particular, “adopt the necessary legal, financial and operational means of
ensuring steady progress towards the goals laid down in the Charter” (see
paragraphs 28 and 29 of the decision in question). The obligations arising
from Article 31 being obligations of means and the European Committee
not being vested with the power of annulling the impugned national
legislation and case-law, the latter was still valid and binding in the
Slovenian legal order after the adoption of the decision of 8 September
2009.
191. In the light of the above, the Court considers that the measures
complained of were “lawful” within the meaning of Article 1 of Protocol
No. 1.
(ii) Whether the interference was “in accordance with the general interest”
192. The Court recalls that because of their direct knowledge of their
society and its needs, the national authorities are in principle better placed
than the international judge to decide what is “in the public interest”. Under
the system of protection established by the Convention, it is thus for the
national authorities to make the initial assessment as to the existence of a
problem of public concern warranting measures to be applied in the sphere
of the exercise of the right of property (see Hutten-Czapska, cited above,
§ 165). The notion of “general interest” is necessarily extensive (see HuttenCzapska, cited above, § 166). The Court finds it natural that the margin of
appreciation available to the legislature in implementing social and
economic policies, especially in the context of a change of political and
economic regime, should be a wide one, and will respect the legislature’s
judgment as to what is “in the general interest” unless that judgment is
manifestly without reasonable foundation (see, inter alia, Zvolský and
Zvolská v. the Czech Republic, no. 46129/99, § 67-68 and 72, ECHR 2002-
BERGER-KRALL AND OTHERS v. SLOVENIA JUDGMENT
49
IX; Kopecký, cited above, § 35; Jahn and Others v. Germany [GC],
nos. 46720/99, 72203/01 and 72552/01, § 113, ECHR 2005-VI; and
Wieczorek v. Poland, no. 18176/05, § 59, 8 December 2009; see also,
mutatis mutandis, The former King of Greece and Others, cited above, § 87,
and Kozacioğlu v. Turkey [GC], no. 2334/03, § 53, 19 February 2009).
193. It is a matter of common knowledge that the political transition in
the post-communist countries has involved numerous complex, far-reaching
and controversial reforms which necessarily had to be spread over time. The
dismantling of the communist heritage has been gradual, with each country
having its own, sometimes slow, way of ensuring that past injustices are put
right. Even though following the collapse of the totalitarian regimes those
countries faced similar problems, there is, and there can be, no common
pattern for the restructuring of their political, legal or social systems. Nor
can any specific time-frame or speed for completing this process be fixed.
Indeed, in assessing whether in a given country, considering its unique
historical and political experience, “the general interest” requires the
adoption of specific de-communisation measures in order to ensure greater
social justice or the stability of democracy, the national legislature
empowered with direct democratic legitimation is better placed than the
Court (see, mutatis mutandis, Cichopek and 1,627 other applications
v. Poland (dec.), nos. 15189/10 and others, §§ 143, 14 May 2013).
194. In the present case, the Court sees no reason to depart from the
national authorities’ assessment that the interference in issue pursued
legitimate aims, namely the promotion of social, political and economic
reforms, the removal of relics of the country’s communist past in the social
and economic spheres and the protection of the rights of “previous owners”.
It also notes that the applicants themselves did not contest that the abolition
of the specially protected tenancy and the restitution of nationalised
property might have been regarded as pursuing a legitimate aim and as
being in the general interest (see paragraph 142 above).
195. As to the Constitutional Court’s decision repealing the “third
model” of substitute privatisation, it was justified by the need to avoid
putting an additional financial burden on the municipalities’ newly acquired
ownership rights over dwellings which had previously been socially owned
(see paragraph 37 above). It was thus aimed at ensuring the financial wellbeing of local communities, a goal which falls within the notion of “general
interest”.
(iii) Whether the interference was proportionate
196. It remains to be ascertained whether in implementing these reforms
the State managed to strike a “fair balance” between the demands of the
general interest of the community and the requirements of the protection of
the individuals’ fundamental rights (see J.A. Pye (Oxford) Ltd and J.A. Pye
(Oxford) Land Ltd, cited above, § 53).
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BERGER-KRALL AND OTHERS v. SLOVENIA JUDGMENT
(α) General principles
197. In respect of interferences which fall under the second paragraph of
Article 1 of Protocol No. 1, there must exist a reasonable relationship of
proportionality between the means employed and the aim sought to be
realised (see, among many other authorities, Zehentner v. Austria,
no. 20082/02, § 72, 16 July 2009). Thus the balance to be maintained
between the demands of the general interest of the community and the
requirements of fundamental rights is upset if the person concerned has had
to bear a “disproportionate burden” (see, among many other authorities,
Sporrong and Lönnroth v. Sweden, 23 September 1982, §§ 69-74, Series A
no. 52; The Holy Monasteries v. Greece, 9 December 1994, §§ 70-71,
Series A no. 301-A; Brumărescu v. Romania, no. 28342/95, § 78,
ECHR 1999-VII; Moskal, cited above, § 52; and Depalle v. France [GC],
no. 34044/02, § 83, ECHR 2010-..).
198. Moreover, the principle of “good governance” requires that where
an issue in the general interest is at stake it is incumbent on the public
authorities to act in an appropriate manner and with utmost consistency (see
Beyeler v. Italy [GC], no. 33202/96, § 105, CEDH 2000-I; Megadat.com
S.r.l. v. Moldova, no. 21151/04, § 72, 8 April 2008; and Moskal, cited
above, § 51).
199. Where a measure controlling the use of property is in issue, the lack
of compensation is a factor to be taken into consideration in determining
whether a fair balance has been achieved, but is not of itself sufficient to
constitute a violation of Article 1 of Protocol No. 1 (see Anonymos
Touristiki Etairia Xenodocheia Kritis v. Greece, no. 35332/05, § 45,
21 February 2008, and Depalle, cited above, § 91).
200. A reform of the housing system in the context of the gradual
transition from State-controlled rent to a fully negotiated contractual rent
during the fundamental reform of the country following the collapse of the
communist regime was examined by the Court in Hutten-Czapska v. Poland
(cited above, §§ 194-225), a case brought by a landlady complaining about
the poor amount of the rent she was receiving under the State rent-control
scheme. The Court held that the scheme was not compatible with Article 1
of Protocol No. 1 when, for purely mathematical reasons, it made it
impossible for landlords to receive an income from rent or at least recover
their maintenance costs. Moreover, the Polish reform provided for various
restrictions on landlords’ rights in respect of the termination of leases, the
statutory financial burdens imposed on them and the absence of any legal
ways and means making it possible for them either to offset or to mitigate
the losses incurred in connection with the maintenance of property or to
have the necessary repairs subsidised by the State in justified cases (see
Hutten-Czapska, cited above, §§ 223-224).
201. In the case of Lindheim and Others v. Norway (nos. 13221/08 and
2139/10, 12 June 2012) the Court found that the limitations imposed by law
BERGER-KRALL AND OTHERS v. SLOVENIA JUDGMENT
51
on the level of the annual rent landowners could demand from ground lease
holders (less than 0.25% of the plots’ alleged market value) and the
indefinite extension of the ground lease contracts had infringed the
landowners’ right of property. The Court held that albeit pursuing the
legitimate aim of protecting lease holders lacking financial means and of
implementing a social policy in the field of housing, the measures in issue
had failed to strike a fair balance between the interests of the lessors, on the
one hand, and those of the lessees, on the other hand. Notably, the level of
rent was particularly low and could be adjusted only on the basis of changes
in the consumer price index (thus excluding the possibility of taking into
account the value of the land as a relevant factor) and the lease contracts
were extended for an indefinite duration. In these circumstances, the social
and financial burden involved was placed solely on the applicant lessors
(see Lindheim and Others, cited above, §§ 75-78, 96-100 and 119-136).
202. The Court is of the opinion that the cases of Hutten-Czapska and
Lindheim are the mirror image of the present case, in which the tenants
alleged, inter alia, that the increase in rent to which they were subjected as a
consequence of the housing reform was excessive. In adjudicating the
merits of their complaint, the Court will have regard, among other factors,
to one of the main principles expressed in Hutten-Czapska, namely that in
balancing the exceptionally difficult and socially sensitive issues involved
in reconciling the conflicting interests of landlords and tenants the State
should ensure a “fair distribution of the social and financial burden involved
in the transformation and reform of the country’s housing supply” (see
Hutten-Czapska, cited above, § 225). In Hutten-Czapska and in Lindheim,
the Polish and Norwegian States violated this principle because they placed
this burden almost exclusively on one particular social group, the landlords.
The Court will examine whether in the present case a similar burden was
placed on the tenants. In considering whether this is the case, the Court must
keep in mind the particular context in which the issue arises, namely that of
a reform of the housing system, which cannot but be, at least in part, the
expression of society’s concern for the social protection of tenants (see
Velosa Barreto v. Portugal, 21 November 1995, § 16, Series A no. 334, and
Almeida Ferreira and Melo Ferreira, cited above, §§ 29 and 32; see also,
mutatis mutandis and in the context of a social security scheme,
Goudswaard-Van der Lans v. the Netherlands (dec.), no. 75255/01, ECHR
2005-XI, and Wieczorek, cited above, § 64).
203. It is to be noted, in particular, that the Court has considered
justified and proportionate several measures aimed at protecting vulnerable
tenants. They included legislation entailing rent reductions (see Mellacher
and Others v. Austria, 19 December 1989, § 57, Series A no. 169), a
temporary suspension of the eviction of some categories of tenants (see
Spadea and Scalabrino v. Italy, 28 September 1995, § 41, Series A no.
315-B) and different restrictions on the landlord’s right to terminate the
52
BERGER-KRALL AND OTHERS v. SLOVENIA JUDGMENT
lease (see Velosa Barreto, cited above, §§ 26 and 29-30, where this right
was conditional on the landlord needing the premises for his or her own
accommodation; Almeida Ferreira and Melo Ferreira, cited above, §§ 3236, where the lease could not be terminated if the tenant had occupied the
premises for 20 or more years; see also Crux Bixirão v. Portugal,
no. 24098/94, Commission’s decision of 28 February 1996, unpublished,
where the Commission found that the impossibility of terminating a rent
contract when the tenant was 65 years old or older was not incompatible
with Article 1 of Protocol No. 1).
204. As the Court stated in the case of James and Others v. the United
Kingdom (21 February 1986, § 47, Series A no. 98), “[e]liminating what are
judged to be social injustices is an example of the functions of a democratic
legislature. More especially, modern societies consider housing of the
population to be a prime social need, the regulation of which cannot entirely
be left to the play of market forces. The margin of appreciation is wide
enough to cover legislation aimed at securing greater social justice in the
sphere of people’s homes, even where such legislation interferes with
existing contractual relations between private parties and confers no direct
benefit on the State or the community at large.”
(β) Application of these principles to the present case
205. Turning to the circumstances of the present case, the Court notes
that as a result of the housing reform, in their quality of former holders of
occupancy rights in denationalised dwellings the applicants had to face a
general degradation of the legal protection they enjoyed in the housing field.
In particular, they had to pay a non-profit rent whose amount increased over
the years up to levels which some of the applicants alleged they could
hardly afford, and they had no possibility of transmitting the right to live in
the dwelling to family members other than the spouse or long term partner.
As new fault-based grounds for eviction had been introduced, the applicants
faced a higher risk of eviction and had to tolerate visits from the “previous
owners”, as well as the pressures sometimes exerted by the latter in order to
recover the dwellings. Furthermore, they could be moved by the landlord to
another adequate flat at any time and without any reason (see paragraph 40
above).
206. The Court can accept, however, that these were somehow
unavoidable consequences of the legislature’s decision to provide for a
possibility of restitution in natura of dwellings which had been nationalised
after the Second World War. The presence of a “previous owner” meant that
his or her rights had to be secured, and this could not but result in a
corresponding restriction of the rights of the persons occupying the
dwellings. As pointed out by the Government (see paragraph 169 above),
fixing an excessively low ceiling for rent or imposing the continuation of
the lease with the tenants’ descendants, and thus for a potentially endless
BERGER-KRALL AND OTHERS v. SLOVENIA JUDGMENT
53
period of time, would have been hard to reconcile with the property rights of
“previous owners” acquired through the denationalisation proceedings (see,
mutatis mutandis, Hutten-Czapska, cited above).
207. Furthermore, the Court observes that the obligations arising from
the lease contracts “previous owners” had to sign with the applicants were
in substance similar to the normal and traditional duties that tenants have
vis-à-vis landlords. This is true, in particular, of the obligation not to cause
major damage to the dwelling, not to disturb other residents, not to perform
prohibited activities in the flat, not to change the dwelling and fixtures, not
to sublet and not to allow new people to use the dwelling without the prior
consent of the owner (see paragraph 21 above). The Court considers that the
fact that such obligations were imposed on the applicants in the process of
transition into a market economy cannot, as such, be contrary to the
Convention or its Protocols.
208. In addition to that, it is worth noting that the applicants enjoyed and
continue to enjoy, more than 22 years after the enactment of the Housing
Act 1991, special protection which goes beyond that usually afforded to
tenants’ rights. In particular, the lease contracts were concluded for an
indefinite period (see paragraph 19 above) and were transmissible, also for
an indefinite period, to the spouse or long term partner of the tenant (see
paragraph 69 above). The latter did not have to pay a full market rent, but
only an administratively-determined non-profit rent, meant to cover only the
depreciation, management and routine maintenance of the dwelling and the
cost of the capital invested (see paragraphs 79-86 above). It is shown by the
data submitted by the Government (see paragraph 239 below), and not
contested by the applicants, that they were paying sums comprised between
EUR 49.16 and EUR 280.78 per month and that in spite of a market rental
price of between EUR 6 and EUR 11 per square metre, the applicants were
charged between EUR 1.13 and EUR 3.33 per square metre. The Court
concludes that the non-profit rent imposed on the applicants was
significantly lower than the rents charged on the free market, and that the
fact that they still enjoyed such favourable terms more than 22 years after
the enactment of the housing reform shows that the transition to a market
economy was conducted in a reasonable and progressive manner. Moreover,
none of the applicants has shown that the level of the non-profit rent was
excessive in relation to his or her income.
209. It is true that in April 1994 former holders of specially protected
tenancy in denationalised dwellings were given the possibility of purchasing
a substitute dwelling from the municipalities under very favourable
financial terms under the so-called “third model” of substitute privatisation
(see paragraph 35 above) and that this possibility was abolished by the
Constitutional Court in November 1999 (see paragraph 37 above).
However, the Court notes that, as underlined by the Government (see
paragraph 125 above) and not contested by the applicants, none of the latter
54
BERGER-KRALL AND OTHERS v. SLOVENIA JUDGMENT
filed a valid and complete request to purchase a substitute dwelling during
the five years and seven months which elapsed before the Constitutional
Court’s decision. It is true that for applicants nos. 1 and 10, this failure
might be explained by the length of the denationalisation and inheritance
proceedings (see paragraphs 223 and 232 above); this, however, does not
apply to the other applicants who, in the Court’s opinion, have not provided
any convincing explanation capable of justifying their omission.
210. Moreover, it cannot be overlooked that the domestic legal system
was contemplating several measures other than the “third model” aimed at
protecting vulnerable tenants. In particular, the first and second models of
substitute privatisation were contemplating, respectively, a public financial
reward for “previous owners” willing to sell their flats to former holders of
occupancy rights (see paragraph 33 above) and compensation of up to
80 per cent of the administrative value of the dwelling for tenants who
agreed to move out and purchase a flat or build a house (see paragraph 34
above). In addition to that, rent subsidies (up to 80 per cent of the non-profit
rent) were available to tenants in financial difficulties, socially
disadvantaged people could apply to obtain another non-profit rental
dwelling (see paragraph 41 above) and special compensation (up to 74 per
cent of the administrative value of the dwelling) and a subsidised loan were
available to tenants who exercised their right to purchase another dwelling
or build a house (see paragraph 42 above). Some of the applicants did obtain
non-refundable sums and soft loans under these schemes (see
paragraphs 241-251 below).
