II. ÚS 2533/20
The Second Panel of the Constitutional Court (Justice Rapporteur David Uhlíř) rejected a constitutional complaint against the judgment of the Supreme Administrative Court of 30 June 2020, ref. No 7 As 40/2019-32 and the judgment of the Regional Court in Ostrava – Olomouc Branch of 19 December 2018, ref. No 65 A 60/2018-69. However, the Constitutional Court is of the opinion that the Czech Republic lacks adequate regulation of social housing.
The complainants were tenants of a municipal apartment owned by the Statutory City of Olomouc (intervener) from 1998 to April 2018. After a second consequent termination of their lease of two distinct apartments, which they were motivated to terminate by the promise of an offer of a larger apartment, they and their grandson ended up living in a smaller apartment, in a similarly poor technical and sanitary condition. The complainants brought an action before the Regional Court in Ostrava – Olomouc Branch seeking a declaration that the interventions of the intervener (the defendant), consisting in the failure to take steps leading to the desegregation of an excluded area and in the application of the city’s housing policy contributing to the complainants’ lasting social exclusion and segregation, were unlawful. The Regional Court dismissed their claim, holding that the conduct challenged by the complainants could not constitute unlawful interference because the complainants did not enjoy a public subjective right to housing. This is a social right that must be reflected in law. The Supreme Administrative Court also rejected the complainants’ cassation complaint. In their constitutional complaint, the complainants sought the annulment of the decisions of the ordinary courts, claiming that they violated their fundamental rights, namely the right to protection of human dignity, the right to assistance in material need, the right to protection of health, as well as the right to a fair trial, respect for private and family life and the prohibition of discrimination. They also alleged violations of Articles 11(1) and 12(1) of the International Covenant on Economic, Social and Cultural Rights (the Covenant).
Although the Constitutional Court rejected the complainants’ motion, it pointed to critical deficiencies in Czech housing legislation. To provide housing under clearly defined conditions is one of the basic tools for solving social and economic issues at local and regional level. According to the Constitutional Court, the long-lasting uncertainty of the public with regard to housing may undermine the citizens’ trust in the democratic rule of law within the meaning of Article 1 of the Constitution of the Czech Republic. Vulnerable people cannot be left in the care of charities, volunteers or non-profit organisations alone; such an approach is contrary to our international obligations under Article 11 of the Covenant and Article 16 of the European Social Charter. Therefore, the Constitutional Court called on the legislator to take active steps to adopt a law on social housing that would provide municipalities in the Czech Republic with specific measures and tools to meet the housing needs of their citizens.
Although the Charter of Fundamental Rights and Freedoms does not explicitly include the right to housing, it can be inferred from Article 30(2) of the Charter, according to which everyone who is in material need has the right to such assistance as is necessary to provide basic living conditions. However, the right to housing or the right to adequate (social) housing cannot be directly asserted before the courts. Social rights can only be sought within the limits of the law. The Constitutional Court did not agree with the complainants’ argumentation that it is possible to find the corresponding legal regulation in the Municipalities Act. In the Court’s opinion, Section 35(2) of the Municipalities Act [in conjunction with Section 7(1) of the same Act] is not a legal implementation of the right to housing. These provisions only define the independent competence of the municipality. According to the Municipalities Act, municipalities are supposed to “ensure that the needs of their citizens are met”, including in the area of housing, but the extent to which this need is met and specific tools and measures are not specified in the Act. The legislator has left it up to the municipalities to decide whether or not municipal housing policy will be consistently addressed beyond the insufficient legal regulation. Yet it is the municipalities that are closest to its citizens, are best able to respond flexibly to their needs, and are ideally placed to detect and solve the exacerbated situations associated with housing loss and related undesirable phenomena – such as poverty and poverty industry, involuntary homelessness of persons with mental health problems, unsuitable environments for children growing up in inadequate housing conditions, increased crime, and lower levels of education. The issues of substandard housing and the poverty industry also affect selected regions in the Czech Republic to a greater extent.
Even if a municipality has a solid housing stock, it is currently entirely at that municipality’s discretion how it approaches and manages its housing stock. The municipality may allocate housing stock exclusively for “ordinary” municipal housing for young (otherwise reasonably well-off) families who merely fall short of having enough funds to rent at market prices or buy their own housing. Alternatively, such municipality may also allocate housing stock for “social” housing in an attempt to prevent undesirable phenomena in the municipality (e.g. the aforementioned poverty industry). At the same time, it is quite obvious that, for example, after a significant investment in renovating the housing stock, it is more economically advantageous for municipalities as landlords to allocate the housing stock for ordinary housing, to the detriment of social housing, where rent shortfalls or other complications can be expected to occur more frequently. The Constitutional Court has warned that if an act on social housing providing municipalities with specific measures and tools to meet the housing needs of citizens is not adopted, the social housing crisis may further escalate. Given the inflation and rising energy prices, it is clear that in the future these difficulties will affect not only those at risk of poverty, but also the middle class, the elderly, single mothers, students and young people.
According to the Constitutional Court, the provision of social benefits is not a sufficient implementation of the right to housing; the State must also guarantee effective and efficient access to decent housing. Housing benefits are being paid to people who are actually living in totally inadequate and undignified housing as part of the poverty industry. The benefits then effectively end up in the hands of landlords whose real intention is not to rent premises of the appropriate quality (and the appropriate rent) but to “do business” by drawing on the State allowance to its maximum extent. According to the Constitutional Court, this phenomenon constitutes an indecent abuse of human distress and it is beyond the bounds of basic decency. It is undoubtedly possible to imagine a more efficient way of directing public property towards the implementation of the right to housing.
According to the Constitutional Court, it is not possible to leave a person to live on the streets, without shelter, or feeling constantly insecure about having roof over their head, unless it is that person’s free decision. The obligation of the State to provide housing for all those in need and particularly vulnerable persons (e.g. families with children, the elderly) is not directly enforceable. However, vulnerable people cannot be left in the care of charities, volunteers or non-profit organisations alone. The fact that countries with different housing policy systems have been actively addressing housing issues for a long time (unlike the Czech Republic) was also revealed by an analysis of social housing systems in five European countries (France, Ireland, Germany, Spain and Slovakia). All these countries have either adopted a long-term housing plan or are developing and extending their existing housing laws. In a number of cases, the housing laws also take into account middle-income groups or young people who, for various reasons, cannot afford market housing or find it financially unsustainable in the long term. The strategy to reduce homelessness and the efforts to comprehensively address the issue of these particularly vulnerable people is no exception. According to the Constitutional Court, it is unsustainable for the Czech Republic not to have adequate legal regulation of social housing in the long term and it goes against our international obligations.