FIFTH SECTION
DECISION
Application no. 50853/06
Edvards KVASŅEVSKIS and Others
against Latvia
The European Court of Human Rights (Fifth Section), sitting 4 September 2018 as a Chamber composed of:
Angelika Nußberger, President,
Yonko Grozev,
André Potocki,
Síofra O’Leary,
Mārtiņš Mits,
Gabriele Kucsko-Stadlmayer,
Lәtif Hüseynov, judges,
and Claudia Westerdiek, Section Registrar,
Having regard to the above application lodged on 11 November 2006,
Having regard to the partial decision as to the admissibility of 20 September 2011,
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
1. A list of the applicants is set out in the appendix. Five of them are Latvian nationals and five of them are “permanently resident non-citizens” of Latvia (see Sisojeva and Others v. Latvia (striking out) [GC], no. 60654/00, § 46, ECHR 2007‑I). They were represented by Mr W. Bowring and Mr P. Leach, lawyers practising in London.
2. The Latvian Government (“the Government”) were represented by their Agents, Ms I. Reine and subsequently by Ms K. Līce.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
1. Background to the case
4. The relevant historical and legal background to the case has been described in detail in the case of Liepājnieks v. Latvia (dec.) (no. 37586/06, §§ 2-3, 5-10, 2 November 2010).
2. The building at 4 Jēkabpils Street
5. The building located at 4 Jēkabpils Street (current address) is an example of Art Nouveau architecture in Riga; it was amongst the buildings which were nationalised under Soviet rule.
6. On 8 June 1986 the Council of Ministers of the Latvian Soviet Socialist Republic adopted a decision No. 251 concerning involvement of young workers in the construction of residential premises. Under this scheme, from April 1988 to May 1991 the applicants, together with other workers, participated in the renovation of the building located at 4 Jēkabpils Street and in construction work on two new residential buildings. The applicants were not professional builders; they were employees of various State and municipality companies and institutions which financed the works. For the duration of the construction works the applicants were temporarily dismissed from their posts; however, their positions were maintained for them. The applicants received remuneration for their work. They submit that this remuneration was considerably lower than the wages they had previously earned. In return for their labour the applicants and other workers were entitled to “living space” in one of the buildings in question. Most of the workers were allocated apartments in the newly-built residential buildings, which they were later able to privatise, but the applicants were allocated apartments in the building at 4 Jēkabpils Street.
7. Consequently, in July and August 1991 each applicant concluded a lease agreement with the relevant territorial executive board of the local municipality (Rīgas Latgales priekšpilsētas izpilddirekcija). The agreements took the form of pre-typed standard texts, not indicating the amount of rent payable. The lease agreements entitled each of the applicants and their family members to rent one designated apartment in the building in question for an indefinite period of time (beztermiņa lietošana). At that time the amount of rent payable was not set by the parties to the lease but by the State’s administrative authorities.
8. On 11 February 1993 the building was denationalised and returned to its former owners. The applicants continued living in the apartments in the building on the basis of the 1991 leases.
3. Civil proceedings concerning denationalisation
9. In June 1993 the applicants brought a civil action to dispute the denationalisation of the building. Their action was examined at two levels of jurisdiction and dismissed. The city court found that the denationalisation of the building had been lawful and that the applicants did not have title to the apartments. The final decision was taken by the Supreme Court on 29 March 1995. It upheld the city court’s ruling, which became final.
4. Proceedings against the applicants
(a) Eviction proceedings
10. After the expiry of the seven-year non-eviction period that followed the restoration of their property rights (for more details see Liepājnieks, cited above, §§ 9-10, 35), in 2006 and 2007 the owners initiated eviction proceedings before the civil courts against some of the applicants and their families on the grounds of non-payment of rent. They asked the court to terminate the leases without allocating them another place of residence.
11. The eviction proceedings against Mr Kvasņevskis and his family lasted from 24 July 2006 to 8 July 2014. As a result of those proceedings the 1991 lease was terminated and Mr Kvasņevskis had to pay the outstanding rent. Mr Kvasņevskis was not immediately evicted as he obtained stay of execution of the eviction order until such time as the municipality could offer him another place of residence to rent. After having refused three consecutive lease offers from the municipality (see paragraph 20 below), Mr Kvasņevskis was struck off the relevant municipal register. Mr Kvasņevskis and his family were evicted in February 2016.
12. The eviction proceedings against Mr Vižičaņins and his family lasted from 3 July 2006 to 18 June 2009. As a result of those proceedings the 1991 lease was terminated and Mr Vižičaņins had to pay the outstanding rent. In January 2009 he received social assistance from the municipality in the amount of 25,000 Latvian lati (LVL) (35,571.80 euros (EUR)) to buy another place of residence (see paragraph 24 below). Mr Vižičaņins and his family were evicted on an unknown date.
