CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 1 juillet 1992

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial } .s23A41E03 { width:36pt; display:inline-block }           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)