FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 43447/98 by Branko SORIĆ against Croatia

The European Court of Human Rights ( Fourth Section ), sitting on 16 March 2000 as a Chamber composed of

Mr M. Pellonpää, President , Mr G. Ress, Mr I. Cabral Barreto, Mr V. Butkevych, Mrs N. Vajić, Mr J. Hedigan, 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 7 February 1998 and registered on 11 September 1998 ,

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 applicant is a Croatian citizen, born in 1933 and living in Zagreb .

The facts of the case, as submitted by the applicant, may be summarised as follows.

In 1939 the applicant, then aged six, moved, together with his mother, to the privately owned flat in Zagreb he still occupies. The applicant and his mother were tenants and in possession of the flat on the basis of a lease between the applicant's mother and the owner. In 1958 the flat in question was nationalised, but a year later, in 1959, returned to the previous owner. The applicant and his mother continued to live in the flat, and in 1967 the owner of the flat leased the flat to the applicant's mother. After the mother's death in 1987, the applicant prolonged the lease under his name.

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 privately-owned flats, including those previously let under a specially protected tenancy.

The applicant, together with some hundred and fifty other applicants, lodged a constitutional complaint with the Constitutional Court ( Ustavni sud Republike Hrvatske ), claiming 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 of 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 flat in adequate condition 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 applicant 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 % on 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 providing 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.

Article 32 provides that an owner is not obliged to lease a flat to a person who is renting two flats. In that case the lessee is entitled to choose which flat he wants to keep as a lessee.

Article 33 obliges the owner to inform a lessee entitled to the “protected rent” that he is the owner of the flat, as well as of his personal address, within sixty days of the Act's entry into force. Furthermore, the former holder of a specially protected tenancy is obliged to submit a request for a lease to the owner within six months of the entry into force of the Leases Act, or of a court's decision recognising the right of the former holder of a specially protected tenancy to use the flat. If within a further period of three months the owner does not sign the lease, the former holder of a specially protected tenancy may seek a court order imposing such an agreement. Such applications must be heard under the accellerated procedure. If the owner does not inform the former holder of a specially protected tenancy about his ownership, it is presumed that the owner is the person registered as such in the land registry.

Article 34 provides that before the lease is signed, the former holder of a specially protected tenancy is obliged to pay the rent in the amount that he was paying before the entry into force of the Lease Act.

Article 35 obliges a “protected lessee” to pay, besides “protected rent”, communal and other charges, if such charges are stipulated in the lease.

Article 36 provides that if the amount of the “protected rent” is changed, the lessee is obliged to pay this new rent, without a change of the relevant provision in the lease being necessary.

Article 37 provides that the names of family members sharing the same household as the former holder of a specially protected tenancy will be noted in the lease.

Article 38 transfers the legal position of a lessee to the persons referred to in the previous paragraph, in the event of the lessee's death or relinquishment of the flat. The lessor is obliged to sign a new lease with such a person contracting a “protected rent”.

Article 39 provides that the lessor may terminate the lease of a lessee in receipt of social security benefits or older than sixty years of age, if such a person does not pay the rent or other charges, only where a municipality provides the lessee with another appropriate flat with a “protected rent”.

Article 40 reiterates the basis on which a lessor may terminate the lease of a “protected lessee”, the conditions being: if the lessee does not pay the rent and charges; if the lessee sublets the flat or part of it, without permission from the lessor; if the lessee or other tenants in the flat disturb other tenants in the building; if some other person, not noted in the lease, lives in the flat longer than thirty days, without permission from the lessor, except where that person is a spouse, child or parent of the lessee or of the other legal tenants in the flat, or a dependant of the lessee or a person on whom the lessee is dependent if the lessee or other legal tenants do not use the flat as their home, but for other purposes; if the lessor intends to move into the flat himself or install his children, parents or dependants there; if the lessor does not have another flat and is entitled to social security benefits or is more than sixty years of age. If the lessor intends to move into the flat, he is obliged to provide the lessee with another inhabitable and appropriate flat of at least equivalent quality. If the lessor has no other flat to live in, then the municipality is obliged to provide the lessee with another appropriate flat unless he owns another inhabitable and appropriate flat in the same municipality or town.

Article 41 provides that an appropriate apartment is one that provides one room for each person, but the number of the rooms shall not exceed the number of the rooms in the previous flat. The new apartment has to be in the same municipality or town.

Article 42 enables persons who have acquired the right to purchase a flat pursuant to the Specially Protected Tenancies ( Sale to Occupier) Act, but for certain reasons have not been able to exercise that right, to purchase a flat until the expiration dates laid down by that Act.

Article 43 obliges a lessor to sign a lease with a person who has purchased the flat under the Protected Tenancies ( Sale to Occupier) Act, where the sale has been terminated or annulled.

Article 44 obliges a lessor who intends to sell a flat, to offer the flat for sale to the lessee.

Article 45 invests a lessee who was not notified of the lessor's intention to sell the flat with a right to apply for a judgment declaring the sale null and void and to purchase the flat under the same conditions.

