AS TO THE ADMISSIBILITY OF
Application No. 26347/95
by V.S. and T.H.
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 16 September 1994
by V.S. and T.H. against the Czech Republic and registered on
27 January 1995 under file No. 26347/95;
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 applicants are two Czech citizens born in 1933 and 1931
respectively. They reside in Prague. Before the Commission, they are
represented by Mrs. E. Schramm, a lawyer practising in Bielefeld and
Prague.
A. The particular circumstances of the case
The facts of the case, as submitted by the applicants, may be
summarised as follows.
The applicants jointly own a house in Prague 10 comprising three
apartments. The applicants occupy two apartments, the third one
(consisting of five rooms and a kitchen with a total surface area of
126m²) was leased to Mr B. on 1 September 1988 by the Prague 10
District Office which, under the former legislation, had the right to
dispose of apartments in private houses. The rent was set at 294.00
crowns, with maintenance contributions 400.00 crowns, pursuant to the
Decree No. 60/1964.
On 4 April 1991 the applicants informed Mr B. of an increase in
the rent and maintenance contributions. They claimed a monthly rent
of 12,600.00 crowns (i.e. 100.00 crowns per square metre) and
maintenance contributions of 1,300.00 crowns as from 1 May 1991. They
considered that the existing rent plus maintenance contributions did
not cover their actual costs. At the same time, they gave notice to
Mr B. asking him to leave the apartment.
The tenant refused, following which the applicants brought
proceedings against him before the Prague 10 District Court (Obvodní
soud pro Prahu 10) asking that the lease be terminated and that Mr B.
be ordered to leave the apartment. They also sought orders modifying
the rent and the maintenance contributions to the effect that Mr B.
would have to pay the above sums as from 1 May 1991.
The Prague 10 District Court found against the applicants on
5 November 1991. The Court stated that:
[Translation]
"[Mr B.] uses the apartment on the basis of an exchange of
apartments [made with a former tenant], which was approved
by the Prague 10 District Office ...
The rent and maintenance contributions are governed by
Regulation No. 60/1964 ... The applicants' proposal to
increase the rent to 12,600.00 crowns is unjustified
because according to this Regulation, the rent is fixed at
294.00 crowns ... The court also rejects the applicants'
proposal to increase the maintenance contributions as they
have not proved the actual costs."
The applicants' appeal against this decision was dismissed by the
Prague Municipal Court (Mestsky soud v Praze) on 22 April 1992. The
Court found that:
[Translation]
"... on the basis of an approved exchange of apartments of
17 August 1988, ... Mr B. became entitled to make an
agreement about taking over an apartment [with the owners
of the house]. The right to use the apartment was
established only after the agreement had been made. The
former legislation did not require a written form for such
an agreement, but it was also possible to conclude an oral
or even an implied contract.
... the agreement between the applicants and [Mr B.] was
made tacitly. ... although the applicants and [Mr B.] did
not express their will to conclude an agreement about
surrendering and taking over the apartment, it was obvious
that they intended to do so ... the applicants expressed
their consent to [Mr. B]'s moving into the apartment ...
This conclusion is not affected by the fact that the
applicants, under the former legislation, did not have the
right to consent to the exchange of apartments.
... it follows that from 1 September 1988 [Mr B.] had the
right to use the apartment in question. As from
1 January 1992 this legal relationship was transformed to
a lease contract (Article 871 para. 1 of the Civil Code).
If the applicants prove that they need the apartment for
themselves, ..., they may terminate the lease with the
court's consent.
... Until 31 December 1991 the rent and maintenance
contributions were governed by Regulation No. 60/1964 ...
which excluded unilateral rent increases. The maintenance
contributions were determined by Article 13 of the above
Decree. This regulation was amended and the new Regulation
No. 15/1992 entered into force on 1 January 1992. In the
present case, the rent and maintenance contributions should
be agreed between the owner and tenant under Article 16.
