EVICTIONS ON ACCOUNT OF THE FEEBLE AND THE INAPT

AIM, ZAGREB, February 19, 1995 The time limit of twenty days given to the Assembly by the Constitutional Court to state its stance concerning initiation of proceedings for the assessment whether the disputable Article 94 of the Law on Housing Relations was in accordance with the Constitution has just expired. The Assembly, however, despite certain announcenmets, has still not declared itself for or against this initiative of the Constitutional Court. But, the Government of the Republic of Croatia did in a Report on administrative and court proceedings concerning evictions sent to the Chamber of Representatives of the Assembly for consideration. The Government assessed that the disputable provision of Article 94 was not in compliance with the Constitution of the Republic of Croatia and evidently proposed to the Assembly to agree with it.

The Government explains its assessment that the Article 94 of the Law on Housing Relations which prescribes that state administrative agencies are the only competent ones for eviction of persons who have moved into apartments without a valid decision about allocation of the apartment or any other valid legal foundation, by the fact that the Law on General Administrative Procedure provides full legal protection of parties involved, since it prescribes principles, such as: the principle of legality, the principle of material truth, the principle of interrogation of parties involved, the principle of evaluation of evidence, the right to appeal, and others. Besides, an appeal can be lodged with the Administrative Court of the Republic of Croatia against the decision of a state administrative agency, which guarantees judicial control of legality of individual actions of administrative agencies.

By initiating the procedure for the assessment of the disputable Article, the Constitutional Court of Croatia first established that the Law on Housing Relations was not brought in line with the Constitution even after four years since its adoption, and therefore, with the new legal and economic system of Croatia. It still includes categories, such as social ownership and the right to allocate apartments to tenants which does not exist in the Croatian legal system any more. Article 94 introduced into he Law back in 1985 refers to this: "If a person moves into an apartment with no valid decision on allocation of the apartment or any other valid legal foundation, the housing agancy shall order eviction at the request of an interested party or by its official responsibility".

According to the opinion of the Constitutional Court, the administrative procedure from this Article of the Law is a summarized and extremely accelerated procedure which is aimed at evicting the person who has illegally moved into the apartment. In this sense, the procedure is similar to a court procedure instigated due to obstruction of property and might have been suitable for legal protection in simple cases of forcible or secret moving into someone else's apartment, when the perpetrator does not even claim to have any right to the apartment, when the advantage should be given to legal protection of the person illegally deprived of the apartment. Since the instigation of the procedure for the assessment of the disputable Article was induced by evictions from army apartments whose tenants had decisions on allocation of apartments which are, truly, legally disputable, the Constitutional Court assessed that it was not appropriate to implement its provisions in these cases since this was actually the case of the right to housing which should be resolved in a court procedure.

Now that the Government has presented collective data on administrative porcedures in its report, it has become evident that cases of eviction from army apartments due to decisions reached by the agencies of the former Yugoslav people's Army (JNA) after July 24, 1991 when these agencies ceased to be competent for the job (pursuant to the Regulation on Banning of Free Use of Real Estates on the Territory of the Republic of Croatia), and pursuant to other disputable documents, are just a minor part of the problem faced by the administrative agencies. Therefore, it is questionable why they have suddenly become the central issue which is expected to be most urgently and most efficiently resolved. In the period from June 1, 1990 to September 30, 1994, the total of 16,471 administrative procedures for eviction from apartments were instigated. Out of this number, 3,131 procedures refer to apartments owned by the Republic of Croatia, and 13,340 to other apartments. Whose property are these "other apartments" was not specified in the Government Report, although they were the subject of the administrative procedure of eviction in 81 per cent of cases.

