[New search]
[Contents list]
[Printable RTF version]
[Help]
FOURTH
SECTION
CASE OF SALUS v. SLOVAKIA
(Application
no. 28697/03)
JUDGMENT
STRASBOURG
3
November 2009
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 Salus 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,
Mihai
Poalelungi,
Nebojša Vučinić,
judges,
and Lawrence Early,
Section Registrar,
Having
deliberated in private on 13 October 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 28697/03) 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 Slovakian national, Mr
Štefan Salus (“the applicant”), on 28 August
2003.
- The
applicant was represented by Ms Z. Môciková,
a lawyer practising in Bratislava. The Government of the Slovak
Republic (“the Government”) were represented by
their Agent, Mrs M. Pirošíková.
- The
applicant alleged that his rights under Article 1 of Protocol No. 1
had been violated as a result of the compulsory letting of his land
and its scheduled transfer to the tenants under Law no. 64/1997.
- On
6 June 2006 the President of the Fourth Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1952 and lives in Bratislava.
- The
applicant's family owned a plot of agricultural land located in the
Prešov area. At the beginning of the 1960s the State put
the land at the disposal of an agricultural cooperative. The
applicant's family remained the owners of the land in name (nuda
proprietas).
- In
1964 the right to use the land was conferred on the Slovakian Union
of Fruiterers and Gardeners. The area where the plot is located was
turned into a “garden community” consisting of individual
gardens which were put at the disposal of third parties, members of
the above Union (“gardeners”).
- On
14 January 2000 the gardeners requested under section 7(1) of Law no.
64/1997 that the ownership relationship in respect of their gardens
be settled by the Prešov District Office in a land
consolidation procedure under section 7(4) of that Act.
- On
10 January 2002 the District Office made a formal announcement under
section 18(1) of Law no. 64/1997 of the commencement of the land
consolidation procedure under section 7(4) of the Act. The
announcement contained a register of the original ownership and a
surveyor's plan concerning the current state of the land (“the
preliminary inventory”).
- Three
land owners objected to the preliminary inventory. The applicant's
legal predecessor, Ms J. Salusová,
objected that she did not own one of the
plots concerned. On 17 June 2002 the District Office dismissed the
objection, as the propriety certificate clearly indicated that she
co-owned the relevant plot.
- On
3 October 2002 the District Office approved the preliminary inventory
under section 9(4) of Law no. 64/1997.
- On
27 October 2002 Ms J. Salusová
died.
On 20 May 2003 a notary
authorised by a court confirmed that the applicant had inherited a
share in Ms J. Salusová's land used by the
gardeners.
- On
13 February 2003 the applicant complained to the Constitutional Court
that Law no. 64/1997 ran contrary to his constitutional right to own
property. On 28 February 2003 a constitutional judge informed the
applicant that individuals lack standing to initiate proceedings
concerning conflict of laws.
- In
a letter of 21 March 2003 the District Office invited the applicant
under section 10(1) of Law no. 64/1997 to state whether he preferred
to be compensated by being granted a substitute plot or paid an
amount of money in lieu in respect of his title to the plot. The
letter contained a list of specific plots that the administrator of
the State's real property, the Slovak Real Estate Fund, had proposed
as possible substitute plots in the applicant's case. In response, on
9 May 2003, the applicant rejected the proposed plots.
- On
5 August 2003 the District Office decided on the compensation for the
landowners. The decision was not subject to appeal. It was envisaged
that the gardeners would subsequently acquire title to their gardens.
- On
27 January 2004 public prosecutor lodged an objection and proposed
that the administrative authority quash its decision on the matter of
compensation, since one of the landowners had been omitted from the
procedure. On 26 February 2004 the District Land Office in Prešov
granted the objection. Subsequently it took further steps with
a view to eliminating shortcomings in the procedure.
- On
10 April 2006 the Slovak Real Estate Fund proposed new substitute
lands as the release of the former substitute lands was suspended.
- On
3 July 2007 two other heirs of Ms J. Salusová
asserted their right in respect of their predecessor's land.
On 18 September 2007 they informed the
administrative authority that they did not accept the substitute land
offered to them.
- On
4 December 2008 the District Land Office delivered a new decision on
compensation under sections 10(3)(a) and 11 of Law no. 64/1997. It
indicates that the applicant is to receive 423.72 euros (EUR) for
1,702 square metres of land owned by him. That amount corresponds to
EUR 0.249 per square metre.