13. The eviction proceedings against Mr Kazakēvičs and his family lasted from 3 July 2006 to 5 January 2009. As a result of those proceedings the 1991 lease was terminated and Mr Kazakēvičs had to pay the outstanding rent. Mr Kazakēvičs and his family were evicted in January 2009. On 11 February 2009 Mr Kazakēvičs moved in with his daughter, who had taken out a loan to buy a small apartment.
14. The eviction proceedings against Mr Krilovs and his family lasted from 21 August 2007 to 25 January 2012. As a result of those proceedings the 1991 lease was terminated and Mr Krilovs had to pay the outstanding rent. Mr Krilovs and his family were evicted on an unknown date.
15. The eviction proceedings against Mrs Jengovatova and her family lasted from 24 July 2006 to 9 May 2013. As a result of those proceedings the 1991 lease was terminated and Mrs Jengovatova had to pay the outstanding rent. Mrs Jengovatova and her family were evicted on an unknown date.
(b) Proceedings concerning levels of rent
16. Mrs Drožžina, unlike the applicants mentioned above, continued to pay the statutory rent until that system was abolished by the Constitutional Court (see paragraph 36 below). As of 1 September 2007 the owners set the rent at LVL 5 (EUR 7.11) per square metre. She was notified of the increase at least six months before that date. Proceedings ensued in the civil courts concerning the determination of a reasonable level of rent. In the course of those the owners reduced their claim to LVL 3 (EUR 4.27) per square metre; this claim was upheld by the first-instance court on 30 April 2010. Mrs Drožžina was unable to pay such rent, so she took out a loan and bought a small apartment in the outskirts of Riga in 2010. Mrs Drožžina and her son left the apartment on an unknown date.
(c) No proceedings taken
17. No eviction proceedings have been instituted against the remaining applicants (Mrs Zaiceva, Mrs Šedova, Mr Šeršņovs and Mrs Pļuščika) as they continued to pay the statutory rent until that system was abolished by the Constitutional Court. On an unspecified date the owners set the rent at LVL 1.5 (EUR 2.13) per square metre, an amount which these applicants did not contest.
5. Municipal assistance
18. Since 2004 several applicants have approached the local municipality, Riga City Council (Rīgas dome), with a view to obtaining its assistance on matters relating to apartments. It was explained to them that under domestic law, no municipal assistance on matters relating to apartments was available to persons who had participated in construction work under Soviet rule. At the same time, reference was made to regulation no. 61 (see Ņikitina v. Latvia (dec.) no. 33666/08, § 35, 20 September 2011) and they were encouraged to apply for municipal assistance under that regulation.
(a) Register no. 7
19. Subsequently seven of the applicants (Mr Kvasņevskis, Mrs Zaiceva, Mrs Šedova, Mr Šeršņovs, Mr Vižičaņins, Mrs Pļuščika and Mrs Jengovatova) and their families were entered in register no. 7 for priority treatment in receiving municipal assistance in the allocation of a place of residence (for rent). Register no. 7 was designed to include persons in need of the municipality’s assistance who had low-income status, were tenants in denationalised buildings and did not have any other place of residence.
20. Mr Kvasņevskis and his family were struck off register no. 7 because they refused three consecutive offers of lease from the municipality. The relevant decision (17 May 2011) was amenable for review by a higher authority and subsequently by the administrative courts, neither of which avenues Mr Kvasņevskis pursued.
21. Mrs Pļuščika and her family were struck off register no. 7 as they no longer qualified for low-income status. The relevant decision (28 September 2009) was amenable for review by a higher authority and subsequently by the administrative courts, neither of which avenues Mrs Pļuščika pursued.
22. Applications by Mr Krilovs’ wife (who is not an applicant in the present case, see Appendix) to be entered in register no. 7 were refused twice – in 2005 and 2010. No application was lodged against the first of those decisions. In respect of the second, the first-instance administrative court did not proceed with the application (atstāt bez virzības).
(b) Register no. 4
23. Two of the applicants (Mr Šeršņovs and Mr Vižičaņins) and their families were entered in another register, no. 4, for municipal assistance in relation to buying a place of residence. Register no. 4 was designed to include persons in need of the municipality’s assistance who were tenants in denationalised buildings and who were to be evicted.
24. Riga City Council granted Mr Vižičaņins LVL 25,000 (EUR 35,571.80) to buy another place of residence. He and his family were accordingly struck off both registers (nos. 4 and 7) on 18 March 2009.
