Resolution CM/ResChS(2011)7 : Collective Complaint No. 53/2008 by the European Federation of National Organisations working with the homeless (FEANTSA) against Slovenia

Resolution CM/ResChS(2011)7
Collective Complaint No. 53/2008
by the European Federation of National Organisations working with the homeless (FEANTSA) against Slovenia

(Adopted by the Committee of Ministers on 15 June 2011 at the 1116th meeting of the Ministers’ Deputies)

The Committee of Ministers,

Having regard to Article 9 of the Additional Protocol to the European Social Charter providing for a system of collective complaints;

Taking into consideration the complaint lodged on 28 August 2008 by the European Federation of National Organisations working with the homeless (FEANTSA) against Slovenia;

Having regard to the report transmitted by the European Committee of Social Rights, in which it concluded:

(i) unanimously that the situation in Slovenia constituted a violation of Article 31§1 of the Revised Charter;

The Committee has consistently held that the right to adequate housing means, inter alia, a right that is protected by law. It considers that the status conferred to tenants of non-profit flats in Slovenia prior to the 1991 Housing Act clearly fitted this definition. The rules introduced by the 1991 Act allowing former holders of the Housing Right – which the Act abolished – to purchase at an advantageous price the flats in respect of which they had previously held this right, also ensured sufficient legal security of tenure for the persons concerned. The Committee considers, however, that as regards the situation of former holders of the Housing Right over flats which were restored to their private owners, that the combination of insufficient measures for the access to or purchase of a substitute flat, the changes in the rules on tenancy and the increase in rents, are, at the end of the Slovenian Government’s reforms, likely to place a significant number of households in a very precarious position and to prevent them from effectively exercising their right to housing.

(ii) unanimously that the situation in Slovenia constituted a violation of Article 31§3 of the Revised Charter;

The Committee considers that, in order to establish that measures are being taken to make the price of housing accessible to those without adequate resources, States Parties to the Charter must show not the average affordability ratio required of all those applying for housing, but rather that the affordability ratio of the poorest applicants for housing is compatible with their level of income, something that is clearly not the case with former holders of the Housing Right, in particular elderly persons, who have been deprived not only of this right, but also of the opportunity to purchase the flat they live in, or another one, on advantageous terms, and of the opportunity to remain in the flat, or move to and occupy another flat, in return for a reasonable rent.

(iii) by 9 votes to 5 that the situation in Slovenia constituted a violation of Article E of the Revised Charter in conjunction with Article 31§3;

The Committee considers that the treatment accorded to former holders of the Housing Right in respect of flats acquired by the state through nationalisation or expropriation, and restored to their owners, is manifestly discriminatory in relation to the treatment accorded to other tenants of flats that were transferred to public ownership by other means, there being no evidence of any difference in the situation of the two categories of tenants, and the original distinction between the forms of public ownership in question, of which, moreover, they were not necessarily aware, being in no way imputable to them, and having no bearing on the nature of their own relationship with the public owner or administrator.

(iv) by 13 votes to 1 that the situation in Slovenia constituted a violation of Article 16 of the Revised Charter;

The Committee considers that in view of the scope it has constantly attributed to Article 16 as regards housing of the family, the findings of a violation of Article 31, taken alone or in conjunction with Article E, amount to a finding that there has also been a breach of Article 16.

(v) by 11 votes to 3 that the situation in Slovenia constituted a violation of Article E of the Revised Charter in conjunction with Article 16.

The Committee considers that in view of the scope it has constantly attributed to Article 16 as regards housing of the family, the findings of a violation of Article 31, taken alone or in conjunction with Article E, amount to a finding that there has also been a breach of Article 16, and of Article E in conjunction with Article 16.

Having regard to the information communicated by the Slovenian delegation by letter dated 20 May 2011,

1. takes note of the statement made by the respondent government and the information it has communicated on the follow-up to the decision of the European Committee of Social Rights and welcomes the measures already taken by the Slovenian authorities and their commitment to bring the situation into conformity with the Charter (cf. Appendix to the present resolution);

2. looks forward to Slovenia reporting, at the time of the submission of the next report concerning the relevant provisions of the European Social Charter, that the situation has been brought into full conformity.

