THIRD SECTION
PARTIAL DECISION
AS TO THE ADMISSIBILITY OF
Application no. 50853/06
by Edvards KVASŅEVSKIS and Others
against Latvia
The European Court of Human Rights (Third Section), sitting on 20 September 2011 as a Chamber composed of:
Josep Casadevall, President,
Corneliu Bîrsan,
Alvina Gyulumyan,
Egbert Myjer,
Ineta Ziemele,
Luis López Guerra,
Mihai Poalelungi, judges,
and Santiago Quesada, Section Registrar,
Having regard to the above application lodged on 11 November 2006,
Having deliberated, decides as follows:
THE FACTS
1. The applicants are Mr Edvards Kvasņevskis, born in 1938, a national of Latvia; Mrs Olga Zaiceva, born in 1957, a national of Latvia; Mrs Ļubova Šedova, born in 1955, a “permanently resident non-citizen” of Latvia; Mr Sergejs Šeršņovs, born in 1951, a “permanently resident non-citizen” of Latvia; Mr Vitalijs Vižičanins, born in 1959, a “permanently resident non-citizen” of Latvia; Mr Sergejs Kazakevičs, born in 1943, a “permanently resident non-citizen” of Latvia; Mrs Svetlana Pļuščika, born in 1958, a national of Latvia; Mr Genādijs Krilovs, born in 1956, a national of Latvia; Mrs Tatjana Drožžina, born in 1956, a “permanently resident non-citizen” of Latvia; and Mrs Larisa Jengovatova, born in 1957, a national of Latvia. They all live in Rīga. They are represented before the Court by Mr W. Bowring and Mr P. Leach, lawyers practising in London.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicants, may be summarised as follows.
1. Background to the case
3. 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 November 2010.
2. The building at 4 Jēkabpils Street
4. The building located at 4 Jēkabpils Street (current address) is an example of Art Nouveau architecture in Rīga; it was amongst the buildings which were nationalised under Soviet rule.
5. From April 1988 to May 1991 the applicants, together with other workers, participated in the renovation of that building and in construction work on two new residential buildings. The applicants were not professional builders; they were employees of various companies and institutions which financed the works. The applicants received remuneration for their work, yet it was considerably less than the wages they had previously earned in those companies. In addition, 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.
6. Consequently, from July to August 1991 each applicant concluded a lease agreement with an authority of the Republic of Latvia. The agreements were 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. At that time the amount of rent payable was not set by the parties to the lease but by the State’s administrative authorities.
7. On 11 February 1993 the building was denationalised and returned to its former owners. The applicants continued living in the building on the basis of the 1991 leases.
3. Civil proceedings concerning denationalisation
8. 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 Civil Chamber of the Supreme Court (Augstākās tiesas Civillietu tiesas kolēģija) on 29 March 1995. It upheld the city court’s ruling, which became final.
9. The applicants’ subsequent requests to reopen the proceedings have been refused.
4. Conflicts between the applicants and the owners
10. According to the applicants, the owners failed to provide crucial services, in breach of the lease agreement, thus making the applicants’ life in the building unbearable. To give an example, the applicants alleged that the owners disconnected the building’s heating supply after the applicants had initiated the civil proceedings challenging the denationalisation. Within those proceedings, on 9 October 1993 the applicants obtained a court injunction preventing the owners from demolishing the additional premises and ordering them to ensure a heating supply for the building.
11. Since 1995 there has been no central (gas) heating supply for the building. The applicants use portable electric devices instead. It was alleged that the central (gas) heating supply had been disconnected by the service provider on account of debts; the applicants deny this and maintain that they paid all the service charges. During the domestic eviction proceedings the owners maintained, and the domestic courts accepted, that most of the applicants had themselves refused to use the central (gas) heating supply.
12. On 30 November 2005 Mr Kvasņevskis’ apartment was inspected by a local authority and it was recorded that the central (gas) heating supply did not work. At a time when the outside temperature was 2oC, the inside temperature varied from 10oC to 15oC. The apartment was heated with portable electric devices. The inspection also detected damage caused by dampness and mould.
