The effectiveness of the constitutional remedy for property right violations caused by the old rent laws, in light of article 13 of the European convention

Abstract

This work considers the constitutional remedy awarded to landlords of residential, commercial and agricultural leases for property right violations caused by the old rent laws, in light of the right to an effective remedy, as found in Article 13 of the Convention. This right requires a remedy to provide compensation for past breaches and to bring ongoing ones to an end, and despite being perfectly able to do both, the constitutional remedy does not, and applicants are required to seek other remedies for full redress. While the European Court has decided that an aggregated remedy may meet the requirements of Article 13, provided that the lease is not a commercial one, it has expressed its doubts with such approach, mainly with the fact that the constitutional remedy does not bring violations to an end by ordering eviction but requires applicants to institute further proceedings, and it has suggested against it. The court has also decided that the constitutional remedy does not adequately compensate past breaches, particularly because applicants are penalised for their delay in instituting proceedings. This work concludes that the courts of constitutional jurisdiction have not properly addressed the issues raised by the European Court, nor have they adopted its suggested remedies. The current remedy does not bring violations to an end, even if the lease is a commercial one. The courts are only willing to order eviction when the tenants have alternative accommodation. This work also concludes that landlords are still at times penalised and that they are left uncompensated for the damages suffered after the constitutional judgment until eviction is secured, possibly leading to a violation of the right to an effective remedy. Lastly, this work proposes alternative remedies which the national courts can adopt to avoid breaching Article 13.