Lexploria

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)

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R.A. v. THE CZECH REPUBLIC

R.A. v. THE CZECH REPUBLIC

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