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THIRD
SECTION
DECISION
Application no.
23785/07
by Margita BUKOVČANOVÁ 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 1 June 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 applicants,
Having
deliberated, decides as follows:
THE FACTS
- The
applicants, Ms Margita Bukovčanová (the
first applicant), Mr Jozef Fedeleš (the second
applicant), Ms Viera Šefčíková (the third
applicant) and Mr Jozef Fedeleš junior (the fourth applicant),
are Slovak nationals who were born in 1952, 1947, 1973 and 1980
respectively and live in Bratislava. They are represented before
the Court by Mr R. Procházka, a lawyer
practising in Bratislava. The Slovak Government (“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 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 17-20 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 are co-owners of real property including a house which is
situated in the Bratislava-Staré Mesto
municipality. The house had been built in 1929 by their predecessor.
In 1964 the owners had donated it to the State under pressure. It was
restored to the owner’s successors in December 1991 pursuant to
the Extra-Judicial Rehabilitations Act 1991. As a result, the
first and second applicants each acquired a 4/12 share of ownership
of the house. In January 1995 and November 1998 respectively the
third and fourth applicants each acquired a 2/12 share of ownership
of the house.
- The
house comprises five flats to which the rent-control scheme applies,
each with a surface area of between 87 and 133 square metres.
The rent-control scheme was applied to the flats from the time
when ownership of the house was restored to the applicants. The
scheme ceased to be applicable in respect of one flat in January
2006.
- According
to the applicants, the maximum rent which the relevant law
permitted them to obtain from the time when they acquired ownership
of the house until the date of their application amounts to a total
of EUR 44,124. Basing their calculation on methodology used in
similar cases in the Czech Republic, the applicants further submitted
that the sum of EUR 12,985 needs to be spent every year for
maintenance and repair of the house. The applicants pointed out that
similar flats located in the same area to which the rent-control
scheme does not apply are let for rent more than ten times higher
than the sum 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,
namely one flat with a surface area of 87 square metres and four
flats with a surface area of between 126 and 130 square metres, was
between EUR 0.94 and EUR 1.11. 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
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