13. On 30 November 2005 Mr Kazakevičs’ apartment was inspected by a local authority and it was recorded that the central (gas) heating supply in that apartment (as well as in the whole building) did not work. At a time when the outside temperature was 2oC, the inside temperature varied from 10oC to 13oC. The inspection also detected damage caused by dampness and mould.
5. Eviction proceedings
14. The owners had already attempted to evict Mr Kvasņevskis and his family from the apartment in 1993 on the grounds that they had refused to conclude a new lease agreement and that they had not paid rent. Mr Kvasņevskis disputed their claims and noted that he had sent the outstanding amount of rent by post once the final judgment in the civil proceedings concerning denationalisation had been adopted. The owners had in fact refused to accept the money. In a ruling of 9 November 1995 the Rīga City Latgale District Court found against the owners. That ruling became final on 3 June 1996.
15. After the expiry of the seven-year non-eviction period that followed the restoration of their property rights, the owners in 2006 and 2007 initiated eviction proceedings before the civil courts against Mr Kvasņevskis, Mr Vižičanins, Mr Kazakevičs, Mrs Jengovatova and Mr Krilovs and their families on the grounds of non-payment of rent. They asked the court to terminate the leases. The domestic courts found that three of these applicants had paid the statutory rent at the level set by domestic law until January 2005. Mr Kazakevičs, for his part, had paid the statutory rent until February 2005. Mr Krilovs, for his part, had paid the statutory rent until January 2006. From then onwards, these applicants had refused to pay the full amount of statutory rent because, allegedly, the owners had not ensured a central (gas) heating supply for the apartments. Most of the applicants had paid rent at a rate of 0.148 Latvian lati (LVL) per square metre, a rate equal to the level of rent set by domestic law for State or municipal buildings. Mr Krilovs, for his part, had paid rent at a rate of LVL 0.60 per square metre.
16. To date only the eviction proceedings concerning Mr Kazakevičs and his family are known to have been completed. Those proceedings lasted from 3 July 2006 to 5 January 2009 at three levels of jurisdiction. As a result of those proceedings the 1991 lease was terminated, and Mr Kazakevičs had to pay the outstanding rent of LVL 2,320.85, as well as State duty and the owners’ legal costs, subject to a statutory cap. In January 2009 Mr Kazakevičs, his wife, two daughters, one son and two minor grandsons were evicted from the apartment without being allocated another place of residence.
17. The eviction proceedings concerning Mr Vižičanins and his family (his wife and two sons) have been terminated, but there is no information as to whether or not they have in fact been evicted from the apartment. The proceedings lasted from 3 July 2006 to 18 June 2009 at two levels of jurisdiction. As a result of those proceedings the 1991 lease was terminated, and Mr Vižičanins had to pay the outstanding rent, as well as State duty and the owners’ legal costs, subject to a statutory cap.
18. The eviction proceedings concerning Mr Kvasņevskis, Mrs Jengovatova and Mr Krilovs are currently pending before the domestic courts.
19. No information has been received about eviction proceedings against the other applicants.
6. Proceedings concerning levels of rent
20. Mrs Drožžina, unlike the applicants mentioned above, continued to pay the statutory rent until that system was abolished by the Constitutional Court. As of 1 September 2007 the owners increased the rent to LVL 5 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. Those proceedings are currently pending.
21. No information has been received about proceedings involving any of the other applicants concerning levels of rent.
7. Municipal assistance
22. Since 2004 several applicants have approached the local municipality, the Rīga City Council (Rīgas dome), with a view to receiving its assistance on matters relating to apartments.
23. To give an example, Mr Kvasņevskis submitted a request to several municipal authorities for allocation of an apartment of the same standard.
24. On 26 May 2004 the competent authority explained to Mr Kvasņevskis that under domestic law, no municipal assistance on matters relating to apartments was available to persons who had participated in construction works under Soviet rule. At the same time, reference was made to regulations no. 61 (Article 2.3.8) and he was encouraged to apply for municipal assistance under those regulations.
