CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 5 mars 2013

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margin-bottom:0pt } .sF6A12959 { width:33%; height:1px; text-align:left } .s85226119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:10pt } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 }   FIFTH SECTION DECISION Applications nos. 38817/04 and 1458/07 Jan VOMOČIL against the Czech Republic and Art 38, a.s. against the Czech Republic   The European Court of Human Rights (Fifth Section), sitting on 5   March   2013 as a Chamber composed of: Mark Villiger, President,   Angelika Nußberger,   Boštjan M. Zupančič,   Ann Power-Forde,   Ganna Yudkivska,   Helena Jäderblom, judges,   Zdeněk Kühn, ad hoc judge, and Claudia Westerdiek, Section Registrar , Having regard to the above applications lodged on 20 October 2004 and 4 January 2007, Having regard to the observations submitted by the respondent Government, the observations in reply submitted by the applicants and the comments received from the third parties (Article 36 § 2 of the Convention and Rule 44 § 2). Having deliberated, decides as follows: PROCEDURE 1.     The first applicant, Mr Jan Vomočil, is a Czech national who was born in 1944 and lives in Litomyšl. The second applicant, Art 38, a.s., is a   joint-stock company with its registered office in Karlovy Vary. They were represented before the Court by Ms K. Samková, a lawyer practising in Prague, and Ms J. Šindelářová, a lawyer practising in Pilsen. 2.     The Czech Government (“the Government”) were represented by their Agent, Mr V.A. Schorm, from the Ministry of Justice. 3.     The Association of owners of houses, flats and other immovable property in the Czech Republic and the Association for Defence against the Prague Real Estates Administration were granted leave to intervene in the written procedure (Article 36 § 2 of the Convention and Rule 44 § 2). The former association, which was also represented by Ms K. Samková, used this opportunity only to present itself, without addressing any aspects of the cases which concerned the Association, and it subsequently joined the applicants’ observations. As the second Association did not submit any observations, on 23 June 2008 the Registry informed its representative that it appeared that it no longer wished to act as a third party to the proceedings. No response to this letter has been received. 4.     Mr Karel Jungwiert, the former judge elected in respect of the Czech Republic, withdrew from sitting in the Chamber (Rule 28). The Government accordingly appointed Mr Zdeněk Kühn to sit as an ad hoc judge (Article 27   § 2 of the Convention and Rule 29 § 1).   THE FACTS A.     The circumstances of the case 1.     Application no. 38817/04 lodged by Jan Vomočil (a)     History of the ownership of the applicant’s house 5.     The property is situated in an affluent district of Brno. It was built in 1932 and owned by a private person who, in 1962, made an “offer of voluntary transfer of an immovable property” to the State. The house consists, according to the applicant, of eleven dwellings and of a   commercial ground floor. The eleven dwellings were subject to the rent-control-scheme whereas the non-residential premises located on the ground floor were rented out at non-regulated rents. 6.     In 1991 the house was returned to the heirs of the former owner under the Extra-Judicial Rehabilitation Act. In 1992 they decided to sell it to a   private company. 7.     On 15 December 1995 the applicant acquired the tenement house for the price of 6,500,000 Czech korunas (CZK, 264,335 euros (EUR)). In the purchase agreement, it was stated as follows: “The purchaser explicitly declares that he is familiar with the condition of the purchased immovable property, that he has examined it prior to the conclusion of the present purchase agreement and that he purchases the property in question in a   condition which he has ascertained. ... From the date that the decision on the registration of ownership rights takes effect, all the interests, risks, obligations ..., as well as all rights related to the ownership of the purchased property, shall pass to the purchaser.” Ownership passed to the applicant on 7   February 1996 when the registration in the Land Register came into effect. The applicant took over the existing tenancy agreements. According to him, the house was in need of extensive repair work and therefore underwent reconstruction. Until October 2004 the investment to improve the quality of the dwellings exceeded CZK 1,000,000 (EUR 40,667). 8.     