CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 11 avril 1996

.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 }                          AS TO THE ADMISSIBILITY OF                         Application No. 26347/95                       by V.S. and T.H.                       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 16 September 1994 by V.S. and T.H. against the Czech Republic and registered on 27 January 1995 under file No. 26347/95;        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 applicants are two Czech citizens born in 1933 and 1931 respectively.   They reside in Prague.   Before the Commission, they are represented by Mrs. E. Schramm, a lawyer practising in Bielefeld and Prague.   A.    The particular circumstances of the case        The facts of the case, as submitted by the applicants, may be summarised as follows.        The applicants jointly own a house in Prague 10 comprising three apartments.   The applicants occupy two apartments, the third one (consisting of five rooms and a kitchen with a total surface area of 126m²) was leased to Mr B. on 1 September 1988 by the Prague 10 District Office which, under the former legislation, had the right to dispose of apartments in private houses.   The rent was set at 294.00 crowns, with maintenance contributions 400.00 crowns, pursuant to the Decree No. 60/1964.        On 4 April 1991 the applicants informed Mr B. of an increase in the rent and maintenance contributions.   They claimed a monthly rent of 12,600.00 crowns (i.e. 100.00 crowns per square metre) and maintenance contributions of 1,300.00 crowns as from 1 May 1991.   They considered that the existing rent plus maintenance contributions did not cover their actual costs.   At the same time, they gave notice to Mr B. asking him to leave the apartment.        The tenant refused, following which the applicants brought proceedings against him before the Prague 10 District Court (Obvodní soud pro Prahu 10) asking that the lease be terminated and that Mr B. be ordered to leave the apartment.   They also sought orders modifying the rent and the maintenance contributions to the effect that Mr B. would have to pay the above sums as from 1 May 1991.        The Prague 10 District Court found against the applicants on 5 November 1991.   The Court stated that:   [Translation]        "[Mr B.] uses the apartment on the basis of an exchange of      apartments [made with a former tenant], which was approved      by the Prague 10 District Office ...        The rent and maintenance contributions are governed by      Regulation   No. 60/1964 ...   The applicants' proposal to      increase the rent to 12,600.00 crowns is unjustified      because according to this Regulation, the rent is fixed at      294.00 crowns ... The court also rejects the applicants'      proposal to increase the maintenance contributions as they      have not proved the actual costs."        The applicants' appeal against this decision was dismissed by the Prague Municipal Court (Mestsky soud v Praze) on 22 April 1992.   The Court found that:   [Translation]        "... on the basis of an approved exchange of apartments of      17 August 1988, ... Mr B. became entitled to make an      agreement about taking over an apartment [with the owners      of the house].   The right to use the apartment was      established only after the agreement had been made.   The      former legislation did not require a written form for such      an agreement, but it was also possible to conclude an oral      or even an implied contract.        ... the agreement between the applicants and [Mr B.] was      made tacitly. ... although the applicants and [Mr B.] did      not express their will to conclude an agreement about      surrendering and taking over the apartment, it was obvious      that they intended to do so ... the applicants expressed      their consent to [Mr. B]'s moving into the apartment ...      This conclusion is not affected by the fact that the      applicants, under the former legislation, did not have the      right to consent to the exchange of apartments.        ... it follows that from 1 September 1988 [Mr B.] had the      right to use the apartment in question.   As from      1 January 1992 this legal relationship was transformed to      a lease contract (Article 871 para. 1 of the Civil Code).      If the applicants prove that they need the apartment for      themselves, ..., they may terminate the lease with the      court's consent.        ... Until 31 December 1991 the rent and maintenance      contributions were governed by Regulation No. 60/1964 ...      which excluded unilateral rent increases.   The maintenance      contributions were determined by Article 13 of the above      Decree.   This regulation was amended and the new Regulation      No. 15/1992 entered into force on 1 January 1992.   In the      present case, the rent and maintenance contributions should      be agreed between the owner and tenant under Article 16.      