25. Similar responses were provided to Mr Šeršņovs and Mr Vižičanins on 10 August 2004 and to Mr Kazakevičs and Mrs Pļuščika on 13 August 2004.
8. Civil proceedings against various authorities
26. Since 2005 the applicants have initiated at least three separate sets of civil proceedings against the Rīga City Council, its appropriate territorial executive board (Rīgas Latgales priekšpilsētas izpilddirekcija) and the State, represented by the Cabinet of Ministers (Ministru kabinets).
27. 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 applicants did not pursue this claim any further.
28. 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 the city court and by the regional court. On 20 March 2006 a judge decided that the claim about the breach of lease was not subject to examination by a (civil) court, and the claim about the allocation of apartments was not sufficiently clear and had to be supplemented. That ruling was upheld by the regional court. Having consulted a lawyer, the applicants decided not to pursue this claim any further.
29. The third claim was brought on 13 November 2006 against the State, represented by the Cabinet of Ministers, and against the Rīga City Council. The applicants requested a court to compel the Rīga City Council, among other things, to allocate them apartments of the same standard or, alternatively, to reimburse their full current market value. They also requested to be exempted 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 to each of the applicants. This claim was examined by a regional court and by the Supreme Court, which on 5 February 2007 dismissed it on the ground that it was not subject to examination by a (civil) court. On 1 March 2007 the Senate of the Supreme Court upheld that ruling.
9. Administrative proceedings against the Rīga City Council
30. On 4 September 2006 the applicants brought a claim in the Administrative District Court (Administratīvā rajona tiesa) against the Rīga City Council. They argued that the municipality’s action in replying to 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 the Rīga City Council to reply to their letters and to compensate them for the damage sustained.
31. On 18 February 2008 a judge heard their case. During the hearing the applicants specified that their claim was in essence about the fulfilment of a contractual obligation incumbent on the State, namely an 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 judge concluded that the claim was not subject to examination by the (administrative) courts and thus the proceedings were terminated (izbeigta tiesvedība). The decision became final on 15 September 2008. The applicants noted their agreement with the decision; they considered 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
32. The relevant laws have been summarised in the Court’s decision in the case of 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 declaring the statutory rent limits unconstitutional and abolishing them as of 1 January 2007 (ibid., § 35).
2. Municipal assistance
33. The relevant Law (likums “Par palīdzību dzīvokļa jautājumu risināšanā”) took effect on 1 January 2002. Several types of assistance are available under section 3 of the Law, including the possibility of leasing a place of residence from a local municipality. Under section 14, the municipality is entitled to offer assistance in order of priority to tenants living in denationalised buildings. It is left to the municipality to determine the criteria and the procedure for such assistance. Section 18 of the Law provides that the municipality is to offer a lease in writing and that the individual concerned has a certain time-limit for accepting the offer.
34. The Rīga City Council, the biggest municipality in Latvia, has adopted several regulations on these issues. In the present case regulations no. 61 are relevant, which provided for the right for low-income persons residing in a denationalised building to be entered in register no. 7 for priority treatment in receiving municipal assistance in the allocation of a place of residence (for rent), if they did not have any other place of residence (Article 2.3.8). These regulations were effective from 31 March 2004 to 26 November 2004; however, they were subsequently replaced by other regulations which contained the same provisions.
3. Access to court
35. In several cases before the Supreme Court its Senate has delivered rulings on the right of access to court in circumstances where both civil and administrative courts have declined jurisdiction. To ensure access to court and effective protection of rights, the Senate has ruled that the administrative courts were to examine the particular case (see, for example, the ruling of 10 March 2009 in case no. SKA-170/2009, the ruling of 17 September 2010 in case no. SKA-756/2010, and the ruling of 29 March 2011 in case no. 5-14/3-2011).
COMPLAINTS
36. 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. The applicants 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 every reason to believe that they would become the secure tenants of their municipal apartments and 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 the case of Stretch v. the United Kingdom (no. 44277/98, 24 June 2003).
