ANALIZA PREDMETA MUCKO PROTIV RH

U ovom izrazito značajnom predmetu Mucko protiv Hrvatske br. 55588/18, koji nažalost nije objavljen u sudskoj praksi Europskog suda za ljudska prava jer je okončan priznanjem povrede od strane RH i isplatom naknade podnositelju, zauzeta su stajali&scaron;ta koja su dijametralno različita od dosada&scaron;nje prakse sudova u RH i Ustavnog suda RH, a odnose se na:
Pravo stranke na naknadu tro&scaron;kova zastupanja po odvjetniku u upravnom postupku
Moguću promjenu stajali&scaron;ta Ustavnog suda RH prema kojoj odluka o tro&scaron;kovima postupka nije pojedinačni akt za koji bi Ustavni sud trebao biti nadležan pružiti ustavnopravnu za&scaron;titu.
Ukratko, u upravnom postupku, koji je RH putem svojih tijela i to Gradskog ureda za prostorno uređenje, izgradnju grada, graditeljstvo, komunalne poslove i promet pokrenula protiv Mucka, isti je radi za&scaron;tite svojih prava angažirao odvjetnika, koji je podnio žalbu te zatražio naknadu tro&scaron;kova postupka s osnova zastupanja po odvjetniku, a sve prema Odvjetničkoj tarifi.
Upravna tijela su sukladno dugogodi&scaron;njoj praksi odbila taj zahtjev, smatrajući kako prema Zakonu o općem upravnom postupku, u upravnom postupku stranka nema pravo na naknadu tro&scaron;kova zastupanja po odvjetniku, s obrazloženjem da, sukladno odredbi čl. 161. st. 5. Zakona o općem upravnom postupku, žalitelj snosi tro&scaron;ak pisanja žalbe iz razloga &scaron;to je predmetni postupak vođen u povodu žalbe. Nadalje navodi kako se &bdquo;u konkretnom slučaju ne radi o toliko složenoj problematici, za koju bi bila potrebna posebna pravna pomoć odvjetnika, pa pisanje žalbe putem odvjetnika nije bilo ni nužno ni opravdano.&ldquo;
Nastavno tome, upravni sudovi su potvrdili odluke upravnih tijela te odbili tužbeni zahtjev obrazlažući svoje stajali&scaron;te navodeći kako u upravnom postupku ne postoji mogućnost naknade tro&scaron;kova zastupanja po opunomoćeniku, već je angažiranje odvjetnika u upravnom postupku prepu&scaron;teno slobodnoj volji stranke koja je tada dužna podmiriti tro&scaron;kove pravnog zastupanja.
Zaključno, Ustavni sud je odbacio ustavnu tužbu navodeći da je nenadležan za odlučivanje, budući da odluke o tro&scaron;kovima po njegovu shvaćanju ne predstavljaju pojedinačne akte protiv kojih bi Ustavni sud bio nadležan pružiti ustavnosudsku za&scaron;titu.
Stoga, podnositelj je u zahtjevu ESLJP-u tvrdio kako, ako bi se prihvatilo stajali&scaron;te da u upravnim postupcima uopće nema mogućnosti naknade tro&scaron;kova odvjetničkog zastupanja i pristojbi&nbsp; to bi značilo da bi u svim, i mnogo zahtjevnijim i dugotrajnijim postupcima, stranke bile faktički onemogućene u angažiranju stručne pomoći radi za&scaron;tite svojih temeljnih prava.
Stoga, tumačenje da u upravnim postupcima stranke nemaju pravo na naknadu tro&scaron;kova iako su &bdquo;u pravu&ldquo;, a nisu vlastitom voljom pokrenule postupak, u mnogo slučajeva može stranke koje su žrtve nezakonitog postupanja odvratiti od podno&scaron;enja pravnih lijekova i obraćanja sudovima i time djelovati ograničavajuće na pravo na pristup sudu.
Osim toga, prihvaćanjem osporenog stajali&scaron;ta nacionalnih sudova, proklamiralo bi se načelo da opunomoćenika u upravnim postupcima imaju samo osobe koje si ga mogu priu&scaron;titi, dok će ostale osobe biti li&scaron;ene tog prava, ukazujući i na već ustaljenu praksu Europskog suda za ljudska prava u svojim odlukama (YOUNG, JAMES AND WEBSTER&nbsp; v. UNITED KINGDOM, broj zahtjeva 7601/76;7806/77).
Smislenim tumačenjem odredbe čl. 161. st. 5. ZUP-a, može se zaključiti kako ratio spomenute norme sasvim sigurno nije u tome da se ekonomskim iscrpljivanjem stranaka iste obeshrabri u kori&scaron;tenju pravne pomoći, već da se spriječi samovolja upravnih tijela da bez ikakvih posljedica pokreću nezakonite postupke protiv stranaka, a ukoliko ih već pokreću, da za to snose tro&scaron;kove.
ESLJP je strankama predložio dono&scaron;enje prijateljskog rje&scaron;enja, a s čime se Ured zastupnika Republike Hrvatske pred Europskim sudom za ljudska prava složio te je dana 11.03.2022.g. Sudu dostavio jednostranu izjavu o povredi kojom je priznao kako je u podnositeljevom predmetu do&scaron;lo do povrede prava na pristup sudu te se obvezao isplatiti jednokratan iznos.
Stoga, drage kolege, zadovoljstvo nam je ukazati na praksu Europskog suda za ljudska prava na koju se možete pozivati u sličnim predmetima u kojima upravna tijela pokreću nezakonite postupke protiv Va&scaron;ih stranaka, a za koje izgledno &ndash; moraju snositi tro&scaron;kove.