Article 46 invests a protected lessee with a right to occupy the parts of a flat abandoned by one or more other protected lessees in the same flat, unless the lessor decides to use the abandoned parts of the flat himself.

Article 47 provides that any person who was a tenant before the entry into force of the Leases Act remains a tenant, whoever the lessor or lessee of that flat may be.

Article 48 invests the former holder of a specially protected tenancy on a flat in private ownership with a right to purchase it if the owner of the flat has already purchased some other flat under the Specially Protected Tenancies (Sale to Occupier) Act and if the former holder of a specially protected tenancy does not own some other inhabitable flat or house.

COMPLAINTS

The applicant complains under Article 8 of the Convention that deprivation of the specially protected tenancy violates his right to respect for his home and his family life.

The applicant further complains that denial of his specially protected tenancy by the Leases Act and the Constitutional Court 's decision violate Article 1 of Protocol No. 1.

The applicant also complains under Article 14 of the Convention that he has been discriminated against in regard to the former holders of the specially protected tenancy on publicly-owned flats insofar as they are entitled to purchase the flats they occupy for low prices, while he has no such option.

THE LAW

1. The applicant complains that the Specially Protected Tenancies ( Sale to Occupiers) Act and the Leases Act violated his right to respect for his family life and home. He invokes 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 applicant contends 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 him the right to buy the flat which he occupies.

The Court observes that the flat in which the applicant lives and in regard to which the applicant claims certain rights has always been privately owned, and the applicant does not contest that fact. The flat was rented first to his mother, then to the applicant himself, by the owner. The Court 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 applicant further contends 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, however, that the protection of persons in the applicant's position under the contested Act is quite broad. The Leases Act invests in persons in the applicant's position the right to rent a flat for an unlimited period of time, thus protecting the applicant 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 applicant's position from a flat. In cases where the owner has a right to occupy the flat himself or to let it to members of his family, a person in the applicant's position is entitled to ask the municipality for another flat of the same quality. Therefore, there is no indication that the respect for home and family life of a person in the applicant's 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.

2. The applicant further complains that the fact that he is not allowed to buy the flat which he occupies violates his right to property. He invokes Article 1 of Protocol No. 1, which reads as follows:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

According to the Court's case-law, Article 1 of Protocol No. 1, which in substance guarantees the right to property, comprises three distinct rules (see the James and Others v. the United Kingdom judgment of 21 February 1986, Series A, no. 98-B, pp. 29-30, § 37; the Iatridis v. Greece judgment of 25 March 1999, § 55, to be published in the official Reports and Decisions of the Court; the Beyeler v. Italy judgment of 5 January 2000, § 98, to be published in the official Reports on Decisions and Judgments of the Court): the first rule, set out in the first sentence of the first paragraph, is of a general nature and enunciates the principle of peaceful enjoyment of property; the second rule, contained in the second sentence of the first paragraph, covers deprivation of possessions and subjects it to certain conditions; the third rule, stated in the second paragraph, recognises that the Contracting States are entitled, amongst other things, to control the use of property in accordance with the general interest. The second and third rules are concerned with particular instances of interference with the right to peaceful enjoyment of property and should therefore be construed in the light of the general principle enunciated in the first rule.

The Court notes that in the present case the applicant is not and has never been the owner of the flat in question. His constant position in regard to the flat has been that of a lessee. The Court further notes that the applicant has been in the possession of the flat in question for over sixty years, and that that possession has not been threatened by the sole enactment of the new legislation. On the contrary, the new legislation, as it is discussed above in regard to the alleged violation of Article 8 of the Convention, strongly protects the applicant's possession of the flat. As to the applicant's complaint that he is deprived of a right to buy the flat he occupies, the Court recalls that Article 1 of Protocol No. 1 does not guarantee a right to buy any property, but only peaceful possession of existing property.

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

3. The applicant finally complains that his exclusion from the right to buy the flat he occupies represents a discrimination against him insofar as former holders of the specially protected tenancy on publicly-owned flats enjoy such a right. He invokes 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.”

Assuming that the complaint, relating to the legislation in question falls within the ambit of Articles 8 of the Convention and 1 of Protocol No. 1, so that Article 14 of the Convention might be applicable, the Court recalls that, regarding the scope of the guarantee provided under Article 14, according to its established case-law, 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 applicant has always been in a position significantly different from the one of persons whose right to purchase the flats on which they previously held a specially protected tenancy is recognised by the Specially Protected Tenancy ( Sale to Occupiers) Act. While such persons were holders of a specially protected tenancy in regard of 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 applicant has been ab initio a lessee of a privately-owned flat, where his position was dependent on the will of the owner.

Furthermore, as the applicant is the occupier of a privately-owned flat, it may be noted that there is a legitimate interest of owners to have their ownership protected. If the persons in the applicant's 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 the property rights of other persons, as the ownership of such flats is not private. The distinction between former holders of the specially protected tenancy on publicly owned flats, deriving from their right to buy such flats, and persons in the applicant's position is 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 the owners of such flats. Therefore, the difference in treatment originating from the exclusion of persons in the applicant's position from the category of occupiers entitled to purchase the flats which they occupy is not a 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 Matti Pellonpää              Registrar              President