25. Riga City Council initially granted Mr Šeršņovs LVL 22,000 (EUR 31,303.18) to buy another place of residence. However, it was never disbursed as the relevant municipal regulations changed. Mr Šeršņovs was no longer entitled to receive municipal assistance as he had had property which he had sold. However, his wife and daughter (who are not applicants in the present case, see Appendix) received LVL 16,000 (EUR 22,765.95). The corresponding decision by a higher authority (16 March 2011) was amenable for judicial review by the administrative courts, but they did not pursue it.
(c) No applications for municipal assistance
26. The remaining applicants (Mr Kazakēvičs, Mr Krilovs and Mrs Drožžina) did not apply to receive municipal assistance.
6. Civil proceedings against various authorities
27. Since 2005 the applicants have initiated at least three separate sets of civil proceedings against Riga City Council, its appropriate territorial executive board (Rīgas Latgales priekšpilsētas izpilddirekcija) and the State, represented by the Cabinet of Ministers (Ministru kabinets).
(a) First claim
28. The first claim was vaguely formulated and included, among other things, a request to find a violation of their “economic and human rights” and to allocate them State or municipal apartments. On 9 June 2005 a judge did not proceed with this claim (atstāt bez izskatīšanas) on the grounds that the plea in law (prasības pamats) and the amount of the claim (prasības summa) had not been specified and the State duty had not been paid. The judge requested that the applicants supplement their claim before 29 June 2005. The applicants did not pursue this claim any further.
(b) Second claim
29. The second claim was, in essence, about a unilateral breach of lease contrary to the Civil Law and the Constitution, and the allocation of State or municipal apartments. This claim was examined by both the city court and the regional court. On 20 March 2006 a judge decided that the claim concerning the breach of lease was not amenable to examination by a (civil) court, and that the claim concerning the allocation of apartments was not sufficiently clear and needed to be supplemented (to indicate whether each of the applicants had requested two apartments or just one for privatisation). On 17 May 2006 the Riga Regional Court (Rīgas apgabaltiesa) upheld that ruling and set a time-limit of 19 June 2006 for the applicants to supplement their claim. Having consulted a lawyer, the applicants decided not to pursue this claim any further.
(c) Third claim
30. The third claim was brought on 13 November 2006 against the State, represented by the Cabinet of Ministers, and against Riga City Council. The applicants requested a court to compel Riga City Council to allocate and transfer ownership to apartments of the same standard or, alternatively, to reimburse them their full current market value. They invoked the general provisions concerning the duty to comply with contractual obligations. They also requested exemption from the payment of State duty and asked the court to “determine the level of liability of each respondent” and award compensation for pecuniary and non-pecuniary damage in the amount of LVL 1,000,000 (EUR 1,422,871.81) to each of the applicants.
31. On 20 November 2006 the Riga Regional Court refused to accept the applicants’ claim on the grounds that the case did not fall within its jurisdiction. The regional court held that there was no civil dispute between the parties since the applicants’ claim related to specific public legal relations (publiski tiesiskas attiecības) between individuals and the State and was thus amenable to examination by the first-instance administrative court in accordance with the Administrative Procedure Law. The applicants appealed on the grounds that they did not wish to dispute specific administrative acts; they insisted that there was a civil dispute.
32. On 5 February 2007 the Civil Chamber of the Supreme Court (Augstākās tiesas Civillietu tiesu palāta) quashed the regional court’s decision and issued a new ruling. It refused to accept the applicants’ claim on the grounds that the dispute was not amenable to examination by a (civil) court. The Supreme Court held that the applicants had been assigned their rental apartments in accordance with an agreement of 1988. Being tenants in denationalised buildings, they were subject to a special law regarding assistance on matters relating to apartments and could exercise their rights in accordance with that law. Any disputes arising in connection therewith had to be examined in administrative proceedings before the relevant municipal bodies of Riga City Council; no such administrative proceedings had been instituted and no administrative acts (which would be amenable to judicial review) had been effected in respect of the applicants. A mere reference to legal provisions concerning contractual obligations could not make the claim judiciable. In essence, the Supreme Court concluded that the applicants’ claim lacked any grounds.
33. On 1 March 2007 the Senate of the Supreme Court (Augstākās tiesas Senāts) upheld that ruling. In order to enjoy the right to court, individuals had to follow a prescribed procedure in order to defend their interests. The applicants’ reference to the civil-law provisions was held to be of no relevance; the dispute was not amenable to examination in court.
7. Administrative proceedings against Riga City Council
34. On 4 September 2006 the applicants brought a claim in the Administrative District Court (Administratīvā rajona tiesa) against Riga City Council. They argued that the municipality’s action in dealing with certain letters had been unlawful (prettiesiska faktiskā rīcība) and claimed compensation. On 19 February 2007 they supplemented the claim and asked the court to compel Riga City Council to reply to their letters and to compensate them for the damage sustained.
