Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 12132/86

by Herwig HIRZENBERGER

against Austria

The European Commission of Human Rights sitting in private

on 13 October 1988, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

F. ERMACORA

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

J. CAMPINOS

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

Mr. H.C. KRÜGER Secretary to the Commission

Having regard to Article 25 of the Convention for the

Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 17 March 1986

by Herwig Hirzenberger against Austria and registered on

9 April 1986 under file No. 12132/86;

Having regard to the report provided for in Rule 40 of the

Rules of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, an Austrian citizen born in 1937 who resides in

Vienna, is a practising lawyer. His earlier application No. 9695/82,

which concerned a compensation issue under the Austro-Czechoslovakian

Treaty on the regulation of property questions, was declared

inadmissible by the Commission on 5 July 1984. The present

application is not related to the facts of the earlier case.

The facts submitted in the present case may be summarised as

follows:

The applicant owns an apartment block in Vienna which was

severely damaged during World War II. One of the apartments,

consisting of three rooms and a kitchen, was let to a tenant in 1953

on the basis of the 1922 Rent Act (Mietengesetz, Fed. Law Gazette No.

872/1922) which provided for a freeze of rent at the level of 1914.

The annual rent was fixed at AS 720,-. In view of the bad state of

repair of the apartment it was agreed that the tenant should carry out

the necessary repair work (Instandsetzung) inside the apartment at his

own cost. He expressly renounced his right under Section 1096 of the

Civil Code (Allgemeines Bürgerliches Gesetzbuch) to repair by the

landlord. On this basis the tenant installed a kitchen with a gas

pipe. In 1981 the tenancy rights were transferred to the previous

tenant's son. The conditions of the tenancy remained unchanged.

On 1 January 1982 a new Rent Act entered into force

(Mietrechtsgesetz, Fed. Law Gazette No. 520/1981). Under this

legislation the applicant could require the tenant to pay maintenance

contributions (Erhaltungs-und Verbesserungsbeitrag) in addition to the

rent (Section 45). The applicant required such a contribution and the

tenant accordingly paid a monthly rent of AS 107,40 plus maintenance

contributions of AS 134,41.

In October 1983 the gas pipe in the apartment became

defective. The gas was turned off by the gas works of the City of

Vienna. The tenant asked the applicant to repair the defect but the

applicant refused to do so. Thereupon the tenant made an application

under Section 6 of the 1981 Rent Act in order to oblige the applicant

to carry out the repair. He invoked Section 3 of the Act according to

which the landlord is obliged to maintain the building in an adequate

state of repair.

The applicant opposed the tenant's application, invoking

the above clause in the tenancy contract whereby the landlord's

maintenance obligation under Section 1096 of the Civil Code had been

excluded and the charge of repair work inside the apartment was

imposed on the tenant. He further claimed that the repair fund

constituted from the rent proceeds (Mietzinsreserve) was not

sufficient to cover the costs.

The tenant's application was granted by the competent

Arbitration Board (Schlichtungsstelle) and subsequently, on

19 June 1984, by the District Court (Bezirksgericht) of Hernals.

The Court considered that the case came within the maintenance

obligation of the landlord under Section 3 of the Rent Act which could

be enforced by the tenant under Section 6 of the Act. The necessary

repair work was of a nature which excluded the examination of the

question in which way it could be financed (Section 3 para. 3

sub-para. 2 of the Act). The question of a valid exclusion of Section

1096 of the Civil Code had to be proven by the applicant. As he had

failed to do so he was required to carry out the repair. He was

ordered to do so within a period of two weeks.

The applicant's appeal (Rekurs) against this decision was

allowed by the Regional Civil Court (Landesgericht für Zivil-

rechtssachen) of Vienna on 15 October 1984. It referred the case

back to the District Court directing it to take a new decision after

having given the other tenants an opportunity to participate in the

proceedings. This was required under Section 6 para. 4 in conjunction

with Section 37 para. 3 sub-para. 2 of the Act. The interests of the

other tenants could be directly affected in particular because of the

possibility of their having to pay increased rents (Section 18 of the

Act) as a consequence of the repair work in question if the repair

fund was not sufficient to cover the costs.

The other tenants were accordingly involved in the further

proceedings of the District Court. By declaration of 1 December 1984

the majority of tenants stated that they objected to the repair work

being carried out by the applicant.

