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THIRD
SECTION
DECISION
Application no.
47150/08
by Peter KORDOŠ
and Others
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 16 September 2008,
Having
regard to the observations submitted by the respondent Government and
the observations in reply submitted by the applicants,
Having
deliberated, decides as follows:
THE FACTS
- The
applicants, Mr Pavol Kordoš, Mr Peter
Kordoš, Mr Ivan Kordoš, Ms Eva Štrbová
and Ms Michaela Černá, are Slovakian nationals. They
were born in 1935, 1939, 1944, 1947 and 1985 respectively. They live
in Bratislava, with the exception of Mr Pavol Kordoš, who
resides in Trenčín. The applicants
were represented before the Court by Mr R. Procházka, a lawyer
practising in Bratislava. The Government of the Slovak Republic (“the
Government”) were represented by their Agent, Mrs 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 rent control
- 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 applicants 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 applicants, the owners of
residential houses had practically no legal possibility to terminate
tenancies and evict 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 21-24 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 applicants’ case
- The
applicants’ predecessors owned a residential house
located in the very centre of Bratislava. It was transferred to State
ownership in the 1950s as a result of (i) confiscation of a ¼
share after one of the owners had left the then Czechoslovakia; and
(ii) enforced donation by the remaining owners.
- On
2 July 1992 a ¾ share of ownership of the house was restored
to the original owners and the applicants under the Extra-Judicial
Rehabilitations Act 1991. In 1993 the co-owners purchased the
remaining quarter of the house which had been confiscated. The first
three applicants each own an 8/60 share of the house, and the other
two applicants are each owners of an 18/60 share of the house.
- The
house comprises fourteen flats, of which seven have been leased under
the rent-control scheme.
- The
house was returned to the applicants in poor condition and the owners
had to invest EUR 125,000 to ensure the most urgent repairs and
maintenance. Further investments have been indispensable.
- According
to the applicants, between mid-1992 and August 2008, the applicable
law permitted the owners to acquire a maximum of EUR 37,000 for
letting the flats in respect of which the rent-control scheme
applies.
- The
applicants pointed out that in accordance with the calculation method
used in similar cases in the Czech Republic, the sum of EUR 36,500 is
needed every year with a view to ensuring the repairs and maintenance
of the house. The latter sum was more than seven times higher than
the maximum amount of yearly rent which the law permitted the owners
to receive.
- The
applicants submitted that similar flats in the vicinity of the
applicants’ house to which the rent-control scheme does not
apply have been leased for up to EUR 1,000, that is more than ten
times higher than the rent which the applicants are allowed to
charge.
- The
Government were in disagreement with the figures put forward by the
applicants. They relied on the opinion of an expert indicating that
the average market price for the lease of comparable flats in the
Bratislava Staré Mesto municipality was between EUR 6.134
and EUR 6.476 per square metre depending on the number of rooms.
The regulated rent per square metre in the flats owned by the
applicants was EUR 1.7 in respect of the three studio apartments
(with a surface area of 23 square metres each), EUR 1.4 in
respect of the one-room apartment (with a surface area of 30 square
metres), EUR 1.28 in respect of the two-room apartment (with a
surface area of 61 square metres), and EUR 1.13 in respect of the two
three-room apartments (with a surface area of 92 square metres each).
The Government were also opposed to the method which the applicants
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
applicants complained that their 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 their property.
- The
applicants also complained under Article 13 of the Convention that
they had no effective domestic remedy at their disposal in respect of
the above complaint.
THE LAW
A. Article 1 of Protocol No. 1
- The
applicants complained that they were restricted in enjoying their
property as a result of the rent-control scheme. They 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
applicants 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
applicants’ 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 applicants
- The
applicants alleged that the interference with their right to peaceful
enjoyment of their property was unlawful and that it did not
pursue any legitimate aim. It imposed a disproportionate burden on
them, for which there existed no relevant justification.
- In
particular, the applicants argued that the extent of the limitations
imposed on the use of their 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 applicants 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 resolving 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 applicants were entitled to receive did not even suffice to cover
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
applicants further complained that they had no effective remedy
available as regards their complaint under Article 1 of Protocol No.
1. They 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 applicants had
been discriminated against, contrary to Article 14 of the Convention,
in the enjoyment of their property rights.
- Since
the applicants did not reply to that question in their 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
applicants’ complaint under Article 1 of Protocol No. 1
concerning the restrictions which the rent-control scheme has imposed
on their right to peacefully enjoy their 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
