CASE OF GOŠOVIĆ v. CROATIA
Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions;Article 1 para. 2 of Protocol No. 1 - Control of the use of property)
Jon Fridrik Kjølbro;Georges Ravarani;Ksenija Turković
5. The applicant was born in 1963 and lives in Split. 6. He is the owner of a flat in Split with a surface area of 106.90 square metres. According to the applicant, that flat is the only real estate in his ownership and his only property of value. 7. It would appear that in 1971 the housing authorities awarded a specially protected tenancy (stanarsko pravo) of the flat to a certain Ms N.R. and her family. 8. On 5 November 1996 the Lease of Flats Act entered into force. It abolished the legal concept of the specially protected tenancy and provided that the holders of such tenancies in respect of, inter alia, privately owned flats were to become “protected lessees” (zaštićeni najmoprimci). Under the Act such lessees are subject to a number of protective measures, such as the duty of landlords to contract a lease of indefinite duration, payment of protected rent (zaštićena najamnina), the amount of which is set by the Government and significantly lower than the market rent; and better protection against termination of the lease. 9. The applicant refused to conclude a lease contract with N.R. under the protected lease scheme. 10. Therefore, on 16 October 1997 she brought a civil action against him in the Split Municipal Court (Općinski sud u Splitu) with a view to obtaining a judgment in lieu of such a contract. 11. At the hearing held on 4 November 1998 the applicant argued that N.R. was not entitled to protected rent because she owned a house in the tourist village of Rogoznica, some 53 kilometres from Split. 12. At the hearing held on 15 April 2002 the applicant submitted a counter-claim seeking to obtain a judgment ordering N.R. and her family to vacate the flat in question. He argued that he intended to move into the flat. 13. By a judgment of 27 February 2008 the Municipal Court found in favour of N.R. and imposed on the applicant a lease contract stipulating protected rent in the amount of 163.56 Croatian kunas (HRK) per month. 14. On 21 October 2008 the Split County Court (Županijski sud u Splitu) dismissed an appeal by the applicant and upheld the first-instance judgment. 15. The Municipal and the County Court established that N.R. was living in the flat with her son M.R., her daughter-in-law and her grandson whereas the applicant was living with his mother in a flat located in the same building. His mother also owned an adjacent building where he was running his medical practice in one of the flats. The court also found that N.R. and her son M.R. indeed owned a small summer home in Rogoznica surfacing 18 square metres only. 16. Against this factual background the Municipal and the County Court held that the conditions provided in section 40(1) of the Lease of Flats Act, as interpreted by the Supreme Court (see Statileo v. Croatia, no. 12027/10, §§ 48-49, 10 July 2014), had not been met and that the applicant was therefore not entitled to refuse to enter into a lease contract with N.R. under the protected lease scheme. In particular, even though the applicant intended to move into the flat and had no other accommodation, he was neither entitled to permanent social assistance or was over sixty years of age, nor was N.R.’s summer home in Rogoznica located in the same municipality or township. 17. Those courts also held that, apart from being protected from eviction, N.R. was also entitled to protected rent; the applicant thus having no right to charge her the market rent for living in his flat. That was so because they found that N.R.’s summer home did not constitute a habitable house within the meaning of section 31(2) of the Lease of Flats Act (see Statileo, cited above, § 41). 18. By a decision of 21 November 2012 the Constitutional Court (Ustavni sud Republike Hrvatske) dismissed the applicant’s constitutional complaint against the judgments of the Municipal and the County Court, and served its decision on the applicant’s representative on 7 December 2012.