Out of the total number of instigated procedures (16,471), 9,706 or 58.9 per cent refer to moving into the apartments without any documents, 1,283 or 7.8 per cent to moving in on the basis of invalid documents, and 322 or just 2 per cent refer to moving in on the basis of documents issued after July 24, 1991, 353 or 2.1 per cent, to moving in due to exchange of apartments, 529 or 3.2 per cent are cases of eviction of subtenants, and 4,278 or 26 per cent of cases are cases of eviction of members of the household of tenants. Out of the total number of instigated administrative procedures, 34.2 per cent were interrupted, rejected or refused, 21 per cent (3,466) were executed, 28.3 have not been executed, and 16.5 per cent have not been resolved. As reasons for not executing the administrative decisions, the following are listed, one after the other, in the Report: the applicants for execution do not submit proposals for their execution; interfererence in execution from different levels either by the applicants or the opposing party, since the cases of eviction involve a large number of persons from severe social cases, refugees, disabled veterans of the homeland war, families of the killed and self-supporting mothers; impossibiliy of providing alternative accomodation for the refugees; absence of members of the police on the site of the execution; circumstances found in the apartment at the beginning of execution (illness of members of the household, organized interference in the execution).

In the Report of the Ministry of Defense on the problems of administrative and court procedures of eviction from the apartments, it is noted that out of the 38,924 apartments controlled by this Ministry, 6,544 "are used without a valid decision on allocation of apartments or other legal foundation issued by a competent agency of the Ministry of Defense". Revision carried out by the Ministry "showed that in 2,574 cases, tenants had acquired the status of Croatian defendants and fulfilled the criteria of the Ministry o Defense for allocation of apartments to be used by tenants". This criterion was not fulfilled in 2,462 cases which fulfilled the conditions for eviction on the basis of Article 94, and in 1508 remaining apartments members of the family household or relatives of the tenant live who "inherit" the tenancy right.

The Ministry has initiated the total of 2,041 procedures with the administrative agencies, most of them (1,752) based on Article 94 of the Law on Housing Relations. The total of 2,401 procedures were instigated with regular Courts, out of which 2,011 on the basis of Article 99 of this Law due to the fact that the apartments were not used for more than six months and 390 on the basis of Article 102a due to participation in enemy activities against the Republic of Croatia. There were 246 evictions from army apartments, out of which 220 based on Article 94. According to the Report of the Ministry of Defense dated November 1994, out of the total of 38,924 apartments it controls, in 474 are held by tenants based on decisions of the former JNA issued after July 24, 1991, and 355 are used by tenants based on exchange of apartments approved by the former JNA also after July 24, 1991. Tenants with no document what so ever occupy 3,272 apartments. These data indicate that the Ministry of Defense has started with eviction of tenants whose rights should be either challenged or verified by a court procedure according to the opinion of the Constitutional Court, although at the same time there are five times more apartments whose situation is quite clear - their tenants have moved into them with no documents at all. This just verifies the fact that state agencies have determined political, social and moral priorities even in evictions, and then accordingly implemented specific legal provisions. Since these provisions are not precise and understated because they have been taken over from the former system and supplemented, they can be interpreted ambiguously, and referring to them and the rule of law is in the least irrelevant.

In such circumstances there is no rule of law, nor the principle of division of power to legislative, executive and judicial, nor the principle of equality of citizens in front of the courts and other state agencies. When state agencies allowed numerous committees for housing and individuals to issue decisions for moving into state-owned empty apartments (and not just them), most frequently arbitrarily, they stimulated anarchy the result of which is that now in almost two thirds of the apartments are tenants who have moved in without any papers. Subsequent establishment of criteria following political, social and moral priorities, and even needs of the Croatian army or other institutions of the state, can result in nothing but in numerous new injustices even when they refer to various legal solutions. Even if the assessments of Prof. Gojko Bezovan that at the moment Croatia is short of 300 thousand apartments is just partially correct, in the conditions of state voluntarism, cloned laws, crippled judiciary and what not, conflicts and injustices concerning housing problems will continue in Croatia for a long time. That is why the present harmonization of a single Aricle of the Law on Housing Relations with the Constitution is usually reduced down to a polygon for political skirmishing. And, those who are feeble and in the minority will of course pay the bill, since they are more or less also politically inapt.

ZORAN DASKALOVIC