35. On 18 February 2008 a judge heard their case. During the hearing the applicants argued that their claim was in essence about the fulfilment of a contractual obligation incumbent on the State, namely the obligation to allocate State or municipal apartments to the applicants in return for their work on the renovation of the building located at 4 Jēkabpils Street. The applicants confirmed that they did not wish to receive assistance on matters relating to apartments in accordance with the special law (see paragraph 37 below). The judge concluded that the claim was not amenable to examination in administrative proceedings and thus, on 16 June 2008, the proceedings were terminated (izbeigta tiesvedība). The applicants’ claim regarding the fulfilment of a contractual obligation could not be examined in administrative proceedings. The decision became final on 15 September 2008. The applicants noted their agreement with the decision, insisting that only a civil court was competent to examine this claim.
B. Relevant domestic law and practice
1. Property reform-related laws and residential tenancies
36. The relevant laws have been summarised in the above-mentioned decision in Liepājnieks (cited above, §§ 25-33). The same decision contains extracts from the Constitutional Court’s judgment of 16 March 2006 in case no. 2005-16-1, whereby the statutory rent limits were declared unconstitutional and abolished with effect from 1 January 2007 (ibid., § 35).
2. Municipal assistance
37. The relevant provisions of domestic law (likums “Par palīdzību dzīvokļa jautājumu risināšanā”), which took effect on 1 January 2002, have been summarised in the Court’s decision in the case of Ņikitina v. Latvia (cited above, § 34).
38. Riga City Council, the biggest municipality in Latvia, has adopted several regulations on these issues, which were summarised in the same decision (ibid., §§ 35-37).
COMPLAINTS
39. The applicants complained under Article 1 of Protocol No. 1 to the Convention that they had been deprived of their possessions on a continuous basis since 1993.
40. Relying on Article 6 § 1 of the Convention, the applicants complained about a lack of access to court in relation to their claim for allocation of State or municipal apartments.
THE LAW
A. Government’s objections concerning the admissibility
41. The Government disputed the admissibility of the application as a whole on several grounds. They firstly contended that the application was incompatible ratione personae with the provisions of the Convention as the situation complained of was not attributable to Latvia. They maintained, secondly, that the Court was precluded from examining the case by virtue of the reservation submitted by Latvia. Thirdly, they declared that the applicants had failed to exhaust the domestic remedies.
42. Furthermore, the Government argued that the applicants’ complaints were incompatible ratione materiae. As concerns the complaint under Article 1 of Protocol No. 1 to the Convention, the Government also argued that the applicants did not have victim status.
43. The applicants asked the Court to dismiss the Government’s objections.
44. The applicants submitted further information as to their factual situation (see paragraphs 11-17 above).
45. The Court does not consider it necessary to address all the objections raised by the Government as the applicants’ complaints are in any event inadmissible for the following reasons.
B. Alleged violation of Article 1 of Protocol No. 1 to the Convention
46. The applicants submitted that they had a legitimate expectation to a secure accommodation in a State or municipal building, which they had obtained by participating in the building work from 1988 to 1991, and to a possibility to privatise the allocated apartments. By not safeguarding that right, the State had deprived them, and continued to deprive them, of their “possessions” within the meaning of 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.”
1. Submissions by the parties
(a) The Government
47. The Government argued that this complaint was incompatible ratione materiae with the provisions of the Convention. They submitted that the underlying reason for the applicants’ complaint was their dissatisfaction with the State’s policy in the field of property reform. They contended that the 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 (they referred to Slivenko and Others v. Latvia (dec.) [GC], no. 48321/99, §§ 121-122, ECHR 2002‑II (extracts)). States had no duty under that provision to enact laws providing for restitution of confiscated property or compensation for property lost during the previous regime (Preussische Treuhand GmbH & CO. Kg A. A. v. Poland (dec.), no. 47550/06, § 64, 7 October 2008). The applicants did not own the apartments in question either de jure or de facto. They had been renting the apartments from the State during the Soviet regime, and from the apartments’ legitimate owners after Latvia restored its independence. Thus they could not be said to have had a proprietary interest sufficient to constitute a “possession” within the meaning of Article 1 of Protocol No. 1.