According to the applicant, as a result of the rent ceilings provided for by law, in particular by Decree no. 176/1993 of the Ministry of Finance on rents for flats and reimbursement of charges related to the use of flats, the rents which, for instance, two tenants were paying for the lease of first ‑ category flats in the applicant’s house, of 111.51 and 104.92 square metres respectively, were determined at CZK 3,055 (EUR 124) and CZK 2,877 (EUR 117) per month respectively, and another tenant was paying CZK 1,875 (EUR 76) per month for the lease of a second ‑ category flat of 91.11 square metres. In other words, the rent paid by tenants for one square metre of usable surface area of the dwellings in the applicant’s house was CZK 27.42 (EUR 1.12), whereas the average market rent in Brno, at CZK 110 (EUR 4.5), was almost four times higher. 9.     The applicant states that given that the annual aggregate rent for flats subject to the rent-control scheme amounted to about CZK 233,544 (EUR 9,497), it did not cover the maintenance costs or even the cost of the loan, amounting to CZK   252,000 (EUR 10,248) per annum, by means of which the applicant had financed the reconstruction of his house and the subsequent maintenance work. 10.     On 12 December 2003 the applicant transferred his house into the registered capital of the company JOHNY, s.r.o., of which he was the sole owner. The registration of ownership rights in favour of this company took effect on 5 May 2004. (b)     Proceedings on the applicant’s action for the imposition of an obligation to sign an amendment to the tenancy agreement 11.     On 14 July 2004 the applicant brought actions with the Brno Municipal Court ( městský soud ) against six tenants (flats nos. 2, 4, 6, 7, 10, 11) requesting it to order them to sign amendments to their respective lease agreements with the aim of increasing the rent. On 20 September 2004 the applicant’s actions were joined to a common procedure. 12.     In a judgment of 14 July 2005 the Municipal Court dismissed the applicant’s actions stating, inter alia , that under Article 696 § 1 of the Civil Code, a landlord was entitled to increase the rent only if a specific law so provided or if the tenants agreed, which was not so in the present case. Although such legal provisions existed - Decree no. 176/1993 and Ordinances nos. 01/2002 and 06/2002 of the Ministry of Finance - they had been successively repealed by the Constitutional Court ( Ústavní soud ). Relying on Article 493 of the Civil Code, the Municipal Court found that it had no jurisdiction to intervene in matters of tenancy agreements between private parties by substituting its consent for that of the tenants. On the basis of these arguments and with reference to Government Decree no. 567/2002 on rent moratoria, it saw no scope for increasing controlled rents unless such an increase was agreed between the parties. 13.     On 30 August 2006 the Brno Regional Court ( krajský soud ) quashed this judgment, and remitted the case to the Municipal Court for further consideration. It held, inter alia , as follows: “... [It] appears that the court of first instance rejected the action largely for the reason that since the repeal of Decree no. 176/1993, as well as that of Ordinances nos.   01-02 and 06/02, the contracting parties may arrange for payment of rent only in an agreement, unilateral rent increases by a landlord are not admissible and the court is not entitled to substitute a declaration of the tenant’s will, because the relationship between the participants may not be amended without the parties’ consent. The appellate court would point out that the conclusion of the first-instance court corresponds to the former case-law of the Supreme Court (see, e.g., decision no.   867/2004 of 31 August 2005), which concluded that unless the tenancy agreement provided otherwise, the landlord was not entitled to increase the rent unilaterally ..., not even after the repeal of the regulations making provision for the rent control. However, during the appellate proceedings the Constitutional Court concluded in its finding no. I. ÚS 717/2005 of 21 March 2006 that the rent-control scheme constituted a restriction on ownership rights that was admissible only if it had a statutory basis, pursued a legitimate aim in the public interest approved by the Constitution and if it observed the principle of proportionality. Ownership rights may be restricted only by law, but no such law exists as regards the issue of determination of rent, because normative provisions of rent regulation have been repeatedly ruled unconstitutional by the Constitutional Court. In the light of the case-law of the European Court of Human Rights, which regards the case-law of the courts also as law in the substantive sense, it is incumbent upon the courts to fill the vacuum legis by their case-law and create law that could be considered substantive. The distortion of the market caused by the long-lasting lack of a solution to the problem of dwellings subject to the rent-control scheme cannot, according to the Constitutional Court, be perpetuated by the case-law of ordinary courts. It is the latter’s function to protect the individual’s rights and fundamental freedoms. With regard to the above case-law of the Constitutional Court (see also judgments no. Pl. 20/2005 of 28 February 2006 and no. IV. ÚS 611/2005), the appellant’s objections must