(c) Conclusion
211. In the light of the above, the Court considers that in balancing the
exceptionally difficult and socially sensitive issues involved in reconciling
the conflicting interests of “previous owners” and tenants, the respondent
State has ensured a distribution of the social and financial burden involved
in the housing reform which has not exceeded its margin of appreciation.
212. Accordingly, even assuming it to be applicable to the facts of the
present case, Article 1 of Protocol No. 1 has not been violated.
II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
213. The applicants alleged that they had been deprived of their homes
in breach of Article 8 of the Convention.
This provision reads as follows:
“1. Everyone has the right to respect for his private and family life, his home and
his correspondence.
2. There shall be no interference by a public authority with the exercise of this right
except such as is in accordance with the law and is necessary in a democratic society
in the interests of national security, public safety or the economic well-being of the
BERGER-KRALL AND OTHERS v. SLOVENIA JUDGMENT
55
country, for the prevention of disorder or crime, for the protection of health or morals,
or for the protection of the rights and freedoms of others.”
A. The parties’ submissions
1. The applicants
(a) General remarks
214. The applicants basically relied on the same reasons put forward
under Article 1 of Protocol No. 1. They argued that by losing their specially
protected tenancy, they had been deprived not only of their property but also
of their homes. The changes in the leases had further restricted their rights
and the new entitlements of the “previous owners” had jeopardised their
situation, especially as the non-profit rent had been rising to levels that
many of them could hardly afford, exposing them to the risk of eviction for
overdue rent. They complained about various forms of chicanery,
intimidation and lawsuits on the part of the “previous owners”.
215. The applicants noted that both in 1991 (beginning of the housing
reform) and in 1994 (date of Slovenia’s ratification of the Convention) the
denationalised dwellings in which they resided constituted their “homes”
and the homes of their families. When they and their families had moved
into the dwellings and formed a home there, they had done so in good faith
and trusting in the permanence and the transferability mortis causa of the
occupancy right. At the time of Slovenia’s ratification of the Convention,
the specially protected tenancy had already been transformed into a lease;
however, this lease was transferable after death to family members, with a
fixed ceiling of non-profit rent. “Previous owners” could terminate the lease
only on regulated fault-based grounds. This legislation properly protected
the Article 8 rights of the applicants and their families.
216. However, the subsequent evolution of the rules on occupancy and
the increase in rents forced former holders of occupancy rights either to
leave their existing homes or to stay there under worse terms. Indeed, their
situation had significantly worsened in the following respects: (a) since
1996, “previous owners” could terminate the lease and evict the tenant if
they provided him or her with another suitable dwelling (see paragraph 40
above); (b) since 1995 the structure and ceiling of the non-profit rent had
changed in such a manner that it had risen to more than 600% of its initial
value and every authority now had the power to arbitrarily raise the ceiling;
(c) in 2003 new grounds for eviction had been added, including the
ownership of another suitable dwelling, irrespective of whether it was
empty and whether moving would entail a fundamental deterioration of the
residents’ status (see paragraph 40 above); (d) since 2005 mortis causa
transferability of the lease to family members had de facto been excluded
(see paragraphs 68-70 above); (e) the “previous owner” was given the right
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BERGER-KRALL AND OTHERS v. SLOVENIA JUDGMENT
to enter the dwelling twice a year and refusal of entry became a ground for
eviction (see paragraph 23 above); (f) in general, there was an essentially
limited possibility of freely founding a family home in existing housing,
there were limitations on the possibility of using and arranging the dwelling
in conformity with one’s own needs and wishes, and a threat of eviction was
established, causing permanent distress. The applicants argued that the
guarantees afforded by Article 8 should not be understood as only covering
the right to a dwelling, but as protecting the status of an individual in his or
her existing home.
217. The leasing relationship imposed by the State was unbearable not
only for the former holders of occupancy rights but also for the “previous
owners”, who were limited in their disposal of the returned real estate. This
created personal and judicial disputes as “previous owners” massively and
understandably used all legal possibilities to evict the former holders of
occupancy rights and their families. Under these circumstances, the latter
tried to solve their housing problem by moving out of their existing
dwellings. The situation had become so unbearable that moving became a
lesser evil than staying in the dwelling.
218. The case of Sorić v. Croatia, cited by the Government (paragraph
233 below), was different from the present case in that it concerned a tenant
of a private dwelling who had been a tenant ab initio (and not a former
holder of specially protected tenancy). The Court had held that even if
eviction had not been executed, the threat of eviction was a measure
relevant within the meaning of Article 8 of the Convention (Larkos, cited
above, § 28). The same should apply to all actions imputable to the State
that effectively limited the protection and free use of an existing home.
219. The applicants considered that the interference with their right to
respect for their home was not lawful, for the same reasons put forward
under Article 1 of Protocol No. 1 (paragraph 141 above).
220. The Government essentially argued that the measures complained
of were aimed at protecting the “previous owners”. The applicants could
accept that this was a legitimate aim. However, they alleged that the
measures in issue were not “necessary in a democratic society”. In this
connection, they recalled that when a “home” was established lawfully, this
factor would weigh against the legitimacy of requiring the individual to
move. Moreover, removal of an applicant from his or her home was more
serious where no suitable alternative existed; the more suitable the
alternative accommodation, the less serious the interference with the
existing accommodation. The evaluation of the suitability of the alternative
accommodation would also involve consideration of the particular needs of
the person concerned (see Coster v. the United Kingdom [GC],
no. 24876/94, §§ 116-118, 18 January 2001).
221. In the present case, there was no “pressing social need” to reduce
the legal protection of former holders of specially protected tenancy. In its
BERGER-KRALL AND OTHERS v. SLOVENIA JUDGMENT
57
case-law, the Court accepted a number of limitations of landlords’ rights
which were aimed at ensuring the social protection of tenants. Slovenia, on
the other hand, had enacted a number of measures in order to provide
“previous owners” with stronger protection than was required under the
Convention. Moreover, the interferences complained of were not
proportionate to the legitimate aim pursued (the protection of the “previous
owners”), especially after the abolition of the “third model”.
(b) Remarks concerning the individual applicants
222. The applicants provided the following details, in particular, about
their individual situations.
223. Applicant no. 1 (Mrs Cornelia Berger-Krall) had been unable to
reach an agreement on the reimbursement of investments with the “previous
owners”; an administrative authority had awarded her a little less than
EUR 5,000 in this respect. As the denationalisation proceedings were still
pending in November 1999, she had not been able to benefit from the “third
model”; having no means to buy another dwelling on the free market, she
had decided to stay in her existing dwelling on a contractual lease.
224. Applicant no. 2 (Mrs Ljudmila Berglez) considered that the
Government’s observations on her case were, in substance, a copy of the
arguments and allegations made before the domestic courts by the “previous
owners”. She had inherited a specially protected tenancy from her late
mother in 1991. The denationalisation decision of the Municipality of
Maribor of 16 April 1993 stated, inter alia, that the “previous owners” had
to conclude a lease contract with her. They never did so, but continued to
charge rent. When applicant no. 2 was evicted in 2000, her lawyer had filed
a lawsuit to have a lease contract drawn up; this legal action was dismissed
as it had been filed against a “previous owner” who had died some months
earlier. A new lawsuit was rejected in 2011 as time-barred and because
applicant no. 2 had meanwhile received public financial assistance.
Contrary to what the Government and the “previous owners” asserted,
Mrs Berglez had never refused to sign a lease and the allegations of
wrongful behaviour on her part (keeping flammable material, endangering
other residents of the building, lack of maintenance of the flat) had never
been proven. The Slovenian courts themselves had found that the forceful
eviction of the applicant was an arbitrary and unlawful action. It was not
true that the applicant had given false information to the Court. Mrs Berglez
had inherited agricultural land of negligible value (approximately
EUR 15,000) from her parents. Since her eviction in 2000, she had been
living on the verge of poverty, moving to different flats rented on the free
market and student rooms. Eleven years later the agricultural land she had
inherited had been classified as building land, its value had shot up and Mrs
Berglez had been able to sell it and buy a 65 m² flat in Maribor, which was
worse and smaller than her previous home.
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BERGER-KRALL AND OTHERS v. SLOVENIA JUDGMENT
225. Because of the chicanery of the “previous owners”, in 1999
applicant no. 3 (Mrs Ivanka Bertoncelj) had decided to leave her dwelling
and take advantage of the “third model”; however, this model had been
repealed and Mrs Bertoncelj, who had no financial means, could not afford
to purchase another dwelling on the free market. She had reached an
agreement with the “previous owners” only to obtain reimbursement of her
investments. Applicant no. 3 had gone through severe emotional distress
and needed psychiatric help. Because of the pressures exerted on her, she
had left her dwelling and settled in a flat that her daughter had purchased.
226. Applicant no. 4 (Mrs Slavica Jerančič) stressed that, as pointed out
by the Government, the requests she was receiving from the “previous
owners” lacked any foundation under national law; she had nevertheless
been a victim of everyday chicanery and pressure which had led her to seek
psychiatric help, and had finally decided to move out of her dwelling. The
apartment in Kamnik of which she owned half was worse than her previous
home; it was significantly smaller and was located in a totally new
environment in a different town. Because of her age and the change of
environment, Mrs Jerančič had started suffering from depression; she had
tried to commit suicide and had been hospitalised for four months in a
psychiatric clinic. Subsequently, from 2008 onwards, a friend who was
aware of her problems had offered her the use of an empty flat in Ljubljana
free of charge.
227. Applicant no. 5 (Mrs Ema Kugler) had not had any problems with
the “previous owners” and had not seen any need to leave her dwelling. It
was only the selling of her home to new owners that had triggered a number
of disputes, while at the same time the “third model” had been abrogated.
She had obtained the reimbursement of investments in the administratively
determined amount of EUR 3,000.
228. Applicant no. 6 (Mr Primož Kuret) was not the original holder of
the specially protected tenancy. The original holder was his late father, Mr
Niko Kuret, who died on 25 January 1995 and with whom the applicant had
been living. Until 2005 the right to purchase a returned dwelling and the
right to a lease had been transferable mortis causa to close family members.
After the death of his father, applicant no. 6 had wanted to remain in the
premises and had accordingly insisted on signing a lease contract. At the
end of 1999 he learned that the “third model” had been repealed and that he
could no longer purchase a substitute dwelling on favourable conditions.
However, after two favourable judgments, in 2005 the Supreme Court had
reversed the existing 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 (paragraph 68 above). This meant that Mr Niko Kuret’s
family had unjustifiably used the dwelling for more than ten years and that
the “previous owners” could require them to pay a market rent for that
period (a claim which would amount to at least DEM 150,000 plus interest).
BERGER-KRALL AND OTHERS v. SLOVENIA JUDGMENT
59
If such a request had been filed, the applicant and his wife – who had two
dependent children – would have gone bankrupt. In 2009 the Constitutional
Court confirmed the new case-law of the Supreme Court, to the detriment of
the applicant (paragraph 69 above). Under the circumstances, Mr Kuret
chose the lesser evil of a friendly settlement with the “previous owner”. He
vacated the premises and, being unable to afford a dwelling in the capital,
he moved out of Ljubljana.
229. Applicant no. 7 (Mr Drago Logar) had been unable to contact the
“previous owners”, and therefore had not known whether they wished to sell
the dwelling. For this reason, he had been unable to take advantage of the
“third model” before the end of 1999. After 2006 it became clear that the
“previous owners” did not intend to sell and that they wished to evict Mr
Logar. After a few years of dispute, the “previous owners” offered
Mr Logar the reimbursement of his investments plus interest provided that
he moved out of the dwelling. Mr Logar accepted this proposal and obtained
a public financial contribution under the so-called “second model” of
substitute privatisation.
230. Applicant no. 8 (Mrs Dunja Marguč) owned a flat in Piran, which
was a holiday house. She explained that by a judgment of the Ljubljana
District Court of 12 May 2009 (upheld by a higher court on 6 January
2010), she had been ordered to vacate the premises she was occupying in
Ljubljana. Execution proceedings had started in the summer of 2010 and
since then Mrs Marguč had been living in constant fear of being evicted
from her home. Should this happen, she would have to choose between
homelessness and moving to the flat in Piran, which would mean losing her
job. She had needed psychiatric help.
231. Applicant no. 9 (Mr Dušan Milič) had been unable to benefit from
the “third model” because the denationalisation proceedings concerning his
dwelling had been pending until 2005. He had decided to move out two
years later and to solve his housing problem elsewhere. Notwithstanding
some savings and loans from acquaintances and relatives, Mr Milič could
not afford to pay a substantial part of the purchase price of his new dwelling
and had therefore not been able to enter it in the land register.
232. Applicant no. 10 (Mrs Dolores Zalar) had been unable to take
advantage of the “third model” because until 1999 it had not been clear who
the “previous owners” were (inheritance proceedings concerning the
deceased denationalisation owners were still pending) and whether they
wished to sell the dwelling. Subsequently, she had agreed with the
“previous owners” that she would vacate the premises and that they would
pay her EUR 50,000 for her investments. By severely sacrificing her own
savings, obtaining a loan from a commercial bank (on more favourable
terms than the State loan) and with the financial help of her daughter, Mrs
Zalar had solved her housing problem by buying a property outside
Ljubljana. This property was not composed of two separate residential
60
BERGER-KRALL AND OTHERS v. SLOVENIA JUDGMENT
buildings (as wrongly stated by the Government – paragraph 251 below),
but of one building only, for which the total floor space and the internal
surface had been recorded separately.
2. The Government
(a) General remarks
233. The Government stressed that Article 8 of the Convention did not
include the right to buy a home, but only protected a person’s right to
respect for his or her present home (see Sorić, decision cited above). As the
SZ protected the legal status of former holders of occupancy rights, by
guaranteeing them tenancy for an indefinite period and a non-profit rent, the
applicants’ direct possession of the dwellings was not in any way disturbed
by the impugned provisions. As the Constitutional Court pointed out, the
holders of occupancy rights and their spouses and close family members
had the right to continue to live in denationalised dwellings in conditions
comparable to those in other European countries (paragraph 65 above).
234. For the applicants the SZ maintained all the entitlements provided
for under the previous arrangement. The continuation of the non-profit
tenancy by close family members of the former holder of the occupancy
right was excluded (paragraph 69 above) as it would have placed an
excessive burden on the “previous owners”. Ownership of another dwelling
had also been a ground for termination of the lease under the previous
regulation and it would have been disproportionate to impose a protected
tenancy and a non-profit rent where the tenant had other suitable
accommodation at his or her disposal.
235. Under the laws of the Socialist Republic of Slovenia there was no
guarantee that the holder of the occupancy right would have been able to
live in the same dwelling permanently or that the occupancy relationship
would remain unchanged. Under Article 106 of SZ-1 (paragraph 40 above)
the protection of the tenant was greater, as the “previous owner” could
terminate the lease without justifiable reasons only once with the same
tenant, and was obliged to provide him or her with another suitable
dwelling. The legal notions of “suitable dwelling” and “justifiable reason”
were meant to strike a fair balance between the general interest on the one
hand and the protection of the tenant’s and “previous owner’s” rights on the
other.
236. In response to the applicants’ submissions about the non-profit rent
covering not only the actual rent plus maintenance costs on the dwelling but
also the reimbursement of capital costs, thus allowing the “previous
owners” to make a profit, and about the changes in the formula for
calculating the non-profit rent to their detriment, the Government recalled
the method for calculating the non-profit rent (paragraphs 79-86 above) and
underlined that, as pointed out by the Constitutional Court, the national
BERGER-KRALL AND OTHERS v. SLOVENIA JUDGMENT
61
legislation was not supposed to guarantee the permanence and stability of
non-profit rents. The dwelling’s value was determined administratively,
which meant independently from its market value and, thanks to the
legislative formula for calculating it, the non-profit rent had effectively
remained unchanged throughout the relevant period. It did not guarantee a
profit for the “previous owner”, but covered the cost of any loan or capital
the “previous owner” invested in the renovation of the dwelling.
