KB
(English)
|
|
|
|
|
|
|
|
KB (English) |
|
||
|
|
|
|
||
|
|
|
|
|
|
|
|||||
|
|
||||
|
|||||
|
||||
|
|
WHAT IS A "JUSTIFIED REASON"? I. In brief: During the war (1991-95) Ms Kristina
Blečić, being a pensioner, as well as some other persons, spent some time (longer than six months) outside of Croatia
in order to save themselves from the dangers of war. Have they had a justified reason to do so? Yes, they had, because they
were in danger from shelling of towns etc., which, to be sure, threatened others too, but others could not leave Croatia for
various reasons (e.g. they had to work, or did not have relatives abroad...), while pensioners and children were allowed to
leave, and nobody forbade it to them, because their help was not needed by anybody, and because the danger for others would
not be smaller if they stayed in Croatia. Because Ms Blečić had been absent
from her flat for longer than six months, her housing/occupancy right ("stanarsko pravo") has been seized from her, but that has been done unlawfully,
because she did have a justified reason for being absent from her flat. Namely, by the Law on Housing Relations (that was
in force during SFR Yugoslavia and later in the Republic of Croatia until 1996) the occupancy right could not be seized from
a person, who had had a JUSTIFIED REASON for being outside of the flat for more than six months. However, the Croatian courts, from the Municipal to the Supreme and the Constitutional (with the exception
of the District Court in Zadar, which was the only one that reasoned correctly and logically), have wrongly asserted that
Ms Blečić had had no justified reason, because, allegedly, the dangers of war alone "are not a justified reason"(!),
and because the dangers and the living conditions "had been the same" for all other inhabitants of Zadar(!). The European
Court of Human Rights also reasoned in the same wrong way! If Ms Blečić had not been
outside of her flat for more than six months, she would not have been deprived of her occupancy right. (So, that was the only
reason, regardless of everything else that had been written in the judgments). If some pensioner had locked up his flat (in
his ownership) and had left Croatia for a few years in order to escape the danger of war, or if some child had been temporarily
sent to a safer place outside of Croatia for the same reason, that would have been considered as normal and nobody would think
or say that there was no justified reason for that. CONCLUSION: Croatian courts and the European Court of Human Rights have made a very grave mistake whereby a very grave
damage has been caused, and that MUST be corrected! Up to this day (October 1st,
2012) nobody has told me that he/she did not agree with such a conclusion. It is quite incomprehensible and unallowable
that such a mistake of the courts is not corrected! It is unthinkable that any
law expert, who has learnt what has happened, does not react! Every such expert
MUST react (it is his obvious duty and interest), and must demand that the courts CORRECT their mistake!!! Everybody must keep demanding that until the mistake is corrected! It might be a different thing if, say, many producers of shoes (or some other wares) would sell faulty shoes and cause damage to buyers by doing so, and if someone would demand that absolutely all such frauds must bee discovered and punished. Perhaps it might be acceptable if, say, ninety nine percent of such culprits were punished. However, by no means may such reasoning be applied to the courts! Although it is clear that courts or judges can err like anybody else, yet absolutely EVERY OBVIOUS, PROVED, GRAVE MISTAKE of the courts MUST be corrected without any exception! Would anybody ever consent to be deprived of almost-all his property because of a court's mistake, or to be sentenced to several years in prison, or the like, in spite of being quite innocent?! Not-correcting even a single such mistake of a court is absolutely UNALLOWABLE! - (More on the necessity of correction - click here!) ------------------------ II. In more detail: WHAT IS THE "CHOICE OF EVILS"? In the Republic of Croatia, after 1991, the occupancy rights (which are practically 90-percent ownership on the apartments) have been unjustly, unconstitutionally and discriminatorily seized from a part of Croatian citizens and their families. Among these are some pensioners, who are deprived of their occupancy rights because of having been absent from their apartments for more than six months continually, in order to escape the dangers of the war (1991 to 1995). According to the Law on Housing Relations, which was valid in former Yugoslavia (SFRY) and later in the Republic of Croatia until 1996, the occupancy right could be lost if there had been no justified reason for such an absence (lasting for more than six months), and the courts ruled (wrongly!) that the war danger had not been a justified reason! According to the report of the People's Ombudsman for the year 2004, the Supreme Court of Croatia, as well as some lower courts, have ruled that "the war events themselves, without specific reasons for the impossibility to use an apartment, are not a justified reason for not-using the apartment", and they also said that living conditions during the war, as well as the war danger, if they are equal for all the people living in an inhabited place (town), are not a justified reason for the non-use of an apartment. Later, the European Court of Human Rights made the same mistake in the well known case of Kristina Blečić! - (Application No. 59532/00). WHAT IS A
"JUSTIFIED REASON"? This
question can be posed in any case of violating the laws, e.g.: (1) in the case of violating the Penal Law (Kazneni zakon), or (2) in the case of violating the Law on Housing Relations (Zakon
o stambenim odnosima).