(b) The applicants
48. The applicants submitted that they had had a legitimate expectation that they would be rehoused and would be able to privatise the apartments allocated to them; an expectation which amounted to “a possession” within the meaning of Article 1 of Protocol No. 1. In view of their participation in the renovation work for three years, the financial contribution of their employers, and the fact that they had been given reason to believe that they would become the secure tenants of State or municipal apartments and be given the same rights as other workers in terms of privatisation, the applicants submitted that they should be regarded as having a possession within the meaning of the Article under consideration. In support of their argument they relied on Stretch v. the United Kingdom (no. 44277/98, 24 June 2003).
2. The Court’s assessment
(a) General principles
49. The Court reiterates that the right to live in a particular property not owned by the applicant in question does not as such constitute a “possession” within the meaning of Article 1 of Protocol No. 1 to the Convention (see Kovalenok v. Latvia (dec.), no. 54264/00, 15 February 2001, and for a more recent reference, including the exceptions from the principle, Tchokontio Happi v. France, no. 65829/12, § 58, 9 April 2015).
50. The applicable principles regarding the scope of Article 1 of Protocol No.1 to the Convention and, in particular, in relation to the “legitimate expectation” under that provision, have been recently reiterated as follows (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, §§ 142-143, ECHR 2018:
“142. The Court reiterates that an applicant may allege a violation of Article 1 of Protocol No. 1 only in so far as the impugned decisions relate to his or her “possessions” within the meaning of that provision (see Kopecký v. Slovakia [GC], no. 44912/98, § 35, ECHR 2004‑IX). “Possessions” can be “existing possessions” or claims that are sufficiently established to be regarded as “assets” (ibid.). Where a proprietary interest is in the nature of a claim, it may be regarded as an “asset” only if there is a sufficient basis for that interest in national law (for example, where there is settled case-law of the domestic courts confirming it), that is, when the claim is sufficiently established as to be enforceable (see Kopecký, cited above, §§ 49 and 52, and Stran Greek Refineries and Stratis Andreadis v. Greece, 9 December 1994, § 59, Series A no. 301‑B).
143. The Court has also referred to claims in respect of which an applicant can argue that he has at least a “legitimate expectation” that they will be realised, that is, that he or she will obtain effective enjoyment of a property right (see, inter alia, Gratzinger and Gratzingerova v. the Czech Republic (dec.) [GC], no. 39794/98, § 69, ECHR 2002‑VII, and Kopecký, cited above, § 35). However, a legitimate expectation has no independent existence; it must be attached to a proprietary interest for which there is a sufficient legal basis in national law (see Kopecký, §§ 45-53).”
(b) Application in the present case
51. In the present case, the applicants did not require the authorities to grant them title to particular apartments. Indeed, it has not been disputed that the applicants, who were tenants, did not formally own the apartments they were occupying at any time. Rather, the applicants claimed the right of lease in a State or municipal building – and subsequently the ability to privatise – on the grounds of their having a “legitimate expectation”. They argued that such legitimate expectation arose through their participation in the renovation work, the financial contribution of their employers, and their belief that they would be able to privatise apartments or become secure tenants.
52. In the light of its case-law, the Court considers that the issue that needs to be examined is whether the circumstances of the present case, viewed as a whole, conferred on the applicants’ title to a proprietary interest protected by Article 1 of Protocol No. 1 to the Convention (see paragraph 50 above).
53. The Court has already noted 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 Liepājnieks v. Latvia (dec.), no. 37586/06, § 83, 2 November 2010).
54. 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 applicants’ apartments were located, to recover their property rights. On the other hand, the owners’ property rights were restricted to a certain extent in that the State chose to honour leases concluded under Soviet law and to protect the tenants’ interests. Under those leases in many cases, tenants enjoyed the right to rent their apartments for an indefinite period of time. The State provided further social guarantees, such as the prohibition of eviction for a seven-year period, and statutory rent limits. However, these guarantees were not intended to be indefinite, and the Constitutional Court held that tenants could not legitimately expect to enjoy a special legal status after the property reform was completed. Thus, it abrogated the statutory rent limits with effect from 1 January 2007 (ibid., §§ 84-85).
55. It appears that the applicants’ expectation to be able to enjoy their right of lease for an indefinite period of time stems from agreements made in 1988. They consider that the Republic of Latvia has undertaken to comply with those obligations, as the lease agreements between them and the relevant public authorities were concluded in July-August 1991, namely at the time when Latvia was in the process of establishing its independence from Soviet rule (see Liepājnieks, cited above, § 5). After the entry into force of the Convention in respect of Latvia on 27 June 1997, the applicants continued living in the apartments in the building on the basis of the 1991 leases, despite the restoration of the property rights thereto to its former owners in 1993 (see paragraphs 8-9 above). As noted above (see paragraph 54), further social guarantees were provided, such as the prohibition of eviction for a seven-year period and statutory rent limits. Only those applicants who refused to pay the full statutory rent were subject to eviction proceedings. They were able to continue to enjoy their right of lease throughout those proceedings and were evicted only after their completion (see paragraphs 10-15 above).
