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THIRD
SECTION
DECISION
Application no. 38082/07
Tomáš
RUDOLFER
against Slovakia
The
European Court of Human Rights (Third Section), sitting on 4 January
2012 as a Chamber composed of:
Josep
Casadevall, President,
Corneliu Bîrsan,
Alvina
Gyulumyan,
Ján Šikuta,
Luis López
Guerra,
Nona Tsotsoria,
Mihai Poalelungi,
judges,
and Santiago Quesada,
Section Registrar,
Having
regard to the above application lodged on 20 August 2007,
Having
regard to the decision to grant priority to the above application
under Rule 41 of the Rules of Court,
Having
regard to the observations submitted by the respondent Government and
the observations in reply submitted by the applicant,
Having
deliberated, decides as follows:
THE FACTS
- The
applicant, Mr Tomáš Rudolfer,
is a Slovak national who was born in 1946 and lives in Bratislava. He
was represented before the Court by Mr R. Procházka,
a lawyer practising in Bratislava. The Government of the Slovak
Republic (“the Government”) are represented by their
Agent, Ms M. Pirošíková.
A. The circumstances of the case
- The
facts of the case, as submitted by the parties, may be summarised as
follows.
1. Background information on the control of rent
- After
1948, when the communist regime had been installed in the former
Czechoslovakia, the housing policy was based on a doctrine aimed at
the restriction and abolition of private ownership.
- Some residential houses were confiscated and some
owners of residential houses were compelled to transfer their
property to the State for no or inadequate compensation. Those owners
who were not formally deprived of the ownership of their residential
housing were subjected to restrictions in the exercise of their
property rights.
- As
regards flats in residential houses, tenancy was replaced by the
“right of lasting use”.
- The
Flats Management Act 1964, which was in force until 1 January 1992,
entitled public authorities to decide on the right of use of flats.
Special regulations governed the sums which the users had to pay.
On 1 January 1992 “the right of lasting use” was
transformed into a tenancy with regulated rent.
- After
1991 some residential houses were restored to their former owners;
however, flats in these houses were mostly occupied by tenants with
regulated rent.
- Under
the relevant law (for details see “Relevant domestic law and
practice” below), owners of residential houses in a position
similar to that of the applicant in the present case have been
obliged to accept that all or some of their flats are occupied by
tenants while charging no more than the maximum amount of rent
fixed by the State (“the rent-control scheme”). Despite
repeated increases in the maximum rent which the domestic law
entitles house owners in this position to charge, that amount has
remained below the level of rent in similar housing premises which
are let on the principles of a free-market economy.
- In
situations similar to that of the applicant, the owners of
residential houses had practically no legal possibility to terminate
tenancies and evict the tenants without providing them with “housing
compensation”. Furthermore, owners were not allowed to transfer
ownership of a flat leased by an individual to any third person other
than a tenant.
- The
Government of the Slovak Republic have dealt with the issue of rent
control on several occasions (see also paragraphs 19-22 below).
- Documents
of the Ministry of Construction and Regional Development indicate
that registration forms have been submitted by tenants in respect of
923 flats where rent control is applied. 2,311 persons have lived in
those flats, the average surface area of which is 71.38 square
metres. The documents indicate that it is envisaged that substitute
accommodation will be made available to the persons concerned by the
planned reform to the extent that this is justified by their social
situation. 76.5% of the tenants thus registered lived in flats
located in Bratislava.
- On
the basis of those data, the authorities have estimated that the
rent-control scheme currently concerns approximately 1,000 flats,
that is, 0.24% of rental flats in houses that existed in 1991 and
0.06% of the inhabited housing facilities which were available in
Slovakia in 2001.
2. Particular circumstances of the applicant’s
case
- The
applicant’s parents built a house in Bratislava-RuZinov
in 1937. In the second half of the 1950s they were obliged to donate
the house to the State. In 1992 it was restored to the applicant’s
mother (a ¾ share) and the applicant (a ¼ share) under
the Extra-Judicial Rehabilitations Act 1991. Since 30 November 1996
the applicant has been its exclusive owner.
- The
house comprises ten flats of which nine had to be let under the
rent-control scheme at the time of its restitution to the applicant
and his mother. In 1998 and 2000 two of them became vacant, as a
result of which the rent-control scheme has no longer been applicable
in respect of them.
