AS TO THE ADMISSIBILITY OF
Application No. 27290/95
by R. A.
against the Czech Republic
The European Commission of Human Rights (Second Chamber) sitting
in private on 11 April 1996, the following members being present:
Mr. H. DANELIUS, President
Mrs. G.H. THUNE
MM. G. JÖRUNDSSON
J.-C. SOYER
H.G. SCHERMERS
F. MARTINEZ
L. LOUCAIDES
J.-C. GEUS
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
P. LORENZEN
Ms. M.-T. SCHOEPFER, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 6 January 1995 by
R. A. against the Czech Republic and registered on 10 May 1995 under
file No. 27290/95;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant, a Czech national born in 1951, is resident in
Prague. Before the Commission he is represented by Mrs. E. Schramm,
a lawyer practising in Prague and Bielefeld.
A. The particular circumstance of the case
The facts of the case, as submitted by the applicant, may be
summarised as follows.
The applicant owns a house in Prague comprising two apartments
leased to tenants. The rent is governed by the Flats (Rent)
Regulations (see "The relevant domestic law" below), and the applicant
is thereby allowed to charge the tenants monthly 4,50 and 3,50 Czech
crowns per square metre respectively. He considers that the rent would
cover his actual costs only if he could charge the tenants some 130 to
150 crowns per square metre a year.
On 17 June 1994 the applicant lodged a constitutional complaint.
He referred to the Charter of Fundamental Rights and Freedoms and
alleged that the Flats (Rent) Regulations represent a direct
interference by a public authority with his right to property, to
respect for his dignity, to equality in treatment, and that he is
thereby obliged to provide free services to his tenants which amounts
to forced labour. The applicant further requested that the Flats
(Rent) Regulations should be annulled.
The applicant alleged that he had no other remedies available
since a possible action against the tenants would have no prospect of
success given the generally binding character of the Flats (Rent)
Regulations, and also because the Czech legal order does not provide
for a direct remedy against a legal rule.
In particular, the applicant claimed that the Flats (Rent)
Regulations were unconstitutional as under Section 11 para. 4 of the
Charter of Fundamental Rights and Freedoms property rights could be
restricted only by a law, in the public interest and for compensation.
The applicant argued that the Flats (Rent) Regulations had no relevant
support either in the Constitution or in a law adopted by the
Parliament.
The applicant further complained that by virtue of the Flats
(Rent) Regulations he was restricted in the peaceful enjoyment of his
possessions and expropriated without any compensation. He complained
that the aforesaid regulations fixed the rent for an unlimited period,
and did not permit to take into consideration the real material
situation of the tenants.
On 25 July 1994 the Constitutional Court (Ústavní soud) rejected
the constitutional complaint. It found that the applicant lacked
standing to lodge the complaint as he did not meet the requirements of
Section 72 para. 1 (a) of the Constitutional Court Act. The
Constitutional Court held, inter alia:
[Original]
"Ústavní stíznost nesmeruje proti zásahu orgánu verejné moci,
jímz doslo k porusení základního práva nebo svobody navrhovatele.
Za zásah orgánu verejné moci, jímz je poruseno základní právo
obcana, nelze povazovat - legislativní cinnost, jakoz i vydání
obecne závazného predpisu ústredního orgánu státní správy - v
mezích jeho pravomoci a pusobnosti, a to ani v tom prípade ne,
kdyz - jak navrhovatel tvrdí - jeho ustanovení porusují základní
právo obcana."
[Translation]
"The [applicant's] constitutional complaint does not concern an
interference by an organ of the public authorities by which a
fundamental right or freedom of [the applicant] has been
violated. Legislative acts, including the passing of generally
binding rules by a central organ of State administration - within
the scope of its competence and jurisdiction - cannot be
considered as an interference by an organ of the public
authorities violating a fundamental right or freedom of a citizen
even if - as it is alleged by [the applicant] - such rules
violate a citizen's fundamental right."
The Constitutional Court further held that the applicant lacked
standing to lodge a request for acts or other legal rules to be
annulled.
B. The relevant domestic law
Regulations on Rent of Flats and Compensation for Services
Related to the Use of a Flat (Vyhláska o nájemném z bytu a úhrade za
plnení poskytovaná s uzíváním bytu) of 17 June 1993 - the Flats (Rent)
Regulations - were issued by the Ministry of Finance in accordance with
Section 20 para. 1 (a) of the Prices Act (Zákon o cenách). They were
published in the Digest of Laws under the number 176/1993.
Under the Flats (Rent) Regulations flats are divided into four
categories according to the facilities they offer. The following
maximum monthly rents per square metre are fixed:
I. category 6,- crowns
II. category 4,50 crowns
III. category 3,50 crowns
IV. category 2,50 crowns
The Flats (Rent) Regulations were amended on 8 February 1995 in
that they now provide for yearly adjustment of rent in accordance with
different coefficients which reflect, inter alia, the rate of inflation
and the size of the municipality where the flat is situated. This
amendment entered into force on 1 July 1995.
Pursuant to Article 10 of the Constitution of the Czech Republic
the ratified and promulgated international treaties on human rights and
fundamental freedoms, by which the Czech Republic is bound, shall be
applicable as directly binding regulations, having priority before the
law.