(Ad 1) According to Article 5 of the Croatian Constitution (Ustav RH),
everybody must obey the Constitution and the laws. The Penal Law defines criminal offenses i.e. cases in which violating the
above-mentioned constitutional duties or/and the laws leads to consequences for the perpetrator, and the Penal Law also prescribes
these consequences (i.e. punishments). However, there are no consequences (punishment) if there was a justified
reason, such as, e.g., the "choice of evils" ("krajnja nužda", extreme
necessity). The "choice of evils" ("krajnja
nužda") is mentioned and exactly defined in Article 30 of the Croatian
Penal Law (Kazneni zakon, 1997), which reads: "(1) There is no criminal act (offence) if the perpetrator has committed such an act in
order to avert from himself or from another person a simultaneous or immediately-impending danger, of which danger he is not guilty, and which danger could not be otherwise averted, if the
so-committed evil is less than the evil which had been threatening. (......) (4)
There is no extreme necessity (krajnja nužda) if it had been the perpetrator's
duty to expose himself to danger". (Ad 2) According to the Law on Housing Relations from 1974 (Article 93) the occupancy right
could be lost if the holder of this right did not use his apartment for more than six months continually. In other words,
the holder of the occupancy right, if he wanted to keep this right, had the duty (legal obligation) to use the apartment,
and if he violated this obligation without a justified reason, the law prescribed the consequence i.e. losing the occupancy
right; but this consequence was excluded in the case that he had been absent from the apartment because of a medical treatment,
or because of serving in the army, or "for other justified reasons". The first question
to be answered is this: What is a justified reasons? A clear and obvious
answer, following from what was said above, is this: A justified reason is a reason that acquits a person, who violated
a legal obligation, of the consequences prescribed by the laws. Because, according to the Croatian laws, the extreme
necessity (krajnja nužda) is a justified reason for committing even the worst
crimes, there can be no doubt that the extreme necessity ("krajnja nužda")
must also be a justified reason in the case of the innocent, harmless absence from an apartment for more than six months. Namely, just as the extreme necessity exempts a perpetrator of a grave crime from legal
consequences (i.e. from punishment), it must likewise exempt from legal consequences (i.e. from losing the occupancy right)
any person who has, because of the extreme necessity, violated the legal obligation to use his apartment (whereby nobody has
been damaged). (Note: The Penal Law does not directly apply to housing relations, but correct logic and reason are applicable
always and everywhere!)
The second question, that also has to be answered, is this: Did an extreme necessity indeed exist, when, e.g., a pensioner
(or another person) did not use his apartment in some town for more than six months, in order to escape the danger from the
bombardments or shelling (etc.) of that town, in the case that no order had been issued to the citizens
to stay in the town, and nobody needed that-pensioner's presence or help?
Let us examine whether, in such a case, all the conditions for the existence of the extreme necessity (krajnja nužda) have been fulfilled: ---
Did that pensioner (or other
person) flee from his apartment and from the town in order to avert from himself a danger
of which he was not guilty? Answer: Yes, he did it in order to escape the
danger of war, of which he was not guilty. ---
Was it a simultaneous or immediately-impending danger? Answer:
Yes, because the town was occasionally or even frequently bombarded or shelled during more than six months. (See also the
"SUPPLEMENT" below!) ---
Could that danger have been
averted otherwise (in some other
way)? Answer: No, because neither that pensioner nor any other person in the
town could avert that danger (from bombardment, shelling etc.) if he/she stayed in that town. --- Is the committed evil less
than the evil that was threatening? Answer: Of course, it is less, because no evil has been committed at all (namely, that
pensioner neither caused any harm to anybody by his absence, nor anybody needed his help, nor he was obligated to stay, nor
anybody asked him to stay, etc.), while, on the other hand, he was threatened by a great evil i.e. a peril of his life. --- Was it his duty to expose himself to
danger? Answer: No, because nobody had asked him to do so, nor any order had
been issued to stay in the town, etc. --------------------------
[SUPPLEMENT: The Croatian Penal Law clearly distinguishes between an EVIL
(e.g. damage, injury, death) and a DANGER (i.e. a threatening evil, risk, exposure to an evil, damage, injury, or death).