OWENS, HOU&Scaron;KA I PARTNERI, odvjetničko dru&scaron;tvo d.o.o.

ANALIZA PREDMETA MUCKO PROTIV RH

DRAGAN KOVAČEVIĆ v. CROATIA
Sitting as a Chamber composed of 7 judges, the European Court of Human Rights (hereinafter: the European Court) on 12 May 2022 held by five votes to 2 that there had been a violation of Article 6 &sect; 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") in the applicant's case, namely the violation of the right to a fair trial for failure to adjudicate the costs of the proceedings before the Constitutional Court.
The applicant lodged a constitutional complaint against the decisions of the domestic courts which accepted the proposal of the Social Welfare Centre to deprive the applicant of his legal capacity. The Constitutional Court upheld the applicant's constitutional complaint, finding that his constitutional rights had been violated by the impugned court decisions, and quashed the impugned court decisions and remanded the case for retrial.
With regard to the costs of the proceedings, the Constitutional Court did not issue any decision, but stated in its reasoning:
"In relation to the requested cost of the constitutional court proceedings, the Constitutional Court points out that in accordance with Art. 23. of the Constitutional Act on the Constitutional Court of the Republic of Croatia (Official Gazette No. 99/99.0 29/02 and 49/02 - consolidated text; hereinafter: the Constitutional Act) in constitutional proceedings each participant bears their own costs, if The Constitutional Court does not decide otherwise. Since the Constitutional Court did not decide otherwise, in the present case the applicant shall bear their own costs."
The European Court's view is that the proceedings for deprivation of legal capacity were of the utmost importance to the applicant, so it is undisputed that the proceedings before the Constitutional Court were necessary for the applicant to protect his fundamental rights, dignity, personal and family life. Therefore, there is no doubt that he needed professional legal assistance, which can only be provided by lawyers in Croatia, and the cost of the constitutional complaint in the amount of HRK 6,250.00 or EUR 815.00 was a significant financial burden for the applicant, especially for a person whose monthly income consisted of HRK 1,250.00 disability allowance.
Moreover, as the Republic of Croatia is the one responsible for the violation of constitutional rights and not the Social Welfare Centre, which cannot be held responsible for the unconstitutional actions of state bodies (courts), it would therefore be completely unfounded for the Social Welfare Centre to reimburse the applicant for the costs of the proceeding before the Constitutional Court, as it did not participate in or cause the proceeding.
The European Court's conclusion is that the refusal to award the costs of filing a constitutional complaint constitutes a restriction on his right of access to court which was disproportionate.
The applicant was awarded just satisfaction in the amount of EUR 815.00 in respect of pecuniary damage and EUR 3,000.00 in respect of non-pecuniary damage. At the same time, the European Court awarded the applicant EUR 2,500.00 in respect of costs and expenses.
Please note that the judgment in question is not final. The finality will follow if the Republic of Croatia does not submit a request for reconsideration of the judgment within 3 months, or, if such request occurs, when the committee makes a decision on that request or when the Grand Chamber of the European Court renders a judgment.

