CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 13 octobre 1988

.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. 12132/86                       by Herwig HIRZENBERGER                       against Austria             The European Commission of Human Rights sitting in private on 13 October 1988, the following members being present:                 MM. C.A. NØRGAARD, President                   J.A. FROWEIN                   S. TRECHSEL                   F. ERMACORA                   E. BUSUTTIL                   A.S. GÖZÜBÜYÜK                   A. WEITZEL                   J.-C. SOYER                   H.G. SCHERMERS                   H. DANELIUS                   J. CAMPINOS              Sir   Basil HALL              MM.   F. MARTINEZ                   C.L. ROZAKIS              Mrs.   J. LIDDY                Mr.   H.C. KRÜGER Secretary to the Commission           Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;           Having regard to the application introduced on 17 March 1986 by Herwig Hirzenberger against Austria and registered on 9 April 1986 under file No. 12132/86;           Having regard to the report provided for in Rule 40 of the Rules of Procedure of the Commission;           Having deliberated;           Decides as follows:     THE FACTS           The applicant, an Austrian citizen born in 1937 who resides in Vienna, is a practising lawyer.   His earlier application No. 9695/82, which concerned a compensation issue under the Austro-Czechoslovakian Treaty on the regulation of property questions, was declared inadmissible by the Commission on 5 July 1984.   The present application is not related to the facts of the earlier case.           The facts submitted in the present case may be summarised as follows:           The applicant owns an apartment block in Vienna which was severely damaged during World War II.   One of the apartments, consisting of three rooms and a kitchen, was let to a tenant in 1953 on the basis of the 1922 Rent Act (Mietengesetz, Fed.   Law Gazette No. 872/1922) which provided for a freeze of rent at the level of 1914. The annual rent was fixed at AS 720,-.   In view of the bad state of repair of the apartment it was agreed that the tenant should carry out the necessary repair work (Instandsetzung) inside the apartment at his own cost.   He expressly renounced his right under Section 1096 of the Civil Code (Allgemeines Bürgerliches Gesetzbuch) to repair by the landlord.   On this basis the tenant installed a kitchen with a gas pipe.   In 1981 the tenancy rights were transferred to the previous tenant's son.   The conditions of the tenancy remained unchanged.           On 1 January 1982 a new Rent Act entered into force (Mietrechtsgesetz, Fed.   Law Gazette No. 520/1981).   Under this legislation the applicant could require the tenant to pay maintenance contributions (Erhaltungs-und Verbesserungsbeitrag) in addition to the rent (Section 45).   The applicant required such a contribution and the tenant accordingly paid a monthly rent of AS 107,40 plus maintenance contributions of AS 134,41.           In October 1983 the gas pipe in the apartment became defective.   The gas was turned off by the gas works of the City of Vienna.   The tenant asked the applicant to repair the defect but the applicant refused to do so.   Thereupon the tenant made an application under Section 6 of the 1981 Rent Act in order to oblige the applicant to carry out the repair.   He invoked Section 3 of the Act according to which the landlord is obliged to maintain the building in an adequate state of repair.           The applicant opposed the tenant's application, invoking the above clause in the tenancy contract whereby the landlord's maintenance obligation under Section 1096 of the Civil Code had been excluded and the charge of repair work inside the apartment was imposed on the tenant.   He further claimed that the repair fund constituted from the rent proceeds (Mietzinsreserve) was not sufficient to cover the costs.           The tenant's application was granted by the competent Arbitration Board (Schlichtungsstelle) and subsequently, on 19 June 1984, by the District Court (Bezirksgericht) of Hernals. The Court considered that the case came within the maintenance obligation of the landlord under Section 3 of the Rent Act which could be enforced by the tenant under Section 6 of the Act.   The necessary repair work was of a nature which excluded the examination of the question in which way it could be financed (Section 3 para. 3 sub-para. 2 of the Act).   The question of a valid exclusion of Section 1096 of the Civil Code had to be proven by the applicant.   As he had failed to do so he was required to carry out the repair.   He was ordered to do so within a period of two weeks.           The applicant's appeal (Rekurs) against this decision was allowed by the Regional Civil Court (Landesgericht für Zivil- rechtssachen) of Vienna on 15 October 1984.   It referred the case back to the District Court directing it to take a new decision after having given the other tenants an opportunity to participate in the proceedings.   This was required under Section 6 para. 4 in conjunction with Section 37 para. 3 sub-para. 2 of the Act.   The interests of the other tenants could be directly affected in particular because of the possibility of their having to pay increased rents (Section 18 of the Act) as a consequence of the repair work in question if the repair fund was not sufficient to cover the costs.           The other tenants were accordingly involved in the further proceedings of the District Court.   