Fricis LIEPAJNIEKS - 37586/06 [2010] ECHR 1934 (2 November 2010)

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The European Court of Human Rights (Third Section), sitting on 2 November 2010 as a Chamber composed of:

Josep Casadevall, President,
Corneliu Bîrsan,
Boštjan M. Zupančič,
Egbert Myjer,
Ineta Ziemele,
Luis López Guerra,
Ann Power, judges,
and Santiago Quesada, Section Registrar,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

1. The applicant, Mr Fricis Liepājnieks, is a Latvian national who was born in 1927 and lives in Rīga. He was represented before the Court by Ms D. Rone, a lawyer practising in Rīga. The Latvian Government (“the Government”) were represented by their Agent, Mrs I. Reine.

2. The creation of the Republic of Latvia was proclaimed on 18 November 1918. Different types of property rights were recognised, including the ownership of residential buildings.

3. A large-scale entry of the Soviet army into Latvia took place in June 1940. After the lawful government of the country was overthrown and Soviet rule was imposed by force (see, mutatis mutandis, Kolk and Kislyiy v. Estonia (dec.), nos. 23052/04 and 24018/04, ECHR 2006 I), the nationalisation of property began. Property was expropriated without any compensation (see paragraph 35 below).

4. The building located at 129 Ģertrūdes street was amongst the buildings nationalised. From 1969 the applicant lived in an apartment located in that building on the basis of a lease agreement concluded on 19 April 1969 (“the 1969 lease”) with the Housing Department of the Moscow District of Rīga City (Rīgas pilsētas Maskavas rajona namu pārvalde). The agreement was a pre-typed standard text, not indicating the amount of rent payable. It entitled the applicant and his family members to rent the apartment for an indefinite period of time. Under Soviet law the amount of rent payable was not set by the parties to the lease but by the State’s administrative authorities. By a decision of 12 January 1995, the building located at 129 Ģertrūdes street was returned to its former owner. The applicant continued to live in the apartment located in that building until 4 August 2008, when he moved out.

5. On 4 May 1990 the Supreme Council, the legislative assembly elected on 18 March in the same year, adopted the Declaration on the Restoration of Independence of the Republic of Latvia. On 21 August 1991 the Supreme Council passed the Constitutional Law on the Statehood of the Republic of Latvia, proclaiming full independence with immediate effect (see Kononov v. Latvia [GC], no. 36376/04, §§ 27-28, 17 May 2010).

6. On 30 October 1991 the Supreme Council adopted the Law on Denationalisation of Real Estate, whereby the decrees on nationalisation issued after 1940 were declared null and void. The nationalised buildings were to be returned to their former owners or their heirs. The former lease agreements concluded with tenants in those buildings under Soviet law continued to be binding in their entirety until 1994, and from then on only in so far as the term of lease was concerned. The amount of rent payable was determined by the State. During the first seven years after restoration of their property rights, owners could not evict tenants without allocating them another place of residence. After that period eviction could take place in accordance with the Law on Residential Tenancies. On the same date – 30 October 1991 – the Supreme Council passed the Law on the Return of Real Estate to the Legitimate Owners.

7. On 30 October 1991 the Decision on Entry into Force of these two laws (“the Supreme Council’s Decision”) was enacted. It required the Council of Ministers to draft a law on compensation and submit it to the Supreme Council by 1 December 1991, and to draft and stipulate regulations for credit arrangements for tenants. In 1992 the Supreme Council and its respective committees examined a draft law “On Restitution of Property and Compensation”, but that law was never enacted. The draft did not include any reference to tenants’ right to receive compensation. On 5 November 1992 the Economic Committee of the Supreme Council (Augstākās padomes Ekonomikas komisija) rejected the draft because it was necessary to specify its sphere of application. It also had to be aligned with the provisions of the Law on Privatisation Certificates and the Civil Law. The Ministry of Economic Reforms was instructed to improve the draft within two weeks and re-submit it to the Supreme Council. It appears that this task was never completed. It should be noted, however, that on 1 June 2006 six members of the Latvian Parliament (Saeima) submitted for examination a draft law on compensation for tenants. On 12 October 2006 that draft was accepted at first reading in one of the last sessions of the Parliament before the expiry of its term. The draft law was never reviewed at second and third reading and was therefore never passed.

8. Another part of the property reform in the 1990s was the privatisation of State and municipally owned property. Those who resided in such buildings took this opportunity to acquire property rights over apartments located in them through privatisation.

9. In accordance with the Law on Residential Tenancies, enacted on 16 February 1993, the amount of rent payable by tenants in denationalised buildings or those returned to their former owners was to be established on the basis of a written agreement, but could not exceed the maximum amount determined by the State. That law was amended on several occasions. On 8 March 2006 the Constitutional Court declared the statutory rent limits unconstitutional and declared them void as of 1 January 2007.

10. From 1 January 2007 onwards owners were entitled to increase rent by serving notice on their tenants of their intention to do so. Tenants could challenge it by lodging a claim with the civil courts. The courts would then decide whether the amount of rent was warranted and adequate; owners were accordingly required to justify the amount requested. Evictions could not take place without a court order, and tenants were entitled to receive advance notice, and to the opportunity to be heard, before being evicted.

11. On 4 August 2008 the applicant moved out of the apartment allegedly because he could not afford to pay the rent. He did not initiate proceedings in the civil courts over the amount of the rent. Nor was he subject to eviction proceedings. According to the information provided by the Government, since 4 August 2008 the applicant is residing in another dwelling, namely, a house entered into the Land Register as his spouse’s property in part (50%) (1/2 domājamās daļas). The applicant did not contest this.

12. On 11 August 2006 the applicant lodged a civil claim with the Rīga Regional Court (Rīgas Apgabaltiesa) against the State represented by the Cabinet of Ministers (Ministru kabinets) and against the Rīga City Council (Rīgas dome). He requested the court to compel the Cabinet of Ministers to comply with the Supreme Council’s Decision in his case and to allocate him an equivalent apartment or grant compensation to acquire such an apartment in the amount of Latvian lati (LVL) 31,500 (approximately EUR 45,000).

13. On 14 August 2006 the regional court dismissed the applicant’s claim without examining it on its merits. The court found that the applicant had lodged his complaint against the State represented by the Cabinet of Ministers and against the Rīga City Council and, in substance, had requested that an action of executive power (action or omission of a public authority) be subjected to judiciary control. According to the court, such claims fell within the jurisdiction of the first-instance administrative district court; there was no dispute over a civil right. The applicant submitted an ancillary complaint against that decision.

14. On 16 October 2006 the Civil Chamber of the Supreme Court (Augstākās tiesas Civillietu tiesu palāta) quashed the decision of the regional court and issued a new ruling. The applicant’s claim was rejected on the ground that it was not subject to examination by a court. The court held, inter alia:

“... [the applicant] in fact requests the allocation of an apartment but such issues are to be resolved in local municipalities – in the present case the Rīga City Council, in accordance with the Law on State and Municipal Assistance Concerning Apartment Issues...

[The applicant’s] claim would be subject to examination by an administrative court if the Rīga City Council were to adopt a decision unfavourable to him, in which case there would be grounds for appeal against the decision under the provisions of the Law of Administrative Procedure.

Thus, administrative proceedings should be initiated before the administrative body concerned, whose decision can be appealed against [in a court] in accordance with the provisions of the Law of Administrative Procedure”.

15. On 8 December 2006 the Senate of the Supreme Court (Augstākās tiesas Senāts) upheld the decision of its Civil Chamber. The court stated that:

“The allocation of a place of residence and alternative claims for compensation do not fall within the competence of a court....

In his claim, [the applicant] has linked his considerations with the Supreme Council’s Decision of 30 October 1991. But he has not taken into account that the legal provision [contained therein] does not provide for the existence, change or termination of a substantive legal relationship between the applicant, on the one hand, and the Cabinet of Ministers [or] the Rīga City Council [on the other hand]...

