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. 27290/95                       by R. A.                       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 6 January 1995 by R. A. against the Czech Republic and registered on 10 May 1995 under file No. 27290/95;        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 applicant, a Czech national born in 1951, is resident in Prague.   Before the Commission he is represented by Mrs. E. Schramm, a lawyer practising in Prague and Bielefeld.   A.    The particular circumstance of the case        The facts of the case, as submitted by the applicant, may be summarised as follows.        The applicant owns a house in Prague comprising two apartments leased to tenants.   The rent is governed by the Flats (Rent) Regulations (see "The relevant domestic law" below), and the applicant is thereby allowed to charge the tenants monthly 4,50 and 3,50 Czech crowns per square metre respectively.   He considers that the rent would cover his actual costs only if he could charge the tenants some 130 to 150 crowns per square metre a year.        On 17 June 1994 the applicant lodged a constitutional complaint. He referred to the Charter of Fundamental Rights and Freedoms and alleged that the Flats (Rent) Regulations represent a direct interference by a public authority with his right to property, to respect for his dignity, to equality in treatment, and that he is thereby obliged to provide free services to his tenants which amounts to forced labour.   The applicant further requested that the Flats (Rent) Regulations should be annulled.        The applicant alleged that he had no other remedies available since a possible action against the tenants would have no prospect of success given the generally binding character of the Flats (Rent) Regulations, and also because the Czech legal order does not provide for a direct remedy against a legal rule.        In particular, the applicant claimed that the Flats (Rent) Regulations were unconstitutional as under Section 11 para. 4 of the Charter of Fundamental Rights and Freedoms property rights could be restricted only by a law, in the public interest and for compensation. The applicant argued that the Flats (Rent) Regulations had no relevant support either in the Constitution or in a law adopted by the Parliament.        The applicant further complained that by virtue of the Flats (Rent) Regulations he was restricted in the peaceful enjoyment of his possessions and expropriated without any compensation.   He complained that the aforesaid regulations fixed the rent for an unlimited period, and did not permit to take into consideration the real material situation of the tenants.        On 25 July 1994 the Constitutional Court (Ústavní soud) rejected the constitutional complaint.   It found that the applicant lacked standing to lodge the complaint as he did not meet the requirements of Section 72 para. 1 (a) of the Constitutional Court Act.   The Constitutional Court held, inter alia:   [Original]        "Ústavní stíznost nesmeruje proti zásahu orgánu verejné moci,      jímz doslo k porusení základního práva nebo svobody navrhovatele.      Za zásah orgánu verejné moci, jímz je poruseno základní právo      obcana, nelze povazovat - legislativní cinnost, jakoz i vydání      obecne závazného predpisu ústredního orgánu státní správy - v      mezích jeho pravomoci a pusobnosti, a to ani v tom prípade ne,      kdyz - jak navrhovatel tvrdí - jeho ustanovení porusují základní      právo obcana."   [Translation]        "The [applicant's] constitutional complaint does not concern an      interference by an organ of the public authorities by which a      fundamental right or freedom of [the applicant] has been      violated.   Legislative acts, including the passing of generally      binding rules by a central organ of State administration - within      the scope of its competence and jurisdiction - cannot be      considered as an interference by an organ of the public      authorities violating a fundamental right or freedom of a citizen      even if - as it is alleged by [the applicant] - such rules      violate a citizen's fundamental right."         The Constitutional Court further held that the applicant lacked standing to lodge a request for acts or other legal rules to be annulled.   B.    The relevant domestic law        Regulations on Rent of Flats and Compensation for Services Related to the Use of a Flat (Vyhláska o nájemném z bytu a úhrade za plnení poskytovaná s uzíváním bytu) of 17 June 1993 - the Flats (Rent) Regulations - were issued by the Ministry of Finance in accordance with Section 20 para. 1 (a) of the Prices Act (Zákon o cenách).   They were published in the Digest of Laws under the number 176/1993.        Under the Flats (Rent) Regulations flats are divided into four categories according to the facilities they offer.   The following maximum monthly rents per square metre are fixed:        I.    category                6,-   crowns      II.   category                4,50 crowns      III. category                3,50 crowns      IV.   category                2,50 crowns        The Flats (Rent) Regulations were amended on 8 February 1995 in that they now provide for yearly adjustment of rent in accordance with different coefficients which reflect, inter alia, the rate of inflation and the size of the municipality where the flat is situated.   This amendment entered into force on 1 July 1995.        Pursuant to Article 10 of the Constitution of the Czech Republic the ratified and promulgated international treaties on human rights and fundamental freedoms, by which the Czech Republic is bound, shall be applicable as directly binding regulations, having priority before the law.        