Mandatory rental agreements for retirees and the homeless. Violation of the right to the lessor’s property
JUDGMENT
Kasmi v. Albania 23.06.2020 (no. 1175/06)
SUMMARY
Forced rent for the homeless. Right to the lessor’s property.
The plaintiff was obliged by an irrevocable decision of the Supreme Court to impose compulsory leases on apartments owned by him, which had been concluded during the nationalization of his property, but remained active even when he was restored as owner of his real estate. Complain of infringement of your right to his property (Article 1 of the First Additional Protocol).
The ECtHR ruled that the deprivation of use of the applicant’s property was intended to provide housing to a vulnerable section of society, such as retirees and the homeless, and therefore had a legitimate purpose in the general interest.
However, it noted that while the lease agreements are made voluntarily, in the present case the plaintiff had to accept pre-existing leases and was forced into a landlord-tenant relationship. As a result, the Court ruled that the plaintiff was unreliable because he could not recover his property.
With this conduct, the applicant had been disproportionately burdened and the state failed to strike a fair balance between the general interests of the community and the protection of the right to respect for its property.
Violation of Article 1 of the First Additional Protocol was found and an amount of 30,000 euros was awarded for compensation.
PROVISION
Article 1 of the First Additional Protocol
PRINCIPAL FACTS
The applicant, Gezim Kasmi, is an Albanian national who was born in 1942 and lives in Tirana.
The case concerned the applicant’s legal efforts to evict tenants from a former nationalised property
which had been restored to his family.
In 1997 the applicant and his siblings inherited two houses which had been nationalised during the
communist period but which had been restored to their father. One of the houses was occupied by
tenants and the applicant lodged a civil action with Tirana District Court to evict them. The District
Court upheld his action in March 2003, however, on appeal by the tenants, the judgment was
quashed in respect of three of the four tenants.
The Court of Appeal held that the tenants had been occupying the house since the 1980s. It found
that one of them was legally homeless and had had a right to a tenancy since 1993. Two others had
been living abroad as economic migrants for two years but had not established any permanent
residence there and had not abandoned their dwelling in Albania.
The Supreme Court upheld the Court of Appeal’s decision in July 2005, finding that the three tenants
were legally homeless and had a right to occupy the house. The applicant informed the Court in May
2010 that he had taken possession of the house after the tenants living there had died.
The applicant complained of a breach of Article 1 of Protocol No. 1 (protection of property) to the
European Convention on Human Rights as he had been unable to recover possession of his house
and receive income from it.
THE DECISION OF THE COURT…
The Court considers it necessary to determine the alleged interference in the present case, the existence of which has not been disputed by the parties. In this connection, Article 1 of Protocol No. 1 comprises three distinct rules: the first rule, set out in the first sentence of the first paragraph, is of a general nature and enunciates the principle of the peaceful enjoyment of property; the second rule, contained in the second sentence of the first paragraph, covers deprivation of possessions and subjects it to certain conditions; the third rule, stated in the second paragraph, recognises that the Contracting States are entitled, inter alia, to control the use of property in accordance with the general interest. The three rules are not, however, distinct in the sense of being unconnected. The second and third rules are concerned with particular instances of interference with the right to peaceful enjoyment of property and should therefore be construed in the light of the general principle enunciated in the first rule
Turning to the present case, the applicant’s main argument is that he was unable to gain possession of his property on account of it being occupied by tenants. In the domestic proceedings concerning the eviction of tenants, the domestic courts found that the situation had been the result of the operation of domestic legislation. The Court finds no reason to justify drawing a different conclusion. It notes that the cumulative application of domestic statutes, namely the Privatisation Act, the Contribution to Homeless Households Act and the Property Act, had provided for the tenants’ right to continue occupying privately owned dwellings which had been restored to former owners, such as the applicant in the present case.
The first and most important requirement of Article 1 of Protocol No. 1 is that any interference with the peaceful enjoyment of possessions should be lawful. In particular, the second paragraph of Article 1, while recognising that States have the right to control the use of property, subjects their right to the condition that it be exercised by enforcing “laws”. Moreover, the principle of lawfulness presupposes that the applicable provisions of domestic law are sufficiently accessible, precise and foreseeable in their application. For the purposes of its examination of lawfulness, the Court reiterates that it is primarily for the national authorities, notably the courts, to interpret and apply domestic law and to decide on issues of constitutionality
The Court accepts that the domestic legislation, as interpreted by the Constitutional Court’s decisions no. 5/1997 and 26/2005, was intended to provide housing to a vulnerable part of the society, such as retirees, in a country where availability of dwellings could not meet the demand. It was also aimed at making accommodation available at reasonably affordable prices to those less affluent members of the population who lacked the financial means to pay for alternative accommodation. The Court is prepared to accept that in the social and economic circumstances of Albania at the relevant time the control of the use of the applicant’s property had a legitimate aim in the general interest, as required by the second paragraph of Article 1 of Protocol No. 1.