[The applicant’s] claim relates to issues falling outside the competence of the judiciary”.

16. On 16 January 2007 the applicant lodged a claim with the Administrative District Court (Administratīvā rajona tiesa) against the State represented by the Cabinet of Ministers and against the Rīga City Council. He submitted that the Cabinet of Ministers and the Rīga City Council were responsible for the fact that the apartment he was renting had been handed over to another person and that his right to lease had been breached; he had suffered non-pecuniary and pecuniary damage. He requested the court to compel the Cabinet of Ministers and the Rīga City Council to comply with the Supreme Council’s Decision and other legislative enactments and grant him compensation in the amount of LVL 31,500 to acquire an apartment of the same standard and LVL 50,000 for non-pecuniary damage. He also complained that the binding regulations of the Rīga City Council under which eligibility for registration to receive offers of lets of apartments owned by the municipality depended on monthly income were discriminatory.

17. The applicant’s claim was examined in the district court, the regional court and the Supreme Court, which adopted a final decision on 8 June 2007. The Administrative Department of the Senate of the Supreme Court (Augstākās tiesas Senāta Administratīvo lietu departaments) examined separately each branch of the applicant’s claim.

18. First of all, the Senate considered whether the applicant had a right to claim compensation for an apartment of the same standard under domestic law. The Senate established that a draft law on compensation referred to in section 4, paragraph 2 of the Supreme Council’s Decision had not been enacted, and that consideration therefore had to be given to whether tenants’ right to compensation derived from the Laws on the Return of Real Estate to the Legitimate Owners and on Denationalisation of Real Estate in the Republic of Latvia. The first of those laws did not provide for such compensation rights, but for social rights to retain the right to lease (section 12), to statutory rent limits (section13) and to have another apartment allocated in the event of eviction (sections 15 – 17). Under the second law only former owners or their legal heirs, not tenants, were entitled to compensation. The Senate concluded that the applicant did not have a subjective right to compensation in order to acquire an apartment of the same standard on the basis of the above-mentioned laws.

19. The Senate then proceeded to examine whether such a right to compensation could be derived from the Law on Administrative Procedure, since under section 92 of that law every person has a right to request adequate compensation for pecuniary or non-pecuniary damage suffered as a result of an administrative act (administratīvais akts) or action of a public authority (faktiskā rīcība). The Senate considered whether the elements of an action of a public authority were found in the relevant actions or omissions of the State authorities (whether the person had a right to such act and whether, by such act, his or her subjective rights or interests might have been affected).

20. Since the applicant did not have a right under domestic law to privatise the apartment in the denationalised building, he could not request the authorities to ensure such rights or to ensure that they were protected during the process of denationalisation of the building where his rented apartment was located. Therefore, the denationalisation of the building was not an action of a public authority in so far as the applicant was concerned (within the meaning of the Law of Administrative Procedure) and was not subject to administrative proceedings.

21. Taking into account that the drafting and enactment of laws was the prerogative of the State’s legislative power, the alleged omission of the Cabinet of Ministers to draft a law on compensation was not an action of a public authority (within the meaning of the Law of Administrative Procedure) and, thus, was not subject to administrative proceedings.

22. As to the applicant’s running a risk of having to pay higher rent and losing his home, the Senate noted that the applicant was dissatisfied with the implementation of the State’s policy, which is not an action of a public authority and therefore cannot be reviewed in administrative proceedings.

23. Finally, as concerns the allegedly discriminatory regulations of the Rīga City Council, the Senate considered that examination of such a claim fell within the competence of the Constitutional Court.

24. Accordingly, the Senate dismissed the claim as inadmissible on the grounds that it was not subject to administrative proceedings and that the applicant did not have a right of claim.

25. The Law on Denationalisation of Real Estate (likums “Par namīpašumu denacionalizāciju Latvijas Republikā”) was adopted on 30 October 1991 and took effect on 1 January 1992 (see paragraph 29 below). In its relevant part it provided as follows:

The Decree on Nationalisation of Large Buildings issued by the Presidium of the Supreme Council of the Latvian SSR on 28 October 1940 and all legislative enactments issued under that decree;

All decrees issued by the Presidium of the Supreme Council of the Latvian SSR on nationalisation of buildings owned by individual natural persons.”

“Lease or rental agreements concluded by the previous manager shall be binding on the owners of denationalised buildings.

Amendments to lease or rental agreements shall be made only with the approval of the municipal authorities and under a procedure prescribed by law.”

“Rent in denationalised buildings or apartments shall not exceed the amount established by the Council of Ministers.”

“Eviction from denationalised buildings shall take place only under the Latvian Apartment Code, but for the first seven years after restoration of property rights, in cases when the owner requests eviction under section 147 or section 149, paragraph 1, only if an equivalent place of residence is offered [to the tenants].”

26. On 16 January 1994 amendments to the Law on Denationalisation of Real Estate entered into force, whereby section 15 was amended to refer to the relevant provisions of the newly adopted Law on Residential Tenancies: section 29, parts 4 and 5. On 7 April 1994 another set of amendments to the law entered into force (“the 1994 amendments”). The relevant provisions, following those amendments, read as follows:

“The term of lease or rent concluded by the previous manager shall be binding on the owners of denationalised buildings unless otherwise provided in this law.”

“The amount of rent [determined] without their consent for tenants who had concluded agreements with previous managers of denationalised buildings shall not exceed the amount established by the Cabinet of Ministers.”

27. The Law on the Return of Real Estate to the Legitimate Owners (likums “Par namīpašumu atdošanu likumīgajiem īpašniekiem”) was passed on 30 October 1991 and took effect on 20 November 1991. In its relevant part it provided as follows:

“The property rights of the former owners or their legal heirs, irrespective of their current nationality, of buildings arbitrarily taken over by the State or legal entities in the 1940s to 1980s, without compensation and with complete disregard for their ownership rights, shall hereby be restored.”

“Monetary disputes between the former manager and the owner shall be resolved under the Latvian Civil Code.”

“Lease or rental agreements concluded by the previous manager shall be binding on the owners of returned buildings.

Amendments to lease or rental agreements shall be made only with the approval of the municipal authorities and under a procedure prescribed by law.”

“Rent in returned buildings or apartments shall not exceed the amount established by the Council of Ministers.”

“Eviction from returned buildings shall take place only under the Latvian Apartment Code, but for the first seven years after restoration of property rights, in cases when the owner requests eviction under section 147 or section 149, paragraph 1, only if an equivalent place of residence is offered [to the tenants].”

28. On 16 January 1994 amendments to the Law on the Return of Real Estate to the Legitimate Owners entered into force, whereby section 15 was amended to refer to the relevant provisions of the newly adopted Law on Residential Tenancies: section 29, parts 4 and 5. On 7 April 1994 another set of amendments to the law entered into force (“the 1994 amendments”). The relevant provisions of the Law on the Return of Real Estate to the Legitimate Owners then read as follows:

“The term of lease or rent concluded by the previous manager shall be binding on the owners of returned buildings unless otherwise provided in this law.”

“The amount of rent [determined] without their consent for tenants who had concluded agreements with previous managers of returned buildings shall not exceed the amount established by the Cabinet of Ministers.”

29. On 30 October 1991 the Supreme Council adopted the Decision on Entry into Force of the Laws on the Return of Real Estate to the Legitimate Owners and on Denationalisation of Real Estate (Lēmums “Par Latvijas Republikas likumu “Par namīpašumu atdošanu likumīgajiem īpašniekiem” un “Par namīpašumu denacionalizāciju Latvijas Republikā” spēkā stāšanās kārtību”):

1. [that] Until the buildings are returned to their legitimate owners it shall be prohibited to sell [or change the ownership in any other way], reconstruct, rebuild and demolish these buildings as well as to have new tenants located in the residential and non-residential premises which have become available. This prohibition shall enter into and remain in force from the date of this decision until the expiry of the statute of limitations for submitting a claim or an application.