Appendix to Resolution CM/ResChS(2011)7

European Federation of National Organisations working with the homeless (FEANTSA)
against Slovenia

Slovenian delegation paper
(letter from the Permanent Representation of Slovenia dated 20 May 2011)

1. Slovenia ratified the Revised European Social Charter on 7 May 1999, accepting 95 of the Revised Charter’s 98 paragraphs.

2. Slovenia ratified the Additional Protocol providing for a system of collective complaints on 7 May 1999.

3. Between 2000 and 2010, Slovenia submitted 10 reports on the application of the Revised Charter.

4. Slovenia fully recognises the importance of the Social Charter and of all its provisions. It shares the philosophy of the Charter and of the mechanism of collective complaints.

5. As a member state of the United Nations, the Council of Europe and the European Union, Slovenia is committed to applying international legal acts in the area of human rights, EU legislation and the case law of the European Court of Human Rights and the Court of Justice of the European Union. Slovenia is, as part of its international treaty obligations, subject to supervision by appropriate treaty bodies. Slovenia reports regularly on the human rights situation, and has open dialogue with supervisory bodies and implements their recommendations in good faith.

At the international level, Slovenia advocates a progressive human rights policy by committing to the enforcement and implementation of existing and the development of new international human rights standards. At the government level, Slovenia actively monitors developments in the area of human rights through the interministerial working group. This working group also includes representatives of civil society (non-governmental organisations) and the human rights ombudsman.

Slovenia showed its commitment to attaining the highest standards possible in the area of human rights protection by ratifying the European Social Charter, including the mechanism for collective complaints.

6. Slovenia received with due respect the report addressed to the Committee of Ministers by the European Committee of Social Rights in connection with the Collective Complaint No. 53/2008 presented by the European Federation of National Organisations working with the homeless (FEANTSA) against Slovenia.

7. The delicate issue results from the situation created in 1991 when Slovenia turned into a market economy from a socialist economy. In that period, through the Denationalisation Act, property was returned to owners whose property was seized and confiscated after the Second World War. Dwellings were returned to the original owners in kind; in most cases, holders of housing rights lived in them.

Prior to 1991, the former social housing (owned by municipalities and socially owned enterprises) was constructed from budget funds that were provided by all employed citizens from their salaries. Social housing included also nationalised and confiscated dwellings built before the Second World War by individuals from their own funds. Dwellings were awarded in the order of arrival of applications to entitled persons who applied for housing. Those people were granted the housing right to this dwelling. A household that was granted the housing right could permanently remain in the dwelling for low rent (administratively established by the state), irrespective of their later income or their financial situation.

It should be noted here that about 30% of all households acquired the so-called “Housing Right” in Slovenia, while the remaining households had to solve their housing needs by themselves, irrespective of the fact that they also provided funds from their salaries for the construction of social dwellings on a monthly basis.

Because of the change in the social system, the former owners acquired ownership of returned housing units. However, they did not acquire the right to dispose of them, since tenants could continue to use the housing in question without limitations; this is still the case. The new Housing Act protects tenants who maintained all their rights (such as those acquired before 1991), whereas the owners of denationalised housing may charge only administered non-profit rents to tenants for the use of housing (on average about 30% of market rents).

8. While taking note with the utmost attention of the contents and results of the above-mentioned report, Slovenia will make use of its indications in order to improve its engagement towards resolving the main concerns of the former holders of the housing rights in respect of dwellings acquired by the state through nationalisation or expropriation.

9. Tenants in denationalised dwellings maintained all their rights irrespective of their social situation and financial standing; however, the latter does not apply to new tenants of non-profit housing units that were awarded after 2003. All tenants in Slovenia facing a difficult financial situation are entitled to a subsidy amounting to as much as 80% of the rent, in line with the Housing Act from 2003. They are also entitled to extraordinary assistance to be financed by municipalities if they find themselves in financial hardship and are not capable of paying the non-profit rent (death in the family, loss of employment, serious illness, etc.). The owners cannot terminate tenancy to tenants who ask for extraordinary assistance. In the case of a long-term inability to pay rent and other costs in addition to rent, a municipality may be asked to move a tenant into other suitable non-profit housing or a residential unit intended for temporary solution of the housing needs of persons at social risk. In view of the above, we believe that this cannot result in homelessness.

