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(Međunarodni sudovi de facto rabe presedane*)


Dolje su citati iz prvostupanjske presude Europskog suda za ljudska prava (ECHR) u slučaju BLEČIĆ protiv HRVATSKE, zahtjev broj: 59532/00 ,   29. VII. 2004.

      U presudi ECHR-a  navode se presude Općinskog suda u Zadru i Vrhovnog suda RH, s kojima se složio i Ustavni sud RH, prema kojima nije postojao opravdan razlog za odsutnost Kristine Blečić iz Zadra i iz njenog stana kroz dulje od šest mjeseci. Ti sudovi su smatrali da rat u Hrvatskoj i eskalacija oružanog sukoba nisu bili opravdan razlog za njenu odsutnost, te su naveli da su i svi ostali stanovnicu Zadra bili u istoj situaciji. (Naprotiv, samo Županijski sud u Zadru je bio presudio da je postojao opravdan razlog).  Na temelju toga ECHR je zaključio i naveo u svojoj (prvostupanjskoj) presudi, da nisu povrijeđena ljudska prava Kristine Blečić.  

      Takvo rezoniranje (zaključivanje) ECHR-a i ostalih gore spomenutih sudova (osim Županijskog suda u Zadru) očito je  POGREŠNO, jer je ratna opasnost, kojom je bio ugrožen život Kristine Blečić, bila opravdan razlog za njenu odsutnost iz Zadra, jer se radilo o "krajnjoj nuždi" (bez obzira na kontekst agresije na Hrvatsku itd.), kao što je objašnjeno na web-stranici  http://soric-b.tripod.com/kb/ .

     Postoji opasnost da ECHR (ili neki drugi sud) u budućnosti ponovno učini istu ili sličnu pogrešku jer ECHR u svojim odlukama i presudama često citira svoje ranije odluke i/ili presude te ih praktički rabi kao neku vrstu presedana.*

      Zato ECHR treba donijeti novu odluku, koja će se odnositi na gore navedenu presudu, te će sadržavati slijedeći  ISPRAVAK:

      "Opasnost prouzročena oružanim sukobom (ratom) MOŽE sama po sebi biti opravdan razlog za odsutnost iz stana, ili iz grada, odnosno iz mjesta stanovanja".


----------------------------------------------------------------------------(Stranica dodana 5. XI. 2011.)


(International courts do de facto use precedents*)


   Quotations from the ECHR judgment:


   "(Application No. 59532/00) 

   "JUDGMENT  /   STRASBOURG  /  29 July 2004

   "14.  On 12 February 1992 the Zadar Municipality (Općina Zadar) brought a civil action against the applicant before the Zadar Municipal Court (Općinski sud u Zadru) for termination of her specially protected tenancy on the flat in question. The Municipality claimed that the applicant had been absent from the flat for more than six months without justified reason.

   "16.  On 9 October 1992 the Zadar Municipal Court terminated the applicant’s specially protected tenancy. The court established that the applicant had left Zadar on 26 July 1991 and had not returned until 15 May 1992. It stated that in the relevant period no order had been issued to the citizens of Zadar to evacuate the town owing to the escalation of the armed conflict but that it had been the personal decision of every citizen whether to leave the town or to stay. On that basis the court found that the applicant’s absence was not justified by the war in Croatia.

   "20.  In the resumed proceedings, on 18 January 1994 the Zadar Municipal Court ruled again in favour of the municipality and terminated the applicant’s specially protected tenancy. It observed that she had been absent from the flat for over six months without justified reason and repeated in substance the findings of the judgment of 9 October 1992.

   "21.  The applicant appealed. On 19 October 1994 the County Court reversed the first-instance judgment and dismissed the municipality’s claim. It found that the escalation of war and the applicant’s personal circumstances, as described above (see paragraphs 11-13), justified her absence from the flat.

   "23.  On 15 February 1996 the Supreme Court accepted the request for revision and reversed the County Court’s judgment. It found that the reasons submitted by the applicant for her absence from the flat were not justified.

   "24.  The relevant part of the Supreme Court’s judgment reads as follows:

   “In the period of the aggression against Croatia, living conditions were the same for all citizens of Zadar and, as rightly submitted by the plaintiff, it is neither possible nor legitimate to separate the defendant’s case from the context of that aggression. Holding the contrary would mean assessing her case in a manner isolated from all the circumstances which marked that time and determined the conduct of each individual.