be accepted in respect of the fact that if there was no agreement between the landlord and the tenant on a change in the tenancy agreement as to the amount of rent and if there was no separate regulation allowing a unilateral rent increase, ..., the ordinary court was entitled to intervene in the tenancy relationship and to determine the rent ... In the light of the legal reasoning of the appellate court, based on the case-law of both the Constitutional Court and the Supreme Court, it follows that the decision of the first-instance court is based on an incorrect legal assessment of the case. However, it is evident that in this situation it is necessary to request the claimant to describe all the relevant facts and to propose evidence necessary to support his disputed assertions ... This supplement should especially concern the assertion that the amount of the rent proposed by the claimant ... is the appropriate one.” 14.     On 2 February 2007 the applicant informed the Regional Court that he was no longer the house owner and suggested that the company JOHNY, s.r.o., be entered as taking his place in the proceedings. On 9 March 2007 the request was granted. 15.     JOHNY, s.r.o. and the tenants subsequently entered into settlements regarding the rents. The exact details of the settlement agreements are disputed between the parties. 16.     On 27 June 2007 the Municipal Court discontinued the proceedings, following the withdrawal of the action by JOHNY, s.r.o. The applicant appeared to suggest that he had lost some proceedings and had withdrawn some of his other claims since it seemed that “though he might succeed before the Constitutional Court he would not succeed before the general courts, i.e. the appellate courts”. Taking into account the costs of the proceedings and “the loss of time which would greatly exceed the amount of the disputes”, he withdrew his claims. 2. Application no. 1458/07 lodged by Art 38, a.s. 17.     The tenement house was built apparently in 1913 and was originally owned by two individuals. On 20 August 1960 it passed into the ownership of the State under Government Order no. 15/1959 and Decree no. 88/1959 on measures relating to certain property used by organisations of the socialist sector. In 1991 the house was returned to a person entitled under the restitution law, who sold it shortly afterwards to an individual for the price of CZK 1,350,000 (EUR 54,900). The latter mortgaged the property as security for a debt of CZK 1,500,000 (EUR 61,000) owed to a private company. In 1999 a court ordered the enforcement of a decision that the house be sold for the purpose of settling the debt owed to the company. An expert opinion of 13 December 2000 estimated the value of the house at CZK 3,143,450 (EUR 127,834). In a decision of 31 May 2001 the final value of the house for the purpose of public auction was fixed at CZK 1,500,000 (EUR 61,000). The court stated, inter alia , as follows: “The present case concerns a three-storey block of flats, 87 years old, with a   basement under part of the building ... There are commercial premises (on the ground floor) and six flats, two per floor, each with two or one bedrooms, 2+1 or 1+1. The fact that the case concerns the sale of an occupied block of flats has an impact on the range of interested parties, because the functional utility of the building is limited owing to the existing tenancy rights of individuals .... This situation creates a   considerable impediment as regards the marketability of the whole property and that is necessarily reflected in the final value. ... [I]t is a non-standardised residential building in which more than one half of the floor area is taken up by flats. The rent revenue from the flats (controlled rent) amounts to CZK 61,380 per year. There are no encumbrances related to the immovable to the detriment of the property owner. After assessment of the decisive criteria to provide an idea about the real value, the court determined the final value of the property at CZK 1,500,000 taking into account its location in the downtown area of a regional town with very good accessibility [to the public transport service]. A factor that decreases the aggregate market demand for this building is the fact that after the sale by auction the tenancy rights in relation to the flats will not cease to exist, including the related inheritance rights, another such factor being the present technical condition, which requires significant financial investment for the reconstruction and renovation of the whole building. ... Since the purpose of determining the final value is to establish the closest possible approximation of the market value, the court concluded, after assessment of the decisive criteria for determining the real value and therefore the marketability of the immovable property under consideration (location, third-party rights, utility value, nuisances and other disturbing effects, etc.), that the final value of the property in question corresponded to the amount of CZK 1,500,000.” 