JUDGMENT OF THE EUROPEAN COURT OF HUMAN RIGHTS: KOVAČEVIĆ v. CROATIA

While many are familiar with different ways Croatian citizenship may be acquired under the Croatian citizenship act (Official Gazette no. 53/91, 70/91, 28/92, 113/93, 4/94, 130/11, 110/15, 102/19, hereinafter: CCA), it is important to bring attention to two new provisions of the act that are of special interest to the children of Croatian emigrants.
Keeping in mind that the deadline for the submission of citizenship applications based on these two new provisions is two years of their entry into force (that is, until January 1st 2022) it is pertinent to submit these applications swiftly.
The first of these provisions is article 4 section 2 of the CCA, according to which a person older than 21 who was born abroad can acquire citizenship by origin if at the time of their birth one of their parents had Croatian citizenship, if they submit their application for registration in the Register of Croatian citizens within two years of entry into force of this provision and if there are no legal obstacles as referred to in the article 8 paragraph 1 point 5 of the Act, that is, if they respect the legal order of the Republic of Croatia, if they have paid the due public contributions and if there are no security obstacles to their acceptance into Croatian citizenship.
These applications need to be submitted as soon as possible. Through this provision, the legislator gave a chance to persons older than 21, who up until the amendment of the law haven't had the chance to acquire citizenship for various reasons. This provision is of special interest to the children of Croatian emigrants, especially because the definition of an emigrant has been broadened. Now the definition encompasses persons who emigrated from the territory of the Republic of Croatia before the 8th October 1991 with the intent of living permanently abroad, as well as persons belonging to the Croatian nation who emigrated from territories that were a part of previous states within which, at the time of emigration, was the territory of the Republic of Croatian.
Furthermore, under article 30.a of the CCA, a person is considered a Croatian citizen if they were born between the January 8th 1977 and the October 8th 1991, whose parents, at the time of their birth, had Croatian citizenship, but they were assigned different citizenship in the Register of citizenship at birth, if they apply for the establishment of Croatian citizenship within two years of entry into force of this provision (that is, until January 1st 2022).
It is pertinent to apply based on this provision as soon as possible as well. The goal of implementing this provision into the law was the regulation of citizenship that was assigned to children whose both parents were Croatian, but who were born outside of the territory of the Republic of Croatia, that is, within the territory of a previous state, and so their citizenship was assigned based on where they were born and not based on the citizenship of their parents.
Both of these provisions are commendable from a human rights perspective, as they ease the acquisition of citizenship to Croatian people who lived outside of Croatia, as well as emigrants, who were precluded from acquiring citizenship due to their age or the fact they weren't considered emigrants according to past legal provisions.

