PRAVO NA POŠTOVANJE DOMA U KONTEKSTU BESPRAVNE GRADNJE U PRAKSI EUROPSKOG SUDA ZA LJUDSKA PRAVA I USTAVNOG SUDA RH
THE RIGHT TO RESPECT FOR THE HOME IN THE CONTEXT OF ILLEGAL CONSTRUCTIONS IN THE JURISPRUDENCE OF THE EUROPEAN COURT OF HUMAN RIGHTS AND THE CONSTITUTIONAL COURT OF THE REPUBLIC OF CROATIA

Summary/Abstract: In the article, the author analyses the jurisprudence of the European Court of Human Rights (ECtHR) and the Constitutional Court of the Republic of Croatia (Constitutional Court) in relation to the right to respect for the home under Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms and Article 38 of the Constitution of the Republic of Croatia, focusing on specific issues that have arisen in the recent practice in connection with the demolition of illegally constructed buildings. In determining the existence of “home” and admissibility of restrictions on the right to the home, the ECtHR applies its own interpretative techniques, methods and principles, which it has mainly developed in its case-law. The Croatian Constitutional Court has also accepted this approach of the ECtHR with regard to this right. The ECtHR starts from the autonomous concept of the right to the home. In other words, the existence of a home does not depend on the classification under the domestic law of the contracting states. It is a factual and not a legal concept and depends on the existence of “sufficient and continuous links” with a specific place. In addition to the autonomous approach, the violation of the right to the home requires the application of the principle of proportionality, which also applies to cases brought by individuals living in premises intended for demolition, especially bearing in mind the public interest that exists on the other side. In the article, the author analyses cases in which state’s interferences with the right to respect for the home of persons living in the buildings scheduled for demolition have been examined by the application of the principle of proportionality. The article includes also points of criticism that the ECtHR has suffered due to the (sometimes inconsistent) application of its interpretative techniques and methods.

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