By declaration of 1 December 1984 the majority of tenants stated that they objected to the repair work being carried out by the applicant.           The District Court again allowed the tenant's application by a decision of 6 May 1985.   It noted that under Section 8 of the Rent Act the tenant was required to maintain the apartment including inbuilt installations such as gas pipes etc. in a manner which prevented damage to the landlord and other tenants.   However, serious defects were excluded from the tenant's maintenance obligation and had to be repaired by the landlord according to Section 3 of the Act.   The repair necessary in the instant case was "priority repair work" within the meaning of Section 3 para. 3 sub-para. 2.   This had to be carried out by the landlord irrespective of whether the costs were covered by the repair fund or whether an increase of rents would become necessary as a consequence.   In such a case the objection of the majority of tenants was irrelevant.   The contractual exclusion of the landlord's maintenance obligation under Section 1096 of the Civil Code could not be invoked because such an exclusion was only admissible in freely negotiated tenancy agreements, but not in agreements coming within the scope of rent restrictions.   The applicant was therefore ordered to carry out the necessary repair work within a period of four weeks.           The applicant again appealed to the Regional Civil Court invoking inter alia his constitutional rights to equality before the law and to inviolability of property.   However, on 26 September 1986, the Regional Civil Court rejected the appeal.   It observed that under Section 18 of the 1922 Rent Act the applicant had been obliged to tolerate the installation by the tenant of a gas pipe which, as an inseparable part of the building, had become the applicant's property.   A defect of the gas pipe which made it unusable was a serious defect of the building as such, notwithstanding that the defect existed only inside the apartment concerned.   The repair obligation of the applicant as the landlord under Section 3 of the 1981 Rent Act had been rightly confirmed by the District Court, having due regard to the provisions of Section 8.   The Court finally stated that it did not share the applicant's doubts concerning the constitutionality of the measure ordered.           The applicant had the gas pipe repaired by a specialised firm which charged him AS 5,976.-.   COMPLAINTS   1.       The applicant complains that he could not himself raise before the Constitutional Court the alleged unconstitutionality of the applicable provisions of the Rent Act, and that the Regional Civil Court refused to bring the case before the Constitutional Court.   He alleges violations of Articles 6 and 13 of the Convention, in that his civil rights and obligations were thus not determined by an independent and impartial tribunal.   2.       As regards the repair obligation imposed on him by the above court decisions, and the concomitant obligation to supervise the repair work in question, the applicant alleges that he was required to do forced or compulsory labour within the meaning of Article 4 para. 2 of the Convention.   3.       The applicant further invokes Article 1 of Protocol No. 1 to the Convention claiming that contrary to this provision he was deprived of his property in that he had to carry out repair work at his own cost (AS 5,976.-) and was furthermore required to work without remuneration, causing him further financial losses.   4.       The applicant finally alleges a violation of Article 14 of the Convention, in that he was discriminated against on the ground of his being the owner of the property in question.     THE LAW   1.       The applicant alleges a violation of Articles 6 and 13 (Art. 6, 13) of the Convention because he could not bring his case before the Constitutional Court.           Article 6 para. 1 (Art. 6-1), first sentence provides:        "In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law."           Article 13 (Art. 13) provides:        "Everyone whose rights and freedoms as set forth in this 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."           The Commission notes, however, that the applicant's civil rights and obligations were determined by the competent civil courts which were "independent and impartial tribunals" within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.   The fact that these courts refused to bring the case before the Constitutional Court cannot be seen as affecting their independence and impartiality.   The review of the constitutionality of legislation does not as such concern the determination of civil rights and obligations (cf.   No. 8790/79, Sramek v.   Austria, Comm.   Rep. 8.12.82, para. 68).           Nor does the lack of direct access to the Constitutional Court in the applicant's case amount to a violation of Article 13 (Art. 13) of the Convention.   This provision, too, does not require the possibility of obtaining the review of the constitutionality of legislation (cf. Nos. 7601/76 and 7806/77, Young, James and Webster v.   United Kingdom, Comm.   Report 14.12.79, para. 177).   Apart from that the applicant could raise the issue of his rights under the Convention before the competent civil courts.   He did so as regards the constitutional rights of equality and inviolability of property which in substance correspond to the rights enshrined in Article 14 (Art. 14) of the Convention and Article 1 of Protocol No. 1 (P1-1). Although in a summary form, the Regional Civil Court of Vienna dealt with the matter.           