Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 15155/89

by E.R.

against Austria

The European Commission of Human Rights (First Chamber) sitting

in private on 1 July 1992, the following members being present:

MM. E. BUSUTTIL, Acting President of the First Chamber

F. ERMACORA

A.S. GÖZÜBÜYÜK

Sir Basil HALL

Mr. C.L. ROZAKIS

Mrs. J. LIDDY

MM. M. PELLONPÄÄ

B. MARXER

Mr. M. de SALVIA, Secretary to the First 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 3 April 1989 by

E.R. against Austria and registered on 21 June 1989 under file No.

15155/89;

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 is an Austrian citizen born in 1948. He is

represented before the Commission by Mr. B. Fleischhackl of the

Austrian Association for the Protection of Tenants (Mieterschutzverband

Österreich).

The facts of the case, as submitted by the applicant, may be

summarised as follows.

The applicant is a tenant of a flat in Vienna. His landlord is

the Gemeinnützige Landeswohnungsgenossenschaft für Oberösterreich, a

building association which is "in the public interest" (gemeinnützig).

On 1 January 1986, Section 14(d) of the Law on Dwellings in the

Public Interest (Wohnungsgemeinnützigkeitsgesetz - "the Act") entered

into force. It provides that building associations (including the

applicant's landlord) may levy maintenance contributions on tenants.

The section provides that the contributions may only be levied if

planning permission for the building was granted over ten years earlier

and no demolition permission has been granted. Any money not used

after ten years must be returned to the then tenant (i.e. not

necessarily the person who made the payments). A maximum contribution

is laid down.

On 18 August 1987 the applicant's landlord informed him that he

would have to make monthly maintenance payments of AS 459.24 as of 1

October 1987.

The applicant challenged the landlord's claim before the

Mauthausen District Court (Bezirksgericht) which, on 15 January 1988,

found that all the conditions set out in Section 14 of the Act were

complied with, and that - subject to the permitted maximum, which was

not exceeded - there was no statutory provision for fixing the amount

of the maintenance contribution. The challenge was rejected. Even

though the applicant had been unsuccessful, the court found that each

party should bear its own costs because of the lack of clear case-law

concerning Section 14. The applicant's appeal (Rekurs) to the Linz

Regional Court (Landesgericht) was rejected on 10 May 1988. The

applicant made a further appeal (Revisionsrekurs) to the Supreme Court.

On 27 September 1988 the Supreme Court rejected the applicant's

appeal. It found that the conditions set out in Section 14(d) had been

complied with, and that the landlord was not required to state which

maintenance works were necessary: the aim of Section 14(d) was to

enable building associations to levy certain contributions even if

there was not, at the time, an immediate need for them. The court

noted that if the money had not been used after ten years, it had to

be repaid.

As to the applicant's allegations of violations of his

constitutional rights, the Supreme Court noted first that the function

of Section 14(d) was to regulate part of the rights and obligations

which governed the relationship between building associations which

were in the public interest and the tenant. The question of whether

the behaviour of the landlord complied with the provisions of

substantive law could be determined in non-contentious proceedings

provided for elsewhere in the Act, such that there was no conflict with

Article 6 of the Convention. Article 6 was not intended to affect the

substantive content of civil rights.

The Supreme Court next found that Section 14(d) did not interfere

with the applicant's property: it merely modified the previous system

which had limited even more strictly the amount a landlord was allowed

to demand of a tenant. The court noted that whilst the landlord

suffered a continuing restriction on the use of property by virtue of

the inability to terminate contracts with tenants, the tenant was under

no such disability and could terminate his tenancy at will. The

question of whether the return of monies not used after ten years

itself violated property rights did not arise in the present case.

Finally, the Supreme Court saw no violation of the principle of

equality by virtue of the application of Section 14(d) to contracts

with building associations but not to those with private tenants,

because (in extremis) the principle that the landlord should be able

to recoup his costs was laid down in Section 13(1) of the Act.

The applicant received the decision of the Supreme Court on 21

November 1988.

COMPLAINTS

The applicant alleges violations of Article 6 para. 1 of the

Convention, Article 1 of Protocol No. 1 to the Convention and

Article 14 of the Convention.