237. The Government objected that the applicants’ allegation of a 700%
increase in the non-profit rent was incorrect. Even if it was true that the
“point value” had increased, it should not be overlooked that the value of
the point depended on the average cost of construction and the estimated
average cost of serviced land, thus taking into account the movement of
prices in the market. Otherwise, the non-profit rent would have had no
connection with maintenance costs, which would then have had to be borne
by the “previous owners”. As in the last twenty years economic standards,
prices and salary levels had changed, it would be unrealistic to expect the
non-profit rent to remain unchanged. Non-profit rents had increased from
1.88% of the value of the dwelling in 1990 to a maximum of 4.68% of the
value of the dwelling by 2012. This increase represented a 148% increase in
rents. As salaries had also increased, in 1990 the rent for an average tworoom dwelling amounted to 7.30% of the average salary, while in 2012 it
was 14.70% of it. This meant that rents had only increased by about 100%
in real terms (and not by 700%). Furthermore, non-profit rents were
substantially lower than market rents.
238. In view of the above, the Government considered that any
purported interference with the applicants’ right to respect for their homes
had been in accordance with the law, pursued a legitimate aim and was
necessary in a democratic society. In fact, a fair balance had been struck
between the applicants’ rights under Article 8 of the Convention and the
rights of the “previous owners”, protected by Article 1 of Protocol No. 1.
(b) Remarks concerning the situation of individual applicants
239. According to the Government’s data, the current non-profit rents
paid by the applicants (or which the applicants would be paying had they
continued to live in the dwellings) were the following:
- Applicant no. 1 (Mrs Cornelia Berger-Krall): EUR 178.73 (EUR 1.73
per m²; estimated market rent: EUR 10 per m²);
- Applicant no. 2 (Mrs Ljudmila Berglez): EUR 204.09 (EUR 1.93 per
m²; estimated market rent: EUR 6 per m²);
- Applicant no. 3 (Mrs Ivanka Bertoncelj): EUR 132.83 (EUR 1.17 per
m²; estimated market rent: EUR 10 per m²);
- Applicant no. 4 (Mrs Slavica Jerančič): EUR 161.61 (EUR 1.42 per m²;
estimated market rent: EUR 11 per m²);
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BERGER-KRALL AND OTHERS v. SLOVENIA JUDGMENT
- Applicant no. 5 (Mrs Ema Kugler): EUR 49.16 (EUR 1.13 per m²;
estimated market rent: EUR 11 per m²);
- Applicant no. 6 (Mr Primož Kuret): EUR 149.12 (EUR 1.75 per m²;
estimated market rent: EUR 10 per m²);
- Applicant no. 7 (Mr Drago Logar): EUR 280.78 (EUR 1.87 per m²;
estimated market rent: EUR 11 per m²);
- Applicant no. 8 (Mrs Dunja Marguč): EUR 154.85 (EUR 1.32 per m²;
estimated market rent: EUR 10 per m²);
- Applicant no. 9 (Mr Dušan Milič): EUR 229.67 (EUR 3.33 per m²;
estimated market rent: EUR 10 per m²);
- Applicant no. 10 (Mrs Dolores Zalar): EUR 170.93 (EUR 1.41 per m²;
estimated market rent: EUR 11 per m²).
240. Former holders of occupancy rights who found themselves in
financial difficulty could apply for rent subsidies or the allocation of another
non-profit dwelling; however, none of the applicants had applied for such
benefits and none of them – with the exception of applicant no. 2
(Mrs Ljudmila Berglez) – had ever been recipients of welfare benefits. If
they considered that their non-profit rent had not been calculated in
accordance with the law, the applicants could have requested a review of its
level and – if need be – a reduction of the rent and the repayment of
overpaid rent.
241. The Government further observed that it was not established that
applicant no. 1 (Mrs Cornelia Berger-Krall) had ever requested the
“previous owners” to remedy defects in the dwelling. Moreover, she had
failed to institute judicial proceedings requesting the “previous owners” to
carry out maintenance work (Section 92 of SZ) in order to make the
dwelling suitable for normal use. In a decision of 29 November 2010 the
Ljubljana Court had ordered the said “previous owners” to pay applicant
no. 1 compensation for the investments she had made in the dwelling.
Lastly, the husband of applicant no. 1 was the owner of a vineyard cottage
and the co-owner of a 91 m² residential building. As a family member of
applicant no. 1 owned property suitable for occupation, the applicant was no
longer entitled to “protected tenant” status.
242. In response to the allegation of applicant no. 2 (Mrs Ljudmila
Berglez) that on 8 September 2000 the “previous owners” had broken into
her dwelling and emptied it while she was away, the Government noted that
the “previous owners” had an interim eviction order to carry out urgent
maintenance work requested by the Environment and Spatial Planning
Inspectorate. Applicant no. 2 was using the dwelling in a way that was
putting other residents in the building at risk, notably by keeping flammable
materials in the attic. Mrs Berglez, who according to the Government had
on several occasions been offered the keys of the place where her furniture
was being held, had lodged an action for trespassing; in 2007 the Maribor
Higher Court upheld her claim and on 25 August 2008 the Maribor Local
BERGER-KRALL AND OTHERS v. SLOVENIA JUDGMENT
63
Court issued an enforcement order which at the time of introduction of the
application had not yet been complied with, as the “previous owners” had
objected that in 2000 applicant no. 2 did not have any right to be living in
the dwelling. Applicant no. 2 alleged that because of the behaviour of the
“previous owners”, since September 2000 she had been forced to rent
alternative accommodation, a fact which had placed her in financial
difficulties. The Government could confirm that applicant no. 2 had never
concluded a lease contract with the provisional public owner and had thus
never become a protected tenant; her use of the dwelling had been unlawful
or not based on a legal title. The two actions filed by Mrs Berglez to force
the “previous owners” to sign a lease contract had failed on procedural
grounds and because applicant no. 2 had purchased a two-room dwelling in
Maribor in the meantime (on 26 November 2010) and had thus resolved her
housing issue. The Government further noted that applicant no. 2 had been
receiving welfare benefits, that she had inherited a large estate from her
father, that on 16 May 2011 she had obtained the non-refundable sum of
EUR 38,752.08 and that she had been granted a soft loan of EUR 28,774.92
by the National Housing Fund, which she did not use to buy the two-room
dwelling in Maribor.
243. In their observations of 13 July 2012, the Government provided
additional information concerning the circumstances of applicant no. 2.
They noted that she had purchased a dwelling worth EUR 65,000; as she
had received only EUR 38,752.08 from the State, it could be deduced that
the land she had inherited had been sold for more than its estimated value
(EUR 15,000). Three of the plots were building sites; therefore, the
applicant’s allegation that the inherited property consisted only of
agricultural land of the poorest quality was false. The new dwelling was
acquired on 26 November 2006, while the State financial support was not
transferred to the applicant’s account until 16 May 2011. As Mrs Berglez
did not indicate that she had obtained a loan, it could be inferred that she
had sufficient financial means to purchase the dwelling. Finally, it was
worth noting that in 1993 the manager of the building had started
proceedings against applicant no. 2 for non-payment of rent between April
and September 1992, which was a ground for terminating the tenancy
relationship.
244. The Government further responded as follows to the allegations of
applicants nos. 3, 4, 5, 6, 7, 8, 9 and 10. Applicant no. 3 (Mrs Ivanka
Bertoncelj) alleged that the dwelling had been completely renovated by her
husband three times, in 1958, 1969 and 1984. The “previous owner” had
allegedly exerted pressure on applicant no. 3 – through her lawyer and by
hiring detectives – to get her to move out of the dwelling, and had refused to
authorise repairs. The “previous owner” had eventually filed a lawsuit
against applicant no. 3, which was rejected on formal grounds (the
“previous owners” had already sold the dwelling and therefore had lost legal
64
BERGER-KRALL AND OTHERS v. SLOVENIA JUDGMENT
interest in the case). The new owners subsequently requested the
termination of the lease, claiming that they needed the dwelling for their son
and his family. These proceedings ended with a court settlement in 2005.
Applicant no. 3 vacated the premises and waived all her claims for the
recovery of investments; in exchange, she received compensation in the
amount of EUR 100,000. Mrs Bertoncelj allegedly later discovered that she
had been deceived by the buyers: the dwelling was not for use by their son,
but had been connected to their own flat. The Government observed that
Mrs Bertoncelj had never started proceedings with a view to having
maintenance work done and normal living conditions restored in the
dwelling, nor had she introduced an action for trespassing or obstructive
conduct. Lastly, applicant no. 3 had never received any welfare benefits and
had failed to apply for a subsidised non-profit rent.
245. Applicant no. 4 (Mrs Slavica Jerančič) alleged that the dwelling
needed renovation and that the new owner who had bought the property was
inspecting the dwelling twice a year, had asked her to pay a normal rent and
to put certain deficiencies right and had threatened her with lawsuits. The
pressure exerted by the owner was such that Mrs Jerančič had eventually
vacated the premises. The Government observed that tenants in
denationalised dwellings were protected by the legislation from payment of
an excessive rent and that alleged inadequate use of the dwelling did not
constitute a ground for termination of the lease. In any event, no such
lawsuits had been filed by the owner against applicant no. 4. The applicant
was the co-owner of an 83 m² dwelling in Kamnik built in 2006 and suitable
for living in. Finally, applicant no. 4 had never received any welfare
benefits and had failed to apply for a subsidised non-profit rent; she had
never submitted a claim for the reimbursement of investments made in the
dwelling.
246. Applicant no. 5 (Mrs Ema Kugler) complained about the poor
condition of the dwelling and about the conduct of a new owner who had
bought part of the building in 1999 and started construction work and asked
Mrs Kugler to move out. The Government observed that in its decision of
14 January 2002 the Environment and Spatial Planning Inspectorate noted
that Mrs Kugler had failed to prove her eligibility to use some common
areas in which the work had been done. Moreover, the applicant had not
lodged an action for trespassing against the owner, or an action to put an
end to the disturbances allegedly caused by the work. The work had ended,
at the latest, by the middle of 2003, which was more than six months before
the introduction of the application before the Court (15 March 2004). Two
lawsuits lodged by the owner to force applicant no. 5 to vacate the premises
(on the basis of the invalidity of the lease agreement, non-payment of the
rent and the housing needs of the owner) were unsuccessful. These
proceedings lasted respectively one year and five months and two years and
two months at two levels of jurisdiction. Lastly, applicant no. 5 had never
BERGER-KRALL AND OTHERS v. SLOVENIA JUDGMENT
65
received any welfare benefits and had failed to apply for a subsidised nonprofit rent; the “previous owners” had had to pay her compensation for the
investments made in the dwelling.
247. Applicant no. 6 (Mr Primož Kuret) had filed an action against the
“previous owner” of the dwelling to secure a lease for a non-profit rent. The
Supreme Court dismissed the action, considering that the rent should be a
normal market rent (paragraph 68 above). On 17 March 2006 Mr Kuret
struck an agreement with the “previous owner”; however, the increased rent
and the legal costs had allegedly become unbearable, and applicant no. 6
and his family had left the building in July 2006. The Government argued
that applicant no. 6 had lost his victim status by entering into an agreement
with the “previous owner” which explicitly and conclusively settled all the
issues between them (paragraph 77 above). Moreover, applicant no. 6 had
never received any welfare benefits and had failed to request a subsidised
non-profit rent.
248. Applicant no. 7 (Mr Drago Logar) alleged that he had completely
renovated the dwelling; in June 1994, he was informed that the dwelling had
been returned to “previous owners”. From that date until 2006 he had no
contact with the “previous owners” and the bills for payment of the nonprofit rent stopped coming. As a result, he stopped paying the rent but
continued to carry out ordinary maintenance of the dwelling. In April 2006
the “previous owners” asked applicant no. 7 to vacate the dwelling, but no
such claim was registered in the Ljubljana District Court. The Government
observed that Mr Logar never requested to purchase a substitute dwelling;
he never applied for subsidies for non-profit rent, but on 27 October 2011
he received the non-refundable sum of EUR 53,276.42, and he was granted
a soft loan of EUR 89,223.57 by the National Housing Fund. Without using
this loan, Mr Logar purchased a dwelling of 82 m² in Ljubljana. Finally, by
a decision of 7 March 2011, the Ljubljana Administrative Unit ordered the
“previous owners” to pay the applicant compensation for the investments in
the dwelling.
249. Applicant no. 8 (Mrs Dunja Marguč) and her husband bought a
holiday home of about 50 m² in Piran. The “previous owner” of the
dwelling she was occupying in Ljubljana then started proceedings for the
termination of the lease, on the ground that Mrs Marguč possessed another
adequate dwelling. Applicant no. 8 challenged this action, alleging that the
holiday home had no heating and no thermal insulation, and was therefore
not adequate for living during the winter season. The first-instance court
allowed the claim of the “previous owner” and rescinded the lease; it held,
in particular, that the Piran home’s shortcomings were the result of
Mrs Marguč’s subjective decisions and could easily be overcome by
installing insulation and heating. The first-instance court also took into
account the fact that the applicant and her husband were employed and that
the home in Piran was above-standard property by reason of its elite
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BERGER-KRALL AND OTHERS v. SLOVENIA JUDGMENT
location. The proceedings were currently pending before the Supreme
Court. Applicant no. 8 had never received any financial assistance and had
not applied for a subsidised non-profit rent; she had submitted a claim for
the reimbursement of investments in the dwelling, but had failed to follow it
up.
250. Applicant no. 9 (Mr Dušan Milič) had failed to substantiate his
allegations of “daily harassment” by the “previous owners” of the dwelling.
Moreover, he was unsuccessful in his claim that the building in which he
was living had been built in 1987 and therefore could not have been
confiscated from the legal predecessor: it appeared from the Ljubljana Local
Court’s judgment of 11 June 2002 that the building in question, confiscated
in 1949, had only been renovated – and not newly built – in 1987. The
“previous owners” were also ordered to pay SIT 400,000 (approximately
EUR 1,670) to applicant no. 9, representing the revaluation of the 20%
participation paid by Mr Milič for the acquisition of the occupancy right.
Lastly, on 28 June 2007 he had obtained the non-refundable sum of
EUR 45,975.98.
251. Applicant no. 10 (Mrs Dolores Zalar) had failed to establish that
she had filed two actions against the “previous owners”: one for failure to
maintain the dwelling and the other for the establishment of her right to
continue to reside there (this latter action was not necessary, as the change
in ownership had no effect on her rights as a tenant). Having paid the nonprofit rent to the custodian of the denationalised property, applicant no. 10
could easily have defended herself against further potential financial claims
from the “previous owners”. At Mrs Zalar’s request, the Environment and
Spatial Planning Inspectorate ordered the “previous owners” to replace the
windows of the dwelling. Applicant no. 10 could have used the same
procedure to solve the problems of poor maintenance of the chimney and
the roof. She had never applied for subsidies for non-profit rent, but on
27 October 2011 she had received the non-refundable sum of EUR
32,262.99 and was granted a soft loan of EUR 72,737.02 by the National
Housing Fund. Without using this loan, Mrs Zalar had purchased two pieces
of residential property (one measuring 84 m² and the other 148 m²); she had
also filed a claim for the recovery of the investments in the dwelling she
was occupying, but had later withdrawn it.
3. The third-party intervener
252. The IUT observed that the applicants should have enjoyed
protection under Article 8 of the Convention. However, they had been
deprived of their rights in relation to existing housing in a way which was
incompatible with that provision.
BERGER-KRALL AND OTHERS v. SLOVENIA JUDGMENT
67
B. The Court’s assessment
1. The applicants’ victim status
253. In its decision of 28 May 2013 on the admissibility of the
application (paragraph 263), the Court specified that at the merits stage it
would address the question of whether those applicants who voluntarily
vacated the premises could still claim to be “victims”, under Article 34 of
the Convention, of the facts complained of under Article 8 of the
Convention.