- The
plots in issue have been entered in land register as arable land and
grass-grown land. They were originally outside the town's built-up
area. The Prešov municipality's
zoning plan approved on 30 January 2008 indicates that the area
including the applicant's land now falls within a zone designated for
family housing. The relevant entry in the register was amended and
indicates that the plots are within the built-up area of Prešov.
- On
5 April 2009 the Forensic Engineering Institute in Zilina,
at the Government's request, made
a valuation of the applicant's land used by the
gardeners. The opinion states, inter alia, that the land is
situated within the constructible area of the town of Prešov,
which is the seat of regional authorities and institutions. It
is located some two kilometres from the bus and railway station.
There is a fifteen metre-wide protection zone on the land along an
aerial high-voltage line. Part of the land is situated on a steep
slope.
- The
experts noted that four gardens in the area had been put up for sale
at prices of between EUR 24.22 and EUR 39.25 per square metre.
However, the price included also the gardeners' investments, such as
huts, vegetation and other facilities. The institution concluded that
the market value of the land was EUR 7.67 per square metre and its
rental value EUR 0.532 per square metre a year.
- The
applicant disagreed with that valuation as it did not reflect the
actual value of his land. In particular, he objected that only one
method had been used. The experts had failed to take into account his
land's development potential in view of the existing zoning plan. A
contract submitted by the applicant indicates that on 27 August 2008
he and other co-owners had sold different land situated in the
vicinity of that which the gardeners use, for the equivalent of EUR
33.19 per square metre. Finally, the applicant argued that the aerial
power line had been erected without the consent of the landowners. It
could not be ruled out that the line would be removed in the near
future.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- The
relevant domestic law and practice and the general background to
consolidation of land used by garden communities are set out in
Urbárska obec Trenčianske Biskupice v. Slovakia,
no. 74258/01, §§ 7-13 and 40-80, ECHR 2007 ...
(extracts) – “Urbárska obec”).
- As
from 1 November 2004, after Regulation 465/1991 had been repealed
(see Urbárska obec, cited above, § 64), sections
4(1) and 11(2) of Law no. 64/1997 have provided for the value of the
land in the allotments to be determined in accordance with a special
law. In particular, section 4(1) has fixed the rent at 10% of its
value thus determined. Reference is made to the Land Consolidation
Act 1991, as amended. Section 43(2) of that Act empowers the Ministry
of Agriculture to issue a binding regulation in that respect.
- Such
regulation was enacted with effect from 15 February 2005 (Regulation
38/2005). In it valuation is based on a scheme of “quality
pedo-ecological units” (bonitované pôdno-ekologické
jednotky) categorising agricultural land and other areas
in Slovakia. Section 1(5) provides that such valuation is applicable
also to gardens located outside a municipality's constructed area.
The scheme provides for value of agricultural land within a range
from EUR 0.0216 to EUR 0.402 (Annex 1). Pursuant to Annex 5, the
value of a particular plot is determined by multiplying the unitary
value as set out in Annex 1 by its surface area.
- In
addition, the following legal provisions and practice are relevant in
the present case.
- Article
152 § 4 of the Constitution provides that constitutional laws,
laws and other generally binding legal regulations are to be
interpreted and applied in conformity with the Constitution.
- Pursuant
to Article 154c § 1 of the Constitution, international treaties
on human rights and fundamental freedoms which the Slovak Republic
has ratified and which have been promulgated in the manner laid down
by a law prior to the entry into force of Constitutional Act 90/2001
on 1 July 2001 form a part of its legal order and have precedence
over laws where they provide for a broader array of constitutional
rights and freedoms.
- In
judgment I. ÚS 36/02 delivered on 30
April 2003 the Constitutional Court, with reference to Articles 152 §
4 and 154c § 1 of the Constitution, held that the Convention and
the case-law of its bodies represent binding guidelines for national
authorities on interpretation and implementation of legal provisions
with a bearing on fundamental rights and freedoms. The Convention and
the case-law of its organs thus set a framework which the national
authorities cannot overstep when dealing with a case. The same view
was expressed in its judgment I. ÚS 239/04
of 26 October 2005.
- On
15 October 2003 the Constitutional Court delivered a judgment in
proceedings III. ÚS 138/03. The case concerned alleged flaws
in proceedings on implementation of a consolidation project under Law
no. 64/1997. In particular, the plaintiff complained that by its
decision to discontinue the proceedings concerning lawfulness of the
administrative authorities' decisions a court had breached his rights
to judicial protection and to own property.
