[New search]
[Contents list]
[Printable RTF version]
[Help]
FOURTH
SECTION
CASE OF KANALA v. SLOVAKIA
(Application
no. 57239/00)
JUDGMENT
(Just
satisfaction)
STRASBOURG
14
October 2008
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Kanala v. Slovakia,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza, President,
Lech
Garlicki,
Giovanni Bonello,
Ljiljana
Mijović,
Ján Šikuta,
Päivi
Hirvelä,
Ledi Bianku, judges,
and
Lawrence Early, Section
Registrar,
Having
deliberated in private on 23 September 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 57239/00) against the Slovak
Republic lodged with the Court under Article 34 of the Convention for
the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Slovak national, Mr Ivan Kanala (“the
applicant”), on 6 March 2000.
- In
a judgment delivered on 10 July 2007 (“the principal
judgment”), the Court held that there had been a violation of
Article 1 of Protocol No. 1 to the Convention.
- Under
Article 41 of the Convention the applicant sought just satisfaction
for pecuniary and non-pecuniary damage and costs.
- Since
the question of the application of Article 41 of the Convention was
not ready for decision, the Court reserved it and invited the
Government and the applicant to submit, within three months from the
date on which the judgment became final in accordance with Article 44
§ 2 of the Convention, their written observations on that issue
and, in particular, to notify the Court of any agreement they might
reach.
- The
principal judgment became final on 30 January 2008.
- The
applicant and the Government each filed observations on the
outstanding issue.
THE LAW
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
1. The parties' submissions
a) The applicant
- In
respect of pecuniary damage the applicant claimed 1,422,497 Slovakian
korunas (SKK), which was the equivalent of approximately 47,000 euros
(EUR), plus default interest. That sum comprised SKK 1,157,497
corresponding to the applicant's investments in the property minus
the proceeds of its sale to the co-owner. It also comprised SKK
265,000 which his brother had paid to the executions officer on
behalf of the applicant.
- In
support of his claim the applicant argued, in particular, that he had
bought the real property for 560,000 then Czechoslovak korunas (CZK)
in 1991 and that an expert had valued it at CZK 656,679 in 1992. The
applicant had subsequently invested substantial amounts in
reconstruction of the property which had been partly financed by a
bank loan. The bank had reimbursed to the applicant the relevant
amounts thus accepting that they had been used for the purpose of
reconstruction. The remark, in the execution officer's file,
according to which the applicant had not used the loan for
reconstruction, was unsubstantiated.
- The
applicant also referred to the general increase in value of real
property in Slovakia, the price for which
other real property located in RoZňava had
been sold and the opinion which an expert had elaborated, at his
request, on 5 May 2006.
- The
applicant further claimed SKK 5,000,000 in respect of non-pecuniary
damage.
b) The Government
- The
Government argued that the applicant's share in the property had not
been sold under its actual value. The sale had been based on a
valuation made by an expert on 23 November 1998 in accordance with
the relevant regulation. The creditor bank had not objected to that
valuation. The other opinions on which the applicant relied had
been prepared at his request and the Government considered the
valuation of the property in them overstated.
- It
was further relevant that the applicant had owned only one half of
the real property in issue, and that a bank official had indicated in
the course of the execution proceedings that the applicant had not
used the loan obtained for reconstruction of the property. The amount
which the applicant's brother had transferred to the executions
officer had been used to recover different debts of the applicant.
Its payment was therefore not related to the subject-matter of the
present application. The Government concluded that there was no link
between the pecuniary damage claimed and the violation of Article 1
of Protocol No. 1 found by the Court.
- As
to the claim related to damage of a non-pecuniary nature, the
Government pointed out that the property at issue had to be sold as
the applicant had failed to pay his debts. His claim under this head
was overstated in the circumstances of the case.
2. The Court's assessment
a) Relevant principles
- The
Court recalls that, where it has found a breach of the Convention in
a judgment, the respondent State is under a legal obligation to put
an end to that breach and make reparation for its consequences. If
national law does not allow – or allows only partial –
reparation to be made, Article 41 empowers the Court to afford the
injured party such satisfaction as appears to it to be appropriate.
The Court enjoys a certain discretion in the exercise of that power.
In particular, if one or more heads of damage cannot be calculated
precisely or if the distinction between pecuniary and non-pecuniary
damage proves difficult, the Court may decide to make a global
assessment.