A unilateral rent increase is possible only if the actual
amount of rent does not reach the level set out in
Article 5; ... this [is not the problem in the present
case.]"
On 26 August 1993, the applicants lodged a constitutional appeal.
They referred to the Charter of Fundamental Rights and Freedoms and
alleged that the relevant legislation, in particular
Article 871 para. 1 of the Civil Code, constitutes an illegal
interference with their right to property, to respect for their
dignity, to equality in treatment, and that they are thereby obliged
to provide free services to their tenant which amounts to forced
labour. They also complained about the unfairness of the proceedings
at first and second instance as the courts rejected their request for
increased maintenance contributions. The applicants further applied
for Article 871 para. 1 of the Civil Code to be quashed as
unconstitutional.
In the meantime, the applicants brought proceedings against Mr B.
in the Prague 10 District Court. Relying on Article 711 para. 1a) of
the Civil Code, they asked the court to approve their request for
termination of the lease (Article 711 para. 2 of the Civil Code).
By the judgment of 9 March 1993 of the Prague 10 District Court,
confirmed on 1 December 1993 by the Prague Municipal Court, the courts
found for the applicants and ordered Mr B. to leave the apartment
within 15 days after the applicants had ensured another apartment for
him.
On 18 March 1994 the applicants introduced a constitutional
appeal claiming that Article 711 of the Civil Code restricted them in
the peaceful enjoyment of their possessions. The proceedings before
the Constitutional Court (Ústavní soud) were still pending when the
applicants introduced their complaint with the Commission.
On 22 March 1994 the Assembly of the Constitutional Court
rejected the applicants' constitutional appeal as to the alleged
unconstitutionality of Article 871 para. 1 of the Civil Code and
declared that this provision was compatible with the Charter of
Fundamental Rights and Freedoms. The Court considered that:
[Translation]
"... the right to use an apartment was based on an
administrative decision about the surrender and taking over
of the apartment, often without the owner's consent.
However, the Court must take into account the conflict
between the owners' interests in disposing of their
apartments and the tenants' interests in protecting their
rights. Article 871 para. 1 of the Civil Code is a
regulation about transformation of rights. Its purpose is
to ensure protection of tenants and to create legal
certainty with regard to relationships between owners and
tenants. This legal provision is in conformity with ...
the Constitution ... and, in this respect, it cannot be
considered as unconstitutional."
By judgment of 7 July 1994 the Chamber of the Constitutional
Court dismissed the remainder of the applicants' constitutional appeal
as unsubstantiated. The Court stated that:
[Translation]
"The applicants allege a violation of their right to be
protected by a court under Article 38 para. 1 of the
Charter of Fundamental Rights and Freedoms because the
courts found against them. ... they criticised the
appreciation of evidence by the courts as they considered
that the agreement about the surrendering and taking over
of the apartment was concluded tacitly. ... [T]he
Constitutional Court ... is not a further level of
jurisdiction and it thus generally has no power to
reexamine the activities of those courts; it has such a
right only in those cases where the constitutional
principles have been breached. However, the fact that the
applicants' claim was unsuccessful does not in itself
constitute a violation of the right to be protected by a
court ...
[The] ordinary courts found that ... the tenant's right to
the use of the apartment was established per facta
concludentia ... Following the judicial practice, [an
implied contract] also exists where one party begins to
execute obligations resulting from a contract even without
expressly accepting its text. According to the courts'
findings, the applicants have done this. ... In view of the
above the user of the apartment gained the right to its use
[which was] transformed into a lease pursuant to
Article 871 para. 1 of the Civil Code. The ordinary court
applied this legal provision and the Constitutional Court
does not find its application to be in contradiction with
Article 11 of the Charter.
[Finally], the courts' decision to dismiss the claim
concerning the maintenance contribution is not a decision
which would violate the applicants' fundamental rights or
freedoms. ... It is an ordinary civil matter which cannot
be considered by the Constitutional Court."
