CASE OF MIROŠEVIĆ-ANZULOVIĆ 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;Paul Lemmens;Ksenija Turković
5. The applicant was born in 1948 and lives in Split. 6. She is the owner of a flat in Zagreb with a surface area of 80.58 square metres. The flat is occupied by a “protected lessee” (zaštićeni najmoprimac), a certain Ms S.Š. Under the Lease of Flats Act (Zakon o najmu stanova), which entered into force on 5 November 1996, 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. 7. The applicant refused to recognize S.Š., who had been living in her flat since 1975, as a holder of a specially protected tenancy (“stanarsko pravo”) and to conclude a lease contract with her. On 18 May 2007 S.Š. brought a civil action against the applicant before the Zagreb Municipal Civil Court (Općinski građanski sud u Zagrebu) relying on sections 33(3) and 37(2) of the Lease of Flats Act (see paragraph 18 below), seeking recognition of her legal status of a protected lessee and obtaining a judgment in lieu of the lease contract. 8. Shortly afterwards in 2007 the applicant brought a counterclaim before the same court seeking to obtain a judgement ordering S.Š. and the members of her household to vacate the flat in question. She also sought that S.Š. be ordered to pay her 500 Croatian kunas (HRK) per month together with the accrued interest, for the period between June 2002 and December 2006. The applicant specified that the said amount represented her estimate of a freely negotiated rent (“slobodno ugovorena najamnina”) as provided by section 6 of the Lease of Flats Act and the Government of Croatia’s Decision on the determination of the level of freely negotiated rent (Odluka o utvrđivanju slobodno ugovorene najamnine, Official Gazette no. 120/00). 9. By a judgement of 5 December 2011 the Zagreb Municipal Civil Court found in favour of S.Š. It recognised her legal status of a protected lessee and substituted the lease contract stipulating protected rent in the amount of HRK 190.25 per month. The court dismissed the applicant’s counterclaim as unfounded. 10. On 11 December 2012 the Zagreb County Court (Županijski sud u Zagrebu) dismissed an appeal by the applicant and upheld the first-instance judgement, which thereby became final. 11. The applicant then lodged a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske) alleging violations of her right to equality before the law guaranteed by Article 14 of the Constitution and of her ownership rights guaranteed by Articles 48, 49 and 50 of the Croatian Constitution (see paragraph 17 below). By a decision of 12 September 2013 the Constitutional Court dismissed the applicant’s constitutional complaint. This decision was served on the applicant’s representative on 23 September 2013. 12. The applicant submitted a document dated 11 May 2007 from which it follows that the protected rent for her flat was set at HRK 178.73. The Government submitted a document dated 16 April 2015 from which it follows that the protected rent was set at HRK 217.57. 13. According to the documents submitted by the parties, the applicant was not obliged to pay the condominium fee into the common reserve fund for the flat. That fee was incumbent on another individual. 14. According to the applicant, she never paid any income tax on the income generated by renting her flat subject to the protected lease scheme. The Government did not contest this information. 15. The applicant furnished information as regards the monthly market rent for renting out flats in the vicinity of hers. She submitted an advertisement from the Internet dated 2 June 2014 offering for rent a flat of a similar size as hers (80 m²) for EUR 700 per month, and another one dated 17 December 2014 of 36 m² for EUR 420 per month. In addition to this she submitted a copy of a lease agreement of 30 January 2014 for a flat with the surface area of 44.94 m² rented out for HRK 1,600 per month. 16. The Government did not furnish any information in this respect.