254. In this connection, the Court reiterates that once an eviction order
has been issued it amounts to an interference with the right to respect for the
home, irrespective of whether it has yet been executed (see Ćosić
v. Croatia, no. 28261/06, § 18, 15 January 2009, and Gladysheva v. Russia,
no. 7097/10, § 91, 6 December 2011; see also, mutatis mutandis, Stanková
v. Slovakia, no. 7205/02, § 57, 9 October 2007). By way of contrast, an
applicant who moved out of the apartment without any steps having been
taken with a view to evicting him or her cannot claim to be a victim of an
alleged breach of his or her right to respect for the home (see, mutatis
mutandis, Liepājnieks, decision cited above, §§ 88 and 109).
255. In the present case, according to the information submitted by the
applicants and the Government (see paragraphs 225, 226, 229, 231, 232,
244, 245, 248 and 251 above), five applicants, namely nos. 3 (Mrs Ivanka
Bertoncelj), 4 (Mrs Slavica Jerančič), 7 (Mr Drago Logar), 9 (Mr Dušan
Milič) and 10 (Mrs Dolores Zalar) voluntarily vacated the premises before
any eviction order was issued. Under these circumstances, and
notwithstanding their allegations that pressure had been exerted by the
“previous owners”, the Court considers that these applicants lack victim
status within the meaning of Article 34 of the Convention.
256. By contrast, applicant no. 2 (Mrs Ljudmila Berglez) was evicted in
2000 (see paragraph 224 above) and an eviction order was issued against
applicant no. 8 (Mrs Dunja Marguč) in May 2009 (see paragraphs 230 and
249 above). These applicants can therefore claim to be “victims” of the
alleged violation of their right to respect for their homes. The same applies
to applicant no. 6 (Mr Primož Kuret); although no formal eviction order
seems to have been issued against him, he decided to vacate the flat he was
occupying in Ljubljana only when the judgment given by the Supreme
Court made it clear that he was not entitled to continue the lease contract
signed by his late father and thus had no title to occupy the premises (see
paragraphs 228 and 247 above).
257. According to the information available to the Court (see
paragraphs 223 and 246 above), the two remaining applicants, nos. 1
(Mrs Cornelia Berger-Krall) and 5 (Mrs Ema Kugler), are still occupying
their dwellings on the basis of a contractual lease. No eviction order has
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BERGER-KRALL AND OTHERS v. SLOVENIA JUDGMENT
been issued against them and they essentially confined themselves to
alleging a “risk of eviction”.
258. The Court reiterates that Article 34 of the Convention “requires that
an individual applicant should claim to have been actually affected by the
violation he or she alleges. It does not institute for individuals a kind of
actio popularis for the interpretation of the Convention; it does not permit
individuals to complain against a law in abstracto simply because they feel
it contravenes the Convention. In principle, it does not suffice for an
individual applicant to claim that the mere existence of a law violates his
rights under the Convention; it is necessary that the law should have been
applied to his detriment” (see Klass and Others v. Germany, 6 September
1978, § 33, Series A no. 28). This principle also applies to decisions that are
allegedly contrary to the Convention (see Fairfield v. the United Kingdom
(dec.), no. 24790/04, ECHR 2005-VI). Moreover, the exercise of the right
of individual petition cannot be used to prevent a potential violation of the
Convention: in theory, the Court cannot examine a violation other than a
posteriori, once that violation has occurred. It is only in highly exceptional
circumstances that an applicant may nevertheless claim to be a victim of a
violation of the Convention owing to the risk of a future violation (see, for
instance, Association for European Integration and Human Rights and
Ekimdzhiev v. Bulgaria, no. 62540/00, §§ 58-62, 28 June 2007, and Noël
Narvii Tauira and 18 Others v. France, application no. 28204/95,
Commission decision of 4 December 1995, Decisions and Reports (DR) 83B, p. 112).
259. In the present case, in the absence of any formal decision from a
public body ordering the eviction of applicants nos. 1 and 5, the Court
considers that a purely hypothetical and future risk that such a decision may
be adopted is not sufficient to confer victim status on the said applicants
within the meaning of Article 34 of the Convention. In this connection, it is
also worth noting that according to the information submitted by the
Government (see paragraph 246 above) and not contested by the applicants,
the two lawsuits lodged by the “previous owner” to evict Mrs Kugler were
unsuccessful.
260. In the light of the above, the Court considers that the complaints of
applicants nos. 1 (Mrs Cornelia Berger-Krall), 3 (Mrs Ivanka Bertoncelj),
4 (Mrs Slavica Jerančič), 5 (Mrs Ema Kugler), 7 (Mr Drago Logar),
9 (Mr Dušan Milič) and 10 (Mrs Dolores Zalar) are incompatible ratione
personae with the provisions of the Convention within the meaning of
Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4.
261. It remains to be ascertained whether the Article 8 rights of the
remaining applicants (nos. 2, 6 and 8 – Mrs Ljudmila Berglez, Mr Primož
Kuret and Mrs Dunja Marguč) have been violated in the present case.
BERGER-KRALL AND OTHERS v. SLOVENIA JUDGMENT
69
2. Whether there was interference with the right to respect for the
home
262. The Court recalls that in its decision of 28 May 2013 on the
admissibility of the application (paragraph 149), it considered that in so far
as the Government referred to the particular circumstances of individual
applicants (notably, their entitlement to occupy the flats they live in, their
ownership of other real estate, their financial situation and/or the financial
grants received by them – see paragraphs 242, 243, 247 and 249 above),
these issues were relevant considerations in assessing whether there was
interference with the applicants’ rights under Article 1 of Protocol No. 1 and
Article 8 of the Convention and, in the affirmative, whether this interference
was proportionate and necessary in a democratic society.
263. The Court first notes that disputes have arisen as to the entitlement
of applicants nos. 2 (Mrs Ljudmila Berglez) and 6 (Mr Primož Kuret) to
occupy the premises. In the case of Mrs Berglez, no formal lease agreement
was signed with the “previous owners”; the parties disagree as to the
reasons for this (see paragraphs 224 and 242 above). In any event, the Court
observes that Mrs Berglez obtained a specially protected tenancy from her
late mother in 1991 and that she continued to live in the dwelling and to pay
rent until 2000, when she was evicted (see paragraph 224 above). It was
only some ten years later that, allegedly because of the increase in value of
land she had inherited, she was able to purchase a 65 m² flat in Maribor (see
paragraphs 224 and 243 above). Under these circumstances, the Court
considers that the eviction order interfered with her right to respect for her
home.
264. As to Mr Kuret, even after his late father’s demise on 25 January
1995 he had continued to reside in the flat in respect of which his father had
held a specially protected tenancy (see paragraph 228 above). Until 2005 the
existing case-law allowed the transferability mortis causa of occupancy
rights to cohabiting close family members (see paragraphs 68 and 228
above). The Court is accordingly of the opinion that the applicant had a
legitimate expectation of signing a lease agreement with the “previous
owners”. Not until April 2005, when that expectation was frustrated by a
reversal of case-law (see paragraph 68 above), did Mr Kuret – also in order
to avoid the risk of being asked to pay arrears of rent at the free-market rate
– envisage reaching a friendly settlement with the “previous owner” and
resolve his housing needs by moving out of Ljubljana (see paragraph 228 in
fine, above). Under these circumstances, the Court is of the opinion that the
decision of the Supreme Court of 21 April 2005 interfered with Mr Kuret’s
right to respect for his home.
265. Lastly, an eviction order was issued against applicant no. 8
(Mrs Dunja Marguč) because she owned another adequate dwelling in Piran
(see paragraphs 230 and 249 above). Even though, according to the
information available to the Court, the said order has not yet been enforced,
70
BERGER-KRALL AND OTHERS v. SLOVENIA JUDGMENT
its execution would oblige Mrs Marguč to vacate the premises in which she
has been living for several years and to move outside the city where she
works. The issuing of the order has therefore interfered with her right to
respect for her home.
266. As to the assets and financial situation of applicants nos. 2, 6 and 8,
the Court is of the opinion that these elements should be taken into account
in the evaluation of the proportionality of the interference.
3. Whether the interference was justified
(a) Whether the interference was lawful and pursued legitimate aims
267. Interference with the right to respect for the home would be
contrary to Article 8 of the Convention, unless it was in accordance with the
law, pursued one or more legitimate aims and was “necessary in a
democratic society”. As far as the first two requirements are concerned, the
Court cannot but reiterate the conclusions reached under Article 1 of
Protocol No. 1 of the Convention, notably that the suppression of the
specially protected tenancies and their replacement with normal lease
contracts had a valid legal basis in domestic law (see paragraph 191 above)
and that the interference with the applicants’ rights pursued a legitimate
aim, namely the protection of the rights of others (see paragraphs 194
above).
(b) Whether the interference was “necessary in a democratic society”
268. In assessing whether the interference was “necessary in a
democratic society”, the Court will have to examine whether it answered a
“pressing social need” and, in particular, whether it was proportionate to the
legitimate aims pursued. It has previously held that the margin of
appreciation in housing matters is narrower when it comes to the rights
guaranteed by Article 8 compared with those in Article 1 of Protocol No. 1,
regard being had to the central importance of Article 8 to the individual’s
identity, self-determination, physical and moral integrity, maintenance of
relationships with others and settled and secure place in the community (see
Connors v. the United Kingdom, no. 66746/01, §§ 81–84, 27 May 2004;
Orlić v. Croatia, no. 48833/07, §§ 63-70, 21 June 2011; and Gladysheva,
cited above, § 93).
269. It must be recalled that the requirement of necessity in a democratic
society under paragraph 2 of Article 8 raises a question of procedure as well
as one of substance. The Court set out the relevant principles in assessing
the necessity of an interference with the right to respect for the “home” in
the case of Connors (cited above, §§ 81-83) which concerned summary
possession proceedings. The relevant passage reads as follows:
“81. An interference will be considered ‘necessary in a democratic society’ for a
legitimate aim if it answers a ‘pressing social need’ and, in particular, if it is
BERGER-KRALL AND OTHERS v. SLOVENIA JUDGMENT
71
proportionate to the legitimate aim pursued. While it is for the national authorities to
make the initial assessment of necessity, the final evaluation as to whether the reasons
cited for the interference are relevant and sufficient remains subject to review by the
Court for conformity with the requirements of the Convention ...
82. In this regard, a margin of appreciation must, inevitably, be left to the national
authorities, who by reason of their direct and continuous contact with the vital forces
of their countries are in principle better placed than an international court to evaluate
local needs and conditions. This margin will vary according to the nature of the
Convention right in issue, its importance for the individual and the nature of the
activities restricted, as well as the nature of the aim pursued by the restrictions. The
margin will tend to be narrower where the right at stake is crucial to the individual’s
effective enjoyment of intimate or key rights ... On the other hand, in spheres
involving the application of social or economic policies, there is authority that the
margin of appreciation is wide, as in the planning context where the Court has found
that ‘[i]n so far as the exercise of discretion involving a multitude of local factors is
inherent in the choice and implementation of planning policies, the national
authorities in principle enjoy a wide margin of appreciation’ ... The Court has also
stated that in spheres such as housing, which play a central role in the welfare and
economic policies of modern societies, it will respect the legislature’s judgment as to
what is in the general interest unless that judgment is manifestly without reasonable
foundation ... It may be noted however that this was in the context of Article 1 of
Protocol No. 1, not Article 8 which concerns rights of central importance to the
individual’s identity, self-determination, physical and moral integrity, maintenance of
relationships with others and a settled and secure place in the community ... Where
general social and economic policy considerations have arisen in the context of
Article 8 itself, the scope of the margin of appreciation depends on the context of the
case, with particular significance attaching to the extent of the intrusion into the
personal sphere of the applicant ...
83. The procedural safeguards available to the individual will be especially material
in determining whether the respondent State has, when fixing the regulatory
framework, remained within its margin of appreciation. In particular, the Court must
examine whether the decision-making process leading to measures of interference was
fair and such as to afford due respect to the interests safeguarded to the individual by
Article 8 ...”
270. In the case of Ćosić (cited above, §§ 21-23), the Court reiterated
that a person at risk of losing his or her home should in principle be able to
have the proportionality and reasonableness of the measure determined by
an independent tribunal in the light of the relevant principles under Article 8
of the Convention, notwithstanding that, under domestic law, his or her
right of occupation had come to an end (see also McCann v. the United
Kingdom, no. 19009/04, § 50, 13 May 2008). It subsequently concluded that
the applicant in the Ćosić case was not afforded such an opportunity, as the
national courts had confined themselves to finding that occupation by the
applicant was without legal basis, without making any further analysis as to
the proportionality of the measure to be applied against her (see also Paulić
v. Croatia, no. 3572/06, 22 October 2009). The Court reached similar
conclusions in the case of Gladysheva (cited above, §§ 94-97), in which the
domestic authorities made no analysis of the proportionality of the
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BERGER-KRALL AND OTHERS v. SLOVENIA JUDGMENT
applicant’s eviction from the flat they declared to be State-owned and made
it clear that they would not contribute to the solution of her housing needs.
271. By contrast, in the case of Galović v. Croatia ((dec.), no. 54388/09,
5 March 2013) the Court rejected a claim under Article 8 brought by a
former holder of a specially protected tenancy who had been evicted from
the dwelling by the owner. The Court underlined that the applicant’s son
and daughter-in-law – with whom she lived in the flat in issue – had a
120 m2 house and a 74 m2 flat respectively and could therefore meet her and
their own housing needs much easier than the owner of the flat could meet
the housing needs of his two adults sons, with whom he and his wife lived
in a 65.82 m2 flat.
272. The considerations which led the Court to find that the applicants’
rights under Article 1 of Protocol No. 1 had not been violated allow it to
reach the same conclusion under Article 8 of the Convention in respect of
applicants nos. 2 (Mrs Ljudmila Berglez), 6 (Mr Primož Kuret) and 8
(Mrs Dunja Marguč) (see, mutatis mutandis, Zeno and Others v. Italy,
no. 1772/06, 27 April 2010). It observes, in particular, that the applicants
were afforded the possibility of concluding leases of an indefinite duration,
transmitting them to their spouses or long term partners and occupying the
premises for a non-profit rent. As noted above, the data submitted by the
Government, and not contested by the applicants, show that these rents were
significantly lower than free-market rents and none of the applicants has
submitted evidence showing that they could not afford the rent. In any
event, public subsidies were available under domestic law for socially or
financially disadvantaged tenants (see paragraph 41 above).
273. As to the fault-based grounds for eviction introduced by the
Housing Act 1991 (see paragraph 21 above), they were essentially similar to
those traditionally contained in lease agreements in other Member States
and cannot, as such, be considered incompatible with Article 8 of the
Convention. It is true that the Housing Act 2003 introduced a new ground
for eviction – namely ownership of another suitable dwelling – and the
possibility for the “previous owner” to move the tenant to another adequate
flat at any time and without any reason. The Court considers, however, that
these legislative measures were justified in view of the special, reinforced
protection which was afforded to persons in the applicants’ situation and the
corresponding limitations placed on the rights of the “previous owners”.
Upon obtaining restitution of the property, the latter were obliged to enter
into a permanent, lifelong agreement with a tenant they did not choose and
in exchange for a particularly low rent. It was therefore not disproportionate
to offer them the possibility of moving the tenant to another adequate flat. In
this regard, the Court notes that the removal costs were borne by the
“previous owner” and that the same tenant could be made to move only
once (see paragraph 40 above). Moreover, as the rules governing the lease
agreement were aimed at protecting vulnerable tenants, it was not arbitrary
BERGER-KRALL AND OTHERS v. SLOVENIA JUDGMENT
73
to provide for the possibility of eviction when, as in the case of
Mrs Marguč, ownership of another suitable dwelling showed that a given
tenant was not in a situation of social or financial distress and that his or her
housing needs could be satisfied elsewhere without limiting the “previous
owner’s” property rights. In any event, as noted above, the Court has
already considered compatible with Article 8 an eviction order justified by
the fact that members of the tenant’s household owned other real estate (see
Galović, decision cited above).