So, for example, the meaning of "simultaneous or immediately-impending danger of death" is quite different from the meaning
of "simultaneous or immediately-impending death". E.g., if a town is occasionally or often shelled during several months or
years, there exists, throughout the whole of this period, a simultaneous or immediately-impending danger i.e. an exposure
to an injury or death. Moreover (although the Law does not require it), that danger is increased if compared with a "normal"
danger that exists in the time of peace. I believe that practically-everybody will agree, that it is reasonable, desirable
and necessary for any person to try and escape such an increased danger, i.e. to leave such a town, if he/she has no duty
to be there, if thereby he/she causes no harm to anybody, and if he/she cannot help anybody by staying in the town]. -------------------------- From
everything that was said above, it seems to be quite clear, that the reason for that-person's absence from the town and from
the apartment can only be considered as an EXTREME NECESSITY ("krajnja
nužda"), and this extreme necessity existed as long as there was a danger caused by the war i.e. for more than six
months; and this means, that the above-mentioned person had a JUSTIFIED REASON to be absent from his/her apartment
for more than six months. Therefore, we must conclude that
the judges - even those of highest courts - made quite wrong statements and decisions when they said that "the war events themselves, without specific reasons for the impossibility to use an apartment, are not a justified
reason for not-using the apartment" etc. Namely, from such statements it follows that the war events (such as an occasional
or frequent shelling of a town, etc.) are not a danger, nor an increased danger (i.e. an increased exposure to an injury or
death)! I believe that practically-nobody (no reasonable person) will agree with
such a statement of the judges! Also, it seems to be quite clear, that there is no
legal ground for the statement that "there was no justified reason because the danger was equal for all the citizens in that
town"! How can anybody maintain that, in a case of equal danger for all the inhabitants,
there is no justified reason (i.e. no extreme necessity, no "krajnja nužda"),
when the laws do not say that?! The
Croatian laws do not say that "equal danger" excludes the justifiability of a formally-criminal act committed in a case of
extreme necessity. So, how could "equal danger" exclude the existence of a justified reason for a harmless absence from one's
apartment?! (See the COMPARISON*, below!) Also,
Article 30 of the Penal Law does not say that the danger should be greater for the perpetrator than for others. So, the above-mentioned
statements seem to have been FABRICATED
(either intentionally, or because of incompetence) by some person(s) in the government (perhaps in some ministries,
or courts, etc.). If so, such persons should not be allowed to work or take part in the legislation, or in the executive authority,
or in the judiciary, or in any other responsible positions or work-places! Dr. med. Branko Sorić -------------------------------- CROATIA E-mail: branko.soric@zg.t-com.hr --------------------------------
* COMPARISON: Suppose
that terrorists have kidnapped some ten hostages, and they are threatening to kill these hostages. Imagine that all of them
are in a building that is especially protected by laws because of its historical, artistic, or other value, and this value
is estimated to be several millions of euros. One of the hostages manages to escape by breaking the wall and destroying a
part of the building, whereby he causes a damage of one million euros. The other hostages have remained in the building, but
they have not been killed, and later they are liberated by the police. - Now, suppose that somebody demands
that the hostage who escaped be punished, because he violated the law that protects the building, and the danger had been
equal for all the hostages. I believe that any court would rule, that the hostage
who escaped should not be punished, and that he has had a justified reason for what he did, i.e. that there has existed an
extreme necessity ("krajnja nužda") for destroying a part of the building,
because the committed evil was less than the evil (i.e. death) that had been threatening. (Besides, it can be noted that he
could not avert the danger from the others, nor did he increase the danger). -------------------------------- From
an article by Professor Dr. Ivan Padjen (translated by B. Soric) ("The inhabitants are human beings too", published in
the weekly "Feral Tribune", Split, September 30, 2005): "Was the occupancy right, that existed in Socialist Republic of
Croatia by the Law on Housing Relations, a right of ownership and, consequently, is it protected by the Constitution and the
European Convention on Human Rights? (......) The problem is simple, because
its solution is simple: Of course, the occupancy right is a right of ownership and, therefore, being a human right, it is
protected by the Constitution and the Convention, and this protection should be granted both by the Croatian courts and by
the European Court of Human Rights. Therefore, the
Republic of Croatia should make it possible
for all the previous occupancy-right holders, including those who lost this right because of war circumstances and those who
had this right on privately-owned apartments, to buy the ownership right on these apartments under the conditions of the Law
on Selling Apartments on Which Occupancy Rights Existed. (......) In the 'Collection of Papers of the Faculty of Law in Zagreb', 1992, I have shown that the decisions of
the Constitutional Court of Croatia concerning Article 48 of the Constitution are 'a result of a confusion of concepts, that
could not be produced by the Constitutional-Court judges alone, but a confusion that had been carefully fostered...'." (Prof.
Dr. Ivan Padjen is professor of law at the Faculty of Political Sciences in Zagreb) -------------------------------- From the Law on Housing Relations (1974), Article 93: "The contract to use the apartment can be cancelled..." (i.e. the occupancy right can be annulled, the occupant can be given notice to quit) "...if the occupant and his family-household members cease to use the apartment for more than six months continually... (......) - The contract cannot be cancelled (annulled) if (that) person (occupant) (......) does not use the apartment because of a medical treatment, or because of serving in the army, or because of other justified reasons. (......)". Note: If a person is accused of a crime,
he/she can defend himself/herself by means of the "choice of evils". In the case of Kristina Blečić (before domestic
courts and European Court of Human Rights) there were no charges of any such act, but it is self-evident that she had a justified
reason for being away from home because her life was in danger - because of the shelling of Zadar, etc. This reason was justified, which can also be seen from the congruity with the concept of the "choice of
evils", as explained above. (Even the lack of electricity and water is an evil, that she could not avert otherwise but by
staying out of Zadar, whereby she has not caused any evil to anybody). -------------------------------- Dr. med. Branko Soric CROATIA E-mail: branko.soric@zg.t-com.hr Zagreb, 2007 - 2009 |
|
|
|
||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
||||
|
|
|
|
|
|
||||
|
||||
|
||||