2. [to] Stipulate that the seven-year period during which, after restoration of property rights, tenants cannot be evicted without having been allocated an equivalent residence, as prescribed by the Laws on the Return of Real Estate to the Legitimate Owners and on Denationalisation of Real Estate in the Republic of Latvia, applies also in cases when a judgment on a tenant’s eviction pursuant to sections 147 and 149 of the Latvian Apartment Code has not yet been enforced on the date of this decision.

This article does not apply when tenants have been placed in a building after a previous owner has submitted a claim to have his property rights restored. In such cases the time-limit shall be one year from the date of restoration of property rights.

3. [to] Stipulate that the Law on Denationalisation of Real Estate in the Republic of Latvia shall enter into effect on 1 January 1992.

1) to submit to the Supreme Council a draft law on amendments to existing legislation with regard to the enactment of the Laws on the Return of Real Estate to the Legitimate Owners and on Denationalisation in the Republic of Latvia by 1 January 1992;

2) to draft and submit to the Supreme Council a draft Law on Compensation by 1 December 1991;

3) to draft and adopt the Regulations on Denationalisation in the Republic of Latvia and [a model] denationalisation certificate by 10 December 1991;

4) to amend the government’s legislative acts on apportionment and change of residential property with regard to the entry into effect of the Laws on the Return of Real Estate to the Legitimate Owners and on Denationalisation in the Republic of Latvia by 10 December 1991;

5) to draft and stipulate simplified regulations on credit arrangements for tenants residing in denationalised buildings or houses that have been returned to their legitimate owners if those tenants were registered to receive an equivalent residence because of the denationalisation of that property and have expressed the wish to build an individual house for residential purposes;

6) to harmonise the government’s decisions on the material rights of oppressed and deported nationals with the Laws on the Return of Real Estate to the Legitimate Owners and on Denationalisation in the Republic of Latvia by 1 December 1991.

2) to provide the legitimate owners who have obtained a residency permit in Latvia in connection with the denationalisation or return of the buildings to them, with land to build individual houses for residential purposes;

3) in dealing with questions of allocation of equivalent residential property or land to tenants residing in denationalised buildings, primarily to ensure that previous owners residing in their territory can return to their properties;

4) to promote exchanges of apartments between owners of denationalised buildings and houses that have been returned to their legitimate owners [on the one hand] and tenants of such buildings [on the other hand], if as a result of such an exchange the owner takes up residence in his building.

6. [to obligate] The Ministry of Finance to draft and submit to the Presidium of the Supreme Council by 10 December 1991 a draft enactment on methods of compensation for denationalised buildings and calculation of the buildings’ value.

7. [to] Obligate the Legislation Committee of the Supreme Council to submit the part of Latvian Civil Law concerning inheritance for consideration, and amendments and additions to the parts of the civil code on property law and obligations law for the third reading, by 30 November 1991.”

30. On 16 February 1993 the Law on Residential Tenancies was adopted (Likums “Par dzīvojamo telpu īri”); it entered into force on 1 April 1993. Over time, it has been amended on several occasions. The relevant provisions were spelled out in the Constitutional Court’s judgment of 8 March 2006 (see paragraph 35 below).

31. For the present purposes the 2001 and 2004 amendments to that law are of importance. They were adopted on 5 July 2001 and 20 December 2004 and took effect on 1 January 2002 and 1 January 2005 respectively. With the 2001 amendments the transitional provisions stipulated the maximum amount of rent payable per square metre (the statutory rent limits) if the owners of denationalised or returned buildings could not reach an agreement with their tenants. The amount was fixed at 0.24 Latvian lati (LVL) in 2002, LVL 0.36 in 2003 and LVL 0.48 in 2004. With the 2004 amendments the statutory rent limits were set for three more years – LVL 0.60 in 2005, LVL 0.72 in 2006 and LVL 0.84 in 2007. These statutory rent limits were abrogated by the Constitutional Court with effect on 1 January 2007.

32. Following the 2001 amendments, the sections relating to dispute resolution in the event of eviction read as follows:

“The landlord may terminate the lease and evict a tenant together with family members and other persons without allocating them another place of residence in the following situations:

1) if the tenant does not pay rent for more than three months while continuing to have the use of the residence in accordance with the lease agreement and relevant legal provisions, ...

Before bringing an action in court, the landlord shall give the tenant at least one month’s notice of termination of the lease. ...”

“Disputes arising from residential tenancy relations shall be adjudicated in a court.”

33. With the 2004 amendments, a new Article was introduced in the transitional provisions:

“14. The Cabinet of Ministers shall develop by 1 March 2005 and implement by 1 July 2005 a State and local government support programme and compensation mechanism for tenants renting residential accommodation in a denationalised residential building or one which has been returned to a legal owner and who have been using such accommodation up to the time of restoration of the property rights to the previous owners or their heirs.”

34. The relevant provisions of this law have been quoted elsewhere (see Grišankova and Grišankovs v. Latvia (dec.), no. 36117/02, ECHR 2003 II (extracts)).

35. In case no. 2005-16-1 the Constitutional Court examined individual constitutional complaints lodged by the owners of denationalised buildings. They complained that the 2004 amendments in so far as they related to the statutory rent limits were unconstitutional. In its judgment of 8 March 2006 the court declared that provision unconstitutional and null and void as of 1 January 2007. The judgment, in its relevant part, reads as follows:

“1. In 1940, after the establishment of Soviet occupation, the nationalisation of private property began in Latvia. To implement it, on October 28 the Presidium of the Latvian SSR Supreme Council passed a Decree “On Nationalisation of Large Buildings’’. Under that Decree those buildings, the “total useful area” of which exceeded 220 square metres in Riga and other major cities of Latvia and 170 square metres in smaller towns, were nationalised. In addition, all those buildings in which State institutions were located, as well as houses whose owners did not reside in Latvia and buildings having historical or artistic value were nationalised. Over the following decades the Soviet power continued divesting owners of their properties. ...

On 30 October 1991 the Republic of Latvia Supreme Council adopted the Law “On the Denationalisation of Buildings in the Republic of Latvia”, by which the above Decree and the normative acts issued in accordance with it were declared null and void. On the same day the Law “On the Return of Real Estate to the Legitimate Owners” was passed. Its Section 1 stipulates that “The property rights of the former owners or their legal heirs, irrespective of their current nationality, of buildings arbitrarily taken over by the State or legal entities in the 1940s to 1980s, without compensation and with complete disregard for their ownership rights, shall hereby be restored”. In the ensuing years, on the basis of the above laws, buildings were denationalised and returned to their legal owners. Many of those properties still had tenants living in them who had concluded rental contracts prior to the restoration of property rights. ...

2. ... Section 11, paragraph 1 of the Law on Residential Tenancies [enacted in 1993] provided that “rent shall be determined on the basis of an agreement between the parties, but it shall not exceed the maximum amount established by the government”. In their turn the 1997 amendments stipulated that “rent shall be determined on the basis of a written agreement between the parties, except in the cases specified in the second, third and fourth paragraphs of this section”.

Section 11, paragraph 4 provided: “In denationalised buildings and buildings that have been returned under the Law on the Return of Real Estate to the Legitimate Owners, in respect of tenants who were renting the apartments at the time of the denationalisation (or return to owners) the rent shall be determined on the basis of a written agreement and in accordance with the Cabinet Regulations on the procedure for calculating rent.

On 1 January 2002 amendments to the Law on Residential Tenancy took effect, incorporating the provision on statutory rent limits in denationalised or returned buildings into the Transitional Provisions of that Law. Article 4 of the Provisions provides that if the tenant was resident in the building before its restoration to the rightful owner, the rent shall be determined by agreement between the parties. If no agreement is reached, then the rent shall be determined by the owner, but it shall not exceed LVL 0.24 per square metre of rented area a month in 2002, LVL 0.36 in 2003 and LVL 0.48 in 2004.