B. Relevant domestic law
According to Chapter III of the (former) Civil Code, the District
Office had the right to dispose of apartments in private houses. It
also assigned apartments and approved exchanges between tenants. On
the basis of such approval, tenants became entitled to conclude (in
writing, orally or tacitly) agreements with owners about the
surrendering and taking over of an apartment which created a right to
use an apartment. Owners did not have the right to consent to the
exchange of their apartments; if they refused, the courts could give
their approval.
By an amendment to the Civil Code (Article 871 para. 1) which
entered into force on 1 January 1992, the right to use an apartment was
transformed into a lease contract.
Until 31 December 1991 rent and maintenance contributions were
governed by Regulation No. 60/1964 on Compensation for the Use of an
Apartment and for the Maintenance Contributions Related to that Use
(Vyhláska o úhrade za uzívání bytu a za sluzby spojené s uzíváním
bytu). This Regulation was amended by Regulation No. 15/1992 which
entered into force on 1 January 1992. Pursuant to Article 5 para. 2
of this Regulation, the rent of apartments was increased by about 100%
with effect from 1 July 1992.
Pursuant to Article 72 para. 1a) of Law No. 182/1993 on the
Constitutional Court (Zákon o Ústavním soudu), as amended, a
constitutional appeal can be lodged by a physical or legal person
alleging a violation, by a final decision in proceedings to which that
person was a party or by any other interference by an organ of the
public authorities, of that person's fundamental rights or freedoms as
guaranteed by a constitutional statute or an international treaty to
which the Czech Republic is a party.
COMPLAINTS
The applicants complain that, by the application of Article 871
para. 1 of the Civil Code, they have been subjected to an unjustified
interference with their right to the peaceful enjoyment of their
possessions, contrary to Article 1 of Protocol No. 1 and that they were
thereby obliged to provide free services to their tenant which amounts
to forced labour contrary to Article 4 para. 2 of the Convention. They
also claim that the national courts did not examine the real effect of
the application of Article 871 para. 1 of the Civil Code on their case
and that they did not verify the proportionality between their rights
as owners and the rights of the tenant.
THE LAW
1. The applicants complain that, by the application of Article 871
para. 1 of the Civil Code, they have been subjected to an unjustified
interference with their right to the peaceful enjoyment of their
possessions, contrary to Article 1 of Protocol No. 1 (P1-1).
The Commission is not required to decide whether the facts
submitted by the applicant disclose any appearance of a violation of
Article 1 of Protocol No. 1 (P1-1). 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 before
the Commission 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 v. France judgment of 20 September 1993, Series A no.
261-C, p. 54, para. 38, with further reference).
The Commission notes that the applicants claim that the courts
did not examine the real effect of the application of Article 871
para. 1 of the Civil Code on their case and that the courts did not
verify the proportionality between their rights as owners and the
rights of the tenant. However, the applicants have never raised these
matters before the ordinary courts nor, in the final resort, before the
Constitutional Court, although it was open for them to do so. In
particular, they could have challenged the rent regulations which were
then in force, submitting evidence on the difference between the rent
and actual costs.
In these circumstances, the Commission finds that the applicants
have not satisfied the requirement as to the exhaustion of domestic
remedies laid down in Article 26 (Art. 26) of the Convention.
It follows that this part of the application must be rejected
pursuant to Article 27 para. 3 (Art. 27-3) of the Convention.
2. The applicants complain that they are obliged to provide free
services to their tenant which amounts to forced labour contrary to
Article 4 para. 2 (Art. 4-2) of the Convention.
However, insofar as the matters complained of have been
substantiated and are within its competence, the Commission finds that
they do not disclose any appearance of a violation of the provision
invoked by the applicants.
This part of the application must therefore also be rejected as
manifestly ill-founded in accordance with Article 27 para. 2
(Art. 27-2) of the Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Second Chamber President of the Second Chamber
(M.-T. SCHOEPFER) (H. DANELIUS)
Full & Egal Universal Law Academy