   "Contrary to the appellate court’s opinion, this court, assessing in that context the defendant’s decision not to return to Zadar during the aggression but to stay in Italy, considers the non-use of the flat unjustified. (......) The assumption that she would have had to make a considerable mental and physical effort in order to provide for her basic living needs (all the residents of Zadar who remained in the town, from the youngest to the oldest, were exposed to the same living conditions) does not justify her failure to return to Zadar and, accordingly, does not constitute a justified reason for the non-use of the flat.”

   "26.  On 8 November 1999 the Constitutional Court dismissed the applicant’s complaint. It found that the Supreme Court had correctly applied the relevant legal provisions to the factual background established by the lower courts when holding that the applicant’s absence from the flat for more than six months had been unjustified. The Constitutional Court concluded that the applicant’s constitutional rights had not been violated.

   "63.  The Court notes that both the Municipal Court and the Supreme Court held that, in the circumstances of the case, there had been no justified reason for the applicant not to return to Zadar.  (......)   the escalation of the armed conflict could not be seen as a justified reason for leaving Zadar, since it affected every citizen of the town equally. (......)

   "66.  In the light of the foregoing, the Court is satisfied that the contested decisions were based on reasons which were not only relevant but also sufficient for the purposes of paragraph 2 of Article 8. It cannot be argued that the Croatian courts’ decisions were arbitrary or unreasonable,  (......)

   "71.  Accordingly, there has been no violation of Article 8 of the Convention.

   "73.  The Court does not find it necessary to decide whether or not a specially protected tenancy constitutes property or a possession within the meaning of Article 1 of Protocol No. 1 for the following reasons.

   "74.   Even assuming that the termination of the applicant’s tenancy involved a right to property, the Court considers that the interference in question was neither an expropriation nor a measure to control the use of property. Therefore, it falls to be dealt with under the first sentence of the first paragraph of Article 1 of Protocol No. 1.


   "1.  Holds that there has been no violation of Article 8 of the Convention;

   "2.  Holds that there has been no violation of Article 1 of Protocol No. 1 to the Convention."



   The above reasoning and conclusions of the courts (except the County Court) are obviously WRONG, because the dangers of the war (that threatened the applicant's life) were a justified reason for her absence form Zadar. That was a "choice of evils", regardless of the above-mentioned context of the aggression against Croatia etc., as explained on the web-page http://soric-b.tripod.com/kb/id8.html .

   There is a danger that the same or similar mistake(s) can be made again by the ECHR (or by other courts) in the future, because the ECHR, in its decisions or judgments, often quotes its previous decisions and/or judgments and practically uses them as a kind of precedents.*

   Therefore, the ECHR should make a new decision, that should refer to the above-mentioned Judgment and should contain the following CORRECTION:

   "A danger caused by an armed conflict (war) CAN be per se a justified reason for absence from a flat, or from a town, or from a place of living".


"The Role of Precedent at the European Court of Human Rights: A Network Analysis of Case Citations"

      by Yonatan Lupu* Erik Voeten**  May 14, 2010

      * University of California - San Diego

      ** Georgetown University

(Page 1) -  The Role of Precedent at the European Court of Human Rights....

 "...international courts do de facto use precedent and their judgments have become a significant source of nonconsensual international law making (e.g., Helfer 2008)...

(Page 10) -  The ECtHR Citations Network  /  (......) To illustrate how citations can be analyzed as a network, consider for example a series of landmark judgments in the ECtHR’s case law on torture and national security. (......)  Through 2006, the Court decided 7319 cases, the opinions of which included 35,963 citations to previous Court decisions."

[2]  http://www.yourrights.org.uk/yourrights/the-human-rights-act/the-european-convention-on-human-rights.html          (Skinuto s Interneta: 31 March 2011)

      ["This is Liberty’s website to provide information and support to individuals and organisations who wish to understand and enforce their rights under the Human Rights Act 1998." - Liberty (also known as The National Council for Civil Liberties) is one of the UK’s leading civil liberties and human rights organisations"].

      "YourRights guide (......)  "The European Convention on Human Rights -  The preamble to the Human Rights Act 1998 (HRA) describes it as ‘an Act to give greater effect to rights and freedoms guaranteed under the European Convention on Human Rights’ (......)  The ECHR will, however, still tend to follow the precedents set by earlier cases - where it does not it will make clear why it is not doing so. It is therefore important to look at past decisions of the ECHR. Moreover, the HRA requires the courts in this country to take the ECHR’s past decisions into account when deciding cases under the HRA".