56. As can be seen from the example of Mrs Drožžina, even after the statutory rent system had been abolished, the owners were not able to set unreasonable rent levels – the latter were subject to the domestic courts’ scrutiny in the event of a dispute (see paragraph 16 above, and Liepājnieks, cited above, § 10). Provided the tenants paid the rent, they could continue to live in the apartments (see paragraph 17 above).
57. The Court considers that the present case is to be distinguished from other cases involving regimes established in different countries as regards “occupancy rights”, “specially protected tenancies” or “social tenancy agreements” and so forth. For example, in Bosnia and Herzegovina all “occupancy rights” holders were, as a rule, entitled to recover their pre-war flats and then purchase them on very favourable terms (see Mago and Others v. Bosnia and Herzegovina, nos. 12959/05 and 5 others, § 78, 3 May 2012). As regards the “specially protected tenancies” in Croatia, the Court held that an applicant who had met all the legal conditions for acquiring the right to purchase a flat had a claim that had sufficient basis in national law to qualify as an “asset” and thus a “possession” under Article 1 of Protocol No. 1 (see Brezovec v. Croatia, no. 13488/07, §§ 40-45, 29 March 2011; contrast with Gaćeša v. Croatia (dec.), no. 43389/02, 1 April 2008, and Trifunović v. Croatia (dec.), no. 34162/06, 6 November 2008, where the applicants had no claim under domestic law to purchase the flat at issue). In Malinovskiy – where the domestic courts had obliged the municipality to provide the applicant with an apartment under a “socially protected tenancy” – the Court held that the applicant would have had a right to possess and make use of the flat and to privatise it (see Malinovskiy v. Russia, no. 41302/02, § 44, ECHR 2005‑VII (extracts)).
58. While also in Latvia a legal regime was created whereby tenants of State or municipality apartments could – provided that the conditions set forth in law had been fulfilled – privatise said apartments (for more details see Zentas Loginas Muzejs v. Latvia (dec.), no. 32066/06, §§ 35-37, 13 December 2016), this regime was not applicable to a case such as this. Firstly, Latvian law did not give the applicants the right to purchase the apartments at issue precisely because the building had been denationalised and returned to its former owners in accordance with the property reform laws. In this regard, 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 Liepājnieks, cited above, § 86 with further references).
59. Secondly, the applicants have not demonstrated that they had a right to privatise the apartments in question or any other dwelling in accordance with domestic laws (see, mutatis mutandis, Slivenko and Others, cited above, § 122; contrast with Malinovskiy, cited above, §§ 44-46, and Shpakovskiy v. Russia, no. 41307/02, §§ 34-35, 7 July 2005). In any event, the Court does not have jurisdiction ratione temporis or ratione materiae to examine the applicants’ arguments concerning the denationalisation of the building. The relevant domestic proceedings were terminated by a final decision of 29 March 1995, before the Convention entered into force in respect of Latvia. Moreover, Latvia has made a valid reservation to exclude any complaints under Article 1 of Protocol No. 1 to the Convention concerning property reform laws 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” or the “privatisation of collectivised agricultural enterprises, collective fisheries and of State and local self‑government owned property” (see Liepājnieks, cited above, §§ 48-50 as regards the scope of the reservation).
60. Thirdly, the applicants’ principal argument – that they were entitled to claim a right of lease in a substitute dwelling from the State or municipality – is unsubstantiated. In contrast to Malinovskiy and Shpakovskiy, the Latvian domestic courts did not order the municipality to provide the applicants with any apartments. In fact, the civil courts expressly refused to examine the applicants’ claims for allocation and transfer of ownership to State or municipal apartments and concluded that they lacked any grounds and were not amenable to judicial review (see paragraphs 32-33 above). As the applicants’ request to allocate them apartments was not related to the municipal assistance offered in accordance with social-assistance laws, the administrative courts concluded that there were no grounds for instituting administrative proceedings either (see paragraph 35, and, for more details, paragraphs 74-75 below).
61. As regards the existence of a legal basis for the applicants’ expectations of being rehoused under domestic law, the Court notes that the applicants did not refer to any particular legal provisions or decisions of public authorities which might have reasonably led them to expect that they would be able to claim the right to lease a substitute dwelling after the entry into force of the Convention in respect of Latvia. The Court notes that the municipality had explained to the applicants that no specific assistance was available to those who had participated in the construction work under Soviet rule; however, some of the applicants were eligible to apply for other types of municipal assistance (see paragraphs 18-25 above). The applicants did not raise any complaints in this regard. The Court reiterates that the Convention imposes no specific obligation on States to right injustices or harm caused before they ratified the Convention (see Likvidējamā p/s Selga and Vasiļevska v. Latvia (dec.), nos. 17126/02 and 24991/02, §§ 110-112, 1 October 2013).
