Right to Privacy and Tenancy Rights

Vojnovic v Croatia, UN Doc CCPR/C/95/D/1510/2006 (28 April 2009) The Human Rights Committee held that a lawful termination of tenancy rights under Croatian law amounted to an arbitrary interference with the right to home and violated art 17 of the International Covenant on Civil and Political Rights.  The termination of the tenancy was held to be arbitrary as it was exercised in an unfair and discriminatory way.

Facts

From 1986 to 1992, Mr Vojnovic ('the author') and his wife and son occupied a State owned apartment in Zagreb, Croatia.  Under Croatian legislation, their tenancy rights in most aspects amounted to ownership.  The government could only terminate those rights in certain circumstances, for example, if the tenant ceased occupying the premises for period of more than six months.

In June 1991, the author and his son moved to Serbia after receiving death threats.  The author's wife remained in the apartment until October 1992, when she also fled to Serbia.  The author and his family escaped to Serbia as they feared for their lives as Croatian Serbs during the period leading up to the Bosnian War.  The author claimed that he did not inform the authorities of the threats and intimidation he, and his family, experienced as other tenants in the apartment building who had reported such threats to the police had been forcibly evicted.

In 1995, the Zagreb Municipal Court held that the author and his wife were no longer entitled to their tenancy rights as they had not used the apartment for longer than six months and did not provide 'justified reasons' for their absence from the property.  However, the author and his wife were not given adequate opportunity to provide reasons for their absence.  Although the authorities had knowledge of the author's temporary residence in Belgrade, they did not summons the author and his wife to participate in the proceeding.  Instead, the author and his wife were represented at the hearing by an appointed trustee.

Following the conclusion of the Bosnian War, the author and his family sought to return to Croatia and the apartment where they had previously lived.  Between 1998 and 2005 the author and his family were involved in court action to regain their tenancy rights, which had been extinguished by the 1995 decision of the Zagreb Municipal Court.  In a review hearing, which was initiated in 1998, the author's key witnesses were refused an opportunity to be heard by the Court.  In 2004, the Court upheld its previous decision that the author's tenancy rights were terminated.  The author was unsuccessful in subsequent complaints brought before the Croatian Courts.

In 2006, after exhausting all domestic avenues available to him, the author made a complaint to the United Nations Human Rights Committee under the ICCPR against the Croatian government regarding its treatment of him and his family.

Decision

The Committee held that the author's complaint was admissible in so far as the factual circumstances raised issues under:

• art 2(1) - right to equality and non-discrimination;
• art 14(1) - right to a fair hearing;
• art 17 - right not to have one's privacy, home and family unlawfully or arbitrarily interfered with; and
• art 26 - right to equality before the law and equal protection of the law.

The Committee held that the State party was in breach of the author's rights under arts 14(1) and 2(1) for two reasons.  First, the Committee considered that the decision of the Court not to hear from the author's witnesses was arbitrary and violated the principles of a fair trial and equality before the courts.  Secondly, the Committee considered that the review proceedings (initiated in 1998 and decided in 2004) were not conducted expeditiously, and the overall length of the proceedings of almost 7 years could not be justified by the State party.  In this regard, the Committee held that 'in light of the author's diligent conduct and of the negative effects the delay has on the author's and his family's return to Croatia, as well in the absence of an explanation by the State party justifying the delay, the overall length in the proceedings for the determination of the author's specially protected tenancy was unreasonable and in breach' of arts 14(1) and 2(1).

Finally, the Committee considered whether the termination of the author's specially protected tenancy constituted a violation of art 17, which requires that any interference with the home be lawful and not arbitrary.  As the termination of the author's tenancy was in accordance with Croatian law, the issue before the Committee was whether the termination was arbitrary.  The Committee emphasised that the concept of arbitrariness under art 17 is intended to ensure 'that even interference provided for by law should be in accordance with the provisions, aims and objects of the ICCPR and should be, in any event, reasonable in the particular circumstances.'

On the basis of the threats and intimidation experienced by the author and his family by virtue of belonging to the Serb minority, and having regard to the armed conflict occurring in and around Croatia during the relevant period of time, the Committee formed the view that the departure of the author and his family from Croatia 'was caused by duress and related to discrimination.'  The Committee concluded that in these circumstances the deprivation of the author's tenancy rights was arbitrary and amounted to a violation of art 17.  The Committee did not consider the question of a separate violation of art 26.

Relevance to the Victorian Charter

While the findings of the Committee in this Communication are specific to the unique facts and social context within which the complaint arose, the Committee's comments regarding the 'concept of arbitrariness' may be particularly helpful for lawyers considering the scope and application of the rights under s 13(a) of the Victorian Charter.

A person's right not to have their home unlawfully or arbitrarily interfered with is protected under section 13(a) of the Charter.  This decision of the Committee highlights very clearly that any interference with the home must not only be 'lawful', but must also not be arbitrary.  For an interference to satisfy the requirement that it not be arbitrary, it should accord with the provisions, aims and objects of the Victorian Charter (including respect for human dignity) and be reasonable in the particular circumstances.

Amy Barry-Macaulay is a lawyer with the PILCH Homeless Persons' Legal Clinic