Pursuant to Section 72 para. 1 (a) of the Constitutional Court
Act (Zákon o Ústavním soudu) of 16 June 1993, as amended, a
constitutional complaint can be lodged by a natural or legal person
alleging a violation, by a final decision in proceedings to which that
person was a party or by another interference by an organ of the public
authorities, of that person's fundamental right or freedom as
guaranteed by a constitutional statute or an international treaty to
which the Czech Republic is a party.
C. Documents relating to the entry into force of the Convention with
regard to the Czech Republic
The Convention entered into force in respect of the former Czech
and Slovak Federal Republic on 18 March 1992.
By a letter of 1 January 1993 the Minister for Foreign Affairs
of the Czech Republic informed the Secretary General of the Council of
Europe that the Czech Republic considered itself bound, as of 1 January
1993, by the European Convention on Human Rights and the declarations
made by the Czech and Slovak Federal Republic under Articles 25 and 46
of the Convention.
On 30 June 1993 the Committee of Ministers of the Council of
Europe decided at the 496th bis meeting of the Ministers' Deputies that
the Czech Republic is to be regarded as a Party to the European
Convention on Human Rights and its Protocols with effect from 1 January
1993 and that that State is bound as from that date by the declarations
made by the Czech and Slovak Federal Republic in respect of Articles
25 and 46 of the Convention.
COMPLAINTS
The applicant complains under Article 1 of Protocol No. 1 that
he could only charge his tenants some 30 per cent of the actual costs
before the Flats (Rent) Regulations were amended, and that even
thereafter the rent is far from covering his costs. In his view, this
interference is disproportionate as the maximum rent is imposed for an
unlimited period, without the possibility of taking into account the
material situation of the tenants and without granting any
compensation.
The applicant further alleges that the obligation to pay a part
of the costs of his tenants violates his rights under Articles 3 and
4 para. 2 of the Convention.
Finally, the applicant alleges a violation of Article 13 of the
Convention in that he did not have an effective remedy against the
Flats (Rent) Regulations which interfere with his rights under the
Convention.
THE LAW
The applicant alleges that as a result of implementation of the
Flats (Rent) Regulations and the Constitutional Court's refusal to deal
with his complaint his rights under Articles 3, 4 para. 2 and 13
(Art. 3, 4-2, 13) of the Convention and under Article 1 of Protocol
No. 1 (P1-1) were violated.
The Commission is not required to decide whether the facts
submitted by the applicant disclose any appearance of a violation of
these provisions. According to Article 26 (Art. 26) of the Convention,
"the Commission may only deal with the matter after all domestic
remedies have been exhausted, according to the generally recognised
rules of international law (...)".
The Commission recalls that Article 26 (Art. 26) of the
Convention does not require merely that applications should be made to
the appropriate domestic courts and that use should be made of remedies
designed to challenge decisions already given; it normally requires
also that the complaints intended to be formulated subsequently at
Strasbourg should have been made to those same courts, at least in
substance and in compliance with the formal requirements laid down in
domestic law and, further, that any procedural means which might
prevent a breach of the Convention should have been used (cf. Eur.
Court H.R., Saïdi judgment of 20 September 1993, Series A no. 261-C,
p. 54, para. 38, with further reference).
The Commission has found earlier that in Czech law, the final
instance for complaints of violations of fundamental rights and
freedoms recognised in a constitutional statute or an international
treaty, committed by an 'organ of the public authorities', is the
Constitutional Court of the Czech Republic (cf. No. 22926/93, Dec.
7.4.94, D.R. 77 pp. 118, 121).
In the present case the applicant considered that he had no
other remedies since a possible action against the tenants would have
had no prospect of success given the generally binding character of the
Flats (Rent) Regulations. However, the Constitutional Court found that
it could not examine the complaint since legislative acts cannot be
considered as an interference by an organ of the public authorities
within the meaning of Section 72 para. 1 (a) of the Constitutional
Court Act.
The Commission recalls that pursuant to Article 10 of the
Constitution the ratified and promulgated international treaties on
human rights and fundamental freedoms, by which the Czech Republic is
bound, shall be applicable as directly binding regulations, having
priority before the law. The Czech Republic is considered as a Party
to the European Convention on Human Rights and its Protocols with
effect from 1 January 1993.
Thus, if the applicant considered that he was obliged, by virtue
of the Flats (Rent) Regulations to pay a part of the costs for his
tenants, he could have introduced civil proceedings against the latter.
Before the courts the applicant could then have invoked, by
virtue of Article 10 of the Constitution, the violation of his rights
under the Convention and Protocol No. 1 which he now raises before the
Commission. If the applicant had not obtained redress before general
courts, he would nevertheless have had standing to challenge the final
decision before the Constitutional Court in conformity with the formal
requirements laid down in Section 72 para. 1 (a) of the Constitutional
Court Act.
Since the applicant has not shown that he did so, he has failed
to comply with the requirement as to the exhaustion of domestic
remedies laid down in Article 26 (Art. 26) of the Convention.
If follows that the application must be rejected pursuant to
Article 27 para. 3 (Art. 27-3) of the Convention.
For these reasons, the Commission, by a majority,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Second Chamber President of the Second Chamber
(M.-T. SCHOEPFER) (H. DANELIUS)
Full & Egal Universal Law Academy