Information Note on the Court’s case-law 5

April 1999

J. L.S.  v. Spain (dec.) - 41917/98

Decision 27.4.1999 [Section IV]

Article 1 of Protocol No. 1

Article 1 para. 1 of Protocol No. 1

Peaceful enjoyment of possessions

Obligation of a serviceman to return to the State accommodation with which he had previously been provided: inadmissible

The applicant, who was in the forces, signed an “administrative document fo r the allocation of special lodging” and thereby obtained the use of accommodation. He asked to be transferred to the provisional reserve. Following a reform, some personnel in the provisional reserve were required to return military accommodation to the S tate. Administrative proceedings were issued against the applicant and he was ordered to quit the premises. He brought an administrative appeal to the High Court of Justice against that decision, but the investigating judge gave permission for the eviction to proceed. The applicant then appealed to the Audiencia provincial which reversed the impugned decision on the ground that it would be disproportionate to enforce the eviction order while the applicant’s administrative appeal was still pending. The High Court of Justice dismissed the applicant’s administrative appeal and upheld the order for his eviction. It pointed out in its judgment that the accommodation had been allocated to him as a member of the armed forces; the objective legal position of civil s ervants working for the authorities could be changed without the principle of lawfulness being infringed and accordingly was not immutable as from the day of their appointment, but was governed by the principle that civil servants accepted that they were s ubject to a special regime. The applicant then lodged an amparo appeal with the Constitutional Court which was dismissed. Before the Court he maintained in particular that the domestic courts had not determined whether the retrospective application of a de cree restricting individual rights was contrary to the principle of lawfulness and that the fact that he had been deprived of the use of his accommodation amounted, under the circumstances, to an expropriation.

Inadmissible under Article 1 of Protocol No. 1: The applicant’s mere expectation that the regulations concerning the use of military accommodation would not be changed could not be regarded as a right of property. The applicant had been given the use of the accommodation he occupied “as a member of t he armed forces” at a rent that was well below the market rate. He had signed an “administrative document for the allocation of special accommodation”, not a lease. He had not suggested that the use of the accommodation could be assimilated to a private-la w contract. He had been given the use of the accommodation because it was difficult for military personnel to find adequate accommodation as they were frequently transferred for professional reasons. The Court further pointed out that a right to live in a given property without being the owner did not constitute “property” within the meaning of Article 1. Furthermore, allowing “users” who, like the applicant, were not even tenants to stay indefinitely in accommodation belonging to the State would hinder the authorities in the exercise of their duty to administer the State’s property in accordance with the provisions of the Constitution and the law: incompatible ratione materiae .

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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