62. The applicants’ reference to Stretch (cited above) is unfounded. In that case, following a 22 year period of a commercial land lease the applicant gave a notice for renewal for a further 21 years – an option expressly included in the terms of the lease. While this option was rendered invalid by the domestic courts, the Court considered that, in light of the investments made and contractual obligations entered into, the applicant had had a legitimate expectation that the lease could be renewed. In contrast, the present case does not concern a dispute over the rights to continue leasing the apartments that had been granted to the applicants for their work. Instead it concerns the applicants’ desire to be allocated different apartments so that this exchange could lead to acquisition of property rights. Nonetheless, the applicants have failed to substantiate their allegation that ‑ in view of their participation in the renovation work or other contributions that may have been made – they would be entitled pursuant to domestic law or any agreements concluded to some other arrangements than the right to lease the renovated apartments. Thus, unlike in Stretch where the expectation was based on express terms of the lease, in the present case no legal grounds for the applicants’ demand can be identified.
63. Lastly, the Court cannot establish any legal basis upon which the applicants might claim compensation under domestic law either (see paragraph 71 below with further reference to Liepājnieks, cited above, § 95).
64. The above-mentioned considerations are sufficient for the Court to conclude that the applicants at the time the Convention entered in force did not have a proprietary interest sufficient to constitute a “possession” within the meaning of Article 1 of Protocol No. 1.
65. The Court therefore accepts the Government’s objection that the applicants’ complaint under Article 1 of Protocol No. 1 is incompatible ratione materiae with the provisions of the Convention and must be rejected under Article 35 §§ 3 (a) and 4 of the Convention.
C. Alleged violation of Article 6 § 1 of the Convention
66. The applicants complained about a lack of access to court in relation to their claim for allocation of State or municipal apartments. The relevant part of Article 6 of the Convention reads as follows:
“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
1. Submissions by the parties
(a) The Government
67. The Government argued that this complaint was incompatible ratione materiae with the provisions of the Convention. The Government submitted that the applicants were not involved in a “dispute” over a “civil right” within the meaning of Article 6 of the Convention. Referring to the conclusions drawn by the domestic courts in the civil proceedings, they argued that Latvian law did not provide for an independent civil right for tenants in denationalised buildings to claim the allocation of apartments or compensation for their value (see paragraph 30 above). Such claims could be examined in accordance with the legislation regulating municipal assistance on matters relating to apartments. Moreover, the applicants had failed to inform the domestic courts and the Court that they had actually applied for and had been registered to receive municipal assistance. The Government explained that the 16 June 2008 decision of the Administrative District Court (see paragraph 35 above) did not contradict the civil courts’ conclusion, since it had been adopted in response to the applicants’ claim for non‑fulfilment of a contractual obligation. Moreover, the applicants did not complain about the speediness or scope of the municipal assistance offered.
(b) The applicants
68. The applicants relied on Bryan v. the United Kingdom (22 November 1995, Series A no. 335‑A, in which the right to property in the context of planning proceedings was considered a “civil right”) and submitted that they were holders of “civil rights”. They insisted that their claim had been one concerning the allocation of State or municipal apartments, which the civil and administrative courts had refused to examine.
2. The Court’s assessment
69. Article 6 § 1 does not guarantee any particular content of civil “rights and obligations” in the substantive law of the Contracting States: the Court may not create by way of interpretation of Article 6 § 1 a substantive right which has no legal basis in the State concerned (see Roche v. the United Kingdom [GC], no. 32555/96, § 117, ECHR 2005‑X). The starting‑point must be the provisions of the relevant domestic law and their interpretation by the domestic courts. This Court would need strong reasons to diverge from the conclusions reached by the superior national courts by finding, contrary to their view, that there was arguably a right recognised under domestic law (see Boulois v. Luxembourg [GC], no. 37575/04, § 91, ECHR 2012 with further references).
70. The Court considers that the question to be answered in the present case is whether the applicants had a “right” which, for reasons that are at least arguable, could be said to be recognised under domestic law (see, for a recent authority, Károly Nagy v. Hungary [GC], no. 56665/09, § 64, ECHR 2017).