4. On 20 December 2004 amendments to the Law on Residential Tenancies were adopted. They took effect on 1 January 2005...

5.1. The Parliament, in its reply, stressed that the contested provision had been enacted in order to balance the interests of the owners of denationalised apartment buildings, the State, the municipalities and the tenants of such buildings with respect to the statutory rent limits.

Referring to the judgment of the European Court of Human Rights in the case of ... (Hutten-Czapska v. Poland [2005] ECHR 119), the Parliament indicates that the imposition of restrictions in respect of rent has a legitimate aim – to secure the social protection of indigent tenants having regard to the continuing lack of residential accommodation and the existing concern at demands for unjustifiably high rent. Furthermore, this legitimate aim has to be examined in a broader context since the housing problem creates infringements of other human rights, such as social security and children’s rights. ...

6.5. According to Professor K. Torgāns, even if the impugned provisions had not been adopted, the owners of the apartments would not be free to fix any rent they wished as section 13 of the Law on Residential Tenancies establishes agreement between the tenant and the owner as a general principle, as well as the settling of disputes in court. ...

7.1. [the Parliament’s representative] stated that neither the State nor the municipalities possessed sufficient financial means to offer tenants residing in denationalised buildings or buildings returned to their legitimate owners adequate compensation... .

8. Denationalisation and return of buildings to the owners after the restoration of Latvia’s independence was carried out in the context of the property reform, which also regulated legal relations between the owners of the buildings and persons who had used apartments in the denationalised or returned buildings prior to the restoration of ownership rights (henceforth – “pre-reform tenants”).

When analysing issues connected with one part of the property reform – land reform – the Constitutional Court has established that “Latvia is not responsible for violations of human rights, including nationalisation of property, perpetrated by the occupying power. The Republic of Latvia has no possibility and no duty to fully compensate all losses inflicted on persons by the occupying power” (Judgment of the Constitutional Court in case no. 2002-12-01, 25 March 2003).

Simultaneously the Constitutional Court ruled that “When restoring the legal system of independent Latvia, the legislator had a duty to take measures to restore fairness and redress the losses inflicted by the previous regime, by observing the principles of the rule of law. At the same time the legislator, when choosing the means for the land reform, had to strike a fair balance between the conflicting interests of various members of society” (ibid.).

The legislator must also observe the principles of rule of law when implementing other aspects of the property reform, including denationalising and returning buildings to their rightful owners.

10. Article 105 of the Constitution (Satversme) provides: “Everyone has the right to own property. Property shall not be used against the public interest. Property rights may be restricted only in accordance with the law”. In conformity with Article 89 of the Constitution “the State shall recognise and protect fundamental human rights in accordance with this Constitution, the law and international agreements binding upon Latvia”. ...

11.1. In accordance with the former wording of Article 4 of the Transitional Provisions, after 1 January 2005 the rent for an apartment shall be determined by written agreement between the tenant and the owner, and shall include a portion of the building’s management expenses ... but if no agreement has been reached, it shall be determined by the owner. In their turn, the 2004 amendments... not only set the statutory rent limits for 2005, 2006 and 2007 but also stipulate that in cases where rent is not determined by a written agreement between the parties, the owner shall determine it (including a portion of the building’s management expenses proportional to the area rented, and profit). ...

11.2. ... K. Torgāns points out that section 13 of the Law on Residential Tenancies provides for a written agreement between the tenant and the owner and the settlement of disputes in court as a general rule. If the statutory rent limits had not been extended until 2007, the number of disputes to be reviewed in the courts would have increased and the outcome would depend on the assessment of the reasons and financial justification for the rent increase. ...

11.3. During the hearing the applicants expressed their view that if the legislator had not adopted the 2004 amendments, they would have been able to agree on a reasonable rent, and if no agreement with the tenant could be reached, the dispute would have had to be reviewed in court.

15.3. ... As has been found before, courts of general jurisdiction could review the reasonableness of the rents charged by landlords. The Parliament’s submission that the 2004 amendments are necessary to avert large-scale evictions of tenants is not substantiated. Even if they had not been adopted the relevant provisions of section 13 of the Laws on Residential Properties, the Denationalisation of Real Estate and the Return of Real Estate to the Legitimate Owners, as well as Cabinet Regulation no. 45 (2002) on methods for the calculation of the management expenses included in the rent for residential space would be binding on the owner. Even though there have been attempts to charge unreasonably high rent, there is no basis for concern as the owner alone cannot fix the rent without the tenant’s agreement. ...

17.2. ... The lease agreements had been drawn up with the tenants in the days when the rent was determined administratively and not by agreement between the parties...

17.3. ... Thus the legislator considered the fixing of rents by an administrative procedure as a temporary or transitional measure characteristic of property reform. In the above circumstances the State took on responsibility for regulating relations between owners and tenants by setting statutory rent limits. The duty of the State when setting those limits was to strike a fair balance between the rights of the owners and the tenants while duly observing the principles of the rule of law and the fundamental rights enshrined in the Constitution.

17.4. At the beginning of the property reform the legislator had placed several restrictions on landlords which followed on from the commitments made by the former managers of the buildings. At the same time the law gave reason to believe that these restrictions would eventually be lifted. ... The law provided for a seven-year period during which evicting tenants without allocating them another place of residence was prohibited.

Owners could legitimately expect that the imposed administrative restrictions, which were necessary at the beginning of the reform, would in due time be abolished in a reasonable way. ... Owners could legitimately expect that the State would, in due course, propose a reasonable solution to the problem.

17.5. ... Neither at the beginning of the property reform, nor during it, did the law anticipate that the tenants would have a special status different from that of [ordinary] tenants once the property reform process had been completed. Initially they were guaranteed the right to lease on the same terms as any other tenants. When the legislature decided to liberalise rents in respect of other tenants, it was made clear that the status of pre-reform tenants regarding rental agreements was temporary. ...

Thus, during the property reform pre-reform tenants could not legitimately expect that after the end of the reform process they would continue to have a special status different from other tenants and be able to live in the same apartment forever, paying a considerably lower rent than other persons living in comparable buildings.

17.6. Pre-reform tenants could, however, legitimately expect that the State would protect their rights and, within reasonable limits, provide a gradual transition from rent determined by the authorities to owner-and-tenant relations that would satisfy the interests of both the pre-reform tenants and their landlords.

It has to be acknowledged that until 2005 no significant measures were taken to provide support for tenants. ...

That the State for many years was not interested in normalising the relationships between the owners of denationalised or returned buildings and their tenants is shown not only by the fact that no financial means were allocated for the implementation of measures during the transitional period but also by the lack of information on the scope of the problem. ...

The measures that were undertaken prior to 1 January 2005 were evidently not sufficient to protect the rights of pre-reform tenants. ...

Thus the State, by its inaction, has infringed the pre-reform tenants’ right to legal certainty, namely the certainty that they will be able to solve their housing issues in the long term either by concluding reasonable agreements with the owners of the denationalised or returned buildings or by finding another permanent solution.

However, the said inaction did not provide pre-reform tenants with legal certainty in respect of any specific rights the protection of which would have the effect of restricting the fundamental rights of owners as stated in Article 105 of the Constitution....”

36. The instrument of ratification of the Convention and its Protocols deposited by the Government on 27 June 1997 contains the following reservation:

“In accordance with Article 64 [now Article 57] of the Convention for the Protection of Human Rights and Fundamental Freedoms of 1950, the Republic of Latvia declares that the provisions of Article 1 of the First Protocol shall not apply to the laws on property reform which regulate the restoration or compensation to the former owners or their legal heirs of property nationalised, confiscated, collectivised or otherwise unlawfully expropriated during the period of Soviet annexation; and privatisation of collectivised agricultural enterprises, collective fisheries and of State and local self-government owned property.

