STRUNJAK AND OTHERS v. CROATIA
Inadmissible
Georg Ress
The applicants are Croatian citizens living in various parts of Croatia. They are represented before the Court by Ms Tatjana Burjačenko Grubiša and Ms Beti Korać-Zuppa, lawyers practising in Zagreb (Croatia). A. The facts of the case, as submitted by the applicants, may be summarised as follows. In the Socialist Federal Republic of Yugoslavia, i.e. until the independence of the Republic of Croatia, the applicants had specially protected tenancies on privately-owned flats. These flats have always been privately-owned, i.e. they have never been taken from the ownership of their owners by acts of nationalisation, confiscation or any other form of expropriation. The applicants still occupy those flats. On 3 June 1991, the Parliament enacted the Specially Protected Tenancies (Sale to Occupier) Act (Zakon o prodaji stanova na kojima postoji stanarsko pravo) and on 22 October 1996, the Leases Act (Zakon o najmu stanova). While the first one regulates the sale of publicly-owned flats previously let under a specially protected tenancy, the second regulates the conditions of leasing of privately-owned flats, including those previously let under a specially protected tenancy. The applicants lodged a constitutional claim with the Constitutional Court (Ustavni sud Republike Hrvatske), arguing that certain provisions of the Leases Act and the Specially Protected Tenancies (Sale to Occupier) Act violated the constitutional guarantees of the right to enjoy their possessions, the respect and protection for family life and discriminated against former holders of specially protected tenancies on privately-owned flats. The Constitutional Court ruled on 31 March 1998, and its decision was published in the Official Gazette (Narodne novine). The Court quashed several provisions of the Leases Act and dismissed the request to examine the constitutionality of the Specially Protected Tenancies (Sale to Occupiers) Act. As to the Leases Act, the Court quashed Article 21 § 2, which obliged an owner of a flat let for an unlimited period of time to provide a lessee with another adequate flat before cancelling the lease, if the owner intended to live in the flat himself or intended to install in the flat his children, parents or his dependants. The Court also quashed Article 31 § 2, point 3, which excluded from the right to “protected rent” a lessee who had ceased to use the flat during the six months preceding the enactment of the Act in question. Furthermore, the Court quashed Articles 39 and 40 § 2. Article 39 restricted the lessor's right to terminate the lease of a lessee who does not pay the rent and charges, and is over sixty years of age or receiving social security benefits, only to cases where the municipality provides such a lessee with another adequate flat with a right to “protected rent” in an amount affordable to the lessee. Article 40 § 2 provided in substance the same as the above-mentioned Article 21 § 2. B. Relevant domestic law before amendments by the Constitutional Court The Specially Protected Tenancies (Sale to Occupier) Act regulates the conditions of sale of flats let under specially protected tenancies. In general, the Act entitles the holder of a specially protected tenancy on a publicly-owned flat to purchase it under favourable conditions of sale. However, the Act excludes from such favourable treatment the holders of specially protected tenancies on most privately-owned flats. The provisions of the Act challenged by the applicants before the Constitutional Court provide as follows. Article 3 § 1 point 2 provides, inter alia, that the Act does not concern privately-owned flats let under specially protected tenancies. Article 7 provides that where the tenant of a publicly-owned flat has not applied to purchase it under the Act, the tenant of any privately-owned flat may lodge a request to buy it. Furthermore, this provision establishes the criteria for priority in the purchase of such flats. Article 27 regulates the spending of the funds collected through the sale of flats let under specially protected tenancies. It requires 90 % of such funds to be used, inter alia, to provide flats for the former holders of specially protected tenancies of privately owned-flats, while 10 % of the funds must be used to help provide flats for families with three or more children. If the funds originate from the sale of flats in culturally protected buildings, 20 % of those funds must be used for the maintenance and reconstruction of such buildings while the rest is to be used according to the above mentioned criteria. Article 34 provides that the private owners of rented flats may, within two years of the Act's enactment, sell their flats to the municipality. The municipality is under an obligation to purchase such a flat if the tenant undertakes to repurchase the flat from the municipality. The price of such a flat will be fixed according to the provisions for determining prices of publicly-owned flats let under specially protected tenancies. The Leases Act in general regulates the legal relationship between lessee and lessor in regard to the lease of flats. It recognises a special category of lessees, those who were previously holders of specially protected tenancies on privately-owned flats. Such a category is, according to the Act, subject to a number of protections, such as an obligation for the owners to contract a lease for an unlimited period of time, the payment of a so called “protected rent”, the amount of which is to be prescribed by the Government, and strictly limited reasons for termination of the lease. This Act abolishes the specially protected tenancy as such. Article 7 § 2 provides that the criteria for establishing the amount of “protected rent” are the condition of the flat in question, expenses for maintenance of the building and the lessee's financial situation. Article 30 provides that, by enactment of the Act in question, specially protected tenancies cease to exist and the former holders of specially protected tenancies become lessees. Article 31 provides that the former holder of a specially protected tenancy and the owner of the flat have to take out a lease for an unlimited period of time, and the lessee is entitled to pay the so-called “protected rent”, except where the lessee is using a part of the flat for some business-related activity; or where the lessee is the owner of an inhabitable house or flat; or where the flat has not been used by the lessee or any members of his family, during the six months preceding the entry into force of the Leases Act, unless the owner had permitted their absence.