71. The Court has already had the opportunity to examine the scope of “civil” rights for tenants in denationalised buildings. In Liepājnieks the applicant argued that, as a tenant in a denationalised building, he had a “civil” right to claim compensation. The Court dismissed that argument, however, on the grounds that the Senate of the Supreme Court in the administrative proceedings instituted by Mr Liepājnieks had found no basis for such a claim under domestic law (cited above, § 95). In the same case, but in another set of civil proceedings instituted by Mr Liepājnieks, the Senate of the Supreme Court also held that claims relating to “the allocation of a place of residence” did not fall within the competence of a court (ibid., § 15).
72. Similar conclusions were drawn by the domestic courts in the civil proceedings instituted by the applicants in the present case. The applicants’ claim that they had a right to claim allocation of State or municipal apartments was examined by the domestic courts in the civil proceedings at three instances and was dismissed. The domestic courts, including that at the highest level – the Senate of the Supreme Court – held that there were no legal grounds for the applicants’ claim and that it was not amenable to judicial review (see paragraphs 32-33 above). Instead, as noted by the civil courts, a specific regime for the protection of tenants’ rights in denationalised buildings was established under domestic law. The civil courts accordingly refused to accept the applicants’ claim for examination.
73. As noted by the Government, the applicants did not raise any complaints concerning the municipal assistance offered under that special regime. The applicants themselves expressly stated that they did not wish to receive assistance on matters relating to apartments. In any event, the Court notes that some of the applicants, together with their families, who fulfilled the eligibility criteria, had been able to obtain some form of social assistance from the local municipality (see paragraphs 24-25 above).
74. The Court will now turn to the applicants’ argument that the administrative courts also refused to examine their claim regarding the allocation of State or municipal apartments. The Court reiterates that it is primarily for the national authorities, in particular the courts, to resolve problems of interpretation of domestic legislation. The Court’s role is limited to verifying whether the effects of such interpretation are compatible with the Convention. That being so, save in the event of evident arbitrariness, it is not for the Court to question the interpretation of the domestic law by the national courts (see Nejdet Şahin and Perihan Şahin v. Turkey [GC], no. 13279/05, §§ 49-50, 20 October 2011).
75. The applicants’ claim, as presented by them during the hearing and as examined by the administrative courts, was in essence about the fulfilment of a contractual obligation to allocate State or municipal apartments. In such circumstances, as explained by the Government, the fulfilment of a contractual obligation could, in principle, be subject to the civil courts’ scrutiny, with which fact the applicants agreed. In the present case, however, the civil courts had already examined a similar claim and had concluded that the applicants did not have a “right” to claim allocation of State or municipal apartments. Instead, as the Court has noted above, a specific regime for the protection of tenants’ rights in denationalised buildings was established under domestic law. The applicants used this special regime and did not raise any particular complaints in that respect (see paragraph 73 above).
76. In such circumstances, the domestic civil and administrative courts’ respective decisions to refuse to accept the applicants’ civil claim and to terminate the administrative proceedings cannot be deemed to have been arbitrary or manifestly unreasonable.
77. Consequently, having regard to the nature of the applicants’ complaint, the Court cannot but conclude that the applicants had no “right” to claim allocation of State or municipal apartments which could be said, on grounds that are at least arguable, to be recognised under domestic law. To conclude otherwise would result in the creation by the Court, by way of interpretation of Article 6 § 1, of a substantive right which has no legal basis in the respondent State.
78. The Court therefore considers that Article 6 was not applicable to the domestic proceedings in question. It follows that this complaint is incompatible ratione materiae with the provisions of the Convention and must be rejected in accordance with Article 35 §§ 3 (a) and 4.
For these reasons, the Court, unanimously,
Declares the remainder of the application inadmissible.
Done in English and notified in writing on 27 September 2018.
Claudia WesterdiekAngelika Nußberger
RegistrarPresident
APPENDIX
No.
Firstname LASTNAME
Birth year
Nationality
Place of residence
Edvards KVASŅEVSKIS
1938
Latvian
Riga
Olga ZAICEVA
1957
Latvian
Liepāja
Ļubova ŠEDOVA
1955
“Permanently resident non-citizen” of Latvia
Riga
Sergejs ŠERŠŅOVS
1951
“Permanently resident non-citizen” of Latvia
Riga
Vitalijs VIŽIČAŅINS
1959
“Permanently resident non-citizen” of Latvia
Riga
Sergejs KAZAKĒVIČS
1943
“Permanently resident non-citizen” of Latvia
Riga
Svetlana PĻUŠČIKA
1958
Latvian
Riga
Genādijs KRILOVS
1956
Latvian
Riga
Tatjana DROŽŽINA
1956
“Permanently resident non-citizen” of Latvia
Riga
Larisa JENGOVATOVA
1957
Latvian
Riga
Full & Egal Universal Law Academy