The reservation concerns the Law On Land Reform in the Republic of Latvia Rural Regions (published in Zinotajs [The Bulletin] 1990, No. 49; 1991, No. 41; 1992, No. 6/7; 1992, No. 11/12; 1993, No. 18/19; Latvijas Vestnesis [The Latvian Herald] 1994, No. 137), Law On Privatisation of Agricultural Enterprises and Collective Fisheries (Zinotajs 1991, No. 31; 1992, No. 40/41; 1993, No. 5/6; Latvijas Vestnesis 1995, No. 90; 1996, No. 177), Law On Land Reform in the Republic of Latvia Cities (Zinotajs 1991, No. 49/50; Latvijas Vestnesis 1994, No. 47; 1994, No. 145; 1995, No. 169; 1997, No. 126/127), Law On Land Privatisation in Rural Regions (Zinotajs 1992, No. 32; 1993, No. 18/19; Latvijas Vestnesis 1993, No. 130; 1994, No. 148; 1995, No. 162; 1996, No. 111; 1996, No. 225), Law On Privatisation of Property in Agroservice Enterprises (Zinotajs 1993, No. 14), Law On Privatisation Certificates (Latvijas Vestnesis 1995, No. 52), Law On the Privatisation of Objects of State and Municipal Property (Latvijas Vestnesis 1994, No. 27; 1994, No. 77; 1996, No. 192; 1997, No. 16/17/18/19/20/21), Law On Privatisation of Co-operative Apartments (Zinotajs 1991, No. 51; Latvijas Vestnesis 1995, No. 135), Law On the Privatisation of State and Local Self-Government Apartment Houses (Latvijas Vestnesis 1995, No. 103; 1996, No. 149; 1996, No. 223), Law On Denationalisation of Real Estate in the Republic of Latvia (1991, No. 46; Latvijas Vestnesis 1994, No. 42; 1994, No. 90; 1995, No. 137; 1996, No. 219/220), Law On the Return of Real Estate to the Legitimate Owners (Zinotajs 1991, No. 46; Latvijas Vestnesis 1994, No. 42; 1996, No. 97) and their wording being in force at the moment the Law On Ratification entered into force.”

37. The applicant complained that the State had unilaterally breached his 1969 lease and gradually limited his right to lease the apartment where he had been residing for several decades, without providing any compensation. He submitted that the State authorities had failed to comply with the Supreme Council’s Decision and Article 14 of the transitional provisions of the Law on Residential Tenancies in that they did not adopt measures to protect tenants, such as introducing a mechanism of compensation.

38. Relying on Article 6 § 1 of the Convention, the applicant complained that he did not have effective access to court to claim compensation for the loss of his rights. He further claimed that he did not have access to court to challenge the unreasonably high statutory rent limits that had been introduced by the 2004 amendments to the Law on Residential Tenancies. He submitted that the owner could unilaterally increase the rent, without due regard to the building’s technical condition, and that he could not oppose the increase. He further complained that the owner could evict him without allocating him another place of residence after the seven-year period expired, and that he had no means of defending his rights.

39. The applicant also feared imposition of an unreasonably high rent by the owner after 1 January 2007 and eviction from his home.

40. Finally, the applicant complained that title to his apartment had been given to a third person and that he himself did not have the right to privatise it. Relying on Article 14 of the Convention, the applicant submitted that he had been discriminated against in that he could not privatise his apartment but that other tenants (residing in State or municipally owned buildings) could. He also complained that he could not obtain any compensation for his lost rights, whereas owners were compensated and could receive help from the municipality. He was discriminated against because binding regulations of the Rīga City Council on social assistance differentiated people based on their income levels. He submitted that he could not exchange his apartment for a smaller one or sublet it.

I. GOVERNMENT’S PRELIMINARY OBJECTIONS CONCERNING THE ADMISSIBILITY OF THE APPLICATION AS A WHOLE

41. The Government disputed the admissibility of the application as a whole on several grounds. They first contended that the Court was precluded from examining the case by virtue of the reservation submitted by Latvia. They maintained, secondly, that the application was incompatible ratione temporis with the provisions of the Convention. Thirdly, they argued that the applicant had failed to comply with the six-month time-limit as set out in Article 35 § 1 of the Convention. They further declared that the applicant had failed to exhaust domestic remedies.

42. The applicant asked the Court to dismiss the Government’s pleas of inadmissibility.

43. The Government submitted that the reservation was applicable to the present case, or, alternatively, at least to the applicant’s complaint under Article 1 of Protocol. No. 1, and thus the Court was precluded from examining the application. In their observations, the Government noted the following:

“The Government maintains that the reservation also encompasses the 30 October 1991 Supreme Council’s Decision..., as it is an integral part of [the Law on Denationalisation of Real Estate] and [the Law on the Return of Real Estate to the Legitimate Owners], given that the mentioned decision is a secondary law that implements some specific provisions of the mentioned laws.

The Government firmly believes that the requirement laid down in Article 57 of the Convention does not go as far as obliging a State to list in its instrument of ratification all secondary legislation pertaining to the reservation.”

44. The applicant disagreed. He relied on Article 57 § 1 of the Convention and submitted that States were allowed to make only reservations that referred to specific laws. General and vague reservations were not allowed. He referred to the introductory sentence contained in the reservation and submitted that as he was neither a former owner nor a legal heir, the reservation did not apply in his case and, accordingly, the Court could not be precluded from examining his application.

45. The Court reiterates that, in order to be valid, a reservation to the Convention must satisfy the following conditions: (i) it must be made at the moment the Convention is signed or ratified; (ii) it must relate to specific laws in force at the moment of ratification; (iii) it must not be a reservation of a general character; (iv) it must contain a brief statement of the law concerned (see Belilos v. Switzerland, 29 April 1988, §§ 55 and 59, Series A no. 132; Chorherr v. Austria, 25 August 1993, §§ 18 and 20, Series A no. 266 B; Fischer v. Austria, 26 April 1995, § 41, Series A no. 312; Gradinger v. Austria, 23 October 1995, § 39, Series A no. 328 C; Shestjorkin v. Estonia (dec.), no. 49450/99, 15 June 2000; and Põder and Others v. Estonia (dec.), no. 67723/01, ECHR 2005 VIII).

46. The Court notes that it has had an opportunity to examine the validity of the reservation submitted by the Latvian Government (see Kozlova and Smirnova v. Latvia (dec.), no. 57381/00, ECHR 2001 XI) and to observe the following:

“... Latvia’s reservation covers a strictly limited number of laws which, taken together, institute a coherent body of statutory provisions regulating property reform. In addition, the aims and substance of the laws listed reflect the concern expressed by the Government in the introduction to the reservation, namely their desire to remove from the scope of Article 1 of Protocol No. 1 the pre-existing legislation on denationalisation and privatisation ...

As to the “brief statement of the law concerned”, the Court notes that the title of each law cited in the reservation is followed by a reference to the Official Gazette, so that anyone can identify precisely which laws are concerned and obtain information about them. Moreover, the annex to the reservation briefly outlines the main aim and scope of each law. The Court considers this sufficient to ensure that the requirements of Article 57 § 2 of the Convention are satisfied (see Chorherr, cited above, § 20, and application no. 31506/96, Commission decision of 25 November 1996, DR 87, p. 164).

Moreover, the Court notes that a similarly worded reservation made by Estonia in respect of Article 1 of Protocol No. 1 has been declared valid by the Convention institutions on two occasions (see application no. 34476/97, decision cited above, and Shestjorkin v. Estonia (dec.), no. 49450/99, 15 June 2000). The Court has not discerned any distinguishing feature in the instant case that would warrant a different conclusion with regard to Latvia’s reservation.

Having regard to all of the above considerations, the Court considers that Latvia’s reservation in respect of Article 1 of Protocol No. 1 complies with Article 57 of the Convention.

In the instant case, the Court notes that the national courts based their decisions on the relevant provisions of the Law on the Return of Real Estate to the Legitimate Owners. The reservation in question therefore applies in the instant case.”