18.     On 23 August 2001 the court issued a notice of auction ( dražební vyhláška ) in which the reserve price was fixed at CZK 1,000,000 (EUR 40,667) pursuant to Article 336e § 1 of the Code of Civil Procedure, which provides that the court fixes the reserve price at two-thirds of the value. 19.     On 26 September 2001 a public auction took place. The court confirmed the applicant company’s auction bid by which it acquired a   tenement house and the plot of land on which it had been built. The decision became final on 30   October 2001. The title passed to the applicant company on 16 January 2002. 20.     The applicant company stated that it had not instituted any judicial proceedings to adjust or increase the rents for the relevant flats in the building and stressed that no effective remedy in that respect existed under domestic law. B.     Relevant domestic law and practice (general overview) [1] 21.     The roots of the legislation providing for a rent-control scheme in the Czech Republic can be traced back to laws enacted by former Czechoslovakia in 1920, 1922 and 1928, respectively which were aimed at the protection of tenants and included certain restrictions on rent increases. 22.     Following the communist takeover in February 1948, a radical legal reform of private law, including in the field of rent control, was introduced by the Government in order to restrict, and ultimately eliminate, individual property rights. Hence, the Civil Code of 1950 introduced “personal property” as a new legal concept which was henceforth to be distinguished from the traditional concept of “private property”. 23.     Under the rent-control scheme, rents were administratively set under the secondary legislation and the landlord-tenant relationship originated in an administrative decision rather than a lease contract. The existing secondary legislation on rents remained in force until 1   July 1993, when it was superseded by Decree no. 176/1993 of the Ministry of Finance providing, inter alia , for restrictive rent ceilings. The Decree divided flats into four categories, depending on their quality, and fixed a maximum basic monthly rent per square metre. A fixed amount of rent per square meter was set according to the size of the town and the category of the flat. The rents were regularly increased by an amount reflecting the annual rate of inflation, on the basis of ordinances issued annually by the Ministry of Finance. Moreover, as the lease-contract regulations provided for by the Civil Code were not amended, lease contracts could not be terminated or renegotiated in order to increase rents beyond the rent ceilings without the consent of the contracting parties. 24.     On 21 June 2000 the Constitutional Court, on a petition by senators, repealed the Decree, finding it to be unconstitutional and in breach of Article 1 of Protocol No. 1, as it froze rents on a level that made it impossible for landlords to cover their maintenance costs and to derive a   profit from their property. It left the Parliament the period until 31   December 2001 to enact a new rent ‑ control law. In 2002 the Ministry of Finance and the Government subsequently issued three regulations designed to fill up the vacuum legis created by the Constitutional Court’s judgment. All these regulations were consecutively repealed by the Constitutional Court. 25.     On 31 March 2006 Act no. 107/2006 on unilateral rent increases and amendments to the Civil Code entered into force. It provided for new rent ceilings and amended the provisions of the Civil Code governing lease contracts. However, it did not remedy interferences with landlords’ property rights which had occurred prior to its entry into force. The act envisioned gradual annual increases of regulated rents, which at the end of 2010, and in bigger cities end of 2012, should reach approximately the level of market rents. 26.     As regards the period of vacuum legis , the Constitutional Court obliged the lower courts not to perpetuate the unconstitutional situation and to decide on actions for rent increase lodged by the owners. However, inconsistencies remained both between the approach of lower courts and between different chambers of the Constitutional Court. The approach was ultimately clarified in the Constitutional Court’s judgment no. Pl ÚS 27/09 of 28 April 2009 where the court held that the ordinary courts could grant rent increases for a period from the day of lodging the action until 31   December 2006, date after which rent increases were authorised by Act no. 107/2006. If the action for rent increase failed, the owners were authorised to claim damages against the State. In respect of the period preceding the date of lodging the action, the owners were authorised to claim damages from the State directly. COMPLAINTS 27.     Under Article 1 of Protocol No. 1 alone and in conjunction with Article 14 of the Convention, the applicants complained that the rent-control violated their property rights as owners of the houses and was discriminatory. 