CROATIAN CITIZENSHIP ACQUISITION  BY JANUARY 1ST 2022

Although the majority of citizens are so far familiar with the institute of land registers and the rigorously formal rules that accompany it, most still do not know of an exception to the above.
Namely, the institute of individual correct procedure is a kind of exception that enables the interested party to register the right of ownership if he proves a justified reason. The same can be proved by a certain document (title deed, private or public document or other act) which shows that the party is the owner of the property, but the document, for some reason, is not suitable for implementation in the land register, whether it has irreparable deficiencies or the land registry is out-of-date.
The mentioned justified interest must be made probable when initiating the procedure itself, otherwise the court will reject the proposal. A mitigating circumstance is that a party can prove a legal interest at the level of probability at the very beginning of the proceedings, and it is up to the court to determine in the proceedings whether all other necessary conditions have been met.
In the regular land registry procedure, the so-called "Devil's proof" is required for the registration of property rights, ie indefinite proof of the acquisition of the right of ownership from a person who has also acquired the right of ownership on the basis of a valid legal basis (usually public or private certified documents).&nbsp;&nbsp;
However, in this procedure, the Land Registry Act does not mention a public document, but only a document, so it can be assumed that a document submitted by a party as proof of justification of the proposal can also be a private document - eg a contract without a certified signature.
In practice, there will often be a situation where the party has a valid legal basis, but due to the inevitable shortcomings of the document of his ancestor proving ownership, there is no formal precondition for registration. Also, for example, it is possible that the party has a valid legal basis - a contract for the sale of real estate certified by a notary public, however, the contract does not specify his personal identification number (OIB), without which it has been impossible since 2015 to register in the land books.&nbsp;&nbsp;&nbsp;&nbsp;
It is for such situations that the legislator introduced this institute into the Law on Land Registry. This will often be the only way to rectify the real situation on the ground with the situation in the land registry, given the current general lack of knowledge of the land registry. Through the wider application of this institute, courts can influence legal certainty and the realization of the principle of trust in land registers.
Our law firm has thus participated in a number of successful individual correct proceedings, initiated precisely in cases where a party has a right that is not registered in the land register, and there is no suitable document on the basis of which this right could be registered.

HOW TO RECONCILE THE ACTUAL SITUATION WITH LAND REGISTERS IF YOU DO NOT HAVE A SUITABLE DOCUMENT?

Following the Covid-19 disease pandemic, many employers have decided to allow their employees to work from home. With today's technological solutions, most employees can execute business processes from the comfort of their home as efficiently as from the office, which necessarily implies access to data stored in the internal system of a particular company. Although it opens up various possibilities, appropriate measures need to be taken so that the home office does not become a risk to the protection of personal data and trade secrets.

Pursuant to the General Data Protection Regulation (GDPR), the executor and the controller of personal data processing are obliged to implement appropriate technical and organizational measures to ensure an appropriate level of data security with regard to risk. Changed data processing circumstances, such as working from home, entail a change in the type and level of data protection risk. Therefore, in accordance with the requirements of the GDPR, it is first necessary to make an assessment of the appropriate level of risk, which will take into account the risks of accidental or unlawful destruction, loss, alteration, unauthorized disclosure of personal data or unauthorized access to personal data, regarding to work of employees from home. In order to ensure that measures taken to protect the health of employees do not jeopardize data security, it is possible to adjust business processes by taking the following additional steps:

<table>
<tbody>
<tr>
<td width="623">
CHOOSE A SECURE METHOD OF REMOTE ACCESS
</td>
</tr>
<tr>
<td width="623">

</td>
</tr>
<tr>
<td width="623">
Whether remote access is via VPN (virtual private network) or using special software (eg Teamviewer, Anydesk, etc.), it is important that the chosen solution includes technology that guarantees secure remote connection of users to the office internal network via a secure connection. It is recommended to avoid data transmission via public networks as it significantly increases the risk of unauthorized access to data.
</td>
</tr>
</tbody>
</table>

<table>
<tbody>
<tr>
<td width="623">
INSTALL ANTIVIRUS PROGRAM ON EACH DEVICE
</td>
</tr>
<tr>
<td width="623">

</td>
</tr>
<tr>
<td width="623">
Many employees use their own computers, smartphones and tablets to work from home. As they access and process protected data via personal devices, it is necessary that these devices are protected by an appropriate antivirus program, as well as computers in office premises. This reduces the risk of destruction or unauthorized access to data.

