The imposition of a permanent heating charge on disconnected users violated the right to their property.

JUDGMENT

Strezovski and others v. North Macedonia 27.2.2020 (no.14460/16, 14958/16, 14962/16, 14966/16, 27884/16, 16064/17, 20229/17 and 30206/17).

see here 

SUMMARY

The applicants are owners of houses for which they were imposed under domestic law, the continuous payment of a heating fee to a private company from which they were disconnected. The domestic courts dismissed their actions on the ground that the payment of the fee was provided by law. The Constitutional Court subsequently found this provision lawful for users receiving district heating.

The Court acknowledged that the interference at issue was ‘lawful’ within the meaning of Article 1 of the First Protocol to the Convention because it was provided for by domestic law, but examined whether there were sufficient procedural safeguards in respect of the application by the national court of law payment of the heating fee.

In its examination, the ECtHR held that the domestic courts had ignored the proposed evidence useful for the objective assessment of the matter in view of the individual characteristics of the units and did not make an objective assessment of the ‘indirect’ use of heating in each individual case. .

The ECtHR therefore unanimously held that the State as a whole did not achieve the required fair balance to ensure adequate protection of the applicants’ property rights and the public interest. Violation of Article 1 of the First Protocol.

COMMENT

The Court takes a stand on a matter of concern to tenants and co-owners of apartments that have been disconnected with central heating and either have autonomous heating or not. Forcing them to pay a permanent heating fee violates their right to their property.

PROVISION

Article 1 of the First Protocol

PRINCIPAL FACTS

The applicants, Strezo Strezovski, Cane Nikolovski, Aco Spasovski, Josip Juvan, Zoran Kostovski,
Trajanka Nakevska, Enver Iseni, and Sonja Nalbanti-Dimoska, are Macedonians/citizens of the
Republic of North Macedonia who were born in 1953, 1958, 1955, 1942, 1952, 1953, 1958, and 1969
respectively and live in Skopje.

The case concerned their complaint that they had been obliged under State regulations to pay a
standing charge for heating in their flats to private suppliers, even though they had been
disconnected from the heating network.

The applicants are all owners of flats in residential buildings which are connected to a district
heating network operated by private heat suppliers. Their flats had been disconnected from the
system, either at their request or at that of former owners, before 2012 when regulations entered
into force obliging disconnected users to pay private heat suppliers an annual standing charge.
In 2013 the Constitutional Court found the relevant provision of the regulation compatible with the
Constitution. It considered that the standing charge was the price disconnected users should pay for
heat received indirectly from other units in the buildings which were heated by the district system.

The domestic courts subsequently confirmed that approach when dismissing the applicants’ civil
claims opposing payment of the standing charge. The courts found in particular that the applicants,
as indirect consumers, were obliged to pay the charge, irrespective of their individual circumstances.
In 2018 the Supreme Court limited the scope of application of such an approach by excluding a
certain category of flats if certain conditions were met.

Relying on Article 1 of Protocol No. 1 (protection of property), the applicants alleged that being
obliged to pay the standing charge had breached their property rights.

THE DECSION OF THE COURT…

 The Court needs to examine whether the system in which the heating standing charge operated under the 2012 Regulations was compatible with Article 1 of Protocol No. 1, that is to say whether it was lawful, in the general interest and proportionate, that is, whether it struck a “fair balance” between the demands of the general interest of the community and the requirements of the protection of the individuals fundamental rights.

Whether the impugned measure was “provided for by law”

In the present case, the Court agrees with the Government  that the standing charge was introduced under section 53(2) of the 2012 Regulations. It was secondary legislation, which the Energy Regulatory Commission, a State body, adopted pursuant to the Energy Act, as confirmed by the Constitutional Court. It applied to all units disconnected from the district heating system in residential buildings equipped with a single joint meter. Section 66 of those regulations extended that requirement to all previously disconnected users, including the applicants. The 2012 Regulations became binding after they had been published in the Official Gazette.