Deprivation felt by tenants or the Association of tenants of (denationalised) dwellings has no impact on their social situation in terms of their exposure to risk. Namely, they are on an equal footing, and in a specific way even more protected than, other tenants of non-profit housing.

In spite of the above stated fact, we would like to emphasise that the Constitution of the Republic of Slovenia lays down that Slovenia is a welfare state providing all the mechanisms for the social inclusion of individuals. Within the mechanisms of the welfare state and in meeting statutory conditions, they have the right to benefits and services in terms of providing social inclusion of all population groups if they experience social deprivation for any reason.

It is also necessary to emphasise that the owners may initiate the procedure of terminating the tenancy agreement only in the case that the tenant breaches the tenancy agreement for reasons provided by law; this applies to all tenants. Prior to termination, the owner must inform the tenant of the breach of the tenancy agreement and define a time limit to remedy the breach. Only if the breach is not remedied the procedure may continue before the court which assesses whether the termination is well-founded.

In the case that an owner of a denationalised dwelling terminates the tenancy agreement due to “no fault” reasons, he/she may terminate the tenancy agreement, but only if he/she provides another suitable substitute dwelling. This is a housing unit which does not signify any essential worsening of the housing conditions of the tenant and his household. He/she must provide housing with non-profit rent for an indefinite period suitable in terms of size and location and built in compliance with construction standards. In the event that the tenant does not agree with such a termination, the courts shall decide on the suitability of other housing in a non-litigious civil proceeding.

Tenants in denationalised dwellings are, due to sensitivity to the issues, legally protected. Therefore, eventual judiciary proceedings, in the event that they do not breach the provisions of tenancy agreement, cannot be completed to the detriment of the tenant. So far, there has not been a single case in which the tenancy agreement was terminated in which there were not “at fault” reasons for termination.

Tenants of denationalised dwellings that for any reason feel threatened may always request assistance from the competent institutions (ministries, municipalities), where they may be offered professional and legal assistance (as regards verification of rent, possibility of obtaining other housing, explanation regarding housing legislation, etc.).

10. The Constitutional Court has reviewed several times the provisions of the Housing Act (Uradni list RS, No. 69/03, 18/04-ZVKSES, 47/06-ZEN, 45/08-ZVEtL and 57/08-SZ-1A) concerning the:

• position of tenants in denationalised flats;
• non-profit rent for the use of such flats; and
• the right to material incentives for tenants in denationalised flats in the event that they vacate or repurchase a denationalised flat.

The Constitutional Court explicitly stressed in one ruling that “both categories of former housing right holders (those living in dwellings constructed from budget funds on one hand and those living in denationalised dwellings on the other hand) now enjoy equal legal status with regard to tenancy agreements which have replaced the former housing right. As for the possibility of purchasing a flat to which a tenant had the housing right, both categories of housing right holders, on the other hand, cannot enjoy equal legal status since the privatisation of these flats have already been carried out through denationalisation”.

11. Out of a total of 4,700 former holders of housing right living in denationalised flats, 2,566 of them accepted material incentives offered by the government and permanently resolved their housing problem by purchasing another flat or buying a house. Slovenia estimates that fewer than 1,500 tenants will remain in the aforementioned flats (for various reasons such as old age, inability to purchase another flat etc) with a tenancy agreement for an indefinite period and a non-profit rent).

12. The allegation that the Housing Act has led to evictions and an increase in homelessness is completely unsubstantiated. Namely, the 12 fault-based grounds on which the owner may unilaterally terminate a tenancy agreement by filing suit, provided he or she gives the tenant prior written notice, are legitimate.

13. Furthermore, the complainants’ allegations that the 2003 Housing Act has introduced new prohibitions for tenants, including a prohibition on increasing the number of family members living in the flat once a tenancy agreement has been signed, are completely unfounded. On the contrary, the new Housing Act states that the tenancy agreement may not be terminated on the ground that there has been an increase in the number of the tenant’s family members.

