FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 46934/99 by Krešimir STRUNJAK and Others against Croatia

The European Court of Human Rights (Fourth Section) , sitting on 5 October 2000 as a Chamber composed of

Mr G. Ress, President ,

Mr I. Cabral Barreto,

Mr V. Butkevych,

Mrs N. Vajić,

Mr J. Hedigan,

Mr M. Pellonpää,

Mrs S. Botoucharova , judges ,

and Mr V. Berger, Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 6 October 1998 and registered on 22 March1999,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having deliberated, decides as follows:

THE FACTS

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 circumstances of the case

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.

COMPLAINTS

The applicants complain under Article 6 of the Convention that they were deprived of the right to a fair trial in relation to the proceedings before the Constitutional Court.

They further complain under Article 13 of the Convention that they had no remedy at their disposal for protection of their rights.

They also complain that they were deprived of specially protected tenancies, which violates their right to respect for their home and their family life under Article 8 of the Convention.

Finally, the applicants complain under Article 14 of the Convention that they have been discriminated against with regard to former holders of specially protected tenancies on publicly-owned flats insofar as they are entitled to purchase the flats they occupy for low prices, while the applicants have no such possibility.

THE LAW

1. The applicants complain under Article 6 of the Convention that the they were deprived of the right to a fair trial relating to the proceedings before the Constitutional Court. They also complain under Article 13 of the Convention that they are deprived of an effective remedy to protect their rights.

The Court notes that the applicants failed to substantiate those claims in any respect, and that, therefore, this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article35 § 4.

2. They further complain that the Specially Protected Tenancies (Sale to Occupiers) Act and the Leases Act violated their right to respect for their family life and home. They invoke Article 8 of the Convention, which reads as follows:

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

The applicants contend in particular that the Specially Protected Tenancies (Sale to Occupiers) Act excludes privately-owned flats that were let under specially protected tenancies from the category of flats that are subject to the provisions of that Act and therefore denies them the right to buy the flat which they occupy.

The Court observes that the flats in which the applicants live and on which they had specially protected tenancies have always been privately-owned, and the applicants do not contest that fact. The Court, therefore, recalls that the rights guaranteed under Article 8 of the Convention do not include a right to buy certain property, namely a home, but that Article 8 only protects a person's right to respect for his present home.

The applicants further contend that the Leases Act is in violation of Article 8 of the Convention insofar as it terminates specially protected tenancy as such.

The Court notes, in this respect, that, under the contested Act, the protection of persons in the applicants' position is quite broad. The Leases Act invests in persons in the applicants' position the right to rent a flat for an unlimited period of time, thus protecting the applicants from being arbitrarily evicted by a decision of the owner. The owner has a right to terminate the lease only for limited reasons, each of which involves a severe breach of the lessee's obligations or a necessity for the owner himself to live in the flat in question. However, the Act does not authorise an owner directly to seek the eviction of a person in the applicants' position. In cases where the owner has the right of occupying the flat by himself or by members of his family, he has to institute appropriate civil proceedings before ordinary domestic courts in order to secure an eviction. Only after a detailed review of all the relevant facts, may a court reach a decision to order the eviction of a tenant. In the present case, however, not one of the applicants claim to be a party to such proceedings nor in any immediate danger of being made subject to an eviction order. The Court thus notes that it can not speculate as to the outcome of possible future cases before the domestic courts. For the Court to be able to examine a complaint of this nature under Article 8 of the Convention, a tenant in the applicants' position would first have to establish that the owner had brought the relevant proceedings before a domestic court, that the court had then given judgment against him and that he had subsequently exhausted domestic remedies. Insofar as the present application is concerned there is no indication that the respect for home and family life of a person in the applicants' position is violated by the Act in question per se .

It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

3. The applicants finally complain that their exclusion from the right to buy flats they occupy represents a discrimination against them insofar as former holders of the specially protected tenancy on publicly-owned flats enjoy such a right. They invoke Article 14 of the Convention which reads as follows:

“The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

Even assuming that the complaint, relating to the legislation in question falls within the ambit of Articles 8 of the Convention, so that Article 14 of the Convention might be applicable, the Court recalls that, according to its established case-law regarding the scope of the guarantee provided under Article 14, a difference in treatment is discriminatory if “it has no objective and reasonable justification”, that is, if it does not pursue a “legitimate aim” or if there is no “reasonable relationship of proportionality between the means employed and the aim sought to be realised”. Moreover, the Contracting States enjoy a certain margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment (see, for example, the Gaygusuz v. Austria judgment of 16 September 1996, Reports 1996-IV, p. 1142, § 42).

The Court observes that the applicants have always been in a position different from the one of persons whose right to purchase flats is recognised by the Specially Protected Tenancy (Sale to Occupiers) Act. While such persons were holders of specially protected tenancies on publicly-owned flats (whether such flats have always been in public ownership or whether they were by acts of expropriation, nationalisation, confiscation or similar acts transferred from private to public ownership), the applicants have ab initio occupied privately-owned flats, the owners of which were never deprived of their ownership.

Furthermore, as the applicants are the occupiers of privately-owned flats, the Court notes that there is a legitimate interest of owners to have their ownership protected. If persons in the applicants' position were vested with the right to buy privately-owned flats which they occupy, the owners would be exposed to a compulsory obligation to sell their flats. On the contrary, the occupiers of publicly-owned flats who are entitled to purchase such flats, do not endanger property rights of other persons, as the ownership of such flats is not private. The distinction between these two groups is, therefore, not discriminatory, as there is an objective and reasonable justification to deny such a right to former holders of specially protected tenancies on privately owned flats in order to protect the rights of their owners. Consequently, this difference in treatment does not amount to discrimination within the meaning of Article 14 of the Convention.

It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and therefore, must be rejected in accordance with Article 35 § 4 of the Convention.

For these reasons, the Court, unanimously,

DECLARES THE APPLICATION INADMISSIBLE .

Vincent Berger Georg Ress Registrar President