Accordingly, the Court is satisfied that the interference in question was “lawful” within the meaning of Article 1 of Protocol No. 1 of the Convention.

In assessing compliance with Article 1 of Protocol No. 1, the Court must make an overall examination of the various interests in issue, bearing in mind that the Convention is intended to safeguard rights that are “practical and effective”. It must look behind appearances and investigate the realities of the situation complained of. That assessment may involve not only the conditions of the measure, but also the existence of procedural and other safeguards ensuring that the operation of the system and its impact on ones property rights is neither arbitrary nor unforeseeable. Uncertainty  be it legislative, administrative or arising from practices applied by the authorities – is a factor to be taken into account in assessing the States conduct.

 In the present case, all the applicants are owners of flats in residential buildings connected to a district heating network. Their units had been disconnected from that system before the 2012 Regulations entered into force, either at the request of the former owner or by the applicants. At that time, there were no regulations requiring the payment of a heating standing charge. As noted above, such a requirement was introduced, for the first time, with the 2012 Regulations. Accordingly, at the relevant time the applicants could not have anticipated with any reasonable certainty that there would be, or the extent of, a standing charge imposed in the future.

The above blanket approach developed by the domestic courts was based exclusively on the premise that the applicants, as indirect consumers within the meaning given by the Constitutional Court, used heat that was distributed in the building through the district network. There was nothing in their decisions to suggest that the standing charge which the applicants were ordered to pay also concerned, as argued by the Government, the heating of the communal parts of the building. Similarly, it has not been argued that the standing charge was to be regarded “contribution”, within the meaning of paragraph 2 of Protocol No. 1 to the Convention, levied to support a public service.

In the proceedings at issue, the applicants challenged that premise by making arguments regarding certain issues of fact specific to their units. They also sought measures and proposed evidence relevant for an objective assessment of that premise in view of the units individual characteristics. The courts disregarded those requests and took no account of the applicants arguments. They did not undertake an examination of the contested issues of fact, holding that “all (disconnected) units in a building connected to a district heating network [were] obliged to pay the standing charge irrespective of their position or the composition or construction of the internal installation”. Accordingly, the individual circumstances related to the applicants units played no role in the judicial adjudication of their claims.

While the Court has accepted above  that the overall measure was, in principle, capable of being regarded as being in the general interest, the fact that there also existed an underlying private interest of a commercial nature cannot be disregarded. In such circumstances, both States and the Court in its supervisory role must be vigilant to ensure that measures, such as the one at issue, do not give rise to an imbalance that imposes an excessive burden on the applicants (as owners of disconnected units) while allowing private heat suppliers to make potentially unjustified profits. It is also in such contexts that effective procedural safeguards become indispensable.

Having regard to the considerations discussed above, the Court cannot accept the Governments contention that there existed sufficient procedural safeguards in the application by the domestic courts of the law regarding the payment of the heating standing charge. The Court considers that it was necessary in the proceedings at issue to have the facts contested by the applicants established in a precise manner by verifying their arguments regarding the level of district heating provided in the building that their units allegedly used. Only after a verification of all relevant factors would it have been possible for the domestic authorities to make an objective assessment of the “indirect” use of heating in each individual case.

Having assessed all the elements above, the Court finds that the respondent State, notwithstanding its margin of appreciation, has failed to strike the requisite fair balance between the interests involved and has failed to make efforts to ensure adequate protection of the applicants property rights in the context of the proceedings at issue, which involved the ultimate interference on the part of the State with these rights.

Having regard to the foregoing, the Court finds that there has been a violation of the applicants right to the peaceful enjoyment of their possessions, as guaranteed by Article 1 of Protocol No. 1.

Violation of Article 1 of Protocol No. 1

Just satisfaction: EUR 1,000, each, to Mr Iseni and to Ms Nalbanti-Dimoska, in respect of non-pecuniary damage, and EUR 320 to Mr Strezovski, EUR 2,100 to Mr Iseni, and EUR 360 to Ms Nalbanti-Dimoska in respect of costs and expenses

 


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