47. In order to establish if the reservation is applicable in the present case, the Court will examine its scope in more detail.

48. The Court observes, at the outset, that the reservation contains two separate grounds to exclude a complaint under Article 1 of Protocol No. 1 to the Convention from the Court’s jurisdiction. Firstly, it excludes the laws on property reform in Latvia which regulate “the restoration or compensation to the former owners or their legal heirs of property nationalised, confiscated, collectivised or otherwise unlawfully expropriated during the period of Soviet annexation”. Secondly, the reservation excludes the laws on property reform in Latvia which regulate “privatisation of collectivised agricultural enterprises, collective fisheries and of State and local self-government owned property”.

49. Under the first of those grounds mentioned in the reservation, the Court is precluded from examining complaints under Article 1 of Protocol No. 1 about domestic proceedings where former owners or their legal heirs have been involved and the issue at hand has been the restoration of or compensation for property nationalised, confiscated, collectivised or otherwise unlawfully expropriated under the regime established in the Latvian SSR. The reservation cannot be interpreted to exclude from the Court’s jurisdiction complaints under that Article arising from the application of the laws on property reform in any other context. To interpret it so would contradict the wording of the reservation. Therefore, in order for the Court to conclude that it does not have jurisdiction to decide on a complaint under Article 1 of Protocol No. 1 by virtue of the reservation, it has to be satisfied that the following conditions are fulfilled: (i) the laws on property reform mentioned in the reservation were applied in the domestic proceedings; (ii) the subject matter of the proceedings was the restoration of property or compensation; and (iii) former owners or their legal heirs were involved in those proceedings.

50. Furthermore, in order for the Court to conclude that it does not have jurisdiction to decide on a complaint under Article 1 of Protocol No. 1 by virtue of the second ground mentioned in the reservation, it has to be satisfied that the following conditions are fulfilled: (i) the laws on property reform mentioned in the reservation were applied in the domestic proceedings; and (ii) the subject matter of the proceedings was privatisation of the listed entities or property.

51. The Court notes that the issue in the present case differs from the one at the heart of the Kozlova and Smirnova case (cited above). That case concerned the application of the laws on property reform in domestic proceedings concerning the restoration of land and adjacent buildings to a former owner; which restoration the applicants contested. The applicants’ complaint in that case under Article 1 of Protocol No.1 was covered by the first ground mentioned in the reservation, because the criteria for its applicability were fulfilled and, accordingly, the Court lacked jurisdiction.

52. The crux of the present case, however, is quite different. It concerns the alleged violation by the State of the applicant’s 1969 lease. While recognising the applicant’s right to continue residing in the apartment under that lease after the restoration of Latvia’s independence, ensuring that he could not be evicted, without being allocated another place of residence, for a period of seven years following restoration of the former owner’s property rights and extending the statutory rent limits until 1 January 2007, the Latvian authorities appear, after that date, not to have put in place a set of mechanisms and measures to address the tenants’ and more specifically, in the present case, the applicant’s fears of a change in his situation. In domestic civil and administrative proceedings the applicant tried to vindicate the rights to which he considered he was entitled under domestic law, but in vain.

53. Applying the criteria for limitations on the Court’s jurisdiction arising from the reservation, the Court observes the following. First of all, the domestic courts did not examine and apply the laws on property reform as listed in the reservation, save for the Administrative Department of the Senate of the Supreme Court. The Administrative Department examined the Laws on the Return of Real Estate to the Legitimate Owners and on Denationalisation of Real Estate to conclude that no right to compensation as claimed by the applicant could be established under those laws. They also analysed the Supreme Council’s Decision and the applicable provisions on administrative procedure to find no legal basis for compensation. Unlike the two above-mentioned laws on property reform, the Supreme Council’s Decision was not included in the list of laws to which the reservation applied, nor was a brief description of it provided.

54. Further, the Court does not agree with the Government that the Supreme Council’s Decision was covered by the reservation on the basis of it being “a secondary law”. Without pronouncing itself on the classification of the various legislative enactments under domestic law and their primary or secondary nature, the Court finds it sufficient to note that if the Government wished to exclude any legal provision from the Court’s scrutiny it should have expressly stated and briefly described all such provisions in the reservation, otherwise the legal certainty a reservation must ensure could be frustrated (see, mutatis mutandis, Belilos, cited above, § 59). The Court has held that even serious practical difficulties, such as those in the above-cited Belilos case, in listing and briefly describing all applicable legal enactments cannot justify non-compliance with Article 57 of the Convention (ibid.).

55. Secondly, the subject matter of the domestic proceedings in the present case, unlike in Kozlova and Smirlova, was not restoration or compensation of unlawfully expropriated property under the regime established in the Latvian SSR. Nor was it privatisation. In the instant case both proceedings involved the applicant’s exercise of what he considered his rights under domestic law to claim compensation as a tenant in a denationalised apartment and to claim an equivalent apartment in exchange.

56. Finally, former owners or their legal heirs were not involved in those domestic proceedings.

57. In view of the above, the Government’s preliminary objection in this regard must be rejected.

58. In the alternative, the Government argued that the application, or at least the applicant’s complaint under Article 1 of Protocol No. 1 to the Convention, concerned events that had taken place prior to 27 June 1997, that is before the Convention and its Protocols entered into force in respect of Latvia.

59. According to the Government, the applicant complained about the failure to adopt a law on compensations until 1 December 1991. The Government had, in fact, honoured its obligation by submitting a draft law to the Supreme Council; it was the relevant committee which on 5 November 1992 had rejected the draft. It was the Supreme Council’s primary constitutional role as national parliament to decide whether or not to proceed with the adoption of draft laws submitted to it; in that respect the State enjoyed a wide margin of appreciation. Implementation of State policy could not be challenged in court.

60. The applicant disagreed. He explained, among other things, that the draft law had not been effectively prepared and enacted. In his view, the obligation to draft a law implied doing it in a manner fit for enactment. The proposed draft had lacked sufficient quality and thus had not been fit for enactment. The obligation to draft a law was a continuous one, that is, it continued to be binding upon the Government until such time as a law of sufficient quality had been drafted and submitted to the Parliament. Finally, that obligation remained incumbent upon the Government before and after the date of ratification of the Convention. They had failed to fulfil it.

61. The applicant pointed out that the obligation contained in the Supreme Council’s Decision had never been altered and remained effective until such time as a draft of sufficient quality had been submitted. He contested the Government’s submissions that the Supreme Council had released the Council of Ministers from that obligation by rejecting the proposed draft in its Economic Committee. Should the legislator have chosen to release the executive power from that obligation it would have repealed or amended that obligation under the Supreme Council’s Decision.

62. The Court has already noted that the crux of the applicant’s complaints in the present case is the alleged breach of his 1969 lease by the State (see paragraph 52 above) and, accordingly, the instant case does not relate solely to the State’s failure to adopt a particular piece of legislation. Taking into account that the Court’s temporal jurisdiction is to be determined in relation to the facts constitutive of the alleged interferences (see Blečić v. Croatia [GC], no. 59532/00, § 77, ECHR 2006 III, and Varnava and Others v. Turkey [GC], nos. 16064/90, 16065/90, 16066/90, 16068/90, 16069/90, 16070/90, 16071/90, 16072/90 and 16073/90, § 131, ECHR 2009 ...), the Court will further examine the events that led to the forming of the applicant’s complaints.

63. The Court observes that soon after the restoration of Latvia’s independence, the State through its legislation recognised the applicant’s right to continue residing in the apartment on the basis of the 1969 lease in its entirety (see paragraphs 6, 25 and 27 above). Following the 1994 amendments, the term of leases concluded under Soviet law continued to be binding (see paragraphs 6, 26 and 28 above). In most cases, including the applicant’s, that term was of indefinite duration (see paragraph 4 above). The statutory provisions referred to above continue to be effective today; they have not been repealed. Furthermore, during the first seven years after the restoration of the former owners’ property rights, in the applicant’s case at least until 12 January 2002, restrictions were in place to prohibit the eviction of tenants without them being allocated another place of residence (see paragraphs 6, 25 and 27 above). Finally, the statutory rent limits for tenants continued to be determined by the State until 1 January 2007, when the Constitutional Court’s abrogation took effect.