- According
to the applicant, during the period up to the lodging of the
application the maximum rent which the law allowed the applicant to
obtain amounted to a total of EUR 32,551.
- On
the basis of methodology used in similar cases in the Czech Republic,
the applicant submitted that the sum of EUR 12,537 needs to be spent
every year for maintenance and repair of the house. That sum is more
than double the highest yearly rent which the applicant has been able
to obtain for the lease of the flats.
- According
to the applicant, similar flats located in the same area to which the
rent-control scheme does not apply are let for sums which are nine
times higher than the sum which the applicant is allowed to charge.
- The
Government were in disagreement with the figures put forward by the
applicant. They relied on the opinion of an expert indicating that
the average market price for the lease of comparable flats in the
Bratislava RuZinov municipality was
between EUR 5.054 and EUR 5.352 per square metre depending on the
number of rooms. The regulated rent per square metre in the flats
owned by the applicant was EUR 1.57 in respect of the one-room
apartment (with a surface area of 30 square metres) and EUR 1.23
in respect of the two-and-a-half-room apartments (originally 8, now
6; with a surface area of 70 square metres each). The Government
were also opposed to the method which the applicant had used for
calculating the maintenance costs for the house.
B. Relevant domestic law and practice
- A
recapitulation of the relevant domestic law and practice is set out
in Krahulec v. Slovakia (dec.), no. 19294/07, 7 June 2011).
- In addition, on 15 September 2011, the Act on
Termination and Settlement of Certain Apartment Tenancy Contracts
(Law no. 260/2011) came into effect. It was adopted with a view to
eliminating rent payment restrictions concerning individual owners.
- Its provisions are applicable, in particular, to
apartments of individuals whose rent has so far been regulated. In
those cases, landlords are entitled to terminate a tenancy contract
by 31 March 2012. Such termination of tenancy is to take effect after
a twelve-month notice period. However, if a tenant is exposed to
material hardship, he or she will be able to continue to use the
apartment with regulated rent, even after the contract termination,
until a new tenancy contract with a municipality has been set up. Law
no. 260/2011 further entitles landlords to increase rent by 20% once
a year until 2015.
- Municipalities are obliged to provide a person exposed
to material hardship with lease of a municipal apartment with
regulated rent. If a municipality does not comply with that
obligation until 31 December 2016 in a particular case, the
landlord can claim the difference between the free-market rent and
regulated rent.
COMPLAINTS
- The
applicant complained that his rights under Article 1 of Protocol
No. 1 had been violated as a result of the implementation of the
rules governing rent control in respect of his property.
- The
applicant also complained under Article 13 of the Convention that he
had no effective domestic remedy at his disposal in respect of the
above complaint.
THE LAW
A. Article 1 of Protocol No. 1
- The
applicant complained that they were restricted in enjoying his
property as a result of the rent-control scheme. He alleged a breach
of Article 1 of Protocol No. 1, which reads as follows:
“Every natural or legal person is entitled to the
peaceful enjoyment of his possessions. No one shall be deprived of
his possessions except in the public interest and subject to the
conditions provided for by law and by the general principles of
international law.
The preceding provisions shall not, however, in any way
impair the right of a State to enforce such laws as it deems
necessary to control the use of property in accordance with the
general interest or to secure the payment of taxes or other
contributions or penalties.”
1. Arguments of the parties
(a) The Government
- The
Government admitted that the rent-control scheme had resulted in
a limitation on the use of the applicant’s property. Such
a measure was in accordance with the relevant domestic law, which met
the requirements of accessibility and clarity, and the effects of
which were sufficiently foreseeable.
- The
interference pursued a legitimate aim, namely, to protect tenants
against unaffordable increases in rent. The Government argued that
the national authorities in principle had more direct knowledge of
the general interest and that spheres such as housing, as a prime
social need, often called for some form of regulation by the State.
- As
to the requirement of proportionality, the Government maintained that
a swift deregulation of rent would have had unfavourable social
implications, and that therefore the rights of tenants which had been
established in the earlier non-market environment had to be protected
while the State found a means of gradually resolving the issue. The
rent-control scheme was therefore compatible with the general
interest within the meaning of Article 1 of Protocol No. 1.
There had been several increases in permissible rent levels and other
measures had been taken with a view to resolving the issue.
- The
Government further pointed to the fact that many of the tenants were
elderly and that the municipalities concerned did not have enough
housing stock for those socially dependent on regulated rent schemes.
