SRPSKA PRAVOSLAVNA CRKVENA OPSTINA NA RIJECI v. CROATIA
Inadmissible
Christos Rozakis
The applicant, the Rijeka Serbian Orthodox Church (Srpska Pravoslavna Crkvena Opština na Rijeci), is a religious community with its seat in Rijeka. It is represented before the Court by Mr M. Markiš, a lawyer practising in Rijeka. The respondent Government are represented by their Agents, first Ms L. Lukina-Karajković and subsequently Ms Š. Stažnik. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant owns in Rijeka a flat of a surface of 104.57 square metres. A certain Ž.J. had a specially protected tenancy of the flat. On 22 October 1996 Parliament enacted the Lease Act, which regulates the conditions of leasing privately-owned flats, including those previously let under a specially protected tenancy. Under the Lease Act, on 8 November 1997 the applicant let the flat to Ž.J. On 1 April 1999 the applicant terminated the lease because it intended to lodge a priest in the flat. Since Ž.J refused to vacate the flat, the applicant instituted proceedings in the Rijeka Municipal Court (Općinski sud u Rijeci) seeking eviction of Ž.J. The applicant based its claim on the Lease Act claiming that it needed the flat for its own use, namely to house its priest. It also claimed that it could provide for Ž.J. another flat also situated in Rijeka, but a smaller one, of a surface of 48 square metres. On 5 June 2000 the Rijeka Municipal Court dismissed the applicant’s action, finding that it did not need the flat in question for itself but only to install its priest. The court found that the priest could have lived in any other flat including the one that the applicant was offering to Ž.J. The applicant appealed against the first-instance judgment arguing that installing its priest in the flat at issue amounted to the use of the flat by the applicant itself. On 4 April 2001 the Rijeka County Court (Županijski sud u Rijeci) dismissed the applicant’s appeal. It found that the applicant did not satisfy the conditions of section 40 of the Lease Act because it was a legal entity rather than a natural person. The court stated that the question whether there existed a need for the flat at issue on behalf of the applicant, the reasons for eviction of Ž.J., and the fact that the applicant had offered Ž.J. another flat, were irrelevant in the present case. The applicant subsequently filed a constitutional complaint claiming, inter alia, that its property rights were violated because it had no possibility to terminate the lease on the flat that it owned. On 3 June 2002 the Constitutional Court (Ustavni sud Republike Hrvatske) dismissed the applicant’s complaint. It found that the lower courts’ decisions were based on law, and that the relevant provisions of the Lease Act providing for termination of a lease for personal reasons referred only to natural persons but not to legal entities. It stated that the applicant’s inability to terminate the lease did not violate its property rights. Meanwhile, Ž.J. died, but his wife, A.J., continues to live in the flat. The Flat Lease Act (Zakon o najmu stanova, Official Gazette no. 91/1996 of 28 October 1996) (“the Lease Act”) regulates the legal relationship between the landlord and the tenant with respect to the lease of flats. It recognises a special category of tenants, namely 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, for instance, an obligation for the owners to contract a lease for an unlimited period of time; payment of a so-called protected rent, the amount of which is to be prescribed by the Government, as well as limited reasons for the termination of the lease. The Lease Act abolished the specially protected tenancy as such. Pursuant to the Lease Act a landlord may terminate the lease of a protected tenant in the following cases: if the tenant does not pay the rent or charges; if the tenant sublets the flat or part of it, without permission from the landlord; if the tenant or other tenants in the flat disturb other tenants in the building; if another person, not figuring in the lease contract, lives in the flat longer than thirty days, without permission from the landlord, except where that person is a spouse, child or parent of the tenant or of the other legal tenants in the flat, or a dependant of the tenant or a person on whom the tenant is dependent; if the tenant or other legal tenants do not use the flat for living, but for other purposes; if the landlord does not have another flat and is entitled to social assistance benefits or is older than sixty years. Under section 40 (1) of the Lease Act, the landlord may also terminate a lease of a protected tenant if the landlord intends to move into the flat himself or install his children, parents or dependants therein.