Any interference with property must also satisfy the requirement of proportionality. As the Court has repeatedly stated, a fair balance must be struck between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights, the search for such a fair balance being inherent in the whole of the Convention. The requisite balance will not be struck where the person concerned bears an individual and excessive burden. The concern to achieve this balance is reflected in the structure of Article 1 of Protocol No. 1 as a whole. In each case involving an alleged violation of that Article the Court must therefore ascertain whether by reason of the State’s interference the person concerned had to bear a disproportionate and excessive burden
Any intervention in the property must also satisfy the requirement of proportionality. As the Court has repeatedly stated, a fair balance must be struck between the requirements of the community’s public interest and the requirements for the protection of the fundamental rights of the individual, as the search for such a fair balance is inherent throughout the Convention. In assessing compliance with Article 1 of the First Additional Protocol, the Court must consider the various disputes in its entirety, taking into account that the Convention aims to safeguard the rights which are “practical and effective”.
The Court considers that the main thrust of the applicant’s complaint before the Court relates to his inability to recover possession of his property which was occupied by tenants on the basis of tenancy agreements. In this connection, the Court notes that the relevant legal framework was aimed at providing housing protection to a limited category of tenants who would be affected by the restitution of properties to former owners in a transitional context; as such, it did not amount to a general system of rent control for the benefit of low-income households. In addition, and more importantly, the scheme was, from the outset, meant to be of limited time duration, with the State expressly assuming the responsibility for securing alternative housing solutions for the affected tenants during this transitional period. The Court further notes that, as a general rule, a tenancy agreement would normally be entered into voluntarily between the parties at a rent reflecting the market level at the time when the agreement was concluded. However, the tenancy agreements were created ex lege by the transfer of the previously existing tenancy agreements entered into between the tenants and the State. The applicant had no influence on the choice of the tenants or the essential elements of the tenancy agreements. He was subjected to a forced landlord-tenant relationship. Nor can it be argued that the applicant had implicitly waived his right to choose the tenants as he never had the possibility of exercising that right
The Court considers that the duty of the national courts was difficult in a socially sensitive case. It notes that the Court of Appeal and the Supreme Court have not achieved a fair balance between the interests at stake due to the restrictions imposed by national law.
In addition, the Court is not convinced that the interests of two employees, namely B.S. and M.S., who lived abroad before the start of the trial, would have to prevail, according to Article 1 of the First Additional Protocol against the applicant’s property interests. After the failed outcome of the eviction process, the applicant had no other means of terminating the lease agreements.
This situation inevitably left the applicant in a state of ‘perpetual’ uncertainty as to whether he would ever be able to recover his property, not least because the statutory provisions which had been introduced in 2004 and 2006 were subsequently repealed by the Constitutional Court in 2005 and 2007 as being unfair to tenants. Furthermore, no immediate legislative measures to fill the legal vacuum were taken subsequent to the Constitutional Court decision 11/2007 in spite of the direction made to that effect in that decision. Only in 2012 did the Government adopt the Normative Act 2012 for the vacation of former owners’ properties which continued to be occupied by tenants . In addition, it has not been shown that the national authorities took any concrete measures to provide alternative housing to the tenants occupying the applicant’s house throughout the period under consideration by the Court . The national legal framework, as interpreted by the domestic courts and applied by the relevant implementing agencies, effectively placed the entire burden of a socially complex situation on the applicant.
Lastly, the applicant cannot be reproached for this situation as it was beyond his control for the reasons given in the preceding paragraphs. The Court observes that he was obliged to wait for a significantly long time – more than 13 years – before he was able to recover possession of his property, which was ultimately not due to the authorities’ intervention.
In the light of these considerations and, more particularly, having regard to the tenancy agreements imposed by law, the lack of adequate mechanisms safeguarding the applicant’s right to terminate the tenancy agreements, including the lack of a specific time-line set by law for this purpose, the low amount of rent fixed by law which did not allow for its indexation to inflation, the long period of uncertainty in which the applicant found himself, the Court finds that the applicant has been made to bear a disproportionate and excessive burden. It follows that the State failed to strike the requisite fair balance between the general interests of the community and the protection of the applicant’s right of property.
There has accordingly been a violation of Article 1 of Protocol No. 1 to the Convention.
Just satisfaction: 30,000 euros (EUR) (pecuniary damage)