- The
Constitutional Court granted the complaint considering that the court
should have dealt with the merits of the case. It returned the case
to the ordinary court for further proceedings.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1
- The
applicant complained that the compulsory letting of his plot of land
and its transfer to the tenants under Law no. 64/1997 were contrary
to Article 1 of Protocol No. 1, which reads as follows:
“Every natural or legal person is entitled to the
peaceful enjoyment of his possessions. No one shall be deprived of
his possessions except in the public interest and subject to the
conditions provided for by law and by the general principles of
international law.
The preceding provisions shall not, however, in any way
impair the right of a State to enforce such laws as it deems
necessary to control the use of property in accordance with the
general interest or to secure the payment of taxes or other
contributions or penalties.”
- The
Government contested that argument.
A. Admissibility
- The
Government objected that the applicant had not exhausted domestic
remedies as required by Article 35 § 1 of the Convention.
- Firstly,
neither the applicant's legal predecessor nor the applicant had
sought judicial review of the decisions delivered in the proceedings
under Law no. 64/1997. It was further open to the applicant to seek
redress in respect of those decisions before the Constitutional
Court. Similarly, the applicant had not been shown to have sought
redress before a court as regards the lease of his land to the
gardeners.
- Secondly,
the proceedings concerning the transfer of land had not yet been
concluded with final effect. With reference to Article 154c § 1
of the Constitution the Government maintained that the domestic
authorities, when determining the outstanding issues, were bound to
have regard to the relevant part of the Court's judgment in Urbárska
obec, cited above, concluding
that the application of the relevant law had been in breach of
the guarantees of Article 1 of Protocol No. 1. A Slovak translation
of that judgment had been published in the law journal Judicial
Review in April 2008; it had been
also distributed to administrative authorities, ordinary courts and
the Constitutional Court.
- Finally,
and to the extent that the applicant challenged Law no. 64/1997 as
such, the Government were of the opinion that the application had
been submitted outside the six-month time-limit laid down in
Article 35 § 1 of the Convention. In their view that
time-limit had started running on 26 March 1997, when that piece of
legislation had taken effect.
- The
applicant disagreed with the Government. In his particular case the
administrative authority, on 4 December 2008, decided on compensation
for the landowners under the relevant provisions of Law no. 64/1997,
notwithstanding that the Court's judgment on the merits in Urbárska
obec had been delivered on 27 November 2007.
- The
Court notes that, as in Urbárska obec, the
applicant in the present case exclusively complains of the effects of
the application of Law no. 64/1997. He had no directly accessible
remedy at his disposal permitting determination of that aspect of the
case (see Urbárska obec, cited above, §§ 85-88).
- As
to the argument that the domestic authorities are bound to apply the
principles which the Court set out in Urbárska obec, it
has been noted that such was not the case as regards the above
decision of 4 December 2008 on compensation payable to the applicant
and the other landowners. Furthermore, the assessment of whether
domestic remedies have been exhausted is normally carried out with
reference to the date on which the application was lodged with the
Court (see Baumann v. France, no. 33592/96, § 47, ECHR
2001-V, and Babylonová v. Slovakia, no. 69146/01, §
44, ECHR 2006-...). The Court does not see any particular
circumstances justifying a departure from the above general rule (see
also Pralica v. Bosnia and Herzegovina, no. 38945/05, §§
13-14, 27 January 2009).
- While
it is true that the land consolidation proceedings have not yet
formally ended, the Court notes that the issues relevant to
determination of the applicant's complaints, namely the nature and
scope of compensation to which he is entitled, have been determined
in particular by the decision of 4 December 2008. The remaining
stage of the procedure exclusively concerns the practical
implementation of the consolidation proceedings under sections 15-17
of Act 64/1997. It cannot affect the position in the case, since
issues such as adequacy and form of compensation can no longer be
addressed at that stage.
- Finally,
as regards the argument that the application was lodged outside the
six-month time-limit, the Court dismissed that objection in Urbárska
obec (§§ 92-93). It finds no reason to reach a
different conclusion in the present case. Furthermore, the
applicant's predecessor died in 2002 and a notary's certificate
confirming his entitlement to the relevant land was established on 20
May 2003, which is less than six months before the introduction of
the application on 28 August 2003.
- The
Government's objections must therefore be dismissed.
