CYIL 2015

410

VÍT ALEXANDER SCHORM

CYIL 6 ȍ2015Ȏ

also revised its intention to go for a pilot judgment. If the applicants had not used

domestic remedies, and ultimately the constitutional appeal, their applications were

declared inadmissible, which was the case of almost all these applications.

Awaited for a long time, the judgment in

R & L, s.r.o. and others

(nos. 37926/05

and others, judgment of 3 July 2014),

i.e.

in the second group of rent control cases,

in fact confirmed what had looked as a probable outcome after the admissibility

decision in

Vomočil

and

Art 38, a.s.

, but which was quite unforeseeable eight or nine

years ago.

In its judgment, the Court first maintained, for the purposes of the rule of

exhaustion, that the two remedies,

i.e.

the action against the tenant for rent increase and

the action for compensation against the State, are alternative, and not cumulative,

as nonetheless suggested by the Constitutional Court, in whose concept the latter

action was subsidiary in nature.

It further rejected the Government’s opinion

that the landlords, when they acquired the property, were perfectly aware of the

implications of the rent control scheme, and emphasized that they only denounce

the situation that obtained after the Constitutional Court’s first judgment of 2000

on the unconstitutionality of the rent regulations when they were owners. It held that

there was interference with the landlords’ property within the meaning of the third

sentence of Article 1 of Protocol no. 1 (

i.e.

control of the use of property).

The Court went on to verify the existence of a legal basis for the interference,

which made it refer to the Constitutional Court’s findings according to which it

was essentially up to Parliament to regulate rents, not to the Government (the

Ministry of Finance), that had been doing it, and Parliament’s persisting inactivity

was unconstitutional in itself. The legal vacuum ended with the possibility based on

Act no. 107/2006 for the landlords to increase rents. In sum, the interference in the

period from 2002, when Parliament should have adopted the necessary legislation

as decided previously by the Constitutional Court, to 2006 (both years included)

lacked appropriate legal basis and was therefore contrary to Article 1 of Protocol

no. 1.

It is to be observed that the Court’s judgment stops at the level of legality, while

virtually all the other rent control cases against different States (Poland, Malta,

Slovakia or Croatia) have been examined at the level of proportionality. Since the

Court reserved, by six votes to one, the question of just satisfaction for further

procedure, it remains unclear what standards or criteria should be applied in order to

evaluate the extent to which compensation is due from the State.

In fact, it is the Court’s established case law that in case of different remedies available which can

lead to the same result, only one of these needs to be exhausted for the purposes of Article 35 § 1 of

the Convention. It is nevertheless a question of whether we are not in a situation of an aggregate of

remedies.