A unilateral rent increase is possible only if the actual      amount of rent does not reach the level set out in      Article 5; ... this [is not the problem in the present      case.]"        On 26 August 1993, the applicants lodged a constitutional appeal. They referred to the Charter of Fundamental Rights and Freedoms and alleged that the relevant legislation, in particular Article 871 para. 1 of the Civil Code, constitutes an illegal interference with their right to property, to respect for their dignity, to equality in treatment, and that they are thereby obliged to provide free services to their tenant which amounts to forced labour.   They also complained about the unfairness of the proceedings at first and second instance as the courts rejected their request for increased maintenance contributions.   The applicants further applied for Article 871 para. 1 of the Civil Code to be quashed as unconstitutional.        In the meantime, the applicants brought proceedings against Mr B. in the Prague 10 District Court.   Relying on Article 711 para. 1a) of the Civil Code, they asked the court to approve their request for termination of the lease (Article 711 para. 2 of the Civil Code).        By the judgment of 9 March 1993 of the Prague 10 District Court, confirmed on 1 December 1993 by the Prague Municipal Court, the courts found for the applicants and ordered Mr B. to leave the apartment within 15 days after the applicants had ensured another apartment for him.        On 18 March 1994 the applicants introduced a constitutional appeal claiming that Article 711 of the Civil Code restricted them in the peaceful enjoyment of their possessions.   The proceedings before the Constitutional Court (Ústavní soud) were still pending when the applicants introduced their complaint with the Commission.        On 22 March 1994 the Assembly of the Constitutional Court rejected the applicants' constitutional appeal as to the alleged unconstitutionality of Article 871 para. 1 of the Civil Code and declared that this provision was compatible with the Charter of Fundamental Rights and Freedoms.   The Court considered that:   [Translation]        "... the right to use an apartment was based on an      administrative decision about the surrender and taking over      of the apartment, often without the owner's consent.      However, the Court must take into account the conflict      between the owners' interests in disposing of their      apartments and the tenants' interests in protecting their      rights.   Article 871 para. 1 of the Civil Code is a      regulation about transformation of rights.   Its purpose is      to ensure protection of tenants and to create legal      certainty with regard to relationships between owners and      tenants.   This legal provision is in conformity with ...      the Constitution ... and, in this respect, it cannot be      considered as unconstitutional."        By judgment of 7 July 1994 the Chamber of the Constitutional Court dismissed the remainder of the applicants' constitutional appeal as unsubstantiated.   The Court stated that:   [Translation]        "The applicants allege a violation of their right to be      protected by a court under Article 38 para. 1 of the      Charter of Fundamental Rights and Freedoms because the      courts found against them. ... they criticised the      appreciation of evidence by the courts as they considered      that the agreement about the surrendering and taking over      of the apartment was concluded tacitly. ... [T]he      Constitutional Court ... is not a further level of      jurisdiction and it thus generally has no power to      reexamine the activities of those courts; it has such a      right only in those cases where the constitutional      principles have been breached.   However, the fact that the      applicants' claim was unsuccessful does not in itself      constitute a violation of the right to be protected by a      court ...      [The] ordinary courts found that ... the tenant's right to      the use of the apartment was established per facta      concludentia ...   Following the judicial practice, [an      implied contract] also exists where one party begins to      execute obligations resulting from a contract even without      expressly accepting its text.   According to the courts'      findings, the applicants have done this. ... In view of the      above the user of the apartment gained the right to its use      [which was] transformed into a lease pursuant to      Article 871 para. 1 of the Civil Code.   The ordinary court      applied this legal provision and the Constitutional Court      does not find its application to be in contradiction with      Article 11 of the Charter.        [Finally], the courts' decision to dismiss the claim      concerning the maintenance contribution is not a decision      which would violate the applicants' fundamental rights or      freedoms. ... It is an ordinary civil matter which cannot      be considered by the Constitutional Court."   