There is accordingly no appearance of a violation of Article 6 or Article 13 (Art. 6, 13) of the Convention, and the applicant's complaints in this respect must therefore be rejected as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.       The applicant also complains that Article 4 para. 2 (Art. 4-2) of the Convention was violated because he was allegedly required to do forced or compulsory labour.           Insofar as relevant, Article 4 paras. 2 and 3 (Art. 4-2, 4-3) read as follows:   "2.       No one shall be required to perform forced or compulsory labour.   3.       For the purpose of this Article the term "forced or compulsory labour" shall not include:     ...   (d)      any work or service which forms part of normal civic obligations."           The Commission notes that the applicant has not raised this question before the competent domestic courts.   It is therefore doubtful whether he can be regarded as having exhausted the domestic remedies in accordance with the requirements of Article 26 (Art. 26) of the Convention.   In any event there is no appearance of a violation of the above provision as the applicant's obligation to have certain repair work carried out at his cost did not involve a personal obligation to perform the work in question.   Such services as may have been required to be performed by the applicant personally, i.e. in particular the supervision of the repair work in question, are "normal civic obligations" of the applicant as a landlord.   They are covered by Article 4 para. 3 (d) (Art. 4-3-d) of the Convention.           This part of the application must therefore also be rejected as being manifestly ill-founded.   3.       The applicant further complains that Article 1 of Protocol No. 1 (P1-1) to the Convention was violated in that he was deprived of certain property by the obligation to carry out maintenance work at his own cost in the apartment of one of his tenants.   This provision reads as follows:   "Every natural or legal person is entitled to the peaceful enjoyment of his possessions.   No one shall be deprived of his 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."           Insofar as the applicant complains under this provision that he was required to work without remuneration, the Commission refers to the considerations in para. 2 above.   It finds that Article 1 of Protocol No. 1 (P1-1) is not applicable in this respect.           The Commission considers that the applicant's obligation to pay the costs of the repair work ordered by the courts does not constitute a deprivation of possessions within the meaning of the second sentence of the first paragraph.   It falls to be considered under the second paragraph of Article 1 (Art. 1-2) , being an obligation resulting from measures taken by the State in order to control the use of real property of house-owners (cf.   No. 8003/77, Dec. 3.10.79, D.R. 17 p. 80; Nos. 10522/83, 11011 and 11070/84, Mellacher a.o. v.   Austria, Comm.   Rep. 11.7.88, paras. 175-199).           The Commission recognises that legal repair obligations of the landlord which have to be carried out irrespective of whether the costs are covered by the rent proceeds and irrespective of earlier contractual stipulations amount to an interference with the right to peaceful enjoyment of possessions.   However, such obligations pursue a legitimate aim of social policy, namely the protection of tenants.   While in this context the interference with earlier contractual rights requires a special justification (cf. the above-mentioned Report in the Mellacher a.o. case, para. 213), such obligations can still be regarded as proportionate if, as in the present case, the economic burden placed on the landlord remains within reasonable limits.   The Commission notes in this context that the applicant had concluded the rent agreement in question a long time ago, under the rent control legislation then in force, and that under the 1981 Rent Act the applicant could, and did in fact, ask for maintenance contributions from the tenants in addition to the agreed rent.   If this was not sufficient to cover the costs of necessary repair work, he could further apply for a judicial decision authorising an increase of rents.   The applicant failed to show that he made use of the latter possibility.   The Commission concludes that his above complaint is also manifestly ill-founded.   4.       The applicant finally complains of discrimination contrary to Article 14 (Art. 14) of the Convention.   However, this provision cannot be applied independently, since it secures non-discrimination only in respect of the enjoyment of the Convention rights.   The applicant appears to complain of discrimination in respect of his right to peaceful enjoyment of possessions (Art. 1 of Protocol No. 1) (P1-1) in that, as the owner and landlord, he is treated less favourably than the tenants.   However, the distinction between landlords and tenants as regards their respective obligations concerning the maintenance of the property in question has an objective justification.    The two groups of persons are not directly comparable, the landlord being the owner of the property.   Moreover, their respective obligations have not been fixed in an arbitrary manner by Sections 3 and 8 of the 1981 Rent Act as applied in the present case.   There is accordingly no appearance of discrimination contrary to Article 14 (Art. 14) of the Convention.   This last part of the application is therefore again manifestly ill-founded.             For these reasons, the Commission             &_DECLARES THE APPLICATION INADMISSIBLE.&S       Secretary to the Commission               President of the Commission              (H.C. KRÜGER)                              (C.A. NØRGAARD)