The District Court again allowed the tenant's application by a

decision of 6 May 1985. It noted that under Section 8 of the Rent Act

the tenant was required to maintain the apartment including inbuilt

installations such as gas pipes etc. in a manner which prevented

damage to the landlord and other tenants. However, serious defects

were excluded from the tenant's maintenance obligation and had to be

repaired by the landlord according to Section 3 of the Act. The

repair necessary in the instant case was "priority repair work"

within the meaning of Section 3 para. 3 sub-para. 2. This had to be

carried out by the landlord irrespective of whether the costs were

covered by the repair fund or whether an increase of rents would

become necessary as a consequence. In such a case the objection of

the majority of tenants was irrelevant. The contractual exclusion of

the landlord's maintenance obligation under Section 1096 of the Civil

Code could not be invoked because such an exclusion was only

admissible in freely negotiated tenancy agreements, but not in

agreements coming within the scope of rent restrictions. The

applicant was therefore ordered to carry out the necessary repair work

within a period of four weeks.

The applicant again appealed to the Regional Civil Court

invoking inter alia his constitutional rights to equality before the

law and to inviolability of property. However, on 26 September 1986,

the Regional Civil Court rejected the appeal. It observed that under

Section 18 of the 1922 Rent Act the applicant had been obliged to

tolerate the installation by the tenant of a gas pipe which, as an

inseparable part of the building, had become the applicant's

property. A defect of the gas pipe which made it unusable was a

serious defect of the building as such, notwithstanding that the

defect existed only inside the apartment concerned. The repair

obligation of the applicant as the landlord under Section 3 of the

1981 Rent Act had been rightly confirmed by the District Court, having

due regard to the provisions of Section 8. The Court finally stated

that it did not share the applicant's doubts concerning the

constitutionality of the measure ordered.

The applicant had the gas pipe repaired by a specialised firm

which charged him AS 5,976.-.

COMPLAINTS

1. The applicant complains that he could not himself raise before

the Constitutional Court the alleged unconstitutionality of the

applicable provisions of the Rent Act, and that the Regional Civil

Court refused to bring the case before the Constitutional Court. He

alleges violations of Articles 6 and 13 of the Convention, in that his

civil rights and obligations were thus not determined by an independent

and impartial tribunal.

2. As regards the repair obligation imposed on him by the above

court decisions, and the concomitant obligation to supervise the

repair work in question, the applicant alleges that he was required to

do forced or compulsory labour within the meaning of Article 4 para. 2

of the Convention.

3. The applicant further invokes Article 1 of Protocol No. 1 to

the Convention claiming that contrary to this provision he was

deprived of his property in that he had to carry out repair work at

his own cost (AS 5,976.-) and was furthermore required to work without

remuneration, causing him further financial losses.

4. The applicant finally alleges a violation of Article 14 of the

Convention, in that he was discriminated against on the ground of his

being the owner of the property in question.

THE LAW

1. The applicant alleges a violation of Articles 6 and 13 (Art.

6, 13) of the Convention because he could not bring his case before

the Constitutional Court.

Article 6 para. 1 (Art. 6-1), first sentence provides:

"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."

Article 13 (Art. 13) provides:

"Everyone whose rights and freedoms as set forth in

this Convention are violated shall have an effective

remedy before a national authority notwithstanding that

the violation has been committed by persons acting in an

official capacity."

The Commission notes, however, that the applicant's civil

rights and obligations were determined by the competent civil courts

which were "independent and impartial tribunals" within the meaning of

Article 6 para. 1 (Art. 6-1) of the Convention. The fact that these courts

refused to bring the case before the Constitutional Court cannot be

seen as affecting their independence and impartiality. The review

of the constitutionality of legislation does not as such concern

the determination of civil rights and obligations (cf. No. 8790/79,

Sramek v. Austria, Comm. Rep. 8.12.82, para. 68).

Nor does the lack of direct access to the Constitutional Court

in the applicant's case amount to a violation of Article 13 (Art. 13)

of the Convention. This provision, too, does not require the

possibility of obtaining the review of the constitutionality of

legislation (cf. Nos. 7601/76 and 7806/77, Young, James and Webster v.

United Kingdom, Comm. Report 14.12.79, para. 177). Apart from that

the applicant could raise the issue of his rights under the Convention

before the competent civil courts. He did so as regards the

constitutional rights of equality and inviolability of property which

in substance correspond to the rights enshrined in Article 14 (Art.

14) of the Convention and Article 1 of Protocol No. 1 (P1-1).

Although in a summary form, the Regional Civil Court of Vienna dealt

with the matter.