</td>
</tr>
<tr>
<td width="623">
USE ENCRYPTION
</td>
</tr>
<tr>
<td width="623">

Encryption is one of the technical data protection measures explicitly prescribed by the GDPR. Data is particularly at risk when transmitted over a network (Internet), so encryption is an additional guarantee that will prevent unauthorized access to their content even in the event of interception of documents. Data that is not transmitted, but only stored in the internal system, is also recommended to be protected by encryption as an additional measure of protection against unauthorized access.
</td>
</tr>
<tr>
<td width="623">

</td>
</tr>
<tr>
<td width="623">
USE IMPERMEABLE PASSWORDS
</td>
</tr>
<tr>
<td width="623">

</td>
</tr>
<tr>
<td width="623">
It is recommended that each employee or device has its own password, different from those used by other employees. In addition to making unauthorized access "from outside" more difficult, this also ensures that certain data can only be accessed by those employees who are authorized to do so. It is important to use stronger passwords to access user accounts and protected files and to change them periodically for an extra level of security.

</td>
</tr>
<tr>
<td width="623">
DO NOT DOWNLOAD DATA TO PRIVATE DEVICES
</td>
</tr>
<tr>
<td width="623">

</td>
</tr>
<tr>
<td width="623">
If a secure connection provides remote access to an office computer, then there is no real need to download data to a laptop at home, and the same certainly poses a risk to data protection. Namely, private devices of employees that are not used exclusively for business purposes, often have a lower level of security and lower quality technological solutions for data protection. Also, the data stored on the home device usually does not have a "back up", while when working on an office computer (either directly or remotely) the internal server regularly (daily or as needed) makes backups that are protected from unauthorized access, loss or destruction in the event of an attack or accident.
</td>
</tr>
</tbody>
</table>

<table>
<tbody>
<tr>
<td width="623">
DO NOT SEND DATA TO PRIVATE E-MAIL
</td>
</tr>
<tr>
<td width="623">

</td>
</tr>
<tr>
<td width="623">
As already pointed out, data is generally most at risk when transmitted over the Internet. The same is true for employee private email as it is for private devices. Official office e-mail is generally protected by strong passwords that are changed periodically, and often domains that provide a higher level of privacy and security for users are used, as opposed to the usual e-mail providers used by most people for private purposes.
</td>
</tr>
</tbody>
</table>

<table>
<tbody>
<tr>
<td width="623">
REPORT ANY BREACH OF DATA
</td>
</tr>
<tr>
<td width="623">

</td>
</tr>
<tr>
<td width="623">
Despite all measures taken, unauthorized access, loss or destruction of data can still occur, for example if the device is infected with a virus or lost, an unauthorized person intercepts data, etc. In this case, the manager must notify the Personal Data Protection Agency within 72 hours, unless it is unlikely that the breach will pose a risk to the rights and freedoms of individuals. In the event that a breach is likely to pose a high risk to rights and freedoms, respondents should also be notified without delay. Also, all reasonable measures should be taken without delay to try to mitigate the potential consequences of the injury.
</td>
</tr>
</tbody>
</table>

<table>
<tbody>
<tr>
<td width="623">
AVOID THE USE OF PUBLIC NETWORKS
</td>
</tr>
<tr>
<td width="623">

</td>
</tr>
<tr>
<td width="623">
The use of public networks (such as libraries, hotels, cafes) to access and process protected data significantly increases the risk of data breaches, as the public network can be accessed by an unlimited number of users, and the level of security it often provides is not nearly equal to internal network security.
</td>
</tr>
<tr>
<td width="623">
 CONFORM VIRTUAL MEETINGS WITH GDPR
</td>
</tr>
</tbody>
</table>

When organizing meetings through online services such as Skype, Zoom and others, it is advisable to inform yourself about the privacy policy and data protection rules of these applications before using them. If there is any doubt about the compliance of the software with the GDPR, then it is necessary to inquire about other options and choose the option that poses the least risk to the data of all participants, whenever possible. At each meeting, lecture or workshop (webinars) the facilitator is obliged to inform all participants about what personal data will be stored or visible to others (name, location, mobile phone number, etc.) and provide all other information prescribed by the GDPR (data on the manager, purpose and duration of processing, rights of respondents,&hellip;). This information can be provided to participants with an invitation to participate, through a link that will be provided to all when joining the online seminar, etc. Since some online platforms allow you to record meetings, any recording must be notified to each participant.