28.     Relying on Article 13 of the Convention in conjunction with Article 1 of Protocol No. 1, the applicants complained that they had no effective remedy against interference with their property rights posed by the rent-control scheme. THE LAW 29.     The Court considers that, given their common factual and legal background, the applications should be joined in accordance with Rule 42   §   1 of the Rules of Court. 30.     The applicants complained that their property rights had been infringed by the rent-control scheme, which precluded them from covering the maintenance costs relating to their property and from making a   reasonable profit. They argued that the domestic court system constituted a wholly inefficient instrument for defending landlords’ constitutional rights and their rights guaranteed by the Convention. They invoked in this respect Article 1 of Protocol No. 1 alone and in conjunction with Articles 13 and 14 of the Convention. 31.     These provisions, so far as relevant, provide as follows: Article 1 of Protocol No. 1 “Every natural or legal person is entitled to the peaceful enjoyment of her possessions. No one shall be deprived of her 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.” Article 13 of the Convention “Everyone whose rights and freedoms as set forth in [the] 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.” Article 14 of the Convention “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a   national minority, property, birth or other status.” A.     The parties’ observations 32.     The Government raised several objections to the admissibility of the applications. In particular they claimed that the applicants failed to exhaust domestic remedies and they had lodged the applications partly outside the six-month time-limit. Regarding applicant Vomočil the Government further maintained that that application was incompatible ratione personae with the provisions of the Convention given that he had lost ownership of the house in question on 5 May 2004. Lastly, they maintained that the applicant Vomočil abused the right of individual application because he had submitted incomplete and misleading information to the Court. 33.     The Government maintained that there were two principal remedies available to the applicants. In particular, the applicants could have brought an action for a rent increase against the tenants as a preventive remedy and an action for damages against the State as a compensatory remedy. 34.     Regarding the preventive remedy, the Government referred, in particular, to the Constitutional Court’s judgments of 8 and 28 February 2006 (see paragraphs 105-108 of the annex). Moreover, it appeared from the Constitutional Court’s judgment of 8   June 2006 that the landlords could claim higher rent on the basis of an action for surrender of unjust enrichment (see paragraph 121 of the annex). 35.     The Government also made reference to judgments of the Supreme Court and decisions of lower courts. They admitted a certain lack of uniformity in the lower courts’ decisions as regards their duty to protect the rights of landlords and the manner of dealing with their actions seeking to have rents increased. In their opinion, this lack of uniformity should not, however, lead the Court to conclude that the applicants were not required to exhaust this remedy. Moreover, the landlords could have turned to the Constitutional Court which would have quashed decisions of lower courts which did not observe the principles indicated in its case-law. 36.     The Government further maintained that the applicants could dispute the constitutionality of their inability to terminate the tenancy unilaterally and of the right of succession to tenancy, namely in the context of court proceedings concerning approval of the notice of termination of the tenancy. The case could have been submitted to the Constitutional Court directly by the ordinary courts or could have been brought before the Constitutional Court in connection with a constitutional appeal lodged against the lower courts decisions in the proceedings in question and to which the landlords could have added an application for the repeal of the relevant provisions of the Civil Code on grounds of a lack of constitutionality. 37.     According to the Government, the Court should not take into consideration the applicants’ assertion that the proceedings would have been unreasonably long and that given the number of landlords concerned, the judiciary would have collapsed. This assertion is merely speculative and as such cannot justify a failure to comply with the obligation to exhaust all domestic remedies. 38.     The Government further referred to the possibility to bring an action for damages against the State under the State Liability Act (no. 82/1998) or under Article 11 § 4 of the Charter of fundamental rights and freedoms. 39.     