B.    Relevant domestic law        According to Chapter III of the (former) Civil Code, the District Office had the right to dispose of apartments in private houses.   It also assigned apartments and approved exchanges between tenants.   On the basis of such approval, tenants became entitled to conclude (in writing, orally or tacitly) agreements with owners about the surrendering and taking over of an apartment which created a right to use an apartment.   Owners did not have the right to consent to the exchange of their apartments; if they refused, the courts could give their approval.        By an amendment to the Civil Code (Article 871 para. 1) which entered into force on 1 January 1992, the right to use an apartment was transformed into a lease contract.        Until 31 December 1991 rent and maintenance contributions were governed by Regulation No. 60/1964 on Compensation for the Use of an Apartment and for the Maintenance Contributions Related to that Use (Vyhláska o úhrade za uzívání bytu a za sluzby spojené s uzíváním bytu).   This Regulation was amended by Regulation No. 15/1992 which entered into force on 1 January 1992.   Pursuant to Article 5 para. 2 of this Regulation, the rent of apartments was increased by about 100% with effect from 1 July 1992.        Pursuant to Article 72 para. 1a) of Law No. 182/1993 on the Constitutional Court (Zákon o Ústavním soudu), as amended, a constitutional appeal can be lodged by a physical or legal person alleging a violation, by a final decision in proceedings to which that person was a party or by any other interference by an organ of the public authorities, of that person's fundamental rights or freedoms as guaranteed by a constitutional statute or an international treaty to which the Czech Republic is a party.   COMPLAINTS        The applicants complain that, by the application of Article 871 para. 1 of the Civil Code, they have been subjected to an unjustified interference with their right to the peaceful enjoyment of their possessions, contrary to Article 1 of Protocol No. 1 and that they were thereby obliged to provide free services to their tenant which amounts to forced labour contrary to Article 4 para. 2 of the Convention.   They also claim that the national courts did not examine the real effect of the application of Article 871 para. 1 of the Civil Code on their case and that they did not verify the proportionality between their rights as owners and the rights of the tenant.   THE LAW   1.    The applicants complain that, by the application of Article 871 para. 1 of the Civil Code, they have been subjected to an unjustified interference with their right to the peaceful enjoyment of their possessions, contrary to Article 1 of Protocol No. 1 (P1-1).        The Commission is not required to decide whether the facts submitted by the applicant disclose any appearance of a violation of Article 1 of Protocol No. 1 (P1-1).   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 before the Commission 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 v. France judgment of 20 September 1993, Series A no. 261-C, p. 54, para. 38, with further reference).        The Commission notes that the applicants claim that the courts did not examine the real effect of the application of Article 871 para. 1 of the Civil Code on their case and that the courts did not verify the proportionality between their rights as owners and the rights of the tenant.   However, the applicants have never raised these matters before the ordinary courts nor, in the final resort, before the Constitutional Court, although it was open for them to do so.   In particular, they could have challenged the rent regulations which were then in force, submitting evidence on the difference between the rent and actual costs.        In these circumstances, the Commission finds that the applicants have not satisfied the requirement as to the exhaustion of domestic remedies laid down in Article 26 (Art. 26) of the Convention.        It follows that this part of the application must be rejected pursuant to Article 27 para. 3 (Art. 27-3) of the Convention.   2.    The applicants complain that they are obliged to provide free services to their tenant which amounts to forced labour contrary to Article 4 para. 2 (Art. 4-2) of the Convention.        However, insofar as the matters complained of have been substantiated and are within its competence, the Commission finds that they do not disclose any appearance of a violation of the provision invoked by the applicants.        This part of the application must therefore also be rejected as manifestly ill-founded in accordance with Article 27 para. 2 (Art. 27-2) of the Convention.        For these reasons, the Commission, unanimously,        DECLARES THE APPLICATION INADMISSIBLE.   Secretary to the Second Chamber         President of the Second Chamber         (M.-T. SCHOEPFER)                          (H. DANELIUS)