There is accordingly no appearance of a violation of

Article 6 or Article 13 (Art. 6, 13) of the Convention, and the

applicant's complaints in this respect must therefore be rejected as

being manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

2. The applicant also complains that Article 4 para. 2 (Art. 4-2)

of the Convention was violated because he was allegedly required to do

forced or compulsory labour.

Insofar as relevant, Article 4 paras. 2 and 3 (Art. 4-2, 4-3)

read as follows:

"2. No one shall be required to perform forced or compulsory

labour.

3. For the purpose of this Article the term "forced or

compulsory labour" shall not include:

...

(d) any work or service which forms part of normal civic

obligations."

The Commission notes that the applicant has not raised this

question before the competent domestic courts. It is therefore

doubtful whether he can be regarded as having exhausted the domestic

remedies in accordance with the requirements of Article 26 (Art. 26)

of the Convention. In any event there is no appearance of a violation

of the above provision as the applicant's obligation to have certain

repair work carried out at his cost did not involve a personal

obligation to perform the work in question. Such services as may have

been required to be performed by the applicant personally, i.e. in

particular the supervision of the repair work in question, are "normal

civic obligations" of the applicant as a landlord. They are covered

by Article 4 para. 3 (d) (Art. 4-3-d) of the Convention.

This part of the application must therefore also be rejected

as being manifestly ill-founded.

3. The applicant further complains that Article 1 of Protocol

No. 1 (P1-1) to the Convention was violated in that he was deprived of

certain property by the obligation to carry out maintenance work at

his own cost in the apartment of one of his tenants. This provision

reads 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."

Insofar as the applicant complains under this provision that

he was required to work without remuneration, the Commission refers to

the considerations in para. 2 above. It finds that Article 1 of

Protocol No. 1 (P1-1) is not applicable in this respect.

The Commission considers that the applicant's obligation to pay

the costs of the repair work ordered by the courts does not constitute

a deprivation of possessions within the meaning of the second sentence

of the first paragraph. It falls to be considered under the second

paragraph of Article 1 (Art. 1-2) , being an obligation resulting from

measures taken by the State in order to control the use of real

property of house-owners (cf. No. 8003/77, Dec. 3.10.79, D.R. 17 p.

80; Nos. 10522/83, 11011 and 11070/84, Mellacher a.o. v. Austria,

Comm. Rep. 11.7.88, paras. 175-199).

The Commission recognises that legal repair obligations of

the landlord which have to be carried out irrespective of whether the

costs are covered by the rent proceeds and irrespective of earlier

contractual stipulations amount to an interference with the right

to peaceful enjoyment of possessions. However, such obligations

pursue a legitimate aim of social policy, namely the protection of

tenants. While in this context the interference with earlier

contractual rights requires a special justification (cf. the

above-mentioned Report in the Mellacher a.o. case, para. 213), such

obligations can still be regarded as proportionate if, as in the

present case, the economic burden placed on the landlord remains

within reasonable limits. The Commission notes in this context that

the applicant had concluded the rent agreement in question a long time

ago, under the rent control legislation then in force, and that under

the 1981 Rent Act the applicant could, and did in fact, ask for

maintenance contributions from the tenants in addition to the agreed

rent. If this was not sufficient to cover the costs of necessary

repair work, he could further apply for a judicial decision

authorising an increase of rents. The applicant failed to show that

he made use of the latter possibility. The Commission concludes that

his above complaint is also manifestly ill-founded.

4. The applicant finally complains of discrimination contrary to

Article 14 (Art. 14) of the Convention. However, this provision cannot be

applied independently, since it secures non-discrimination only in

respect of the enjoyment of the Convention rights. The applicant

appears to complain of discrimination in respect of his right to

peaceful enjoyment of possessions (Art. 1 of Protocol No. 1) (P1-1) in

that, as the owner and landlord, he is treated less favourably than

the tenants. However, the distinction between landlords and tenants

as regards their respective obligations concerning the maintenance of

the property in question has an objective justification. The two

groups of persons are not directly comparable, the landlord being the

owner of the property. Moreover, their respective obligations have

not been fixed in an arbitrary manner by Sections 3 and 8 of the 1981

Rent Act as applied in the present case. There is accordingly no

appearance of discrimination contrary to Article 14 (Art. 14) of the

Convention. This last part of the application is therefore again

manifestly ill-founded.

For these reasons, the Commission

&_DECLARES THE APPLICATION INADMISSIBLE.&S

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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