The Government further noted that on 14 July 2003 the applicant Vomočil had brought an action against six tenants requesting the court to order them to agree to an amendment to their tenancy agreements on the basis of which the existing rent would have been increased with effect from 1 April 2003. In the proceedings at first instance the claimant company, which had replaced the applicant as claimant, and the defendants had entered into settlements whereby the latter had agreed to a rent increase pro futuro and retroactively with effect from 5 May 2004, in return for which the claimant had undertaken to withdraw the action. 40.     In their additional observations, the Government referred to the further development of the Constitutional Court’s case-law relating to landlords’ actions against tenants for rent increases and actions for damages against the State, culminating in opinion no. Pl ÚS-st 27/09 of 28   April   2009 in which the Constitutional Court had indicated that landlords could claim a rent increase with effect from the date on which they brought their actions. The Constitutional Court had explicitly limited the ordinary courts’ obligation to decide on actions for rent increases to those brought until 31 December 2006 because since 1 January 2007 landlords could unilaterally increase rent under Act no. 107/2006. Moreover, actions for damages against the State should be examined as claims for compensation for a restriction imposed on ownership rights under Article 11 § 4 of the Charter of fundamental rights and freedoms. The Constitutional Court had not rigidly restricted the period of time for which landlords could claim such compensation. It had only noted that a claim against the State for the period covered by the action against the tenant for rent increases was tied to non-satisfaction of the claim against the tenant. 41.     The applicants and the third-party intervener, in their common observations, referring to the high number of applicants who had already brought similar applications to the Court argued that the use of the remedies suggested by the Government was unrealistic. In their submission, landlords own about 80,000 flats and would, therefore, introduce the corresponding number of actions seeking to increase rents, thus certainly causing the collapse of the judicial system. The applicants and the third-party intervener particularly doubted the effectiveness of the action for rent increases claiming that this remedy was uncertain and procedurally lengthy and complex. As to the action for unjust enrichment and the action to determine the level of rent and increase in rent suggested by the Government as two other legal avenues intended to solve the rent-control problem, the applicants and the third-party intervener underlined that by way of these actions landlords could retroactively claim unjust enrichment or an increase in rent only for the last two and three years respectively, because of the statutory time-bar. 42.     In their additional observations, the applicants and the third-party intervener welcomed the initiative of the Constitutional Court to clarify the legal situation in order to allow landlords to resolve their problems with the rent-control scheme. They considered, however, that the constitutional court’s last opinion did not cover certain important points. Moreover, even though the owners of houses met usually with success at the Constitutional Court and its practice confirmed that it would protect their rights, the practice of the ordinary courts ran contrary to those decisions. 43.     The applicants and the third-party intervener maintained that the existence of any remedies was purely theoretical and the practice of the national courts did not prove their effectiveness. B.     The Court’s assessment 44.     The Court notes at the outset that the Government submitted a   number of preliminary objections concerning the admissibility of the applications. They argued, in particular, that the application lodged by the first applicant was incompatible ratione personae with the provisions of the Convention given that he had lost ownership of the house in question on 5   May 2004, when the registration of the transfer of his house into the registered capital of the company JOHNY, s.r.o. took effect (see paragraph 10 above). The Government further maintained that the applicants did not exhaust domestic remedies at their disposal. The Court, however, does not consider it necessary to examine all the admissibility objections as the present applications are in any event inadmissible for the reasons outlined below. 45.     The Court reiterates that under Article 35 § 1 it may only deal with a   matter after all domestic remedies have been exhausted. Applicants must have provided the domestic courts with the opportunity, in principle intended to be afforded to Contracting States that have the primary responsibility for implementing and enforcing the guaranteed rights, of preventing or putting right the violations alleged against them. In this way, it is an important aspect of the principle that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights (see McFarlane v. Ireland [GC], no. 31333/06, §   112, 10 September 2010; Kudła v. Poland [GC], no. 30210/96, § 152, ECHR 2000-XI; and Selmouni v. France [GC], no. 25803/94, § 74, ECHR 1999 ‑ V). 