64. Even though the applicant appears to have been dissatisfied for quite some time with the legislator’s choice in the area of property reform, his personal interests were not at stake and he was not directly affected by the deficiencies of those measures before the entry into force of the Convention and its Protocols in respect of Latvia on 27 June 1997. After that date he continued to reside in the apartment without fear of eviction for almost five years, at least until 12 January 2002 (see paragraphs 6, 25 and 27 above), and without fear of having to pay a higher rent than established by the State for almost ten years, until 1 January 2007 (see paragraphs 9 and 31 above).

65. In view of the above, the Court concludes that the events forming the essence of the applicant’s complaints took place after 27 June 1997. The Government’s preliminary objection in this regard must, accordingly, be dismissed.

66. In the alternative, the Government argued that the six-month time-limit started to run on 27 June 1997, the date of entry into force of the Convention and its Protocols in Latvia, because no effective remedies were available for the applicant at the material time for his Convention grievances. They claimed that the applicant’s attempt to have his complaints reviewed by the domestic courts could not be considered as an effective remedy within the meaning of Article 35 § 1 of the Convention because his claims were not examined on the merits owing to lack of jurisdiction, and that such actions did not have any prospects of success.

67. According to the applicant, his complaint concerned a continuous situation, so the six-month rule did not apply.

68. The Court finds it sufficient to note that following the 2001 amendments to the Law on Residential Tenancies the applicant could rely on the statutory rent limits for three more years, that is, until the end of 2004, and then, following the 2004 amendments, until the end of 2007. Accordingly, before the end of 2007 he was to pay rent that did not exceed the statutory rent limit. There is no evidence in the case file that the applicant failed to pay the rent and triggered the possibility of facing eviction proceedings after the seven year non-eviction period expired in his case. However, the applicant’s personal situation changed with the Constitutional Court’s judgment of 8 March 2006 and abrogation of the statutory rent-limits as of 1 January 2007. His fear of an increase in the rent payable and the correlated fear of eviction proceedings in the event of non-payment started to materialise from the date of adoption of the Constitutional Court’s judgment. From 8 March 2006 onwards the applicant was directly affected by the legislator’s choice and the Constitutional Court’s control over it in the area of the property reform, and his personal interests were at stake as he had a very good reason to believe that the owner would increase the rent payable after 1 January 2007 and that in the event of non-payment of the rent the owner would initiate eviction proceedings.

69. The Court does not agree with the Government’s line of reasoning with regard to the calculation of the six-month time-limit. For the reasons mentioned in the above paragraph, the Court considers that as from 1 January 2007 the owner had legal grounds to impose a higher rent than previously established by the State and the applicant thus ran a real and personal risk of eviction proceedings if he could not pay the increased rent. The parties did not submit any information on the amount of rent that the owner actually requested from the applicant after 1 January 2007, but it appears from the applicant’s submissions that he moved out of the apartment of his own accord on 4 August 2008, allegedly being unable to afford the rent.

70. In view of the above and taking into account that the applicant submitted his first letter to the Court on 10 August 2006, it follows, that the application was introduced within the six-month time-limit as provided in Article 35 § 1 of the Convention. Accordingly, the Government’s preliminary objection in that regard must be rejected.

“[T]he applicant’s complaint concerning the alleged failure by the Government to comply with section 4, paragraph 2 of the [Supreme Council’s Decision] and Article 14 of the Transitional Provisions of the Law on Residential Tenancies ... concerns a legislative provision. Accordingly, [under domestic law] the applicant had a right to challenge before the Constitutional Court the compatibility of that legal provision with the legal provision having superior legal force.”

In other words, the Government asserted that the applicant could have lodged a complaint with the Constitutional Court about the compliance of those legal provisions with provisions of superior force. They relied on the Court’s decision in the case of Grišankova and Grišankovs (cited above), where the Court had accepted that recourse to the Constitutional Court was an effective remedy.

73. The Court observes that the Constitutional Court examines, inter alia, individual complaints lodged to challenge the constitutionality of a legal provision or its compliance with a provision of superior force. An individual constitutional complaint can only be lodged against a legal provision where an individual considers that the provision in question infringes his or her fundamental rights as enshrined in the Constitution. Thus, the procedure of an individual constitutional complaint cannot serve as an effective remedy if the alleged violation resulted only from erroneous application or interpretation of a legal provision which, in its content, is not unconstitutional (see, for a similar regard, Sergey Smirnov v. Russia (dec.), no. 14085/04, 6 July 2006, and Szott-Medyńska v. Poland (dec.), no. 47414/99, 9 October 2003).

74. In the present case the Government argued that the applicant could have challenged section 4, paragraph 2 of the Supreme Council’s Decision and Article 14 of the Transitional Provisions of the Law on Residential Tenancies before the Constitutional Court. In this respect, the Court observes, on the one hand, that the administrative courts had already examined the scope of the Supreme Council’s Decision and ruled that it did not confer on the applicant a subjective right to compensation to acquire an apartment of the same standard (see paragraph 18 above). The applicant argued, on the other hand, that on the basis of those provisions he had acquired a right to compensation or a right to an equivalent apartment under domestic law.

75. The Court considers that if the argument of the Government were to be accepted it would require a more detailed explanation about the competence and practice of the Constitutional Court in similar cases, in particular, since the decisions of the administrative courts in the present case indicated that there may be a legislative gap as concerns the invoked rights or their implementation. The Government have not provided relevant examples of the Constitutional Court’s case-law. Therefore, the Court cannot speculate on the effectiveness of the Constitutional Court in such circumstances.

76. Accordingly, the Court dismisses the Government’s preliminary objection of non-exhaustion of domestic remedies.

II. ADMISSIBILITY OF THE COMPLAINT UNDER ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION

77. The applicant complained that the State had unilaterally breached his 1969 lease and gradually limited his right to lease. He did not receive any compensation for that. The applicant was of the opinion that the State authorities had failed to comply with certain provisions of domestic law, in particular, the Supreme Council’s Decision and Article 14 of the transitional provisions of the Law on Residential Tenancies.

78. The Court considers that this complaint falls to be examined under 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.”

79. The Government argued that this complaint was, firstly, incompatible ratione materiae with the provisions of the Convention. They declared, secondly, that the applicant was not a victim of a violation of the rights contained therein.

80. The Government submitted that the underlying reason for the applicant’s complaint was his dissatisfaction with the State’s policy in the field of property reform. They noted that neither the Convention nor its Protocols guaranteed the right for an individual to expect that the State would enact a particular piece of legislation. Nor was such a right guaranteed in the particular context of restitution laws. They contended that a mere hope of recognition of a property right could not be considered as a “possession” for the purposes of Article 1 of Protocol No. 1. Finally, they argued that the applicant did not own the apartment in question and thus he could not be said to have had a sufficient proprietary interest to constitute a possession within the meaning of Article 1 of Protocol No. 1 to the Convention.

81. In the alternative, the Government argued that the applicant could not be considered to have been a victim of the alleged violation of Article 1 of Protocol No. 1 because the Government had fulfilled their obligation to submit the draft law on compensation to the Supreme Council. What is more, had a law been passed, the applicant would have remained unaffected by it since the legislator’s intent was to establish a compensation mechanism for former owners and not for tenants. In support of their argument they relied on the draft law submitted to the Supreme Council’s committee in 1992. The Government further submitted that the applicant as a tenant could legitimately have expected only social protection and social assistance. There were several such measures in place, but he did not avail himself of any of those. By way of an example and in addition, the Government maintained that the applicant could have participated in the privatisation process in respect of other apartments. Finally, the Government pointed out that the situation in respect of which the applicant submitted his complaints had ceased to exist as of 4 August 2008, when he had moved out of the apartment.