- The
Court notes that the application is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. Arguments of the parties
- The
applicant, with reference to the compulsory lease and the land
consolidation procedure under Law no. 64/1997, maintained that his
rights under Article 1 of Protocol No. 1 had been infringed. He
pointed out, in particular, that the rent and compensation for his
land which he was entitled to obtain under Law no. 64/1997 were
disproportionately low as they were determined in disregard of its
actual value.
- The
Government contested that argument, mainly for reasons similar to
those which they had submitted to the Court in Urbárska
obec (§§ 103-111 and 137).
2. The Court's assessment
(a) As regards the transfer of ownership
- The Court reiterates that Article 1 of Protocol No. 1
does not guarantee a right to full compensation in all
circumstances. What Article 1 of Protocol No. 1 requires is that
the amount of compensation granted for property taken by the State be
“reasonably related” to its value. It is not for the
Court to say in the abstract what a “reasonable” level of
compensation would be in a given case (see also Broniowski v.
Poland [GC], no. 31443/96, §§ 176 and 186, ECHR
2004 V). However, in similar matters there is a direct link
between the importance or compelling nature of the public interest
pursued and the compensation which should be provided in order for
the guarantees of Article 1 of Protocol No. 1 to be complied with
(see Urbárska obec, cited above, § 126).
- In
Broniowski (cited above, §§ 186-187) the applicant's
family had received a mere 2% of the compensation due under the
legislation as applicable before the entry into force of Protocol No.
1 in respect of Poland. The Court concluded that the applicant had
had to bear a disproportionate and excessive burden which could not
be justified in terms of the legitimate general community interest
pursued by the authorities (judgment on the merits quoted above, §§
186-187). Subsequently the Court approved a friendly settlement
according to which the Government had undertaken to pay 20% of the
agreed notional value of the applicant's property, noting that it did
not preclude the applicant from seeking and recovering further
compensation in the future in so far as this was allowed under
domestic law (see Broniowski v. Poland (friendly settlement)
[GC], no. 31443/96, § 43, ECHR 2005 IX).
- In
Urbárska obec (cited above, §§ 117-133) the
Court found that there had been a violation of Article 1 of Protocol
No. 1 on account of the transfer of ownership of the applicant's
land. In particular, the declared public interest in pursuing the
relevant proceedings was not sufficiently broad and compelling to
justify the substantial difference between the real value of the
applicant's land and that of the land which it had obtained in
compensation. The effects produced by application of Law no. 64/1997
to that case had thus failed to strike a fair balance between the
interests at stake.
- In
that case the value of the land which the applicant had received
corresponded to approximately one-third of the general value of the
land which had been transferred to the gardeners. The Court took into
account that the applicant had received only 1.4097 hectares of land
in compensation for the 2.5711 hectares of its land. Apart from the
difference in surface area and the general value of the property, the
Court also noted that the land transferred to the tenants had
considerable development potential, which the land given to the
applicant did not possess.
- In
the present case the applicant is entitled to compensation amounting
to EUR 0.249 per square metre of land. According to the expert
opinion submitted by the Government the current market value of that
land is EUR 7.67 per square metre. The applicant contested that
valuation and argued that the actual value of his land was no less
than EUR 26.56 per square metre.
- Whatever
the position, the Court finds relevant that the pecuniary
compensation to which the applicant has a right under Law no. 64/1997
represents only 3.25% of the actual value of his land, as
acknowledged by the Government. That ratio would be even smaller if
the value of the land was higher, as the applicant alleged. The Court
sees no ground for such a low level of compensation.
- For
reasons similar to those expressed in Urbárska obec (§§
116-133) the Court finds that the effects produced by the application
of Law no. 64/1997 to the present case failed to strike a fair
balance between the interests at stake. The above considerations are
sufficient for the Court to conclude that the applicant has to bear a
disproportionate burden, contrary to his right to peaceful enjoyment
of its possessions.
- There
has therefore been a violation of Article 1 of Protocol No. 1 on
account of the land consolidation procedure under Law no. 64/1997.
(b) As regards the compulsory lease
- In
Urbárska obec (§§ 142-146) the Court held
that the applicant had received particularly low compensation for
letting out its land to the gardeners. It discerned no demands of the
general interest sufficiently strong to justify such a low level of
rent, bearing no relation to the actual value of the land. It
therefore concluded that the compulsory letting of the land of the
applicant association on the basis of the rental terms set out in the
applicable statutory provisions was incompatible with the applicant
association's right under Article 1 of Protocol No. 1 to peaceful
enjoyment of its possessions.