46.     The burden of proof is on the Government claiming non-exhaustion to satisfy the Court that an effective remedy was available in theory and in practice at the relevant time; that is to say, that the remedy was accessible, capable of providing redress in respect of the applicant’s complaints and offered reasonable prospects of success. However, once this burden of proof has been satisfied it falls to the applicant to establish that the remedy advanced by the Government was in fact exhausted or was for some reason inadequate and ineffective in the particular circumstances of the case or that there existed special circumstances absolving him or her from the requirement (see Akdivar and Others v. Turkey , 16 September 1996, §§ 65-68, Reports of Judgments and Decisions 1996 ‑ IV and V. v. the United Kingdom [GC], no. 24888/94, § 57, ECHR 1999 ‑ IX). 47.     An applicant cannot be regarded as having failed to exhaust domestic remedies if he or she can show, by providing relevant domestic case-law or any other suitable evidence, that an available remedy which he or she has not used was bound to fail or had a negligible prospect of success in pursuing it (see, inter alia , Kleyn and Others v. the Netherlands [GC], nos. 39343/98, 39651/98, 43147/98 and 46664/99, § 156, ECHR 2003 ‑ VI; Akdivar and Others v. Turkey , 16 September 1996, § 73, Reports 1996 ‑ IV; and Keegan v. Ireland , 26 May 1994, § 39, Series A no. 290). However, the existence of mere doubts as to the prospects of success of a particular remedy which is not obviously futile, is not a valid reason for failing to exhaust domestic remedies (see Scoppola v. Italy (no. 2) [GC], no.   10249/03, § 70, 17 September 2009). 48.     Furthermore, as regards legal systems, such as that of the Czech Republic, which provide constitutional protection for human rights, it is incumbent on the aggrieved individual to test the extent of that protection (see Mirazović v. Bosnia and Herzegovina (dec.), no. 13628/03, 16   May   2006, and Vinčić and Others v. Serbia , nos. 44698/06, et seq., § 51, 1 December 2009). The Court has also held previously that the Czech constitutional review, as a rule, satisfies the requirements of Article 35 § 1 of the Convention and it usually requires, in respect of applications against the Czech Republic, that the applicants lodge a constitutional appeal unless they can provide cogent reasons that it is not an effective remedy in their case (see Choc v. the Czech Republic (dec.), no. 25213/03, 29   November   2005); Miler v. the Czech Republic (dec.), no. 56347/10, § 24, 25 September 2012; and Buishvili v. the Czech Republic , no. 30241/11, §§ 54 and 56, 25 October 2012). 49.     Lastly, the requirement of exhaustion of domestic remedies should in principle be assessed with reference to when the application was lodged (see Scordino v. Italy (no. 1) [GC], no. 36813/97, § 144, ECHR 2006 ‑ V and Vokurka v. the Czech Republic (dec.), no. 40552/02, § 49, ECHR 16   October 2007). 50.     The Court notes that after the political changes in 1989 the Czech Republic had to face severe structural tasks such as building democracy, solving social problems and creating rule of law. The State had to adapt to the new situation and to create functioning systems in the sphere of health and social security protection, education but also in the field of housing which was particularly obsolete and unsatisfactory. This naturally required fundamental legislative changes which, indeed, often form a lengthy and complex process. In such a situation, like in the present cases, it may well be left to the judiciary to surmount a period of lack of new legislative norms - full or partial - by their judicial activity in order to develop an established case-law until a new law is adopted and comes into force. 51.     The Court observes that the Constitutional Court’s case-law underwent a complex evolution since 2000 regarding the issue of judicial rent increase and the nature of remedies available to landlords under domestic law. In 2003 the Constitutional Court made clear that in case of further inactivity of the legislator, it would have no other possibility than to fulfil its duties in individual cases and assure observation of principles guaranteed by the Constitution and international treaties (see paragraph 100 of the annex). Moreover, the rich Constitutional Court’s case-law indicates that at least two remedies were open to the landlords, in particular the action for rent increase pro futuro and an action for damages against the State. 52.     