Lexploria

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)

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V.S. AND T.H. v. THE CZECH REPUBLIC

V.S. AND T.H. v. THE CZECH REPUBLIC

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