THE LAW

1. The applicant alleges a violation of Article 6 para. 1

(Art. 6-1) of the Convention which provides, so far as relevant, as

follows:

"In the determination of his civil rights and obligations

or of any criminal charge against him, everyone is entitled

to a fair and public hearing within a reasonable time by an

independent and impartial tribunal established by law."

The applicant's complaint is that he was unable to have a court

determination of the amount of money which he was required to pay by

way of maintenance contribution pursuant to Section 14(d) of the Act.

The Commission notes that the applicant makes no complaints

whatever about procedural aspects of the proceedings which terminated

in the Supreme Court's decision of 27 September 1988, and that the

Supreme Court found that, had he been alleging that the landlord had

been outside the scope of Section 14(d), non-contentious proceedings

would have been available to him under the Act. Accordingly, the

applicant's complaint in this respect must be seen as being limited to

an allegation that the courts would not enter into a discussion of the

amount he should be required to pay by way of maintenance contribution.

The Commission recalls that Article 6 para. 1 (Art. 6-1) does not

in itself guarantee any particular content for civil "rights and

obligations" in the substantive law of contracting States (cf. Eur.

Court H.R., W v. the United Kingdom judgment of 8 July 1987, Series A

no. 121 p. 32 et seq., para. 73). The Commission finds that the

applicant's allegation, that the courts would not consider the amount

of maintenance contribution he should have been required to make, was

not a matter to which the guarantees of Article 6 para. 1 (Art. 6-1)

of the Convention attach.

It follows that this part of the application is manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

2. The applicant also alleges a violation of Article 1 of Protocol

No. 1 (P1-1) to the Convention, which provides 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."

The Commission recalls that in the case of Mellacher and Others

(Eur. Court H.R., judgment of 19 December 1989, Series A no. 169)

concerning the Austrian Rent Act, the Court found that interferences

with private law contracts by way of legislative amendment did not

amount to a deprivation of possessions within the meaning of the second

sentence of the first paragraph of Article 1 of Protocol No. 1

(P1-1), but were a mere control of the use of property in that the

contested measures deprived those applicants of part of their income

from the property. The Commission finds that, to the extent that the

application of Section 14(d) of the Act amounted to an interference

with the applicant's right to peaceful enjoyment of his possessions,

in the present case too, such interference was a measure of control of

the use of property.

The Commission recalls the Court's finding that the aim of the

1981 Rent Act was to reduce disparities between rents for equivalent

apartments and to make available reasonable accommodation at affordable

prices. In the present case, the Supreme Court, in its decision of 27

September 1988, found that the purpose of Section 14(d) was to put into

effect the principle, set out in Section 13 of the Act, that the rent

received for building association flats should cover the costs. The

Commission accepts that this amounts to a legitimate aim in the general

interest.

In the Mellacher and Others case, the Court noted that the effect

of the legislation was to bring about very large reductions in the rent

receivable from tenants of two of the applicants. Given the margin of

appreciation afforded to States in such matters, the Court found the

measures complained of were not so inappropriate or disproportionate

as to take them outside that margin of appreciation. In the present

case no details have been submitted of the size of the maintenance

contribution as compared with the contractually agreed rent, but in any

event there is no indication that the payment of AS 459,24 per month

is disproportionate or inappropriate in the present case. Moreover,

if the money is not spent within a period of ten years, it will be

refunded to the applicant (or his successor in title) with interest.

It follows that this part of the application is manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

3. Finally, the applicant alleges a violation of Article 14

(Art. 14) of the Convention. He considers that he was treated

differently from tenants of private landlords.

The Commission recalls that Article 14 (Art. 14) of the

Convention protects individuals placed in similar situations from

discrimination in their enjoyment of ther rights under the Convention

and its Protocols (cf. Eur. Court H.R., Darby judgment of 23 October

1990, Series A no. 187, p. 12, para.31). However, the position of

tenants of a building association which is in the public interest

cannot be compared with the position of tenants of private landlords,

such that a legislative amendment affecting one of these groups cannot

be seen as discrimination with the meaning of Article 14 (Art. 14) of

the Convention.

This part of the application is therefore also manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

For these reasons, the Commission unanimously

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the First Chamber Acting President of the First Chamber

(M. de SALVIA) (E. BUSUTTIL)

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