<table>
<tbody>
<tr>
<td width="623">
EDUCATE EMPLOYEES AND CONFORM INTERNAL ACTS
</td>
</tr>
<tr>
<td width="623">

</td>
</tr>
</tbody>
</table>
Each head of data processing should, through authorized persons, inform all employees about appropriate measures for safe work from home, educate them on how to apply them, and, if necessary, help them establish additional protection systems. If the internal acts do not already regulate the additional steps to be taken in special circumstances, it is necessary to harmonize the regulations and records with the new way of working.


As always, harmonization of business with GDPR is achieved in different ways depending on the type of business, categories of data being processed, participants in the processing process, etc. But what is common to all is the fact that the harmonization of business processes with protection requirements data process that never ends, that is, it is necessary to continuously adapt to current changes and risks, such as working from home - currently a necessity for many, but also a generally growing trend among employers.





For more information contact us at:

Tel: 01/4862-690
E-mail: odvjetnicko.drustvo@owens-houska.hr

DATA PROTECTION AND HOME OFFICE

<h3 class="p2">INTRODUCTION</h3>
In March 2020, the Government of the Republic of Croatia reacted to the circumstances caused by the COVID-19 pandemic. Special circumstances were declared, many measures adopted, the most important one for the citizens was the implementation of a moratorium on enforcement claims for 244,865 natural persons. As the Government of the Republic of Croatia did not extend the deadline for the adopted measures and the duration of special circumstances after 18 October 2020, from 19 October 2020 The Financial Agency (FINA) continued to enforce the claims for which it temporarily suspended its actions and legal default interest on these claims continued to accrue.
<h3 class="p2">ACT ON AMENDMENTS TO THE ACT ON THE IMPLEMENTATION OF ENFORCEMENT ON FINANCIAL ASSETS</h3>
On April 18 2020 the Act on Amendments to the Act on Enforcement of Financial Assets entered into force, on the basis of which FINA suspended the implementation of enforcement on funds in relation to natural persons. Article 24a was added which defines the resulting special circumstances as an event or certain situation that could not be foreseen and which could not be affected, which endangers the life and health of citizens, property of greater value, significantly impairs the environment, disrupts economic activity or causes significant economic damage. However, there were exceptions when FINA will not stop the enforcement of funds, in relation to the creditors of natural persons if the enforcement is carried out to settle the claim of legal child support, other claims when the enforcement is carried out to settle future installments, maturities on the basis of due but unpaid salaries, salary compensations or severance pay, in the case of security measures from criminal proceedings and in the case of enforcement on a specific purpose account. It is worth noting that the moratorium did not apply to legal entities as debtors.
The main intention of the legislator was to unblock the accounts of a large number of natural persons, given that the Act stipulates that if the debtor, after the start of the enforcement moratorium, does not have any active enforcement claims, Fina will send an order to unblock the debtor's bank accounts. Despite the fact that the debtors were unblocked for the entire duration of the special circumstances, Fina was obliged to receive new enforcement claims and process them. However, in the case of a natural person debtor, Fina recorded the enfrocement claim in the Register of the order of enforcement claims, but without sending orders to banks for the seizure of funds from the debtor's account to the creditor's account.
Finally, it is important to note that despite such measures, the 60-day seizure period was active for the duration of the special circumstances. Namely, with the cessation of special circumstances, ie on 19 October 2020 FINA could order the bank to seize the funds immediately, given that the 60-day seizure period may have expired during the special circumstances.
<h3 class="p2">ENFORCEMENT</h3>
At the council meeting held on July 16 2020, the Government passed a Decision to extend the duration of special circumstances until 18 October 2020, so on 19 October 2020 FINA continued to enforce the claims which it temporarily stopped enforcing in the duration of special circumstances, so all debtors natural persons, for whom the enforcement claims were recorded in the Register of the order of payment, had the bank seize and / or transfer funds from the debtor's account to the account of the creditor.
Furthermore, the provision of Article 25b of the Act, as well as the provision of Article 7 of the Act on Intervention Measures, stipulates that no statutory default interest shall accrue whilst special circumstances are in force. Therefore, during the enforcement after the expiration of special circumstances, FINA calculated statutory default interest, in relation to the debtors of natural and legal persons for the period from 18 April 2020 until 18 October 2020, in the amount of 0%. On 19 October 2020 FINA resumed the calculation of statutory default interest.
With the intention of easing the influx of enforcement proposals, the Ministry of Justice and Administration proposed that after the moratorium expires, claims begin to be delivered in three phases:
<ul>
<li class="p2">19 October 2020 for the claims received by 30 June 2020,</li>
<li class="p2">20 November 2020 for the claims received by 31 August 2020,</li>
<li class="p2">20 January 2021 for the claims received by 18 October 2020.</li>
</ul>
However, in such a way, a paradoxal situation arose where an enforcement claim, submitted on 16 October 2020, would be processed after 20 January 2021, however if the proposal for enforcement was submitted to the notary public three days later, on 19 October 2020, the enforcement claim would be processed during the month of October.
<h3 class="p2">CONCLUSION</h3>
After the expiration of the 6 month moratorium, on 19 October 2020 the course of enforcement proceedings continued, including enforcement of funds and enforcement of wages, default interest continued to accrue, on which no special decisions will be made in each individual case, by force of law. It is important to note that it is possible that in the future the implementation of enforcement will be suspended again, given that the Government of the Republic of Croatia may in special circumstances decide to suspend enforcement proceedings due to the continuation of the COVID-19 pandemic, for a maximum duration of six months.