- The
expert opinion submitted by the Government indicates that the actual
rental value of the applicant's land is EUR 0.532 per square metre a
year (see paragraph 22 above). The applicant argued that the market
value of his land and, accordingly also its rental value, was higher.
- Section
4(1) of Law no. 64/1997, as in force until 31 October 2004, entitled
the applicant to a lease equal to 10% of the value of his land,
determined in accordance with Regulation 465/1991, the minimum amount
being SKK 0.3 (equivalent to EUR 0.01 - see Urbárska obec,
cited above, § 65).
- From
15 February 2005 until at least 30 January 2008 (when the land was
re-classified as being within the town's built-up area), the rent due
represented 10% of the value of the land as determined on the basis
of Regulation 38/2005.
- For
the purpose of determination of the point in issue the Court finds
relevant that Regulation 465/1991 provided for valuation of arable
land within a scale between EUR 0.017 and EUR 0.4 and Regulation
38/2005 provides for valuation of such land within a similar range,
namely from EUR 0.0216 and EUR 0.402 per square metre.
- Even
assuming that the applicant's land was classified within the highest
category for the purpose of the above regulations, namely EUR 0.4 per
square metre, the rent due would be EUR 0.04 per square metre. That
amount represents some 7-8% of the market rental value, as
acknowledged by the Government. There is thus no indication that
the market value of the land has been taken into account for the
purpose of determination of the rent.
- The
Court has considered that, due to gradual increase in the value of
real property in Slovakia, the above ratio has not been the same
throughout the period during which Law no. 64/1997 has governed the
rent of the applicant's land. It nevertheless finds that, similarly
as in Urbárska obec Trenčianske
Biskupice, the rent to which the
applicant was entitled during the above period bears no reasonable
relation to the market value of her land. It sees no justification
for such a discrepancy.
- The
foregoing considerations are sufficient to enable the Court to
conclude that the compulsory letting of the applicant's land on the
basis of Law no. 64/1997 has been contrary to his right to peaceful
enjoyment of his possessions.
There
has accordingly been also a violation of Article 1 of Protocol No. 1
on that ground.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- 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
- The
applicant claimed EUR 135,564 in respect of pecuniary damage relating
to the land consolidation under Law no. 64/1997. That claim concerned
5,106 square metres of land, the market value of which he considered
to be EUR 26.56 per square metre.
He
further claimed EUR 13,278 in respect of non-pecuniary damage.
- The
Government contested the sums claimed by the applicant.
- In
the present case the decision of 4 December 2008 (see paragraph 19
above) indicates that 1,702 square metres of land owned by the
applicant are subject to transfer to gardeners in the consolidation
procedure under Act 64/1997. Under the applicable statutory
provisions the applicant is entitled to EUR 423.72 for his land.
- The
parties' views as regards the value of the applicant's land differed
substantially (see paragraphs 21-23 above). The Court notes that,
unlike the Government, the applicant submitted no valuation of the
land established by an expert valuer.
- However,
it attaches a certain weight to the applicant's argument that he had
sold a plot in the vicinity of the gardeners' community for EUR 33.19
in 2008 and that the land in issue had a development potential as it
had been included in a zone designed for construction of residential
family homes. It has also been noted that plots of land in the area
have been put at sale at a price between EUR 24.22 and EUR 39.25 per
square metre, it being understood that the price also included
gardeners' property such as huts and vegetation. On the other
hand, the existence of a zone for protection of an aerial
high-voltage line undoubtedly has some effect on the value of part of
the land.
- The
Court further reiterates that, 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).
- Having
regard to the documents before it and in view of the above
considerations, the Court awards the applicant EUR 15,000 in respect
of pecuniary damage.
- It
further considers that the applicant must have suffered non-pecuniary
damage as a result of the violation found. Deciding on an equitable
basis, the Court awards the applicant EUR 2,000 under that head.
B. Costs and expenses
- The
applicant submitted no claim for costs and expenses. The Court is
therefore not called to make any award in this respect.
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
- Declares the application admissible;
- Holds that there has been a violation of Article
1 of Protocol No. 1 to the Convention on account of both the
compulsory lease of the applicant's land and the consolidation
procedure under Law no. 64/1997;
- 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, EUR 15,000
(fifteen thousand euros), plus any tax that may be chargeable, in
respect of pecuniary damage and EUR 2,000 (two thousand euros), plus
any tax that may be chargeable, in respect of non-pecuniary damage;
(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 3 November 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President