82. The applicant submitted that the State authorities’ activities and omissions had led to a situation where he had lost his dwelling and had not received any compensation. He accepted that he did not have “a possession” within the meaning of Article 1 of Protocol No. 1 to the Convention in respect of the apartment where he had been residing. He submitted that the State authorities were under an obligation to adopt a legislative framework under which he would receive fair compensation for property rights he did not acquire and the lost right to reside in the apartment. He contended that the legislative framework placed a disproportionate burden on him in comparison with owners.

83. The Court notes at the outset that Latvia, following the restoration of its independence, had to balance the exceptionally difficult and socially sensitive issues involved in reconciling the conflicting interests of owners and tenants. It had, on the one hand, to secure the protection of the property rights of the former and, on the other, to respect the social rights of the latter, often vulnerable, individuals (see, for a similar regard, Hutten-Czapska v. Poland [GC], no. 35014/97, § 225, ECHR 2006 VIII).

84. On the one hand, Latvia enacted legislation on the denationalisation and restoration of property confiscated from owners under the regime established in the Soviet Socialistic Republic of Latvia. That allowed the owners of such properties, including the owner of the building where the applicant’s apartment was located, to recover their property rights.

85. On the other hand, the owners’ property rights were restricted to a certain extent in that the State chose to honour the leases concluded under Soviet law and to protect the interests of tenants. Under those leases in many cases, including the applicant’s, tenants enjoyed a right to rent the apartment for an indefinite period of time (see paragraph 4 above). The State provided further social guarantees to these tenants, such as the prohibition of eviction for a seven-year period, and statutory rent limits. However, as the Constitutional Court noted, these guarantees were not eternal and tenants could not legitimately expect that they would have a special legal status after the property reform was completed (see paragraph 35 above). Thus it was that the Constitutional Court abrogated the statutory rent limits as from 1 January 2007.

86. The Court reiterates that the margin of appreciation available to the legislature in implementing social and economic policies should be a wide one; it will respect the legislature’s judgment as to what is in the “public” or “general” interest unless that judgment is manifestly without reasonable foundation. These principles also apply to the measures adopted in the course of the fundamental reform of the country’s political, legal and economic system in the transition from a totalitarian regime to a democratic State (see Hutten-Czapska v. Poland [GC], no. 35014/97, § 166, ECHR 2006 VIII, and the case-law cited therein).

87. Turning to the facts before it, the Court finds that it does not need to rule on all the preliminary objections raised by the Government (see paragraphs 79 to 81 above) as this complaint is inadmissible in any event for the following reason.

88. The Court observes that on 4 August 2008 the applicant moved out of the apartment where he had been residing for several decades. That apartment was the subject matter of his complaint about the breach of the 1969 lease. Even though the applicant had feared eviction from the apartment, no eviction order was issued by the public authorities. No judicial or administrative steps were taken with a view to evicting the applicant from the apartment. Instead he chose to leave it of his own accord and to move into the property of his spouse (see paragraph 11 above).

89. The Court is therefore of the opinion, as regards the complaint under Article 1 of Protocol No. 1 to the Convention, that the applicant cannot claim to be a victim within the meaning of Article 34 of the Convention. It follows that this complaint is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.

90. The applicant raised several complaints of access to court under Article 6 § 1 of the Convention, which in its relevant part reads as follows:

“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

91. The applicant firstly complained that he did not have access to justice to claim compensation for the loss of his right to lease.

92. According to the Government, the applicant did not have a civil right to claim compensation under domestic law.

94. The Court reiterates that Article 6 § 1 does not in itself guarantee any particular content for (civil) “rights and obligations” in the substantive law of the Contracting States and that it may not create through the interpretation of Article 6 § 1 a substantive right which has no legal basis in the State concerned (see, among many other authorities, Roche v. the United Kingdom [GC], no. 32555/96, § 117, ECHR 2005 X).

95. The Court observes that the Senate of the Supreme Court, in the administrative proceedings initiated by the applicant, examined in detail his claim to compensation and found no basis for such a claim in domestic law. The Senate found that the Supreme Council’s Decision, on which the applicant relied first and foremost, did not provide for a right for tenants to claim compensation. Nor was such a right provided for under the laws governing the property reform or any other laws.

96. Accordingly, the applicant does not have a right to claim compensation under domestic law in the circumstances of the present case.

97. It follows that Article 6 § 1 was not applicable to the domestic proceedings. This complaint is therefore incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.

98. Secondly, the applicant complained that he had no means of challenging the amount of the statutory rent limits following the 2004 amendments to the Law on Residential Tenancies. This meant that the owner could unilaterally increase the rent, without due regard to the building’s technical condition, and there was nothing he could do about it.

99. The Court observes that if the applicant considered that the 2004 amendments infringed his fundamental rights as enshrined in the Constitution – for example, the right to property (Article 105), the right to inviolability of his home (Article 96) or the right to social security (Article 109) – he could have lodged an individual complaint with the Constitutional Court. The Court considers that in such circumstances the complaint to the Constitutional Court constitutes an effective remedy (compare paragraphs 73 and 74 above).

100. As a consequence this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

101. Finally, the applicant complained that the owner had the right to evict him after the seven-year period expired, without allocating another place of residence, and that he had been unable to defend his rights.

102. The Court notes that even though the applicant was dissatisfied that the owner had a right to initiate his eviction after a certain period of time, in practice no steps to evict him were ever taken before a court where he could have been heard (see paragraphs 32 and 35 above). On the contrary, the applicant moved out of the apartment of his own accord.

103. As a consequence, the applicant cannot be said to be a victim, within the meaning of Article 34 of the Convention, of the alleged breach of the right of access to court in that regard.

104. It follows that this complaint is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.

105. The applicant complained that the owner was entitled to charge an unreasonably high rent after 1 January 2007 and that he feared eviction from his home.

“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.”

107. The Government submitted, first of all, that the Convention in itself did not guarantee economic or social rights and that Article 8 did not afford a right to a home. They further argued that Article 8 does not require States to secure an apartment for every resident. They were of the opinion that the State’s obligations under that Article were limited to ensuring a free property market, assistance mechanisms to protect the most vulnerable people, within the limits of available financial resources, and effective remedies in dispute resolution. The Government also considered that any disputes of a civil nature arising from the contractual relationship between owner and tenant, including disputes over the wording of the lease and the amount of rent payable, could have been settled in the civil courts.

108. The applicant did not provide any reply in this regard and submitted that his complaint was admissible.

109. The Court notes that even assuming that the applicant’s complaint falls within the scope of Article 8 of the Convention, in any event he has failed to exhaust the available domestic remedies by omitting to contest the amount of rent set by the owner after 1 January 2007 in the civil courts (in that regard see also paragraphs 32 and 35 above). Furthermore, the Court has already noted that no steps have been taken with a view to evicting the applicant from the apartment (see paragraph 88 above).

110. It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

111. Finally, the applicant complained that the property rights to his apartment had been given to a third person and that he himself had not had the right to privatise it. Relying on Article 14 of the Convention, the applicant submitted that he had been discriminated against in that he had not been allowed to privatise his apartment but that other tenants (residing in State or municipally owned buildings) had. He also complained that he had no means of seeking compensation for his lost rights whereas the owners were entitled to compensation and to help from the municipality. He had been discriminated against because binding regulations of the Rīga City Council on social assistance differentiated people based on their income levels. He submitted that he had been unable to exchange his apartment for a smaller one or sublet it.

112. In the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.

113. It follows that these complaints are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

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You are here: BAILII >> Databases >> European Court of Human Rights >> Fricis LIEPAJNIEKS - 37586/06 [2010] ECHR 1934 (2 November 2010) URL: http://www.bailii.org/eu/cases/ECHR/2010/1934.html Cite as: [2010] ECHR 1934