MIROSEVIC-ANZULOVIC v. CROATIA - 25815/14 [2016] ECHR 811 (04 October 2016)

JUDGMENT STRASBOURG 4 October 2016 This judgment is final but it may be subject to editorial revision . In the case of Mirošević-Anzulović v. Croatia, The European Court of Human Rights (Second Section), sitting as a Committee composed of: Paul Lemmens, President, Ksenija Turković, Jon Fridrik Kjølbro, judges, and Hasan Bakırcı, Deputy Section Registrar, Having deliberated in private on 13 September 2016, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 25815/14 ) against the Republic of Croatia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Croatian national, Ms Meri Mirošević-Anzulović (“the applicant”), on 24 March 2014. 2. The applicant was represented by Mr J. Anzulović-Mirošević, an advocate practising in Supetar. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik. 3. The applicant alleged that her inability to use her flat subject to the protected lease scheme, in particular, to charge the adequate rent, had violated her property rights. 4. On 17 February 2015 the application was communicated to the Government. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 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. A. Civil proceedings 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 [1] 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 [2] . 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. B. The protected rent 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 [3] . The Government submitted a document dated 16 April 2015 from which it follows that the protected rent was set at HRK 217.57 [4] . 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. C. The average monthly market rent 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 [5] . 16. The Government did not furnish any information in this respect. II. RELEVANT DOMESTIC LAW A. The Constitution 17. The relevant provisions of the Constitution of the Republic of Croatia ( Ustav Republike Hrvatske , Official Gazette no. 56/1990 with subsequent amendments) read as follows: Article 14 § 2 “Everyone shall be equal before the law.” Article 48 §§ 1 and 2 “The right of ownership shall be guaranteed. Ownership implies duties. Owners and users of property shall contribute to the general welfare.” Article 50 §§ 1 and 2 “Property may be restricted or taken in accordance with the law and in the interest of the Republic of Croatia subject to payment of compensation equal to its market value. ... property rights may, on an exceptional basis, be restricted by law for the protection of the interests and security of the Republic of Croatia, nature, the environment or public health.” B. The Lease of Flats Act 18. The relevant provisions of the Lease of Flats Act ( Zakon o najmu stanova , Official Gazette no. 91/1996 with subsequent amendments), which entered into force on 5 November 1996, read as follows: Section 33(3) “If the landlord does not enter or refuses to enter into a lease contract within three months of the receipt of the lessee’s written request, the lessee can bring an action in the competent court with a view to obtaining a judgment in lieu of the lease contract. The said proceedings are urgent.” Section 37(2) “If the landlord does not consider any of the persons living in the flat at the time of the Act’s entry into force to be the holder of a specially protected tenancy, those persons can bring an action before the competent court with a view to recognising their legal status of a protected lessee.” C. The other relevant domestic law 19. The other relevant domestic law is set out in the case of Statileo v. Croatia ( no. 12027/10 , §§ 23-87, 10 July 2014). THE LAW I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION 20. The applicant complained that she had been unable to use her flat, in particular, to charge the adequate rent for its lease. She relied on Article 1 of Protocol No. 1 to the Convention, 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.” 21. The Government contested that argument. A. Admissibility 22. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 23. The Court notes that it has already found a violation of Article 1 of Protocol No. 1 to the Convention in a case raising similar issues to the present one (see Statileo , cited above, § § 116-145 ). 24. Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. 25. There has accordingly been a breach of Article 1 of Protocol No. 1 to the Convention. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 26. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 1. The parties’ submissions 27. Insofar it can be understood from the applicant’s submissions, she claimed EUR 212 per month since 2012 in respect of pecuniary damage. She did not submit any claim for non-pecuniary damage. 28. The Government contested the applicant’s claim for pecuniary damage as excessive and unsubstantiated. 2. The Court’s assessment (a) Pecuniary damage 29. The Court considers that the applicant must have suffered pecuniary damage as a result of her inability to charge the adequate rent for her flat starting from 5 November 1997 (the date of the entry into force of the Convention in respect of Croatia). However, given that when making the claim for just satisfaction the applicant sought compensation for pecuniary damage only since 2012, the Court can award her such compensation only as of 1 January 2012 and up to the date of the present judgment. 30. The Court had already stated in the Statileo case (cited above, § 157), that the compensation for such pecuniary damage should cover the difference between the protected rent, which the Court had found to be inadequate, and the adequate rent, and that it thus cannot comprise the amount of the protected rent the applicant would in any event be entitled to receive. 31. In the light of the foregoing, and having regard to the information submitted by the parties, the Court considers it reasonable to award the applicant EUR 7,440 on account of pecuniary damage. (b) Non-pecuniary damage 32. The applicant did not submit a claim for non-pecuniary damage. Accordingly, the Court considers that there is no call to award her any sum on that account. B. Costs and expenses 33. The applicant claimed the costs and expenses incurred before the domestic courts and the Court without specifying their amounts. 34. The Government contested that claim as unsubstantiated. 35. The Court notes that pursuant to the Rule 60 § 1 of the Rules of Court an applicant who wishes to obtain an award of just satisfaction under Article 41 of the Convention in the event of finding a violation of his or her Convention rights must make a specific claim to that effect. Since in the present case the applicant failed to specify her claim for costs and expenses, the Court makes no award under this head (Rule 60 § 3). FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Declares the application admissible; 2. Holds that there has been a violation of Article 1 of Protocol No. 1 to the Convention; 3. Holds (a) that the respondent State is to pay the applicant, within three months, EUR 7,440 (seven thousand four hundred and forty euros) in respect of pecuniary damage, to be converted into Croatian kunas at the rate applicable at the date of settlement; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 4 October 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Hasan Bakırcı Paul Lemmens Deputy Registrar President [1] Approximately 68 euros (EUR) at the time. [2] Approximately EUR 25 at the time. [3] Approximately EUR 24 at the time. [4] Approximately EUR 29 at the time. [5] Approximately EUR 209 at the time. 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