- With
respect to the amount of rent chargeable under the rent-control
scheme, maintenance costs would also have had to be borne by owners
if their flats had not been rented out at all. Thus, the amount of
rent and the allegedly higher costs of maintaining the property could
not automatically be associated.
- The
applicant had failed to submit detailed calculations of the
maintenance and other costs during the relevant period. The
Government objected to the example of calculation of maintenance
costs based on methods used in the Czech Republic, and to the
applicant’s estimation of the amount of rent they could have
obtained had the rent-control scheme not applied to the flats in
their house.
- Since
the rent-control scheme currently affected only about
1,000 dwellings, amounting to 0.06% of the overall number of
permanently inhabited housing facilities, it was questionable whether
the situation in question was “systemic”.
- The
Government concluded that the rent-control scheme met the general
interest of society and was compatible with the interests of house
and flat owners, as the maximum level of rent chargeable had been
regularly increased and the number of houses to which the
rent-control scheme would be applicable after 2011 had been reduced,
while a legal framework for ending the rent-control system was
currently being devised.
(b) The applicant
- The
applicant alleged that the interference with his right to peaceful
enjoyment of his property was unlawful and that it did not pursue any
legitimate aim. It imposed a disproportionate burden on him, for
which there existed no relevant justification.
- In
particular, the applicant argued that the extent of the limitations
imposed on the use of his property and their duration were capable of
amounting to a de facto deprivation of property.
- The
interference complained of lacked a sufficient statutory basis. The
relevant rules lacked consistency and were not sufficiently
foreseeable. The applicant pointed to the fact that a large number of
plans, measures and steps had been announced in the course of the
last twenty years with a view to solving the problem. However, the
only tangible result was a minimal index-linking of the regulated
rent levels, which did not change the position of flat owners to a
substantial degree.
- Despite
the above-mentioned index-linking, the interference complained of
continued to be disproportionate to the aim pursued. The rent which
the applicant was entitled to receive did not even suffice for the
maintenance costs inherently associated with the house. The figures
put forward by the Government did not allow a different conclusion to
be reached.
2. The Court’s assessment
- The
Court considers, in the light of the parties’ submissions, that
the complaint raises serious issues of fact and law under the
Convention, the determination of which requires an examination of the
merits. The Court concludes therefore that this complaint is not
manifestly ill-founded within the meaning of Article 35 § 3 of
the Convention. No other ground for declaring it inadmissible has
been established. It must therefore be declared admissible.
B. Article 13 of the Convention taken together with
Article 1 of Protocol No. 1
- The
applicant further complained that he had no effective remedy
available as regards his complaint under Article 1 of Protocol No. 1.
He alleged a breach of Article 13 of the Convention, which
provides:
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
- The
Government stated that the alleged breach resulted from the relevant
law as it stood.
- It
has been confirmed by the Constitutional Court and it has not been
disputed between the parties that the alleged breach of Article 1 of
Protocol No. 1 stemmed from the legal framework governing the
rent-control scheme in Slovakia.
- In
this respect the Court reiterates that Article 13 cannot
be interpreted as requiring a remedy against the state of
domestic law (see Iordachi and Others v. Moldova, no.
25198/02, § 56, 10 February 2009, or Leander
v. Sweden, 26 March 1987, § 77(d), Series A no. 116).
- It
follows that this complaint is manifestly ill-founded and must be
rejected in accordance with Article 35 §§ 3 and 4 of the
Convention.
C. Article 14 of the Convention taken together with
Article 1 of Protocol No. 1
- Upon
communication of the application to the Government the Court decided,
of its own motion, to put a question as to whether the applicant had
been discriminated against, contrary to Article 14 of the Convention,
in the enjoyment of his property rights.
- Since
the applicant did not reply to that question in his observations, the
Court considers that no further examination of this issue is called
for.
For these reasons, the Court unanimously
Declares admissible, without prejudging the merits, the
applicant’s complaint under Article 1 of Protocol No. 1
concerning the restrictions which the rent-control scheme has imposed
on his right to peacefully enjoy his possessions;
Declares inadmissible the complaint under Article 13 of the
Convention in conjunction with Article 1 of Protocol No. 1;
Decides that it is no longer required to examine whether the
facts of the case amount to a breach of Article 14 of the Convention
in conjunction with Article 1 of Protocol No. 1.
Santiago Quesada Josep
Casadevall
Registrar President