37. Relying on Article 6 § 1 of the Convention, the applicants complained that their right of access to court had been infringed by the requirement to pay a 10% State duty for bringing any legal claims concerning their property rights. Furthermore, the applicants complained that “the various proceedings they ha[d] taken and their treatment in court, given that on most occasions they ha[d] not been able to afford legal representation, taken together, evidenced shocking unfairness”.
38. They also submitted that they had endured acute distress, mental suffering and continuing discomfort on account of the lack of heating and the consequent dampness in their apartments; these feelings, resulting from the alleged violations, amounted to treatment contrary to Article 3 of the Convention.
39. The applicants submitted that there had been a blatant failure to respect their private or family life, in breach of Article 8 of the Convention.
40. The applicants also contended that they did not have an effective remedy in Latvia, in violation of Article 13 of the Convention, as evidenced by the many court proceedings taken by them since 1993.
41. Finally, relying on Article 14 of the Convention, they complained of discrimination on the ground of “property or other status” as they had been deprived of the right to reside in secure accommodation and of the right to privatise the apartments, as opposed to other workers who had participated in the relevant building work from 1988 to 1991 and who had been allocated apartments in State-owned buildings.
THE LAW
A. Alleged violation of Article 1 of Protocol No. 1 to the Convention
42. The applicants submitted that they had a right of lease in a State or municipal building, which they had gained by participating in the building work from 1988 to 1991. By not securing 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.”
43. The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.
B. Alleged violations of Article 6 § 1 of the Convention
44. The applicants complained, in a rather general manner, that the requirement to pay a State duty had limited their access to court, in breach of Article 6 § 1 of the Convention. They also submitted that all the domestic proceedings in their cases had been unfair.
45. 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 ...”
46. The Court notes at the outset that the applicants have initiated a variety of proceedings at domestic level which have been examined by several courts. However, their main complaints, which they continue to pursue before the Court, concern the alleged breach of the 1991 leases (see paragraph 28 above) and the State’s obligation to allocate State or municipal apartments (see paragraph 31 above).
1. Access to court as concerns the claim for allocation of State or municipal apartments
47. The Court observes that this claim was examined by an administrative court at one level of jurisdiction; it concluded that the claim did not fall within the jurisdiction of the administrative courts (see paragraph 31 above). The civil courts also arrived at a similar conclusion (see paragraph 29 above). The Court notes that the Supreme Court has subsequently addressed the issue by conferring jurisdiction on administrative courts on a case-by-case basis (see paragraph 35 above).
48. In view of these facts, the Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint. It is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.
2. Access to court as concerns the claim of a breach of the 1991 lease
49. The Court observes that this claim was examined by the city court and the regional court. The claim, as formulated by the applicants, did not fall within the jurisdiction of a civil court and for that reason it was dismissed (see paragraph 28 above). The applicants were thus not denied access to court by virtue of the requirement to pay a State duty. Furthermore, they did not bring a claim in the administrative courts concerning the alleged breach of the 1991 leases. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
3. Fairness of the proceedings
50. As concerns the applicants’ complaint that the domestic proceedings were unfair, the Court notes that they have not submitted any evidence in that regard or made any submissions setting out in detail the alleged unfairness. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
C. Other alleged violations
51. The applicants alleged a violation of Article 3 of the Convention on account of the suffering caused by the lack of heating in their apartments. The applicants further contended that the State authorities had failed to respect their private and family life, in breach of Article 8. Finally, they submitted that Articles 13 and 14 had also been violated.
52. In the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.
53. It follows that these complaints are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court unanimously
Decides to adjourn the examination of the applicants’ complaints under Article 1 of Protocol No. 1 to the Convention and Article 6 § 1 of the Convention as regards access to court in respect of the claim for allocation of State or municipal apartments;
Declares the remainder of the application inadmissible.
Santiago QuesadaJosep Casadevall Registrar President
Full & Egal Universal Law Academy