14. Slovenia likewise refutes the complainant organisation’s allegations that the tenancy agreement may also be terminated on the grounds of the tenant’s absence from the flat for more than three months. The Housing Act explicitly states that “if the tenant is under treatment, in a home for the elderly for a period shorter than six months, or if the housing is not used for other justifiable reasons (business transfer or education elsewhere, doing military service, serving a prison sentence and similar)”, the tenancy agreement can not be terminated.

As already mentioned, the owner may terminate the tenancy agreement on a “no fault” basis only exceptionally and on condition that the tenant is provided with an adequate substitute flat, with the costs of the move to be borne by the owner.

15. With regard to improvements made by the tenant to the flat, the government maintains that under the terms of the Housing Act, the owner may not deny the tenant the right to make any alterations to the flat if these alterations are in compliance with the relevant technical requirements, if it is in the tenant’s personal interest to make them, if they are made at the tenant’s expense, if these alterations do not affect the interest of the owner and other flat owners in the building, and if they do not harm the common areas or appearance of the building.

16. As regards non-profit rent, which is defined as a rent that is determined at national level, and which is much lower than a commercial rent as it covers only the maintenance costs associated with the flat and the common areas, the management costs, depreciation costs over a useful life of 60 years and the capital costs associated with the flat, and is subject to a ceiling.

17. The increase in rent, furthermore, has been far lower than that alleged by the complainant, and is around 128% rather than 613%, after allowing for inflation. In 2008, rent expenses represented only 16.5% of average net income in Slovenia.

18. Tenants of non-profit flats with low incomes who, after paying the rent, could not afford to support themselves in a decent manner are entitled to a subsidised rent. Depending on their income, for instance, families are entitled to subsidies which can amount to as much as 80% of the non-profit rent.

19. Tenants in denationalised dwellings have instituted numerous judicial proceedings concerning the continuation of the tenure in the event of the death of the holder of the housing right before the Slovenian Supreme and Constitutional Court. Both courts have, in all cases, confirmed the provisions of the Housing Act.

20. It needs to be stressed that in the case of tenants in denationalised dwellings, there is no discrimination within the meaning of Article E of the European Social Charter (discrimination based on race, colour, sex, language, religion, political and other views, nationality or social origin, etc.). However, uncomfortable situations may arise for certain individuals that are not based on any of the above-mentioned grounds, but on the fact that the housing in which they lived had been returned to owners on the basis of denationalisation. If tenants were granted the right to privatisation of these dwellings, this would mean a new nationalisation as established by the Constitutional Court of the Republic of Slovenia.

As already stated, the government has adopted several measures by means of which it has maintained the status quo – the unchanged rights of these tenants, even after the return of housing to previous owners.

In view of this, the following measures were adopted:

– Applicable housing legislation that fully protects all acquired rights of tenants in denationalised housing in the context of safe and permanent rent and payment of non-profit rent. One of the essential objectives is to provide a safe home to tenants; therefore, the Housing Act lays down that the owner of a dwelling may enter the dwelling only twice a year. The owner is obliged to maintain the housing in a condition that provides normal use throughout the period of rent. In the event of dispute, tenants are provided with legal protection.

– Since 1994, housing legislation has provided tenants of denationalised housing with the possibility of resolving their housing issue themselves. Thereby, they have three different possibilities: they could either purchase the dwellings in which they reside or any other housing on the market or build a house if they are financially capable of doing this on the basis of non-refundable means provided by the state and provision of favourable loans. Based on the above initiatives, about 50% of tenants living in denationalised housing have resolved their housing issues.

– Applications to vacate denationalised housing and to purchase the same or other housing on the market are still being submitted to the competent ministry. Applications are currently being processed at the ministry so that every day, there are less cases of this type. In the last two years, about 150 applications have been favourably resolved.

– A professional service has been established at the competent ministry with a view to offering the necessary assistance to tenants. Anyone may contact the ministry in writing, by phone or in person if an acute problem occurs.

– The responsible minister adopted rules according to which tenants in denationalised housing may make a request for the award of another non-profit rental housing units if they wish to leave their current denationalised housing units for whatever reasons.