274. The same considerations apply to the change of case-law by which,
to the detriment of Mr Kuret, the Supreme Court and the Constitutional
Court excluded the transmissibility of the right to a lease for a non-profit
rent mortis causa to close family members (see paragraphs 68 and 69). The
Court considers that the new rule resulting from the decisions of the
Slovenian judicial authorities was aimed at ensuring a fair balance between
the protection of the rights of the tenants on the one hand and those of the
“previous owners” on the other. In particular, the latter’s ability to obtain
any profit from their real estate would have been frustrated for a significant
and potentially excessive length of time had they been prevented from
imposing market rents not only on the former holder of the specially
protected tenancy, but also, after his or her demise, on his or her close
family members (see also the similar arguments developed by the Court
under Article 1 of Protocol No. 1 in paragraph 206 above).
275. As to the procedural guarantees enjoyed by the applicants, it is not
contested that they had a possibility of challenging any eviction order before
the competent domestic courts, which had jurisdiction over all related
questions of fact and law. This is particularly relevant to the case of
Mrs Berglez, in which the domestic courts were able to assess whether she
was performing prohibited activities in the dwelling (see paragraphs 224
and 242 above) and whether the failure to sign a lease agreement was her
fault or that of the “previous owners”. The same applies to any possible act
of intimidation and chicanery on the part of a “previous owner” against a
former protected tenant.
(c) Conclusion
276. In the light of the above, the Court considers that the interference
with the right of applicants nos. 2 (Mrs Ljudmila Berglez), 6 (Mr Primož
Kuret) and 8 (Mrs Dunja Marguč) to respect for their home was “necessary
in a democratic society” within the meaning of the second paragraph of
Article 8 of the Convention. There has therefore been no violation of this
provision.
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BERGER-KRALL AND OTHERS v. SLOVENIA JUDGMENT
III. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION,
TAKEN IN CONJUNCTION WITH ARTICLE 1 OF PROTOCOL
NO. 1
277. The applicants alleged that they had been discriminated against visà-vis bona fide buyers of nationalised dwellings and other previous holders
of specially protected tenancies. They relied on Article 14 of the
Convention, taken in conjunction with Article 1 of Protocol No. 1.
Article 14 of the Convention reads as follows:
“The enjoyment of the rights and freedoms set forth in [the] Convention shall be
secured without discrimination on any ground such as sex, race, colour, language,
religion, political or other opinion, national or social origin, association with a
national minority, property, birth or other status.”
A. The parties’ submissions
1. The applicants
278. The applicants argued that, as tenants of nationalised flats, they had
been deprived of the right to purchase their dwellings, unlike all those
previous holders of specially protected tenancies who had been living in
dwellings not subject to restitution. In addition, even though they had a right
akin to a property right, they were treated differently from bona fide buyers
of nationalised dwellings, who could not be compelled to restitute their
properties.
279. Moreover, unlike other previous holders of specially protected
tenancies, the applicants could no longer purchase a substitute dwelling
because of practical and legal obstacles. They complained about the
Constitutional Court’s decision of 25 November 1999 repealing the “third
model” of substitute privatisation (see paragraph 37 above).
280. The applicants reiterated their submissions according to which the
specially protected tenancy and the right to purchase under the “third
model” were “possessions” (of which they had been deprived) within the
meaning of Article 1 of Protocol No. 1 (see paragraphs 129-133 above).
Article 14 of the Convention was therefore applicable in conjunction with
that provision.
281. Under the “third model”, in force at the time of Slovenia’s
ratification of the Convention, the difference between specially protected
tenancy holders occupying dwellings acquired by social solidarity means
and those who, like the applicants, lived in denationalised dwellings lay not
in whether they had a right to purchase, but in whether they were able to
realise that right over an existing dwelling or over a substitute dwelling. It
was only with the abolition of the “third model” in November 1999 that the
holders of occupancy rights in denationalised dwellings, unlike other
specially protected tenancy holders, were deprived of the right to purchase.
BERGER-KRALL AND OTHERS v. SLOVENIA JUDGMENT
75
282. In the applicants’ view, this difference in treatment had no
objective and reasonable justification. They observed that all holders of
occupancy rights had been deprived of their specially protected tenancy and
that this deprivation required compensation, irrespective of whether the
dwelling had been acquired by social solidarity means or had once been
expropriated. Indeed, both kinds of dwellings were equally socially-owned
property. Moreover, the right to purchase under the “third model” was not
connected to the existing dwelling: it could also be exercised over another
(substitute) dwelling. In the applicants’ view, this proved that the essence of
the right to purchase did not derive from the dwelling itself and from its
characteristics, but from the status of holder of a specially protected
tenancy. The right to purchase continued to exist if the dwellings were not
denationalised.
283. The applicants also believed, for the same reasons enumerated
under Article 1 of Protocol No. 1 (see paragraphs 142-144 above), that the
difference in treatment complained of did not pursue a legitimate aim in the
public interest. The Constitutional Court’s reasoning could only be
understood to mean that former specially protected tenancy holders residing
in denationalised dwellings were less worthy than other former holders of
occupancy rights. As persons in the applicants’ situation had to bear an
excessive burden, there had not been a reasonable relationship of
proportionality between the means employed and the aim sought to be
realised. After the repeal of the “third model”, the burden of the
denationalisation process was no longer carried by the State or the
municipalities.
284. The applicants lastly emphasised that the European Committee of
Social Rights had found a violation of the discrimination clause (Article E)
contained in the Revised European Social Charter (see paragraphs 97 and
100 above).
2. The Government
285. The Government first maintained that, as the applicants’ claims
were incompatible ratione materiae with the provisions of Article 1 of
Protocol No. 1 (see paragraphs 119-128 above), Article 14 of the
Convention was not applicable. This concerned, in particular, the right to
purchase a dwelling, as the right to acquire property was not guaranteed by
Article 1 of Protocol No. 1.
286. They further observed that with regard to the privatisation of
dwellings the SZ rightly established two legal regimes: one for sociallyowned dwellings acquired through solidarity and mutual housing funds and
one for socially-owned dwellings that became general national property
through nationalisation. The latter category included formerly privatelyowned housing units, in respect of which the right of a denationalisation
claimant excluded the right of the occupancy right holder to acquire the
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BERGER-KRALL AND OTHERS v. SLOVENIA JUDGMENT
same property in kind. Only for the first category of dwellings was it
possible to confer on the occupancy right holders a right of pre-emption,
which was the right to purchase the property at a discount amounting to 30
per cent of its value, less the amount of own participation still not refunded
and the value of own investments, which were reflected in the increased
value of the dwelling. 90 per cent of that price could be paid in monthly
instalments over a period of twenty years. In the event of a one-off payment
within sixty days of the signing of the purchase contract, the buyer was
entitled to a discount amounting to 60 per cent of the value of the property
(see paragraph 19 above).
287. For denationalised dwellings, the holders of occupancy rights could
acquire property on these terms only with the agreement of the “previous
owners”. To regulate matters otherwise would have been tantamount to
nationalising the properties anew. If they could not obtain the “previous
owner’s” agreement, the occupants had the option to obtain a payment
amounting to 30 per cent of the value of the property and a loan if they
agreed to vacate the premises within two years from the restitution of the
dwelling to the denationalisation claimant (see paragraph 34 above). In
addition to that, the “third model” (see paragraph 35 above) had introduced
the possibility of purchasing a comparable substitute flat on favourable
terms from the municipality. Former occupancy right holders were unable to
purchase dwellings owned by the Pension and Disability Insurance
Community, as these dwellings had been built to cater for the housing needs
of retired people.
288. According to the Constitutional Court, the right to denationalisation
was an entitlement, based on the constitutional right to private property. The
existence of a “previous owner” was an objective and reasonable
justification for a difference in treatment of the holder of occupancy rights
as far as the purchase of the dwelling was concerned. No discrimination
between different categories of holders of occupancy rights existed with
regard to the possibility of continuing the tenancy. The Government
underlined that unequal treatment of unequal situations in proportion with
their inequality could not amount to a violation of Article 14 of the
Convention. As the circumstances of all former occupancy right holders
were not equal, it was impossible to treat them in the same manner.
3. The third-party intervener
289. The IUT considered that the applicants had been discriminated
against vis-à-vis other specially protected tenancy holders. While the latter
had been given the right to purchase existing or substitute dwellings on
favourable terms, this means of compensation had subsequently been
repealed for the applicants.
BERGER-KRALL AND OTHERS v. SLOVENIA JUDGMENT
77
B. The Court’s assessment
1. Applicability of Article 14 of the Convention
290. In its decision of 28 May 2013 on the admissibility of the
application (paragraph 277), the Court considered that the question of the
applicability of Article 14 of the Convention, taken in conjunction with
Article 1 of Protocol No. 1 was linked to the substance of the applicants’
complaint, and decided to join it to the merits.
291. As the Court has consistently held, Article 14 complements the
other substantive provisions of the Convention and its Protocols. It has no
independent existence since it has effect solely in relation to “the enjoyment
of the rights and freedoms” safeguarded by those provisions. Although the
application of Article 14 does not presuppose a breach of those provisions –
and to this extent it is autonomous – there can be no room for its application
unless the facts in issue fall within the ambit of one or more of the latter
(see, among many other authorities, Van Raalte v. the Netherlands,
21 February 1997, § 33, Reports 1997-I; Petrovic v. Austria, 27 March
1998, § 22, Reports 1998-II; and Zarb Adami v. Malta, no. 17209/02, § 42,
ECHR 2006-VIII).
292. In the present case, the Court considered that it was not necessary
to examine whether Article 1 of Protocol No. 1 was applicable to the
situation complained of (see paragraph 135 above). Accordingly, it will
proceed on the assumption that also Article 14 taken in conjunction with
Article 1 of Protocol No. 1 is applicable, as in any event the requirements of
this provision were not violated.
2. Compliance with Article 14 of the Convention, taken in conjunction
with Article 1 of Protocol No. 1
(a) General principles
293. The Court has established in its case-law that only differences in
treatment based on an identifiable characteristic, or “status”, are capable of
amounting to discrimination within the meaning of Article 14 (see Kjeldsen,
Busk Madsen and Pedersen v. Denmark, 7 December 1976, § 56, Series A
no. 23). Moreover, in order for an issue to arise under Article 14 there must
be a difference in the treatment of persons in analogous, or relevantly
similar, situations (see D.H. and Others v. the Czech Republic [GC],
no. 57325/00, § 175, ECHR 2007-IV, and Burden v. the United Kingdom
[GC], no. 13378/05, § 60, ECHR 2008).
294. Such a difference of treatment is discriminatory if it has no
objective and reasonable justification; in other words, if it does not pursue a
legitimate aim or if there is not a reasonable relationship of proportionality
between the means employed and the aim sought to be realised. The
Contracting State enjoys a margin of appreciation in assessing whether and
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BERGER-KRALL AND OTHERS v. SLOVENIA JUDGMENT
to what extent differences in otherwise similar situations justify a different
treatment (Burden, cited above, § 60). The scope of this margin will vary
according to the circumstances, the subject-matter and the background (see
OAO Neftyanaya Kompaniya Yukos, cited above, § 613). A wide margin is
usually allowed to the State under the Convention when it comes to general
measures of economic or social strategy. Because of their direct knowledge
of their society and its needs, the national authorities are in principle better
placed than the international judge to appreciate what is in the public
interest on social or economic grounds, and the Court will generally respect
the legislature’s policy choice unless it is “manifestly without reasonable
foundation” (see Stec and Others v. the United Kingdom, [GC],
nos. 65731/01 and 65900/01, § 52, ECHR 2006-VI, and Carson and Others
v. the United Kingdom [GC], no. 42184/05, § 61, ECHR 2010).
295. Article 14 does not prohibit Contracting Parties from treating
groups differently in order to correct “factual inequalities” between them.
Indeed, in certain circumstances a failure to attempt to correct inequality
through different treatment may, without an objective and reasonable
justification, give rise to a breach of that Article (see Thlimmenos v. Greece
[GC], no. 34369/97, § 44, ECHR 2000-IV, and Sejdić and Finci v. Bosnia
and Herzegovina [GC], nos. 27996/06 and 34836/06, § 44, ECHR 2009-...).
The Court has also accepted that a general policy or measure that has
disproportionately prejudicial effects on a particular group may be
considered discriminatory notwithstanding that it is not specifically aimed at
that group, and that discrimination potentially contrary to the Convention
may result from a de facto situation (see D.H. and Others, cited above,
§§ 175 and 196, and the authorities cited therein).
296. Lastly, as to the burden of proof in relation to Article 14 of the
Convention, the Court has held that once the applicant has shown a
difference in treatment, it is for the Government to show that it was justified
(see D.H. and Others, cited above, § 177).
(b) Application of these principles to the present case
(i) Whether there has been a difference in treatment between persons in similar
situations
297. The applicants compare themselves with two other categories of
persons: previous holders of specially protected tenancy who were
occupying dwellings not subject to restitution, and bona fide buyers of
nationalised dwellings (see paragraph 277 above). However, the Court
cannot share the applicants’ opinion that they were in a relevantly similar
situation vis-à-vis bone fide buyers, as the position of a protected tenant
cannot be equated to that of persons who obtained a legal title of ownership
of a dwelling.
BERGER-KRALL AND OTHERS v. SLOVENIA JUDGMENT
79
298. In contrast, the situation of the applicants was analogous to that of
protected tenants occupying dwellings not subject to denationalisation and
restitution: both categories of persons had been granted occupancy rights by
the authorities of the former Socialist Republic of Slovenia and were
occupying the flats by virtue of the same formal title and under the same
legal conditions. However, only the protected tenants of State-constructed
dwellings were given the enforceable right to purchase them on significantly
favourable terms by paying a price amounting to approximately 5-10 per
cent of the market value of the property. As the dwellings the applicants
were occupying were previously expropriated flats, the applicants had the
possibility to buy them at a 30 or 60 per cent discount only if, within one
year from the restitution of the dwelling, the “previous owner” agreed to sell
(see paragraphs 19 and 20 above).
299. There has therefore been a difference in treatment between two
groups – protected tenants of denationalised dwellings and protected tenants
of other dwellings – which, with respect to their right to occupy the flats
they lived in, were in a similar situation.
(ii) Whether there was objective and reasonable justification
300. The Government argued that the difference in treatment depended
on the existence of a “previous owner”, whose rights needed to be protected
and who could not be forced to sell the property he or she had obtained
through restitution (see paragraphs 287 and 288 above). The Court accepts
that obliging the “previous owner” to sell would have rendered theoretical
and illusory the principle of restitution in natura of expropriated real estate
and could have been perceived as a de facto new expropriation (see, mutatis
mutandis, Strunjak and Others v. Croatia (dec.), no. 46934/99, 5 October
2000).
301. The Court thus considers that the need to protect the rights of the
“previous owners” was a valid reason for not conferring on the applicants
the enforceable right to purchase on favourable terms the dwellings they
were occupying. The difference in treatment complained of therefore had an
objective and reasonable justification (see, mutatis mutandis, Strunjak and
Others v. Croatia ((dec.), no. 46934/99, 5 October 2000).
302. The Court further notes that other schemes providing public
financial support were available to the applicants to allow them to accede to
ownership of real estate. Notably, according to the “first model” of
substitute privatisation, the “previous owner” was incentivised to agree to
the sale of the denationalised dwelling by the possibility of receiving an
additional financial reward from public funds (paragraph 33 above), while
according to the “second model”, a tenant who decided to move out and to
purchase a flat or construct a house was entitled to compensation amounting
to 50 per cent of the value of the dwelling (further compensation of 30 per
cent was to be paid by the “previous owner” – see paragraph 34 above). A
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right to purchase a comparable substitute flat on favourable terms from the
municipalities was introduced by the “third model” (see paragraph 35
above). It is true that this last model was later repealed by the Constitutional
Court in order to avoid putting an excessive financial burden on the
municipalities (see paragraph 37 above); however, the 2003 Housing Act
introduced a “new model” of substitute privatisation, according to which
former occupancy right holders who agreed to vacate their rented
accommodation and decided to buy another dwelling or to build a house
were entitled to special compensation (up to 74 per cent of the price of the
dwelling) and to a subsidised loan (see paragraph 42 above).