The applicants are unable to point to an established case-law at the time of lodging their applications that would absolve them from using any of the suggested remedies including, ultimately, a constitutional appeal. Such a conclusion cannot be reached even with hindsight. Admittedly, there were inconsistencies in the case-law of the Constitutional Court itself and not all constitutional appeals of landlords were successful. Yet, and as even the applicants acknowledge, in the vast majority of cases the Constitutional Court ruled in favour of landlords. The Court notes in this respect that what is relevant from the point of view of the rule of exhaustion of domestic remedies is that the remedy offers a reasonable prospect of success and not absolute certainty of success. 53.     The Court is also aware of the difficulties the landlords were facing in the domestic legal system as it was far from clear in 2004 or even in 2007 which proceedings exactly they should institute. The Court also notes certain inconsistencies in the legal opinions of the national courts which not always respected the leading opinions of the highest constitutional instance. Nonetheless, it cannot be said that the State, while taking time to adopt a   new legislation in order to solve problems connected with the housing and with the rent control scheme in particular, did not offer the applicants any concrete legal avenue to remedy their respective situations which, according to them, contravened the Convention. The Court is rather of the opinion that the applicants had access to different procedures, and ultimately access to the Constitutional Court, which offered a reasonable prospect of success to their complaints in the circumstances of the present case. 54.     However, the applicants did not avail themselves of any of those opportunities. The first applicant instituted proceedings against his tenants but they were later discontinued on the applicant’s own request. He thus deprived himself of the opportunity to submit the matter to the Constitutional Court. The second applicant did not bring any proceedings at all. The Court thus concludes that none of the applicants provided the domestic courts, including the constitutional jurisdiction, with the opportunity of preventing or putting right the violations alleged. 55.     Lastly, the Court notes the applicants’ argument that instituting individual proceedings for every landlord in the country cannot constitute an effective remedy as the domestic court system would inevitably collapse and the proceedings would be taking too long. It is true that the effectiveness of a remedy can be undermined by its excessive duration (see, inter alia , Doran v. Ireland , no. 50389/99, § 57, ECHR 2003 ‑ X (extracts); and Golha v. the Czech Republic , no. 7051/06, § 49, 26 May 2011). Nevertheless, the Court does not see any excessive duration in the present case. As it has already mentioned above, Art 38, a.s. remained completely inactive, in respect of undertaking any procedural step in order to solve or at least to improve its situation. Regarding the applicant Vomočil , the Court does not consider that the length of the court proceedings which was less than three years for two levels of jurisdiction, was so excessive as to make the remedy ineffective in his case. Therefore, the applicants’ argument is a   mere speculation and not supported by the facts of the present case. 56.     It follows that the present applications must be rejected under Article   35 §§   1 and   4 of the Convention for non-exhaustion of domestic remedies. For these reasons, the Court unanimously Decides to join the applications; Declares the applications inadmissible.   Claudia Westerdiek   Mark Villiger   Registrar   President   ANNEX RELEVANT DOMESTIC LAW AND CASE-LAW A.     Relevant domestic law 1.     The Constitution 1.     Under Article 89 § 1 of the Constitution, decisions of the Constitutional Court are enforceable as soon as they are delivered in the manner provided for by statute, unless the Constitutional Court decides otherwise with regard to enforcement. 2.     The Charter of Fundamental Rights and Freedoms 2.     Article 2 § 2 of the Charter stipulates that State authority may be asserted only in cases and within the limits provided for by law and only in the manner prescribed by law. 3.     Under Article 3 § 1 everyone is guaranteed the enjoyment of his or her fundamental rights and freedoms without regard to gender, race, colour of skin, language, faith and religion, political or other convictions, national or social origin, membership of a national or ethnic minority, property, birth, or other status. 4.     Article 4 § 1 provides that duties may be imposed upon persons only on the basis of and within the limits of the law, and must respect the fundamental rights and freedoms of the individual. Under the second paragraph, limitations may be placed upon fundamental rights and freedoms only by law and under the conditions prescribed in the Charter. Under the third paragraph, any statutory limitation on fundamental rights and freedoms applies in the same way to al