- As regards pecuniary damage, where the failure to
strike a fair balance between the public interest and the
individual's rights, rather than illegality, was the basis of the
violation found, just satisfaction must not necessarily reflect the
idea of wiping out all the consequences of the interference in
question and compensation need not always equal the full value of the
property (for recapitulation of the Court's practice see, for
example, Todorova and Others v. Bulgaria (just satisfaction),
nos.
48380/99, 51362/99, 60036/00 and 73465/01, §§ 7-10,
24 April 2008, with further references).
b) Application of the relevant principles to the
present case
- In
the principal judgment the Court found that, by permitting the
co-owner to acquire the applicant's share in the property at a price
which had been determined in disregard of its market value the
domestic authorities had deprived the applicant of a reasonable
chance of having the property sold at its actual value and
reimbursing a greater tranche of his debts. In particular, no
apparent public interest justification had been established for such
a transaction to have been permitted by the domestic law at the time
in disregard of the actual value of the property and hence of the
applicant's and the creditor's legitimate interests. The Court
concluded that a “fair balance” had
not been struck between the demands of the public interest and
the requirements of the protection of the applicant's rights (for
further details see paragraphs 60-65 of the principal judgment).
- In
an opinion prepared at the Government's request on 20 March 2006 an
expert found that the general value of the whole property had been
SKK 518,047 at the relevant time. The fact that the property had been
co-owned by two persons could have affected its value. At that time
similar real property had been sold at a price between SKK 500,000
and 550,000 (paragraph 26 of the principal judgment).
- On
5 May 2006 a different expert, in an opinion elaborated at the
applicant's request, concluded that the general value of the property
in issue had been SKK 1,758,727 in December 1998. On 9 April 2006 it
amounted to SKK 2,451,179 (see paragraph 27 of the principal
judgment).
- The
Court takes note of the considerable difference between the two
valuations. It accepts that the actual value of the property was
likely to be affected by the fact that the other half of it was owned
by a different person. It also notes that the sum claimed by the
applicant which his brother had paid to the executions officer had
been transferred to the applicant's creditors with a view to paying
off the latter's various debts unrelated to the subject-matter of the
present application. The applicant's brother had subsequently claimed
that sum before the Slovakian courts (see paragraph 25 of the
principal judgment).
- It
is not for the Court to speculate as to the price at which the
property would have been sold at a public auction had the co-owner
not made use of his pre-emption right. However, in view of the
conclusion reached in the principal judgment the Court considers the
applicant to have suffered a loss of real opportunities (see also
Krčmář and Others v. the Czech Republic,
no. 35376/97, § 50, 3 March 2000, with further
references).
- Having
regard to the nature of the breach found and the relevant
circumstances as established on the basis of the documents before it,
the Court, making its assessment on an equitable basis as required by
Article 41, awards the lump sum of EUR 15,000 to the applicant, in
respect of all heads of damage taken together.
B. Costs and expenses
- The
applicant, whose representative had been paid EUR 886 under the
legal-aid scheme of the Council of Europe, originally claimed SKK
184,728 plus value-added tax in reimbursement of the fees of his
attorney. On 30 April 2008 he submitted an additional claim for SKK
80,000 for the fees of his attorney during the period subsequent to
11 April 2006. On 15 June 2008 the applicant additionally claimed (i)
SKK 11,581.90 which he had paid for the expert opinion submitted on 5
May 2006 and (ii) SKK 15,000 as remuneration for additional
assistance provided by his attorney.
- The
Government objected, with reference to the documents submitted by the
applicant, that the amount claimed was excessive. It comprised sums
which were unrelated to the subject-matter of the present
application.
- According
to the Court's case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and are
reasonable as to quantum (see Iatridis v. Greece (just
satisfaction) [GC], no. 31107/96, § 54, ECHR 2000-XI).
- Having
regard to the materials in its possession, and also taking into
consideration the fact that a part of the application was declared
inadmissible (see paragraph 4 of the principal judgment), the Court
considers it reasonable to award the applicant EUR 6,000, less the
EUR 886 received by way of legal aid from the Council of Europe. It
thus awards EUR 5,114 for the costs and expenses.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following
amounts (to be converted into Slovakian korunas at the rate
applicable at the date of settlement in case the payment is made
prior to 1 January 2009):
(i) EUR
15,000 (fifteen thousand euros), plus any tax that may be chargeable,
in respect of pecuniary and non-pecuniary damage;
(ii) EUR
5,114 (five thousand one hundred and fourteen euros), plus any tax
that may be chargeable to the applicant, in respect of costs and
expenses;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 14 October 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President