303. Under these circumstances, the Court considers that the State took
significant steps to provide the applicants with a fair possibility of access to
real-estate ownership and to compensate them, insofar as practicable, for the
disadvantage created by the objective fact of the existence of a “previous
owner”.
(iii) Conclusion
304. Accordingly, even assuming it to be applicable to the facts of the
present case, Article 14 taken in conjunction with Article 1 of Protocol
No. 1 has not been violated.
IV. ALLEGED VIOLATION
CONVENTION
OF
ARTICLE
6
§
1
OF
THE
305. The applicants maintained that since the most important changes in
the housing policy had been introduced by statute, they did not have
sufficient access to a court to challenge the alleged infringements of their
rights. Moreover, they had been excluded from the denationalisation
proceedings.
They relied on Article 6 § 1 of the Convention, which, insofar as
relevant, reads as follows:
“In the determination of his civil rights and obligations ... everyone is entitled to a
fair ... hearing ... by [a] ... tribunal ...”
A. The parties’ submissions
1. The applicants
306. The applicants underlined that the only legal avenue open to them
had been the “petition” and the subsequent constitutional complaint, and the
constitutional initiative lodged by the Association on behalf of its members.
After the decision of the Constitutional Court dismissing their initiative, the
applicants had had no prospect of success with their individual complaints.
BERGER-KRALL AND OTHERS v. SLOVENIA JUDGMENT
81
307. The applicants also complained about their exclusion from the
denationalisation proceedings, which concerned the ownership of the
dwellings they had been living in. The outcome of these proceedings had
been decisive for their “civil rights”, as they would have been entitled to
purchase the dwellings if they had not been returned to the persons who
claimed to have been their owners before the nationalisation.
308. In the denationalisation proceedings, the administrative courts had
to verify the existence of the legal grounds allowing restitution, and in the
absence of these grounds the claimant’s request would be rejected. These
proceedings were decisive not only for the civil rights of the
denationalisation claimant but also for those of the former specially
protected tenancy holder residing in the dwelling. Under the “third model”,
the outcome of the denationalisation proceedings would determine whether
the tenant could exercise the right to purchase the existing or a substitute
dwelling. After the abolition of that model, their outcome would determine
whether the tenant had a right to purchase at all.
309. This right to acquire ownership of a dwelling on extremely
favourable financial terms was without doubt a “civil” right within the
meaning of Article 6 § 1 of the Convention. The fact that an economic
interest lay behind this right could not change that conclusion, as every
property right was, in essence, an economic interest. Former holders of
specially protected tenancies therefore had a right to participate in the
denationalisation proceedings in order to be apprised of, and comment on,
all evidence adduced or observations filed, with a view to influencing the
court’s decision. The applicants were not required to indicate, in the
international proceedings, what kind of arguments and proof they could
have put forward in the denationalisation proceedings had they been given a
chance to take part in them.
2. The Government
310. The Government first maintained that the applicants’ complaint
was incompatible ratione materiae with the provisions of Article 6 § 1 of
the Convention, as the denationalisation proceedings did not involve a
dispute concerning their “civil rights and obligations” (Ulyanov v. Ukraine
(dec.), no. 16472/04, 5 October 2010). They emphasised that former holders
of occupancy rights could not be parties in the denationalisation proceedings
unless they proved that they had a legal interest in them, that is, either a
claim for the repayment of investments or an ownership right (see Article 60
of the ZDen and paragraph 28 above). The applicants had failed to prove the
probable existence of such a legal interest. The restitution of nationalised
property to denationalisation claimants did not in any way affect the legal
status of the applicants or their direct entitlements based on the law.
311. Moreover, the applicants could not have prevented the restitution of
the dwellings to their “previous owners”, as the mere existence of a tenancy
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BERGER-KRALL AND OTHERS v. SLOVENIA JUDGMENT
could not be an obstacle to restitution of nationalised property. Therefore,
the applicants could not have realised their wish to purchase the dwellings
by participating in the denationalisation proceedings, which were not
directly decisive for their “civil rights”.
B. The Court’s assessment
1. Applicability of Article 6 § 1 to the denationalisation proceedings
312. In its decision of 28 May 2013 on the admissibility of the
application (paragraph 286), the Court considered that the question of the
applicability of Article 6 § 1 of the Convention to the denationalisation
proceedings was linked to the substance of the applicants’ complaint and
decided to join it to the merits. The Court should therefore ascertain whether
the civil limb of this provision applies to the alleged impossibility for the
applicants to participate in the denationalisation proceedings. In this
connection, it notes that, as pointed out by the Government, no such
impossibility existed where the previous holder of occupancy rights had a
claim for the recovery of investments made in the dwelling (see paragraphs
28, 66 and 310 above). It must therefore be determined whether, in the
absence of such a claim, the denationalisation proceedings were determinant
for any of the applicants’ “rights” within the meaning of Article 6.
313. The Court reiterates that for Article 6 § 1 in its “civil” limb to be
applicable, there must be a dispute (“contestation” in the French text) over a
“right” which can be said, at least on arguable grounds, to be recognised
under domestic law, irrespective of whether it is protected under the
Convention. The dispute must be genuine and serious; it may relate not only
to the actual existence of a right but also to its scope and the manner of its
exercise; and, finally, the result of the proceedings must be directly decisive
for the right in question, mere tenuous connections or remote consequences
not being sufficient to bring Article 6 § 1 into play (see, among other
authorities, Micallef v. Malta [GC], no. 17056/06, § 74, 15 October 2009).
314. Article 6 § 1 does not guarantee any particular content for (civil)
“rights and obligations” in the substantive law of the Contracting States: the
Court may not create by way of interpretation of Article 6 § 1 a substantive
right which has no legal basis in the State concerned (see, for example,
Fayed v. the United Kingdom, 21 September 1994, § 65, Series A
no. 294-B, and Roche v. the United Kingdom [GC], no. 32555/96, § 119,
ECHR 2005-X). The starting-point must be the provisions of the relevant
domestic law and their interpretation by the domestic courts (see Masson
and Van Zon v. the Netherlands, 28 September 1995, § 49, Series A
no. 327-A, and Roche, cited above, § 120). This Court would need strong
reasons to differ from the conclusions reached by the superior national
BERGER-KRALL AND OTHERS v. SLOVENIA JUDGMENT
83
courts by finding, contrary to their view, that there was arguably a right
recognised by domestic law (ibid.).
315. In carrying out this assessment, it is necessary to look beyond the
appearances and the language used and to concentrate on the realities of the
situation (see Van Droogenbroeck v. Belgium, 24 June 1982, § 38, Series A
no. 50; Roche, cited above, § 121; and Boulois v. Luxembourg [GC],
no. 37575/04, § 92, 3 April 2012).
316. Turning to the circumstances of the present case, the Court notes
that the object of the denationalisation proceedings was to determine the
ownership of the property subject to restitution (see paragraph 27 above).
The applicants did not allege that they had an arguable claim for restitution.
Therefore, in the Court’s opinion, the outcome of the proceedings was not
directly decisive for their potential property rights. It was also not decisive
for their right to occupy the dwelling, as denationalisation and restitution
could not affect the tenancy relationship (see paragraph 28 above), and the
“previous owners” were obliged to rent the flats for an indefinite period and
for a non-profit rent to previous holders of occupancy rights (see
paragraph 19 above).
317. It is true that in the event of rejection of the denationalisation
claimants’ request for restitution, the former holders of specially protected
tenancies would have had the possibility of purchasing the dwellings they
were occupying on favourable terms (see paragraph 308 above). However,
the Court considers that this was a mere remote consequence of the
denationalisation proceedings not sufficient to bring Article 6 § 1 into play.
318. In view of all the foregoing considerations, the Court cannot
consider that the result of the denationalisation proceedings was directly
decisive for the applicants’ civil rights. Accordingly, it concludes, like the
Government, that Article 6 § 1 of the Convention is not applicable.
319. It follows that the Government’s objection should be allowed.
There has therefore been no breach of Article 6 § 1 with regard to the
denationalisation proceedings.
2. Access to a court to challenge the housing reform
320. It remains to be ascertained whether the applicants had sufficient
access to a court to challenge the infringements of their rights allegedly
brought about by the housing reform.
321. The Court reiterates that Article 6 § 1 secures to everyone the right
to have any claim relating to his or her civil rights and obligations brought
before a court or tribunal (see Golder v. the United Kingdom, 21 February
1975, § 36, Series A no. 18). This “right to a court”, of which the right of
access is an aspect, may be relied on by anyone who considers on arguable
grounds that an interference with the exercise of his or her civil rights is
unlawful and complains that no possibility was afforded to submit that
claim to a court meeting the requirements of Article 6 § 1 (see, inter alia,
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BERGER-KRALL AND OTHERS v. SLOVENIA JUDGMENT
Roche, cited above, § 117, and Salontaji-Drobnjak v. Serbia, no. 36500/05,
§ 132, 13 October 2009). The degree of access afforded by the national
legislation must be sufficient to secure the individual’s right to a court,
having regard to the principle of the rule of law in a democratic society. For
the right of access to be effective, an individual must have a clear, practical
opportunity to challenge an act that is an interference with his rights (see
Bellet v. France, 4 December 1995, § 36, Series A no. 333-B).
322. The Court recalls, however, that Article 6 § 1 does not guarantee a
right of bringing constitutional proceedings (see Mladenic v. Croatia (dec.),
no. 48485/99, 14 June 2001). Moreover, in the ambit of Article 13, the
Court has stated that the Convention does not go so far as to guarantee a
remedy allowing a Contracting State’s laws as such to be challenged before
a national authority on the ground of being contrary to the Convention or to
equivalent domestic legal norms (see James and Others v. the United
Kingdom, 21 February 1986, § 85, Series A no. 98, and Litgow and Others
v. the United Kingdom, 8 July 1986, § 206, Series A no. 102).
323. In any event, the Court considers that in the circumstances of the
present case, such a remedy was accessible to the applicants, who alleged
that the overall framework of the housing reform had adversely affected
their rights. In the Court’s view, nothing prevented the applicants, in their
quality of former holders of specially protected tenancy in denationalised
dwellings, from asking the Constitutional Court to review the
constitutionality of the SZ, the ZDen and of the relevant judicial practice.
324. This is sufficient for the Court to conclude that there has been no
violation of Article 6 § 1 of the Convention.
V. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
325. The applicants complained that they did not have at their disposal
any effective legal remedies to challenge the alleged violation of their
substantive Convention rights.
They relied on Article 13 of the Convention, which reads as follows:
“Everyone whose rights and freedoms as set forth in [the] Convention are violated
shall have an effective remedy before a national authority notwithstanding that the
violation has been committed by persons acting in an official capacity.”
326. The Government challenged this claim. They noted that with regard
to all the alleged violations the applicants had had an effective national legal
remedy at their disposal (the constitutional initiative review), which they
had exhausted. Moreover, they could have availed themselves of civil
remedies adapted to their individual circumstances.
327. The Court reiterates that where the right claimed is a civil right, the
role of Article 6 § 1 in relation to Article 13 is that of a lex specialis, the
requirements of Article 13 being absorbed by those of Article 6 § 1 (see,
BERGER-KRALL AND OTHERS v. SLOVENIA JUDGMENT
85
among other authorities, the British-American Tobacco Company Ltd v. the
Netherlands, 20 November 1995, § 89, Series A no. 331, and Brualla
Gómez de la Torre v. Spain, 19 December 1997, § 41, Reports 1997-VIII).
Consequently, it is unnecessary to rule separately on the complaint.
FOR THESE REASONS, THE COURT
1. Holds, by six votes to one, that there has been no violation of Article 1 of
Protocol No. 1 to the Convention;
2. Holds, unanimously, that applicants nos. 1 (Mrs Cornelia Berger-Krall),
3 (Mrs Ivanka Bertoncelj), 4 (Mrs Slavica Jerančič), 5 (Mrs Ema
Kugler), 7 (Mr Drago Logar), 9 (Mr Dušan Milič) and 10 (Mrs Dolores
Zalar) cannot claim to be “victims”, for the purposes of Article 34 of the
Convention, of the alleged violation of Article 8 of the Convention;
3. Holds, unanimously, that there has been no violation of Article 8 of the
Convention in respect of applicants nos. 2 (Mrs Ljudmila Berglez), 6
(Mr Primož Kuret) and 8 (Mrs Dunja Marguč);
4. Holds, unanimously, that there has been no violation of Article 14 of the
Convention, taken in conjunction with Article 1 of Protocol No. 1;
5. Holds, unanimously, that there has been no violation of Article 6 § 1 of
the Convention in respect of the denationalisation proceedings;
6. Holds, unanimously, that there has been no violation of Article 6 § 1 of
the Convention in respect of the applicants’ allegedly insufficient access
to a court to challenge the housing reform;
7. Holds, unanimously, that it is unnecessary to determine whether there
has been a violation of Article 13 of the Convention.
86
BERGER-KRALL AND OTHERS v. SLOVENIA JUDGMENT
Done in English, and notified in writing on 12 June 2014, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek
Registrar
Mark Villiger
President
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of
the Rules of Court, the following separate opinions are annexed to this
judgment:
(a) concurring opinion of Judge Yudkivska;
(b) partly dissenting opinion of Judge Zupančič.
M.V.
C.W.
BERGER-KRALL AND OTHERS v. SLOVENIAJUDGMENT - SEPARATE OPINIONS
87
CONCURRING OPINION OF JUDGE YUDKIVSKA
I voted together with the majority in favour of finding that in the present
case there had been no violation of Article 1 of Protocol No. 1 to the
Convention, and I can, in principle, agree with the balancing exercise
undertaken in paragraphs 205-211, in which the Chamber found that the
alleged interference was proportionate to the legitimate aim pursued, in
view of the wide margin of appreciation granted to the State in matters of
social justice.
I do not, however, share the majority’s position, as set out in paragraph
135 of the judgment, that it was not necessary to examine the
Government’s objection of incompatibility ratione materiae since, even
assuming Article 1 of Protocol No. 1 to be applicable, the requirements of
this provision were not violated. The same line was taken by the Chamber
in the case of Blečić v. Croatia (no. 59532/00, § 73, 29 July 2004). In my
view, the issue of the applicability of Article 1 of Protocol No. 1 is crucial
in this type of case and does not deserve to be circumvented. The present
case, given its considerable importance not only for the respondent State
but also for the Convention system, calls for clarification of the approach to
Article 1 of Protocol No. 1 in social policy matters.
In my view, in the circumstances of the present case the applicants as
former holders of socially protected tenancies neither had property in the
form of a “possession” nor any “legitimate expectation” of acquiring it, and
their complaint thus falls outside the scope of Article 1 of Protocol No. 1.
It is the Court’s well-established case-law that the right to any social
benefit is not included as such among the rights and freedoms guaranteed
by the Convention (see Shpakovskiy v. Russia, no. 41307/02, § 32, 7 July
2005), and the right to live in a particular property not owned by the
applicant does not as such constitute a “possession” within the meaning of
Article 1 of Protocol No. 1 (see Kovalenok v. Latvia (dec.), no. 54264/00,
15 February 2001). On the other hand, the Court has an extensive body of
case-law in respect of former Soviet Union countries in which it has held
that socially protected tenancies amounted to property rights precisely
because the legislation enacted after the fall of the communist regime
provided for the unconditional privatisation of apartments or houses
occupied under such tenancies (see Malinovskiy v. Russia, no. 41302/02,
ECHR 2005-VII, and Panchenko v. Ukraine, no. 10911/05, 10 December
2009). As the States in question did not pass any relevant denationalisation
or restitution laws, there was no conflict with the interests of holders of
socially protected tenancies.