– In the event that the owner of denationalised dwelling does not maintain denationalised dwellings in accordance with the standards prescribed, the tenant has the right to refer directly to the housing inspectorate, which by a decision requests that the owner eliminates all deficiencies. If the owner does not eliminate deficiencies within a certain period of time, the deficiencies shall be eliminated by the municipality at the expense of the owner. In such cases, professional services, in particular, are engaged in solving any potential problems.

21. As regards safeguarding families’ rights to social, legal and economic protection including families’ right to adequate housing, the state has formulated a housing policy aimed at:

– families who themselves wish to solve housing issues (purchase, building, renovation, etc.), for which non-refundable means, for eight years from the purchase or issuance of the construction permit, are offered;

– families or individuals who decide to solve their housing issues by renting non-profit dwellings (and normally do not have enough income for building or purchasing their own dwellings) can apply for non-profit rental housing is offered by local authorities (municipalities, housing funds, non-profit housing organisations). Families and individuals who do not exceed the income and property threshold, which is relatively favourable, have a right to these dwellings;

– individuals and families that have solved their housing issues by renting dwellings at the market rate because non-profit housing units are not available. Since 1 January 2009, these have been entitled to subsidies for paying market rental rates, provided that they do not exceed a certain income threshold so that they are on the same footing as tenants of non-profit housing.

22. Slovenia is duly aware of its obligations pertaining from ratification of European Social Charter and the Additional Protocol and is investing great efforts in finding appropriate means that would enable it to be in conformity with the Charter.

23. With the respect to this collective complaint, we would like to point out that the Government of the Republic of Slovenia has carefully reviewed the conclusions of the European Committee for Social Rights. Therefore, various possible ways to tackle the concerns of former holders of Housing Right that are living in denationalised dwellings are under consideration. Some of them are within jurisdiction of the Ministry for Environment and Spatial Planning and others have a much broader (mainly financial) effect.

24. Because of the decision taken in connection with the collective complaint, we have started to amend the rules governing the award of non-profit rental housing. The rules are under negotiations and will be adopted within the shortest possible time. Proposed amendments to the rules are prepared in such a way that tenants of denationalised housing who wish (for whatever reason) to obtain other rental housing, should be awarded housing considerably faster. Namely, according to the proposed rules, they are classified in the category of applicants who are placed on the priority list among applicants for non-profit rental housing. In this way, non-profit rental housing owned by municipalities, housing funds, non-profit housing organisations and the state will be provided considerably more quickly than before.

In addition, a new housing policy is being formulated by the Slovenian Government for the 2012-2021 period through the National Housing Programme with a view to speeding up the process of acquiring non-profit housing. Professional support for the new Housing Programme is provided by the Housing Council, consisting of representatives of relevant ministries, experts in housing and representatives of non-governmental organisations, including a representative of tenants of denationalised dwellings. This expert group will establish guidelines for the formulation of a long-term housing policy. Housing legislation will be adjusted accordingly immediately after the National Housing Programme has been adopted.

25. In the short term, a high-level interministerial group is to be established with the aim to thoroughly analyse the existing situation of tenants in denationalised dwellings and, if deemed necessary, to identify the additional measures required to treat the tenants in denationalised dwellings in line with the provisions of the European Social Charter. Namely, Slovenia is well aware of the importance and sensitivity of the issue in question and will therefore consider also new possibilities to address the concerns of the tenants more effectively.

26. In the future, we will continue to make all efforts to provide all available assistance to vulnerable population groups and individuals in seeking satisfactory solutions, with both legal advice and better information on possible methods of solving housing issues (free legal assistance, assistance in completing the forms for calls for applications for the award of non-profit rental housing and assistance in completing the forms for obtaining subsidised rents, legislation interpretation and expert advice to individuals).

With regard to the fact that vulnerable population groups are most often threatened by serious social exclusion, we will continue to seek solutions to prevent their homelessness, while also providing solutions for a more permanent resolution of housing issues. This will be addressed in the new National Housing Programme.

27. Finally, it is to be recalled that Slovenia firmly believes that the European Social Charter contributes considerably to the promotion of social rights and that the mechanism of collective complaints plays an important role in their effective implementation. In this context, the Slovenian Government will continue to regularly report on the implementation of the provisions of the European Social Charter and to consider the conclusions adopted by the European Committee of Social Rights thoroughly when adopting new measures aimed at promoting social rights.

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