Enforcement after the moratorium expires

The legal relationship between apartment owners and protected tenants in the Republic of Croatia is regulated by the Apartment Rental Act (National Gazette 91/96, 48/98, 66/98, 22/06, 68/18, 105/20). The status of a protected tenant was acquired by the entry into force of the said law by individuals who, in the previous socialist social order, had the legal status of occupancy right holders.
Protected tenants continued to use apartments that were never their property, while the owners were still left without the possibility of exercising authority over their property, in most cases obliged to suffer the imposed legal restrictions. 
Often in such residents live socially disadvantaged individuals of the society, without owning any other real estate, thus the protected rent is largely lower than the market rental price. The situation described of apartment owners is not favorable, as the current legal regulation does not allow them complete freedom over their property rights, which are a fundamental human right guaranteed by Article 1 of the Protocol to the European Convention on Human Rights.
Excessive interference by public authorities and unjustified restriction of private property cause significant material damage to citizens. If the state did not impose this obligation to the owners to take care of certain groups of citizens, the owners could use these apartments for their own needs or for renting with conditions set at their own pace.
The case law in this area of ​​law has already laid its foundations, including the Supreme Court of Croatia in the case no. Rev-2364/16, whereas deciding on the lawsuit of the owner of the apartment in which the protected tenant was sued for damages, concluded that &ldquo;the Republic of Croatia, due to the violation of the Constitution and the Convention on the guaranteed property right, must compensate the damage to the owners of apartments in which the protected tenants live". This decision greatly opens the door for other owners to initiate proceedings for damages and, thus, puts pressure on the Republic of Croatia to adequately regulate their relation with protected tenants, respecting their seemingly conflicting interests. 
Finally, with the recent decision of the Constitutional Court no. UI/3242/2018 of 14 September 2020, a number of provisions of the Apartment Rental Act were repealed, including a provision that predicted&nbsp; termination of the right to protected rent on September 1st 2023. Therefore, the future of the relation between apartment owners and protected tenants is currently uncertain, so the owners are left with no choice but to seek compensation in the form of material damage from the Republic of Croatia, which after 25 years of the enforcement of the latest apartment rental law did not enable fair distribution of burden of care for the protected tenants.