Pursuant to Section 72 para. 1 (a) of the Constitutional Court Act (Zákon o Ústavním soudu) of 16 June 1993, as amended, a constitutional complaint can be lodged by a natural or legal person alleging a violation, by a final decision in proceedings to which that person was a party or by another interference by an organ of the public authorities, of that person's fundamental right or freedom as guaranteed by a constitutional statute or an international treaty to which the Czech Republic is a party.   C.    Documents relating to the entry into force of the Convention with regard to the Czech Republic        The Convention entered into force in respect of the former Czech and Slovak Federal Republic on 18 March 1992.        By a letter of 1 January 1993 the Minister for Foreign Affairs of the Czech Republic informed the Secretary General of the Council of Europe that the Czech Republic considered itself bound, as of 1 January 1993, by the European Convention on Human Rights and the declarations made by the Czech and Slovak Federal Republic under Articles 25 and 46 of the Convention.         On 30 June 1993 the Committee of Ministers of the Council of Europe decided at the 496th bis meeting of the Ministers' Deputies that the Czech Republic is to be regarded as a Party to the European Convention on Human Rights and its Protocols with effect from 1 January 1993 and that that State is bound as from that date by the declarations made by the Czech and Slovak Federal Republic in respect of Articles 25 and 46 of the Convention.   COMPLAINTS        The applicant complains under Article 1 of Protocol No. 1 that he could only charge his tenants some 30 per cent of the actual costs before the Flats (Rent) Regulations were amended, and that even thereafter the rent is far from covering his costs.   In his view, this interference is disproportionate as the maximum rent is imposed for an unlimited period, without the possibility of taking into account the material situation of the tenants and without granting any compensation.        The applicant further alleges that the obligation to pay a part of the costs of his tenants violates his rights under Articles 3 and 4 para. 2 of the Convention.        Finally, the applicant alleges a violation of Article 13 of the Convention in that he did not have an effective remedy against the Flats (Rent) Regulations which interfere with his rights under the Convention.   THE LAW        The applicant alleges that as a result of implementation of the Flats (Rent) Regulations and the Constitutional Court's refusal to deal with his complaint his rights under Articles 3, 4 para. 2 and 13 (Art. 3, 4-2, 13) of the Convention and under Article 1 of Protocol No. 1 (P1-1) were violated.        The Commission is not required to decide whether the facts submitted by the applicant disclose any appearance of a violation of these provisions.   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 at Strasbourg 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 judgment of 20 September 1993, Series A no. 261-C, p. 54, para. 38, with further reference).        The Commission has found earlier that in Czech law, the final instance for complaints of violations of fundamental rights and freedoms recognised in a constitutional statute or an international treaty, committed by an 'organ of the public authorities', is the Constitutional Court of the Czech Republic (cf. No. 22926/93, Dec. 7.4.94, D.R. 77 pp. 118, 121).         In the present case the applicant considered that he had no other remedies since a possible action against the tenants would have had no prospect of success given the generally binding character of the Flats (Rent) Regulations.   However, the Constitutional Court found that it could not examine the complaint since legislative acts cannot be considered as an interference by an organ of the public authorities within the meaning of Section 72 para. 1 (a) of the Constitutional Court Act.        The Commission recalls that pursuant to Article 10 of the Constitution the ratified and promulgated international treaties on human rights and fundamental freedoms, by which the Czech Republic is bound, shall be applicable as directly binding regulations, having priority before the law.   The Czech Republic is considered as a Party to the European Convention on Human Rights and its Protocols with effect from 1 January 1993.        Thus, if the applicant considered that he was obliged, by virtue of the Flats (Rent) Regulations to pay a part of the costs for his tenants, he could have introduced civil proceedings against the latter.        Before the courts the applicant could then have invoked, by virtue of Article 10 of the Constitution, the violation of his rights under the Convention and Protocol No. 1 which he now raises before the Commission.   If the applicant had not obtained redress before general courts, he would nevertheless have had standing to challenge the final decision before the Constitutional Court in conformity with the formal requirements laid down in Section 72 para. 1 (a) of the Constitutional Court Act.        Since the applicant has not shown that he did so, he has failed to comply with the requirement as to the exhaustion of domestic remedies laid down in Article 26 (Art. 26) of the Convention.        If follows that the application must be rejected pursuant to Article 27 para. 3 (Art. 27-3) of the Convention.        For these reasons, the Commission, by a majority,        DECLARES THE APPLICATION INADMISSIBLE.   Secretary to the Second Chamber       President of the Second Chamber         (M.-T. SCHOEPFER)                        (H. DANELIUS)