In the cases of Malinovskiy v. Russia and Shpakovskiy v. Russia (both
cited above) the domestic court’s judgment obliged the municipality to
provide the applicant with an apartment under a socially protected tenancy.
The Court noted that under the terms of these “social tenancy agreements”,
88 BERGER-KRALL AND OTHERS v. SLOVENIA JUDGMENT – SEPARATE OPINIONS
in accordance with the applicable legislation, “the applicant would have
had a right to possess and make use of the flat and to privatise it” (see
Malinovskiy, cited above, § 44). Thus, the Court held that from the date of
the domestic court’s judgment the applicant had an established “legitimate
expectation” of acquiring a pecuniary asset. Accordingly, the applicant’s
claim to a “social tenancy agreement” “was sufficiently established to
constitute a ‘possession’ falling within the ambit of Article 1 of Protocol
No. 1” given that this agreement provided the applicant with a clear
possibility of acquiring the property (ibid., § 46).
The Court also followed this approach in the case of Ivan Panchenko
v. Ukraine (cited above), which likewise concerned the enforcement of a
judgment granting the applicant a “housing warrant” for a municipal
apartment, but not ownership. According to the Court, in this case “the
crucial issue” was whether the applicant had a “legitimate expectation” of
acquiring the disputed apartment as his private property. Having regard to
the relevant domestic legislation, which provided in such circumstances for
privatisation free of charge prior to 1 January 2007, the Court concluded
that “for the purposes of the present case only ... at least before 1 January
2007” the applicant had a “legitimate expectation” of acquiring the
apartment at issue as his private property (ibid., § 51).
The Court then distinguished the above-mentioned cases from the
situation in the case of Babenko v. Ukraine ((dec.), no. 68726/10, 4 January
2012), in which a Second World War veteran had a right to be provided
with a municipal apartment and was on a waiting list for that purpose. In
this case the Court again reiterated that the right of an applicant to live in a
particular property not owned by him or her did not as such constitute a
“possession” within the meaning of Article 1 of Protocol No. 1. As regards
the theoretical possibility of privatising the apartment in question, the Court
stated: “in the absence of any comments in this respect from the applicants,
the Court cannot conclude to what extent such possibility is tangible.
Moreover, the Court reiterates that Article 1 of Protocol No. 1 does not
guarantee the right to acquire property.” Accordingly, the applicants had
failed to show that they had a “possession” within the meaning of Article 1
of Protocol No. 1.
It follows from the above-mentioned cases that a socially protected
tenancy constitutes a “possession” as long as such a tenancy entails a
reasonably practical possibility of acquiring an apartment (regardless of
whether or not the person concerned is currently occupying the apartment),
and to date the Court’s position appears to be quite clear in this regard (see
also Mago and Others v. Bosnia and Herzegovina, nos. 12959/05,
19724/05, 47860/06, 8367/08, 9872/09 and 11706/09, § 78, 3 May 2012,
cited in the judgment).
The applicants in the present case did not have any such legitimate
expectations.
BERGER-KRALL AND OTHERS v. SLOVENIA JUDGMENT - SEPARATE OPINIONS
89
In this respect the decision in the case of Trifunović v. Croatia ((dec.),
no. 34162/06, 6 November 2008) is of particular relevance. In Croatia
holders of specially protected tenancies were entitled to purchase their flats
under favourable conditions. The applicant complained that she was not
able to do so because her socially protected tenancy had been terminated.
The Court dismissed this complaint as incompatible ratione materiae with
Article 1 of Protocol No. 1. It reiterated that when examining alleged
violations of Article 1 of Protocol No. 1 to the Convention on account of
the termination of a specially protected tenancy in proceedings that had
ended after Croatia’s ratification of the Convention, it did not have to
determine whether a specially protected tenancy itself could be considered
a “possession” protected by that Article. Rather, it had to examine whether
the termination of that tenancy affected any of the rights derived from it –
such as, for example, the right to purchase the flat under the Specially
Protected Tenancies Act – and, more importantly, whether those derived
rights could amount to a “possession” within the meaning of that provision.
Having noted that “possessions” could be “existing possessions” or claims
in respect of which an applicant could argue that he had at least a
“legitimate expectation” that they would be realised, it concluded that since
neither the applicant nor her husband had ever made a request to purchase
the flat within the applicable time-limit, the applicant had no claim under
domestic law to purchase the flat. Thus, she did not have a sufficient
proprietary interest to constitute a “possession” within the meaning of
Article 1 of Protocol No. 1 to the Convention (see also Gaćeša v. Croatia
(dec.), no. 43389/02, 1 April 2008).
In the present case all the models of substitute privatisation, including
the third one, could not guarantee that the applicants would be able to
purchase their apartments or substitute dwellings under favourable terms.
As the Court has held, a conditional claim which lapses as a result of the
non-fulfilment of a statutory condition cannot be a “possession” within the
meaning of Article 1 of Protocol No. 1 (see Slivenko v. Latvia (dec.) [GC],
no. 48321/99, § 121, ECHR 2002-II). Only a “genuine and enforceable
claim” from which a “legitimate expectation” could arise falls within the
scope of that Article (see Klaus and Yuri Kiladze v. Georgia, no. 7975/06,
§ 60, 2 February 2010). A claim which is not clearly defined because
certain conditions cannot be fulfilled cannot be considered to amount to a
legitimate expectation.
From this standpoint, it is clear that in Slovenia former holders of
specially protected tenancies were not automatically considered to have a
possession, but only if they satisfied the relevant requirements as set forth
in the legislation entitling them to purchase the apartments they were
occupying or to obtain financial compensation.
Thus, the “first model” could not create “legitimate expectations”
according to the Court’s case-law, since the possibility of purchasing an
90 BERGER-KRALL AND OTHERS v. SLOVENIA JUDGMENT – SEPARATE OPINIONS
apartment was conditional on the agreement of its previous owner (see
paragraph 33 of the judgment).
The “second model” guaranteed compensation to a tenant who decided
to move out and to purchase or construct another dwelling if a request to
that end was submitted within two years of the restitution of the property
(see paragraph 34); however, none of the applicants in the present case
made use of this option.
As regards the “third model”, which provided former holders of
specially protected tenancies with the possibility of purchasing a substitute
dwelling from the municipality under favourable terms, it was abolished by
the Constitutional Court in November 1999. In so far as the applicants can
be understood to be invoking the “legitimate expectations” deriving from
this model, they lodged their application with the Court in March 2004, that
is, more than six months after this model ceased to exist.
Finally, a “new model” of substitute privatisation was provided for by
the 2003 Housing Act and guaranteed special compensation for former
holders of specially protected tenancies (up to 74% of the price for those
who decided to purchase or build another dwelling – see paragraph 42 of
the judgment). None of the applicants ever tried to make use of this
possibility within the time-limit set.
Thus, it is clear that at the time the applications were lodged and
thereafter, the applicants cannot be viewed as having had a proprietary
interest or legitimate expectations protected by Article 1 of Protocol No. 1
to the Convention since they did not satisfy the requirements set forth in the
national legislation enabling them to acquire ownership of a dwelling on
favourable terms or to receive financial compensation. Consequently,
Article 1 of Protocol No. 1 is not applicable and the complaint should have
been rejected for being incompatible ratione materiae with the provisions
of the Convention and the Protocols thereto.
In view of the importance of the Government’s objection, I regret that
the Court has missed an opportunity to clarify its case-law in this regard.
BERGER-KRALL AND OTHERS v. SLOVENIA JUDGMENT - SEPARATE OPINIONS
91
PARTLY DISSENTING OPINION OF JUDGE ZUPANČIČ
To my regret, I cannot join the majority in their conclusion that there has
been no violation of Article 1 of Protocol No. 1.
In the first place, I consider this provision to be applicable in the present
case (this question has been left open by the Court – see paragraph 135 of
judgment). I recall that even though Article 1 of Protocol No. 1 does not
guarantee the right to acquire property (see Slivenko and Others v. Latvia
(dec.) [GC], no. 48321/99, § 121, ECHR 2002-II), the mere fact that a
property right is subject to revocation in certain circumstances does not
prevent it from being a “possession” within the meaning of Article 1 of
Protocol No. 1, at least until it is revoked (see Beyeler v. Italy [GC], no.
33202/96, § 105, ECHR 2000-I, and Moskal v. Poland, no. 10373/05, §§ 38
and 40, 15 September 2009). It is true that the right to live in a particular
property not owned by the applicant does not as such constitute a
“possession” within the meaning of Article 1 of Protocol No. 1 (see
Panchenko v. Ukraine, no. 10911/05, § 50, 10 December 2010); however,
in the case of Saghinadze and Others v. Georgia (no. 18768/05, §§ 104108, 27 May 2010), even in the absence of a registered property title, the
Court has regarded as a “possession” the right to use a cottage, which was
exercised in good faith and with the tolerance of the authorities for more
than ten years.
As far as the more specific right to a “specially protected tenancy” in
former socialist countries is concerned, the Court has held Article 1 of
Protocol No. 1 to be inapplicable in two cases concerning restitution of flats
(Gaćeša v. Croatia (dec.), no. 43389/02, 1 April 2008, and Trifunović
v. Croatia (dec.), no. 34162/06, 6 November 2008), because occupancy
right holders in Croatia had no longer been able to purchase their flats since
1 January 1996. The Court reached the opposite conclusion in Mago and
Others v. Bosnia and Herzegovina (nos. 12959/05, 19724/05, 47860/06,
8367/08, 9872/09 and 11706/09, §§ 75-78, 3 May 2012), noting that in
Bosnia and Herzegovina all occupancy right holders were as a rule entitled
to get back their pre-war flats and then purchase them under very
favourable terms, and that unlike the Croatian authorities, those in Bosnia
and Herzegovina had consistently held that occupancy rights constituted
“possessions” within the meaning of Article 1 of Protocol No. 1. This
provision was also deemed to be applicable in Brezovec v. Croatia
(no. 13488/07, §§ 40-46, 29 March 2011), in which, in contrast to the
Gaćeša case, the applicant had met the legal conditions for acquiring the
right to purchase a flat (notably, he had submitted his request within the
statutory time-limit and was the holder of the specially protected tenancy
on the flat he wanted to buy – see also Panchenko, cited above, §§ 49-51,
concerning enforcement of a judgment granting the applicant a “housing
warrant” for a municipal flat). By contrast, no “possession” was found in
92 BERGER-KRALL AND OTHERS v. SLOVENIA JUDGMENT – SEPARATE OPINIONS
respect of a Second World War veteran who was on a waiting list for a
municipal flat (see Babenko v. Ukraine (dec.), no. 68726/10, 4 January
2012).
When applying the above principles to individual cases, the Court has
examined whether the circumstances of the case, considered as a whole,
conferred on the applicants title to a substantive interest protected by
Article 1 of Protocol No. 1 (see, for instance, Bozcaada Kimisis Teodoku
Rum Ortodoks Kilisesi Vakfi v. Turkey, nos. 37639/03, 37655/03, 26736/04
and 42670/04, § 41, 3 March 2009; Depalle v. France [GC], no. 34044/02,
§ 62, ECHR 2010- ..; and Plalam S.P.A. v. Italy (merits), no. 16021/02,
§ 37, 18 May 2010).
Turning to the circumstances of the present case, I observe that previous
holders of specially protected tenancies did not have a formal title of
ownership of the dwellings they were occupying. At the same time the
specially protected tenancy could not be described as a mere contractual
right originating from a lease agreement. The holders of this right had the
permanent, lifelong and uninterrupted use of the dwelling and could
transmit it inter vivos or mortis causa to family members who lived with
them. They did not pay a free market rent but a simple fee covering
maintenance costs and depreciation (see paragraphs 8 and 12 of the
judgment) and were given management entitlements, such as the right and
duty to participate in the management of their socially-owned housing (see
paragraph 9 of the judgment). Holders of occupancy rights had a preemption right at a price determined by a certified valuer (see paragraphs 38
and 128 of the judgment).
At the same time, I consider that some characteristics of the specially
protected tenancy were hard to reconcile with the existence of a proprietary
entitlement. In particular, in the event of a reduction of the number of users
of the dwelling, the occupancy relationship could be terminated and
another, more appropriate dwelling could be allocated to the holder of the
right; alterations to the dwelling, its furnishings and appliances could be
made only with the prior written approval of the housing administration
(see paragraph 9 of the judgment); the occupancy right could be cancelled
for protracted failure to use the flat without good reason and in cases of full
sublease or possession of an unoccupied flat suitable for residence (see
paragraph 14 of the judgment).
The sum of the above elements explains why in legal theory and judicial
practice the specially protected tenancy was described as a right sui generis
(see paragraph 11 of the judgment). At the same time, I cannot but attach a
certain weight to the fact that in 1998 the Constitutional Court described the
specially protected tenancy as more akin to a property right than to a
tenancy right (see paragraph 11 of the judgment).
Moreover, even after the entry into force of the Housing Act 1991,
former holders of occupancy rights were entitled to enter into lease
BERGER-KRALL AND OTHERS v. SLOVENIA JUDGMENT - SEPARATE OPINIONS
93
agreements which provided for a reinforced protection of the tenant. The
leases in question were concluded for an indefinite period and for a nonprofit rent (covering maintenance, management of the flat and capital costs
– see paragraph 19 of the judgment), and were transmissible mortis causa
to the spouse or to a person having lived with the tenant in a long term
relationship (see paragraphs 23 and 69 of the judgment). These elements
militate for the permanent, lifelong nature of the lease and for its
subtraction from the ordinary rules of the market economy.
Against this background, I attach particular importance to the fact that
entering the lease as former holders of specially protected tenancy gave the
applicants access to schemes providing public financial support for the
purchase of real estate. Notably, according to the “first model” of substitute
privatisation, the “previous owner” was incentivised to agree to the sale of
the denationalised dwelling by the possibility of receiving an additional
financial reward from public funds (paragraph 33 of the judgment), while
according to the “second model”, a tenant who decided to move out and to
purchase a flat or to construct a house was entitled to compensation
amounting to 50 per cent of the value of the dwelling (further compensation
of 30 per cent was to be paid by the “previous owner” – see paragraph 34 of
the judgment). A right to purchase a comparable substitute flat on very
favourable terms from the municipalities was introduced by the “third
model” (see paragraph 35 of the judgment). It is true that this last model
was later repealed by the Constitutional Court in order to avoid putting an
excessive financial burden on the municipalities (see paragraph 37 of the
judgment); however, the repeal of the “third model” is one of the reasons
why the applicants consider that they have suffered a disproportionate
interference with their right to the peaceful enjoyment of their possessions.
Moreover, the 2003 Housing Act introduced a “new model” of substitute
privatisation, according to which former occupancy right holders who
agreed to vacate their rented accommodation and decided to buy another
dwelling or to build a house were entitled to special compensation (up to
74% of the price of the dwelling) and to a subsidised loan (see paragraph 42
of the judgment).
In the light of all the above elements, I am of the opinion that the status
of former holder of specially protected tenancy conferred rights which were
stronger than those arising from a traditional lease agreement and was
sufficiently connected to the entitlement to public financial contributions in
the housing field to constitute a substantive interest protected by Article 1
of Protocol No. 1 to the Convention. I therefore consider this provision to
be applicable.
As to the merits of the applicants’ claim, I first recall the general
principles set out in paragraphs 196-204 of the judgment. In applying these
principles to the present case, my approach differs from that of the majority
in the fact that I am of the opinion that in order to ensure a fair balance of
94 BERGER-KRALL AND OTHERS v. SLOVENIA JUDGMENT – SEPARATE OPINIONS
the social and financial burden of the housing reform, persons in the
applicants’ situation were entitled to some form of compensation for the
sacrifice which had been imposed on them. In this connection, it is worth
noting that the applicants had acquired the occupancy rights in good faith
and in a lawful way and that, as individuals, they could not be considered
responsible for the nationalisation process.