Damages from the republic of Croatia - problem of protected rent

Latest writing

Contact Us

Our areas of specialization

OWENS, HOUŠKA AND PARTNERS

Our Expert Team

After spending 17 years in our office at Pra&scaron;ka 10, we believe that the time has come to take a step forward together. Or, more precisely, a few steps to the west, through Bogovićeva and Var&scaron;avska Streets, all the way to Dalmatinska Street.
As you may have guessed, we have some important news to share with you &ndash; we've moved!
Starting from December 4, 2023, you can find us at our new address in Zagreb, Dalmatinska ulica 5, where we look forward to welcoming you and providing the same high-quality and reliable service that you rightly expect from us.
All our contact details, including phone numbers and email addresses, remain unchanged.

NOTICE OF RELOCATION

Confirmation of what we recently wrote also came in the form of a judgment of the European Court of Human Rights of 10 June 2021, by which the court, acting in the case of Skelin-Hrvoj and Đuričić v. Croatia, ruled that the applicants, owners of the apartments in which the protected tenants live, right to peaceful enjoyment of possessions guaranteed by Article 1 of Protocol No. 1 to the Convention has been violated.&nbsp;

 The court thus upheld its position from Statileo v. Croatia, application no. 12027/10, according to which the applicant had suffered a disproportionate and excessive burden as he had to provide the protected tenant with a stay in the apartment in question, with no public interest which would justify such a significant restriction. The domestic authorities in charge, despite wide discretion, did not strike a balance between the public interest and the protection of the applicant's rights.

 In its latest decision, the court found that the applicants were entitled to compensation for damages in the amount of lost profits that the owners of apartments inhabited by protected tenants would have made in the period from December 1997 (the first month after the entry into force of the Convention in Croatia) until the day of filing the claim for damages.

The lost profit in question is the difference between the rents that the protected tenants were obliged to pay and the market rents of the apartments in question. Accordingly, the first applicant was entitled to compensation in the amount of EUR 54,000.00, and the second applicant in the amount of EUR 95,100.00. In addition, the applicants were awarded non-pecuniary damage, each in the amount of EUR 5,000.00.

 More about the problem of protected rent - https://www.owens-houska.hr/article/4

ECHR: COURT AWARDED OWNERS OF APARTMENTS WITH PROTECTED RENT OVER 150.000,00 EUR

We are proud that our law firm is richer for another success before the European Court of Human Rights.

 The judgement of Oct 8th 2020 was rendered by which the Court found a violation of Art. 6 &sect; 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms.


The judgment found that his right of access to a court, guaranteed by the Convention, had been violated by the erroneous legal qualification and instruction given by the lower courts to the party, which had rendered his claim out of time.

The Office of the Representative of the Republic of Croatia before the European Court of Human Rights wrote an analysis of the judgment, which can be read on the website of the Government of the Republic of Croatia.

(https://uredzastupnika.gov.hr/sudska-praksa/clanak-6-pravo-na-posteno-sudjenje/159?trazi=1&amp;=&amp;page=1)

ANALYSIS OF THE JUDGMENT CASE GOGIĆ v. HRVATSKA

<h2 style="text-align: left;">OWENS, HOU&Scaron;KA AND PARTNERS</h2>
We are proud to announce that our lawyer <a style="font-family: Inter, -apple-system, BlinkMacSystemFont, 'Segoe UI', Roboto, Helvetica, Arial, sans-serif, 'Apple Color Emoji', 'Segoe UI Emoji', 'Segoe UI Symbol', serif; font-size: 16px;" href="https://www.linkedin.com/in/ACoAABl447ABLj5xzGEn7Rpm73IREarNx7G0J_I" data-attribute-index="2" data-entity-hovercard-id="urn:li:fs_miniProfile:ACoAABl447ABLj5xzGEn7Rpm73IREarNx7G0J_I" data-entity-type="MINI_PROFILE">Domagoj Božić</a> has become a Partner.
&nbsp;
Domagoj joined our team in 2015, and is a constant inspiration to all colleagues.
&nbsp;
Our law firm continues as Owens, Hou&scaron;ka and Partners.