Moreover, I consider that even if it guarantees the right of property,
Article 1 of Protocol No. 1 cannot be interpreted to mean that the protection
of real-estate owners is always legitimate when it is secured by sacrificing
other relevant public interests, especially when the connection with a given
property is remote. In the present case the “previous owners” had, for a
significant lapse of time, lost any contact with the dwellings in issue and
generations have passed. Their expectation of recovering ownership of the
dwellings had been relatively low. Under these circumstances, the
protection of the interests of the “previous owners” could not justify a total
disregard for the applicants’ “possessions” and the lack of any adequate
compensation in that regard (see, mutatis mutandis, the Court’s
considerations in Demopoulos and Others v. Turkey [GC] (dec.),
nos. 46113/99, 3843/02, 13751/02, 13466/03, 10200/04, 14163/04,
19993/04 and 21819/04, §§ 83-86, ECHR 2010-..).
The applicants considered that the “third model” of substitute
privatisation could have afforded them fair compensation (see
paragraph 138 of the judgment): they could decide to vacate the premises
and thus cease to have their occupancy rights limited by the “previous
owners’” rights and at the same time acquire full ownership of a substitute
dwelling from the municipality on particularly favourable terms (see
paragraph 35 of the judgment). I can share the applicants’ view: the
limitation of their rights under the housing reform was to a certain extent
fairly compensated by the possibility of access to ownership of another,
comparable flat at an affordable price.
However, this model of substitute privatisation was repealed by the
Constitutional Court on 25 November 1999 (see paragraph 37 of the
judgment). It is not for the Court to examine whether the reasons adduced
by the Constitutional Court were relevant and sufficient under domestic
law; I confine myself to noting that the repeal of the “third model” created a
vacuum in the domestic legal system and deprived the applicants and other
persons in a relevantly similar vulnerable position of a substantial
protection in the ambit of the housing reform.
It is true, as noted by the Government (see paragraph 125 of the
judgment) and by the majority (see paragraph 209 of the judgment), that the
“third model” was introduced in April 1994 and that none of the applicants
filed a valid and complete request to purchase a substitute dwelling during
the five years and seven months which elapsed before the Constitutional
Court’s decision. However, I am of the opinion that this might be explained
BERGER-KRALL AND OTHERS v. SLOVENIA JUDGMENT - SEPARATE OPINIONS
95
by the following factors. In the first place, the 1994 amendments to the
Housing Act did not provide for any time-limit within which the right to
purchase under the “third model” was to be exercised, thus giving the
impression that the said right could be used at any time. Furthermore, one
of the pre-conditions for benefitting from this model was that the “previous
owner” was not prepared to sell the dwelling (see paragraph 35 of the
judgment). It follows that a request for purchase from the municipality
could be filed only when a “previous owner” had been identified and he or
she had stated his or her wish not to sell the property. Now, the restitution
to a “previous owner” was a process which could take several years, as it
necessitated denationalisation proceedings which might be followed by
inheritance proceedings in the event the original owner had meanwhile
passed away. It is therefore not surprising that the applicants did not use
their right to purchase within a time-span of little more than five years. I
refer, on this point, to the details concerning the situation of individual
applicants provided for by the parties (see paragraphs 222-232 and 239-251
of the judgment).
In the light of the above, I am of the opinion that the housing reform
placed a significant burden on former holders of specially protected tenancy
in denationalized dwellings, without providing for sufficient and effective
measures aimed at protecting this vulnerable category of tenants. The fair
distribution of the social and financial burden involved in the reform of the
country’s housing supply was therefore upset. This brings me to the
conclusion that the applicants’ rights under Article 1 of Protocol No. 1 were
violated.
96
BERGER-KRALL AND OTHERS v. SLOVENIA JUDGMENT
ANNEX 1
TABLE RESUMING THE SITUATION OF THE INDIVIDUAL APPLICANTS
No
1.
2.
Applicant
Acquisition
of specially
protected
tenancy right
(how &
when)
Past
investments
by applicants
in dwellings/
request for
reimbursement
Thorough
renovation in
the past.
Cornelia
BERGERKRALL
Specially
protected
tenancy
attributed in
court
proceedings
(11/12/1984,
by decision of
Ljubljana
Basic Court)
Ljudmila
BERGLEZ
Inherited
specially
protected
tenancy right;
06/03/1991
On
30/12/1998
the applicant
lodged a
request for
reimbursement of
investment-s.
Conclusion
of lease
contract with
Municipality
30/03/1992
06/03/1991
Date of
final
decision on
restitution
of dwelling;
further
owners of
dwelling if
any
29/05/2006
(On
30/12/1998
the
applicant
lodged a
request to
intervene in
denationalis
-ation
proceedings.
)
16/04/1993,
heirs to the
initial owner
Possibility to
purchase another
dwelling under
privileged conditions
Eviction
In 1991 the applicant
lodged a request to
purchase the flat with
the municipality;– the
latter replied in May
1992 that it was not
possible since the
denationalisation
proceedings were
pending.
From 1994 to 1999.
The applicant never
lodged such a request.
In 2000 the flat
was vacated by
the “previous
owner” for the
purposes of
renovation;
on 02/10/2007 the
Maribor Higher
Court granted the
applicant’s
request to return
to the flat but the
judgment has not
been executed.
Size and state of the dwelling
Location of the
dwelling
Monthly
rent
(1992-2008)
3-room flat,
103.08 m2
(applicant’s estimations
of value in 2008:
250,000€)
Strict city centre
of the capital
(Ljubljana)
9,4 € (revaluated
amount 86,09 €)
in 1991,
170,31 € in
2008
106 m2,
3-room flat,
In the process of
renovation
City centre of
the second
biggest city
(Maribor)
No data.
BERGER-KRALL AND OTHERS v. SLOVENIA JUDGMENT
No
3.
4.
Applicant
Ivanka
BERTONCELJ
Slavica
JERANČIČ
Acquisition
of specially
protected
tenancy right
(how &
when)
Original
holder of the
specially
protected
tenancy right;
14/12/1979
The
applicant’s
parents in law
were original
holders of the
specially
protected
tenancy right.
The family
lived in the
flat from
1946.
The applicant
became the
holder of
the specially
protected
tenancy at a
Past
investments
by applicants
in dwellings/
request for
reimbursement
Complete
renovation;
in 1999; the
applicant
lodged a
request for
reimbursement of her
costs; no data
on the state of
these
proceedings
Thorough
renovation
in the past.
Conclusion
of lease
contract with
Municipality
Date of
final
decision on
restitution
of dwelling;
further
owners of
dwelling if
any
20/03/1992
16/07/1997;
The
dwelling
was
subsequentl
y sold to
another
owner. The
applicant
refused to
exercise her
pre-emptive
right.
25/03/1992
Returned to
the
“previous
owners”,
and then
sold in 2000
to the Real
estate
agency,
“ABA”.
The
applicant
alleges that
the agency
was putting
pressure on
her. She was
requested,
Possibility to
purchase another
dwelling under
privileged conditions
Eviction
From 1994 until 1999.
The applicant never
lodged such a request.
However, the
“previous owner”
offered the applicant
another dwelling of a
comparable size,
standard and location,
which the applicant
refused.
Both owners
initiated
domestic
proceedings
against the
applicant for
eviction from
the dwelling.
The courts
always ruled in
the applicant’s
favour. The
applicant later
moved out of
her own accord.
/
Owing to the
pressure and
difficult
financial
situation, the
applicant, who
is retired,
moved out of
the apartment in
or after 2005.
No court
proceedings
were initiated.
97
Location of the
dwelling
Monthly
rent
(1992-2008)
109 m2;
3-room flat;
Strict city centre
of the capital
(Ljubljana)
51,55 € in 1992
(the amount
nearly illegible),
no data for the
subsequent
years.
4-room flat,
106.25 m2
Strict city centre
of the capital
(Ljubljana)
87,9 € in April
2003,
87,7 € in
December 2004
Size and state of the dwelling
98
No
Applicant
Acquisition
of specially
protected
tenancy right
(how &
when)
BERGER-KRALL AND OTHERS v. SLOVENIA JUDGMENT
Past
investments
by applicants
in dwellings/
request for
reimbursement
Conclusion
of lease
contract with
Municipality
certain point.
5.
Ema
KUGLER
Original
holder of the
specially
protected
tenancy right;
17/10/1986
Complete
renovation
23/03/1992
Date of
final
decision on
restitution
of dwelling;
further
owners of
dwelling if
any
inter alia, to
pay the
difference
between the
non-profit
and the
profit rent.
18/04/1994;
the
“previous
owners”
sold the flat
to a new
owner who
sold it in
turn to a
third person
Possibility to
purchase another
dwelling under
privileged conditions
Eviction
Size and state of the dwelling
Location of the
dwelling
Monthly
rent
(1992-2008)
From 1994 until 1999.
The applicant never
lodged such a request.
The third owner
twice initiated
domestic
proceedings for
eviction from
the dwelling.
The courts
always ruled in
the applicant’s
favour (the
Ljubljana
Higher Court,
06/06/2007).
1-room flat;
50 m2;
well maintained
(applicant’s
estimation of
value in 2008:
12,652€)
Strict city centre
of the capital
(Ljubljana)
11,6 € in 1992,
49,34 € in 2008.
BERGER-KRALL AND OTHERS v. SLOVENIA JUDGMENT
No
6.
Applicant
Acquisition
of specially
protected
tenancy right
(how &
when)
Dr. Primož
KURET
The applicant
lived in the
flat with his
father, the
original
holder of the
specially
protected
tenancy right.
In 1995 his
father died
and the
applicant
claimed to
have inherited
the right. In
2005 the
Supreme
Court
established
that it was no
longer
possible for
immediate
family
members to
inherit such
lease contracts
and ordered
that he vacate
the flat.
Past
investments
by applicants
in dwellings/
request for
reimbursement
Certain
investments;
it appears
from the file
that the
applicant
never
claimed
reimbursement of
these costs
Conclusion
of lease
contract with
Municipality
13/03/1992,
concluded
between the
municipality
and the
applicant’s
father
Date of
final
decision on
restitution
of dwelling;
further
owners of
dwelling if
any
11/07/1995
(The
applicant
contested
the legal
successor’s
capacity to
inherit the
house).
Possibility to
purchase another
dwelling under
privileged conditions
Eviction
In 1994, the applicant
lodged a request with
the municipality to
purchase the flat.
However, since
denationalisation
proceedings were
pending, the
municipality informed
the applicant that the
purchase of the flat
would have to be
agreed upon with the
“previous owner”.
In 2005 the
applicant was
ordered by
domestic courts
to vacate the
flat.
While the
proceedings
were pending
before the
Constitutional
Court, the
applicant and
the “previous
owner” reached
a full and final
settlement of all
existing claims.
They also
agreed that no
further claims
would be made.
On 06/07/2006
the applicant’s
constitutional
complaint was
rejected for lack
of legal interest
since the
settlement had
been reached.
Size and state of the dwelling
99
Location of the
dwelling
Monthly
rent
(1992-2008)
72 € in 1991
(revaluated
amount)
83 m2;
3-room flat;
no particular data
on state of flat
City centre of
the capital
(Ljubljana)
Before the
applicant moved
out in July 2006,
he paid for the
last 3 months the
rent according to
the free market
value, which was
1.150 €
(revaluated
amount)
100
No
7.
8.
Applicant
Acquisition
of specially
protected
tenancy right
(how &
when)
Drago
LOGAR
Original
holder of the
specially
protected
tenancy right,
03/09/1976;
original flat
exchanged in
1986 for a
larger flat.
Dunja
MARGUČ
Applicant’s
parents were
original
holders of the
specially
protected
tenancy right;
applicant
became holder
on 07/01/1971
BERGER-KRALL AND OTHERS v. SLOVENIA JUDGMENT
Past
investments
by applicants
in dwellings/
request for
reimbursement
Thorough
renovation
in the past
Thorough
renovation
in the past
Conclusion
of lease
contract with
Municipality
10/9/1993
09/08/1996
Date of
final
decision on
restitution
of dwelling;
further
owners of
dwelling if
any
Possibility to
purchase another
dwelling under
privileged conditions
26/4/1994
From 1994 to 1999,
the applicant never
lodged such a request
although he would
have liked to.
/
The applicant initiated
proceedings to
purchase the flat but
the “previous owner”
requested the market
value, therefore no
agreement was
reached.
Eviction
In 2006 the
“previous
owner”
requested the
applicant to
vacate the flat.
As far as the
Court is aware,
no court
proceedings
were initiated.
The last legal
successor of the
“previous
owner”
requested the
applicant to
vacate the flat,
as they had a
substitute
dwelling (a
small house on
the coast); the
court
proceedings
initiated in 2008
are pending.
Size and state of the dwelling
Location of the
dwelling
Monthly
rent
(1992-2008)
4-room flat,
142.58 m2
(applicant’s
estimation of
value in 2008:
71,995€)
Strict city centre
of the capital
(Ljubljana)
63,51€ in 1992,
280,78 in 2008.
3-room flat,
107.29 m2
(applicant’s
estimation of
value in 2008:
39,706 €)
Strict city centre
of the capital
(Ljubljana)
35,03€ in 1992,
154,85€ in 2008;
BERGER-KRALL AND OTHERS v. SLOVENIA JUDGMENT
No
Applicant
9.
Dušan MILIČ
10.
Dolores
ZALAR
Acquisition
of specially
protected
tenancy right
(how &
when)
Original
holder of the
specially
protected
tenancy right;
original flat
attributed to
him was
exchanged on
20/04/1988
for a flat of a
better quality.
Original
holder of the
specially
protected
tenancy right;
29/09/1988
Past
investments
by applicants
in dwellings/
request for
reimbursement
Financial
contribution
amounting
to
20% of the
value of the
flat paid in
1988.
Renovation
in the past
Conclusion
of lease
contract with
Municipality
Date of
final
decision on
restitution
of dwelling;
further
owners of
dwelling if
any
/
Flat
returned in
1991 to
“previous
owners” in
the
framework
of criminal
proceedings
(since the
building had
been taken
away by a
criminal
sentence in
1948).
1/4/1992,
annex
19/10/1992
03/12/1998,
seven heirs
to the initial
owners
Possibility to
purchase another
dwelling under
privileged conditions
The “previous
owners” refused to
conclude a lease
contract with the
applicants; the latter
initiated court
proceedings in 1996.
In 2005 the secondinstance court
decided, inter alia,
that the “previous
owners” were bound
to conclude the lease
contract and that the
municipality should
refund the applicant
the financial
contribution paid in
1988.
The municipality first
agreed to sell the flat
to the applicant if no
denationalisation
proceedings were
initiated.
101
Eviction
Size and state of the dwelling
Location of the
dwelling
Monthly
rent
(1992-2008)
The applicant
stated that as a
result of the
increase in the
rent and the
pressure exerted
by the “previous
owners”, he
moved out in
2007 since he
could no longer
afford to pay the
rent and the
expenses with
his pension.
3-room flat,
77.2 m2
(applicant’s
estimation of
value in 2008:
150-170,000€)
Strict city centre
of the capital
(Ljubljana)
54,81€ in 1992,
242,31€ in 2007
Strict city centre
of the capital
(Ljubljana)
40 € in 1992,
175 € in 2008
No threatened
unjustified
eviction
114.68 m2,
4-room flat,
renovation needed
(applicant’s
estimation of
value in 2008:
45,021€)
BERGER-KRALL AND OTHERS v. SLOVENIA JUDGMENT
ANNEX 2
LIST OF APPLICANTS
No.
1
2
3
4
5
6
7
8
9
10
Surname
Berger Krall
Berglez
Bertoncelj
Jerančič
Kugler
Kuret
Logar
Marguč
Milič
Zalar
Name
Cornelia
Ljudmila
Ivanka
Slavica
Ema
Primož
Drago
Dunja
Dušan
Dolores
Date of birth
14/06/1959
23/06/1947
30/11/1922
09/04/1931
09/03/1955
06/07/1935
02/05/1947
25/06/1944
15/04/1941
10/09/1954
102